SANNA GOVAPPA Vs. RODDA SANNA GOVAPPA

JUDGEMENT

(1.) The suit from which this second appeal arises was one instituted by the plaintiff, respondent 1, for the purpose of setting aside a mortgage decree obtained by defendants 2 and 3 and recovering the properties which were at the auction held in execution of such decree purchased by defendant 1. Defendant 1 is appellant 1 before us. The plaintiff's claim was that under a will of Honnappa his second widow Gangamma obtained the suit properties absolutely, that she in her turn by her will bequeathed these items of property to the plaintiff, that the mortgage suit, though it related to a mortgage made by Honnappa, proceeded making only Gangamma party defendant in the action and when after the preliminary decree was passed she died the plaintiff in that suit without making him the plaintiff in this action, as the legal representative, somehow made the senior widow defendant 4 as the legal representative and proceeded to get the decree absolute and had the property sold. The first Court held against the will under which the plaintiff claimed and dismissed the suit but the lower appellate Court has found both the wills, above referred to, to be genuine. We must, therefore, take it on those findings that at the time of the mortgage suit when Gangamma died the proper legal representative would undoubtedly have been the plaintiff. That, no doubt the lower appellate Court has found, but that clearly is not sufficient. Having regard "to the circumstances of the case and the pleadings, it is incumbent on the lower appellate Court to proceed further and find whether the estate of Gangamma was sufficiently represented by the present defendant 4 in the case and whether in making the present defendant 4 party legal representative in the mortgage suit the plaintiff acted bona fide. As the lower appellate Court had proceeded to grant a decree in favour of the plaintiff merely on the finding that he was the proper legal representative and without considering the sufficiency or otherwise of the representation of the estate of Gangamma, or with regard to the bona fides of the steps taken by the plaintiff in that suit for the purpose of procuring such representation on the record, it is clear that the lower appellate Court was wrong in proceeding to dispose of the case without adverting to these ques-tions. As the case cannot satisfactorily be disposed of without a finding with re-gard to these matters, the case will be remanded to the lower appellate Court for finding on the following issue, whether there was sufficient representation of the estate, the subject matter of the suit, by defendant 4 being brought on the record as the legal representative and whether in bringing defendant 4 on the record the plaintiff acted bona fide believing that he was the legal representative. Both parties will be at liberty to adduce such evidence oral or documentary as they may think fit. The lower appellate Court will be also at liberty to require such evidence to be taken, if deemed fit, by the trial Court. Time for the return of the fin-dings two months from the date on which records reach the lower appellate Court. Time for objection 10 days.

(2.) In compliance with the order contained in the above judgment, the Sub-Judge of Bellary submitted the following Finding-I have been directed by the High Court to submit findings on the following issue: Whether there was sufficient representa-tionof the estate, the subject matter of the suit, by defendant 4 being brought on record as legal representative and whether in bringing defendant 4 on the record plaintiff acted bona fide believing that she was the legal representative.

(3.) I am of opinion that Peramma, defendant 4 is the legal representative of her husband's estate according to the definition in Section 2 Clause (11), Civil P.C. I find that even othervise, there was sufficient representation by her of the estate, and defendant 2 acted bona fide, believing that she was the legal representative. (This second appeal coming on for hearing after return of the finding from the Subordinate Judge of Bellary on the issue referred to by this Court for trial, the Court delivered the following judgment.) Thiruvenkatachariar, J.