ADHIKARI VISHNUMURTHIAYYA Vs. AUTHAIYA

JUDGEMENT

(1.) In this case the plaintiff sued the 1st defendant, here appellant, to recover the half share of property alienated to the latter by a widow, whose husband s reversioners plaintiff and 2nd defendant are; 3 to 5 defendants are 2nd defendant s legal representatives. The lower appellate court s judgment is concerned with the validity of this alienation; and the 1st defendant has not disputed the correctness of its conclusion in plaintiff s favour before us. The appeal therefore so far as it relates to plaintiff s claim must be dismissed with costs as between him and 1st defendant.

(2.) As between 1st defendant and 3 to 5 defendants the facts are that, although the suit was brought in ejectment by plaintiff as a co-owner and 2nd defendant made no attempt to disclaim his position as a defendant, he offered in his written statement to pay the necessary court-fee in case a decree should be given him for his share, proposing apparently to follow the procedure, which is undoubtedly open to a defendant in a suit for partition of joint property; and the question is whether this procedure is open to a tenant in common, when his co-tenant has sued for possession of the common property or a part of it.

(3.) Before however dealing with this question, we refer to another argument that he took this course without objection being made to bis doing so at any stage of the litigation, that it may now be too late for his legal representatives to sue separately and that they should not be prejudiced by 1st defendant s acquiescence with the possibility that they may suffer, if 1st defendant s contention is allowed now. We are not impressed by this argument. It was open to 2nd defendant to have himself made a plaintiff and pay duty on his claim in the ordinary way. He chose at his own risk to adopt a procedure, which enabled him to postpone payment of duty, until he could tell whether it, would be worth while to pay it; and, if he was wrong in supposing that the benefit of that procedure was open to him, he risked and his legal representatives must take the consequences. But in fact 1st defendant did not acquiesce in his conduct. The suit was first tried before one District Munsif and afterwards on remand by another; and at each trial a distinct issue as to 1st defendant s right to recover was framed and decided; and, although the grounds of appeal to the lower appellate court are badly worded, we are not prepared to hold that Nos. 4 and 19 did not raise 1st defendant s present contention.