PONNAMMAL Vs. PICHAI THEVAN

JUDGEMENT

(1.) The suit was originally filed by two plaintiffs, a brother and sister, and in the plaint it was stated that a decree may be given in favour of the 1 plaintiff who is the only person interested in the amount. The Court below dismissed the plaintiffs suit.

(2.) The second appeal has been filed only by the 2nd plaintiff, the 1 plaintiff being made the 1 respondent. It is explained that the vakalat of the 1 plaintiff was not ready and so he had to be made a respondent and not that he does not want a decree. I directed that the 1st plaintiff should be transposed as an additional appellant. It is then objected by the respondents that the appeal is out of time. Apart from the consideration that where a party is transposed no question of limitation arises, it seems to me that the 2nd plaintiff only is competent to carry on the second appeal. Though ultimately the 1 plaintiff is the person interested in the transaction, as the 2nd plaintiff conducted most of them as his agent sometimes not disclosing the principal, I think she is competent to sue and, if she succeeds, to hand over the benefit to the 1 plaintiff. The appeal is therefore maintainable.

(3.) To deal with the merits I would state the facts. The suit is to recover Rs. 2,207-14-6 claiming to make it a charge on two items of property. These items belonged to the 1st defendant, defendants 2 and 3 being his sons and the 4 being his grandson. The 2nd plaintiff entered into an agreement with the 1 defendant to purchase two items for Rs. 3,000. In pursuance of this agreement she paid off a prior encumbrance on 22nd September, 1912 to one Ramayya Bhagavathar who held a mortgage under a deed dated 12 August, 1909 for Rs. 600 over both the said items. The amount paid was Rs. 775. It is also found that she paid another amount of Rs. 225 to the 1 defendant. But the plaintiffs never paid the balance of the consideration amount and the sale fell through. To pay off the above mentioned Rs. 1,000 the plaintiffs borrowed from one Suppa Pandithan. Suppa Pandithan afterwards filed a suit against the plaintiffs and defendants 1 to 4 to recover the amount of Rs. 1,000 with interest and he claimed a charge on the suit properties. That suit was O.S. No. 195 of 1914 on the file of the District Munsif's Court of Melur. It ended in a decree against the present plaintiffs only and the present plaintiffs had to pay off that amount to Suppa Pandithan. They now sue to pay off that amount with interest from defendants 1 to 4 who had the benefit of the payment. The first item was sold to the 10 defendant in 1916 and the second item to the 5 defendant on 23 February, 1917. The Courts below finding that the 2nd plaintiff who was unable to find the money after the return of the 1 plaintiff from Rangoon in about February 1913 told the 1 defendant that she had no money and consequently she did not want to purchase the land, held that the suit is barred by limitation and that the plaintiffs are not entitled to a charge.