KRISHNAMURTHI NAIDU Vs. RAMAKRISHNA NAIDU

JUDGEMENT

(1.) The plaintiff is the appellant in the second appeal and his suit for recovery of possession of 1 acre 58 cents in S. No. 160/1 in the village of Melur described by boundaries in the plaint schedule was dismissed by the Courts below. Hence this appeal.

(2.) One Muthukrishna had two sons, Srinivasalu and Ramakrishna. Ramakrishna is the first defendant in the present suit. His son Pothurajalu is the.second defendant. Srinivasalu had two sons Venkatakrishna and Krishnamurthi. Krishnamurthi is the present plaintiff. Venkatakrishna died in 1935. In 1917, Srinivasalu instituted a suit for partition, O.S. No. 190 of 1917, on the file of the District Munsiff's Court of Srirangam, and impleaded in that suit Muthukrishna also as a party. In that suit 2 acres 39 cents in S. No. 160/1 of which the present suit property forms a part was not included, presumably because the property was purchased by Muthukrishna in his own name. The suit was decreed. Later, Pothuraju, the present second defendant, instituted another suit for partition, O.S. No. 202 of 1929, against Muthukrishna, Ramakrishna, the present first defendant and others. That suit comprised all the properties including 2 acres 39 cents (S. No. 160/1). There was a preliminary decree for partition in that suit decreeing partition according to the shares to which each was entitled and Muthukrishna died after the preliminary decree in that partition suit. He executed a will dated 16 January, 1929, whereunder he made a bequest among others of 2 acres 39 cents in S. No. 160/1 to the present plaintiff, Krishnamurthi. After the death of Muthukrishna, the partition suit, O.S. No. 202 of 1929, was continued after impleading Lakshmi, his widow, as a party. It must be stated that the ibequest in favour of the plaintiff under the will of Muthukrishna was to obtain possession of the property after the death of Lakshmi as a life interest was created in favour of Lakshmi under, the said will. As Muthukrishna died after the preliminary decree and as Lakshmi was added as his legal representative and as the plaintiff had only a right to possession after the death of Lakshmi, apparently the title based on the will in respect of the 2 acres 39 cents was not and could not be put forward by the present plaintiff in that suit, O.S. No. 202 of 1929. In due course there was a final decree in that partition suit in which the properties were divided and allotted to the various sharers in accordance with the directions, contained in the preliminary decree. In 1936, Ramakrishna, the present first defendant, instituted a suit, O.S. No. 17 of 1936, against the plaintiff in respect of the right to management of certain charities belonging to the family. That suit did not proceed to trial and there was a compromise decree in that suit on 21 September, 1936 (Ex. P-4). Under this compromise, Ramakrishna, the present first defendant, agreed to recognise the rights of the plaintiff, the present appellant under the will of Muthukrishna. The portion of the compromise relating to this-matter is as follows: That the plaintiff herein (i.e. Ramakrishna) has no interest, claim or right whatsoever regarding the properties belonging to the defendant under Muthukrishna Naidu's will; that the plaintiff herein and his heirs should not question this will. As Ramakrishna was in possession of a third share and as Pothuraju was also in. possession of another third, the plaintiff instituted the present suit on the basis of the will of Muthukrishna to recover possession of the 2/3 share in S. No. 160/1; the other third was in the possession of the plaintiff as per the partition decree in O.S. No. 202 of 1929.

(3.) The suit was dismissed by both the Courts on the ground that as the compromise relating to the suit property was outside the scope of the suit O.S. No. 17 of 1936 the compromise required registration; and further that in any event the title of the plaintiff to recover the properties on the strength of the will of Muthukrishna was concluded by the decision in O.S. No. 202 of 1929. So far as the second defendant in the suit is concerned he was not a party to the compromise and the view of the Courts below that the plaintiff's claim so far as the plaintiff's claim as against him is concerned is governed by the decision in O.S. No. 202 of 1929 seems to me to be correct. It is for this reason that the learned advocate for the appellant did not press in this appeal his claim against the second defendant and I think that the position taken by the learned advocate is perfectly correct.