SWAMI KONE Vs. SANKARAVADIA

JUDGEMENT

(1.) This appeal arises out of O.S. No. 102 of 1927 on the file of the Subordinate Judge's Court of Madura. The plaintiff (appellant) filed that suit claiming certain rights as the grandson of one Swami Kone, who died in May 1906. Swami Kone had a younger brother San-karalinga Kone, and a son Sundararaja Kone, who was the father of the plaintiff. Sundararaja died in December 1906. The suit property seems to have been purchased in 1891 in Swami Kone's name under Ex. E. For some years prior to 1908 the property seems to have been in the possession of the defendants or their predecessors-in-title. Towards the end of 1907 Sankaralinga, acting for himself and on behalf of the plaintiff and the plaintiff's deceased younger brother, sent a notice to the persons then in possession purporting to terminate their tenancy and asking for surrender of the property. As they did not give up possession, he filed O.S. No. 576 of 1908 on 16 October 1908. As the questions for decision in the present appeal arise out of what happened in that suit, it is necessary to refer in some detail to the proceedings therein.

(2.) The plaint in O.S. No. 576 of 1908 (Ex. A) shows that Sankaralinga filed that suit for himself and as next friend of his two minor grandnephews. He alleged that the suit property, though purchased in Swami Kone's name, was joint family property of himself and Swami Kone, and that himself and the two minor plaintiffs were entitled to the property and he accordingly sued for possession. During the pendency of that suit, it would appear there were differences and quarrels between Sankaralinga and the daughter-in-law of Swami Kone (i. e., the mother of the minor plaintiffs). The mother was not prepared to admit the claim made by Sankaralinga that the suit property was joint family property of Sankaralinga and Swami. She therefore came in with a petition, I. A. No. 286 of 1909, in which the prayer runs as follows: As the interest of plaintiff 1 is adverse to that of the minor plaintiffs 2 and 3, plaintiff 1 may be removed from the place of the next friend of the minor plaintiffs 2 and 3 and that the petitioner who is the mother of the said minors may be appointed as their next friend: see Ex. M.

(3.) This petition was allowed as it was not opposed. In the course of the judgment in the present suit the learned Subordinate Judge states in more than one place that the two minor plaintiffs were subsequently transposed as defendants and there is a statement to that effect also in Ex. I. But from the heading in Ex. I this is not by any means clear, because the minor plaintiffs are shown as plaintiffs still, and though their names are repeated as defendants 6 and 7 and the certified copy would include them in the bracket meant for defendants, it is not quite certain whether they were not intended to be included only as respondents to the petition. We are obliged to make this observation because the certified copy of the plaint which has been filed as Ex. A merely makes reference to the order on I. A. No. 286 of 1909 and does not refer to any further order transposing them as defendants, nor does it describe them as defendants.