MULUGU NAGAMMA Vs. MUDIGONDA AGHORAPATHI SASTRI

JUDGEMENT

(1.) This is an appeal against the judgment and decree of the Subordinate Judge of Tenali in O.S. No. 16 of 1946. The facts were briefly these. The deceased father of the defendants sold eight items of property to the plaintiff's son on 14 August, 1916, for a sum of Rs. 3,000. The vendee got possession of the properties and enjoyed them. On 6 November, 1924. he executed a will in favour of his mother, the plaintiff, and died soon afterwards. Thereafter, the plaintiff enjoyed the properties. She sold item 8 and a portion of item 7 to strangers. At the time of the sale by the father of the defendants to the plaintiff's son, he had only one son, namely, the first defendant; the other defendants are sons subsequently born to him. The first defendant filed O.S. No. 42 of 1935, asking for a partition of his one-seventh share of all the family properties, including these eight items, impleading his father and the other defendants and also the plaintiff in O.S. No. 16 of 1946 and other alienees. The Court gave a preliminary decree for partition on 3 August, 1937, in favour of the defendants, holding that the sale deed dated 14 August, 1916, was fully supported by consideration but was binding on the sons only to the extent of the proved antecedent debts, namely, Rs. 585 and that the sale was not binding on their half share to the remaining extent. As regards the 8 item, it dismissed the suit as abated. The alienated portion of item 7 had not been included in the suit. The Court directed the sons, the defendants in this suit, to pay a moiety of the binding portion of the consideration, namely, Rs. 292-8-0. It awarded mesne profits to the sons only from the date of the deposit of the binding portion of the consideration. The quantum of the mesne profits was left over to be decided subsequently. This decree was confirmed in appeal on 21 December, 1938, in A.S. No. 377 of 1947. The defendants in this suit deposited the amount due from them under the decree in the partition suit, on 21 December, 1939, and thereby became entitled on that date to the recovery of possession of items 1 to 7; but, actually, they recovered possession of items 2 to 7 only on 21 April, 1944, and of item 1 on 6 July, 1944. They had filed a petition in 1941 (I.A. No. 269 of 1941) for a final decree in the partition suit, O.S. No. 42 of 1935.

(2.) The plaintiff brought the present suit for recovering Rs. 11,281-6-8 as damages, since she was dispossessed of items 1 to 7 (a half share of the properties sold on 14 August, 1916) in 1944, owing to the vendor's failure to keep up the express and implied covenants of title and quiet enjoyment. By the time she brought the suit, the vendor was dead, and the defendants were sued as they were said to be-bound, under the theory of pious obligation, to discharge the debt covered by the damages claimed.

(3.) The defendants contested the suit on various grounds, like limitation, excessive damages claimed, misjoinder of parties, etc. Their contest will be clear from the issues. The learned Subordinate Judge framed the following issues: (1) Whether the alleged covenant, for quiet enjoyment pleaded in para 3(c) of the plaint is true, valid and binding upon defendants ? (2) Whether such a covenant is implied under law? (3) Whether the suit claim is a debt enforceable against sons under Hindu Law ? (4) Whether the suit claim is extinguished after the death of Virabhadrasastri (father of the. defendants)? (5) Whether the suit is barred by time ? (6) What is the market value of the properties at the time when the plaintiff was dispossessed? (7) To what compensation or damages, if any, is the plaintiff entitled ? (8) Whether the suit is bad for misjoinder of parties ? (9) To what relief? After discussing the evidence before him, the learned Subordinate Judge found issues 1 to 4 and 8 in favour of the plaintiff; but, on issue 5, he found that the suit was barred by limitation as the amount due by the defendants under the decree in the partition suit had been deposited on 21 December, 1939, and the possession by the plaintiff of items 1 to 7 had become thereafter wrongful possession, and, so, the plaintiff must be deemed to have become dispossessed of those items on 21st December, I939, and, as the suit was brought only on 21 April, 1946, that is, more than six years from that date, it was barred by limitation. He relied on the ruling in Kamalanand Singh V/s. Jarao Kumari (1912) 17 I.C. 238. In that view, he did not give any findings on issues 6 and 7 and dismissed the suit with the costs of the defendants. The plaintiff has preferred this appeal.