NATESA PADAYACHI Vs. KRISHNA PADAYACHI

JUDGEMENT

(1.) This revision petition relates to a suit brought by one of two reversioners for partition of the estate left by one Kannu Padayachi which had in the meanwhile been alienated by his widow Sundaram to a number of alienees. The suit was decreed in part and dismissed in part. The plaintiff asserted in his plaint that he and the twenty-eighth defendant were joint reversioners with equal rights. The twenty-eighth defendant in his written statement supported the plaintiff's case and asked that a decree might be given for his share of the property. There was, however, no decree granted in favour of the twenty-eighth defendant and shortly after the decree was passed he applied for a decree in his own favour. This was refused by the learned Subordinate Judge and the question whether that refusal was right or wrong is now before us in this petition.

(2.) We have been referred to two rulings which deal with a somewhat similar situation, on the earlier one of which the learned Subordinate Judge has relied in refusing the twenty-eighth defendant his request. That is reported in Adhikari Vishnumurthaiyya V/s. Authaiya . On the other hand there is a case reported in Appalanaidu V/s. Annamnaidu , in which the opposite view has been taken. The main reason in our opinion for the position in Adhikari Vishnumurthaiyya V/s. Authaiya is given at p. 156 in these words: When as in the present case plaintiff sues for his own share alone and not as representing co-owners, nothing regarding the latter's share is or can legitimately be decided.

(3.) That proposition cannot possibly apply to the present case. No doubt the plaintiff did sue for his own share and did not specifically ask that the twenty-eighth defendant's rights should be decreed in the suit. But throughout the whole of the pleadings no distinction is drawn between the plaintiff and the twenty-eighth defendant and when it came to the framing of issues we find the 5 issue framed in these words: Whether the alienations in favour of the contesting defendants are true, valid and binding on plaintiff and twenty-eighth defendant.