TMI Blog1955 (4) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... ad two sons, Rangaswami Reddi and Muthuswami Reddi, who became entitled to the estate as reversioners to their maternal grandfather, Rama Reddi. Sinna Gangammal and Nanjammal had made alienations of the properties which had belonged to Rama Reddi and had devolved on them. By two sale deeds, dated 31st March 1937, and 8th April 1947, Rangaswami Reddi on his behalf and as guardian of his minor brother, Muthuswami Reddi, conveyed all the properties to which they were entitled as reversioners to the Appellant before us, Thayammal. In the first of these sale deeds exhibit A.-3, it was provided that the purchaser should file a suit in pursuance of the sale and obtain delivery of possession and that the two vendors shall also join with her and file the suit as Plaintiff's and see that possession was given to the purchaser. It was further provided that the vendors themselves shall collect the income from the properties from the date of their mother's death till the date of the sale. On 9th April 1947, the suit out of which this appeal arises, was filed by three Plaintiffs, namely, Thayammal, the purchaser, Rangaswami Reddi and Muthuswami Reddy. Muthuswami Reddi was still a minor an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f), filed an application, Interlocutory Application No. 1319 of 1949, praying that the Court may be pleased to strike out his name as a co-Plaintiff. In support of this application, he filed an affidavit in which he stated that he had attained majority on 8th April 1949, that he was not willing to prosecute this suit, that the sale in favour of the 1st Plaintiff was not binding on him, that he had given up all his rights to the 1st Defendant, and that it was, therefore, just and necessary that he should be permitted to withdraw from the suit and the suit-claim so far as it related to him be dismissed. On behalf of Plaintiffs 1 and 2, a counter-affidavit was filed by the 1st Plaintiff's husband denying the material allegations made by Muthuswami Reddi and stating that the, Petitioner could give up, if he wanted, the relief, namely, the recovery of a moiety of the mesne profits due from 1st May 1934, to 31st March 1947, but not anything else, and it was submitted that the Petitioner was a necessary and proper party to the suit, and in case he was not willing to be a Plaintiff, he should be transposed as Defendant On 18th July 1949, the learned Subordinate Judge passed the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a Defendant. The 1st Defendant objected to the sufficiency of the amendments prayed for and wanted further amendments to be made. On this petition, the learned Subordinate Judge made an order on 17th September 1949, directing Plaintiffs 1 and 2 to make suitable amendments in certain paragraphs, namely, 10, 13 and 14(b). Then followed a series of petitions: (1) Interlocutory Application No. 1919 of 1949 filed on 29th August 1949, by the 2nd Plaintiff praying that he may be permitted to continue the suit alone, transposing the 1st Plaintiff as Defendant, if necessary; (2) Interlocutory Application No. 2171 of 1949, by the 1st Plaintiff for an amendment of the plaint as directed by the learned Judge; (3) Interlocutory Application No. 2172 of 1949 by the 2nd Plaintiff also for amendment, and (4) Interlocutory Application No. 2260 of 1949, dated 8th October 1949 by the 2nd Plaintiff purporting to be under Order XXIII Rule 1 and Section 151 of the Code of Civil Procedure, praying that he may be permitted to withdraw from the suit and also withdraw his claim against Defendants. 6. On 8th October 1949, all these applications were disposed of. Interlocutory Application No. 1919 of 194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held in favour of the 1st Plaintiff on issue 10 on the ground that the proper forum would be the Court which could entertain the claim on the date of the institution of the suit and subsequent events would not oust its jurisdiction. He, however, answered issue 4 against the 1st Plaintiff. He, therefore, dismissed the suit. Hence this appeal by the 1st Plaintiff, 9. The reasoning on which the learned trial Judge found issue 4 against the 1st Plaintiff is this: the 3rd Plaintiff had repudiated the a less in favour of the 1st Plaintiff on attaining majority and the 2nd Plaintiff had been permitted to withdraw from the action and the 1st Plaintiff did not want him even to continue as a Defendant. The privilege under Section 6 being personal could not be assigned and the 1st Plaintiff could not take the benefit of the extended period of limitation and continue the suit. 10. Two questions have been mixed up in dealing with issue 4, one, whether the suit is barred by limitation, and another, whether the suit could be continued, having regard to the events which happened subsequent to the institution of the suit. The learned trial Judge was evidently inclined to hold that the suit as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat when a person entitled to the benefit of Section 6 of the Limitation Act transfers property to another, though the transferee himself may not be entitled to the benefit of that section, a suit could be filed by the transferor and the transferee and such a suit would not be barred, though ultimately the benefit of the decision in the suit would go to the transferee. In Hanmant Gurunath v. Ramappa Lagamappa (1924) I.L.R. 49 Bom. 309, the learned Judges were no doubt dealing with a case coming under Article 44 of the Limitation Act. There, the transferee as the 1st Plaintiff and the transferor as Plaintiff 2 together brought a suit for possession after setting aside an alienation by the guardian of the minor transferer. In that case, a decree was passed in favour of Plaintiff 1, the transferee, for possession, and the claim of Plaintiff 2 was dismissed as he could get no relief. One of the Defendants filed an appeal to the High Court, and it was contended that the suit was time barred because the 2nd Plaintiff was not interested in the suit, as he bad sold away all his right to the 1st Plaintiff and the 1st Plaintiff himself was not entitled to the benefit of Article 44 of the Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Respondent, tried to distinguish these decisions by contending that the plaint in this case is really a combination of two plaints, one by the 1st Plaintiff and the other by Plaintiffs 2 and 3, because distinct reliefs have been prayed for by the several Plaintiffs. While we agree that in a sense it is true that the 1st Plaintiff was interested in one relief and Plaintiffs 2 and 3 in another relief, so far as the relief of possession is concerned it was a prayer by all the Plaintiffs. The Plaintiffs prayed that the Court may be pleased to order the Defendants to deliver possession of the plaint properties to the 1st Plaintiff. This prayer must be read along with the averment in paragraph 8 of the plaint which sets out the sale deeds executed by Plaintiffs 2 and 3 in favour of the 1st Plaintiff and with the provision in the sale deed, Exhibit A-3, to which we have referred above. The suit, therefore, is a suit by all the three Plaintiffs in respect of possession, though Plaintiffs 2 and 3 agree that the possession may be given to the 1st Plaintiff. We are not inclined to take a technical view of the pleading, as all that could be done in the circumstances was done. After exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eader for the 1st Plaintiff made an endorsement that he had no objection to the Petitioner withdrawing from the claim. The learned Judge, by his order, dated 8th October 1949, permitted the 2nd Plaintiff to withdraw the claim made on his behalf. He added that if the 1st Plaintiff wanted the 2nd Plaintiff on record, he would be transposed as Defendant on his application. The 1st Plaintiff's Vakil made his attitude quite clear by the memorandum which he filed on 14th October 1949, that the 1st Plaintiff did not want the 2nd Plaintiff to be transposted as a Defendant. Under Order XXIII, Rule 1(4) of the Code, the Court is not authorised to permit one of several Plaintiffs to withdraw without the consent of the others. The 2nd Plaintiff, therefore, could not altogether withdraw from the suit without the consent of the other Plaintiff, namely, Plaintiff 1. On behalf of the first Plaintiff, his Vakil no doubt stated that there was no objection to the 2nd Plaintiff withdrawing his claim. We understand this to mean that the 1st Plaintiff had no objection to the 2nd Plaintiff withdrawing his claim to the relief which he sought for himself, namely, the relief of accounting. We do not und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inor purports to transfer property which had already been alienated by his guardian to another, he cannot convey title to the property as such. He is really transferring his right to recover the properties after setting aside the alienation. The decision of the Bombay High Court in Jhaverbhai v. Kabhai A.I.R. 1933 Bom. 42 on which Mr. Gopalaswami Ayyangar relied, relates to an alienation by a guardian and the minor after attaining majority transferred the property to another and brought a suit along with him to set aside the previous sale by his guardian. Subsequently, the vendor made an application to withdraw from the suit, and without any objection on the part of the purchaser he was allowed to withdraw from the suit. It was held that the purchaser alone had no authority to continue the suit because by such withdrawal from the suit he must be deemed to have elected to acquiesce in the sale by his guardian and his interests became extinguished under Article 44 read with Section 28 of the Limitation Act. The learned Judge held that what was assigned to the purchaser was not the property but his right to sue for it. This reasoning cannot apply to a sale by a reversioner after the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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