Judgement

Law. Rep. 43 Ind. App. 138 ( 1915- 1916) Malraju Lakshmi Venkayyamma V. Venkata Narasimha Appa Rao 45

Consolidated Appeals from a decree of the High Court (November 26, 1909) reversing a decree of the District Judge of Godaveri (November 3, 1904) and rejecting an application by the cross-appellant.

In 1902 the appellant instituted a suit in the District Court of Godaveri against Rangayya Appa Rao, Narasimha Appa Rao, and Pathasaradhi Appa Rao (hereinafter referred to as the first, second, and third defendants respectively) claiming possession of the village of Repudi. The village had belonged to Rani Papamma Rao (the appellants great-aunt), and upon her death in 1899 the defendants, after litigation in which a receiver had been appointed, were declared to be equally entitled to it. The receiver also was joined as a defendant.

The appellant by her plaint alleged facts upon which it was claimed that she was entitled to the village upon the death of the Rani, either under a contract made by the latter or by reason of a verbal bequest. The facts are fully stated in the judgment of their Lordships.

On November 3, 1904, the District Judge made a decree in the appellants favour. He held that the village had been purchased under the alleged contract, and that the Rani had subsequently agreed to hold it in trust for the appellant, subject to its remaining in the Ranis possession until her death. He was also of opinion that the evidence showed an oral bequest by the Rani on the day of her death. Against this decree the second defendant alone appealed to the High Court; the other defendants were joined as respondents, but took no part in the proceedings. The appeal was valued at a third of the value of the village.

The appeal was heard by Sankaran Nair and Abdur Rahim JJ., who, while agreeing that no bequest had been proved, differed as to whether there was a contract. The appeal was accordingly dismissed under the Code of Civil Procedure, 1882, s. 572. The second defendant appealed under s. 15 of the Letters Patent, the other defendants being again made respondents, and the appeal being valued at a third of the value of the village.

On November 26, 1909, the Letters Patent appeal was heard and dismissed by the Chief Justice and Wallis and Miller JJ. The learned judges were of opinion that the evidence did not establish either a contract or a bequest. A decree was made by which it was ordered that the decree of the District Judge be reversed and that "the plaintiffs suit as against the second defendant be dismissed."

The third defendant (the present cross-appellant) applied that he might have the benefit of the decree so far as concerned his share in the village ; he relied on Order xli., r. 33, of the Code of Civil Procedure, 1908,

The learned judges rejected this application, saying "the third defendant, who has not appealed, asks the Court to set aside the decree against him also, but s. 544 of the Code of Civil Procedure, 1882, does not apply to the case as the present appeal is not against the whole decree. Before the present Code came into force the plaintiff had become entitled to hold her decree against this defendant undisturbed, and the provisions of the present Code cannot be applied retrospectively so as to deprive her of it."

Against the decree of November 26, 1909, the plaintiff preferred the first of the present appeals, her appeal being admitted on May 18, 1910.

On May 19, 1914, the third defendant, without first applying to the High Court, lodged a petition to His Majesty in Council praying that he should be added as a respondent and should have special leave to cross appeal. Upon the report of the Judicial Committee it was ordered (1.) that the third defendant

Law. Rep. 43 Ind. App. 138 ( 1915- 1916) Malraju Lakshmi Venkayyamma V. Venkata Narasimha Appa Rao 46

should be joined as a respondent, (2.) that he should have special leave to cross appeal, and (3.) that such leave should be subject to all objections w