DAWLOO MA Vs. KARNAM CHOWDAPPA

JUDGEMENT

(1.) These two second appeals arise out of two original suits instituted, one (O.S. No. 414 of 1921) by the daughters of a deceased lady called Narasamma, and the other (O.S. No. 327 of 1921) by a son of the deceased Narasamma. The prayer in the first suit instituted by the daughters is to recover possession of the properties. The prayer in the suit brought by the son is to set aside the decree passed by the High Court in a prior second appeal and to recover his share of the properties.

(2.) The facts leading to these cases are these: The deceased Narasamma first married a Hindu and inherited certain properties from him. She subsequently married a Muhammadan and had by him three daughters who are the plaintiffs in O.S. No. 414 of 1921 and two sons, one of whom is the plaintiff in O.S. No. 327 of 1921. The reversioners to the estate of Narasamma's Hindu husband filed a suit, O.S. No. 194 of 1912, for a declaration that certain alienations alleged to have been made by her were not binding upon them. They subsequently applied to have their plaint amended by adding a prayer for possession of the properties. The amendment was allowed, and in the result the reversioners were given a decree for possession of the properties. While the appeal in the prior litigation was pending, Narasamma died. Along with Narasamma three other persons were party defendants in the prior suit. The first was her husband's eon by a prior wife, and the other two were her sons by the Muhammadan husband. Defendant No. 4 in that suit is the plaintiff in the present suit (O.S. No. 327 of 1921). On the death of Narasamma, an application seems to have been made orally to the Court by the plaintiffs to have the defendants NOS. 2 and 3 (respondents) brought on record as her legal representatives. Defendant No. 4 therein, namely, Mahboob Sahib, being then a minor, was represented by Narasamma and on her death respondent No. 2 was appointed as guardian ad litem for the said defendant No. 4 (respondent). The present suit by Mahboob Sahib is based on the main allegation that in the prior suit on the death of Narasamrna, necessary steps were not taken to bring the proper legal representatives of Narasamma, on record and that consequently, the decree and all subsequent proceedings should be taken to be null and void. In order to elucidate the circumstances in connexion with the prior proceedings, this Court called for the finding from the lower Appellate Court whether the then plaintiffs action in having continued the litigation with defendants Nos. 2 and 3 as the legal representatives of the deceased Narasamma was a bona fide act. The finding of the lower Appellate Court is this: I do not, then, see any mala fides in stating that the legal representatives were respondents NOS. 2 and 3. I find, then, on this issue that proceedings in A.S. No. 87 of 1915 were continued bona, fide against respondents Nos. 2 and 3 as legal representatives of Narasamma, but that they were not so continued as against defendant No. 4.

(3.) The learned Advocate for the appellants in this second appeal argued that the finding of the lower Appellate Court meant that there was no bona fides in the matter of having brought only some defendants on record as the legal representatives of the deceased Narasamma in the prior proceedings. We do not understand the finding in that way. The facts make it clear that there could not have existed any want of bona fides on the part of the then plaintiffs in their having done so, As already remarked, along with Narasamma, three other persona were made party defendants in the appeal. Respondents Nos. 2 and 3 were brought on as the legal representatives of the deceased Narasamma, at the request of plaintiffs (appellants) in that case. No doubt, technically respondent No. 4 also ought to have been brought on record as a legal representative and a note made in the appeal memo, accordingly. It may have been a mistake on the part of the plaintiffs. But the question to be considered now is whether any fraud or mala fida has been proved on the part of the appellants in the prior case in not having brought respondent No. 4 also as the legal representative. We questioned the learned Advocate for the appellants to suggest and reason why the appellants in the prior case should not have brought respondent No. 4 also as a legal representative and whether there could have been any reason for their not doing so. Having regard to the fact that respondent No. 2 was brought on record as a legal representative and having regard to the fact that respondent No. 3 was admittedly one of the legal representatives, we do not see any reason why we should not accept the finding of the lower Appellate Court to the effect that the prior appeal was continued bona fide against respondents Nos. 2 and 3 as legal representatives of the deceased Narasamma. The estate of the deceased Narasamma must be taken to have been properly represented in the litigation.