Ratio-Right of original vendee to be impleaded.

The plaintiff is the appellant. She had executed a sale deed in favour of the first defendant on 19th October 1953. He sold it to the second defendant on 2nd May, 1954, and the second defendant sold it to the third defendant on 9th July, 1965. The third defendant usufructuarily mortgaged the property to one Subbhan Sahib, who assigned it to one Rahimunnissa Bi, who transferred it to one Zackriya Sahib who in turn transferred it to the fourth defendant. The suit was for possession on the ground that the plaintiff executed the document believing it to be a usufructuary mortgage deed, but it had been fraudulently written as a sale deed. The trial Court decreed the suit but the learned Subordinate Judge of Tiruppathur allowed the appeal by the sixth defendant, who had subsequently been added as a vendee of the suit property and dismissed the suit.

2. The first point that arose was whether the plaintiff had made out her case that she had executed the document believing it to be a usufructuary mortgage deed. It was the plaintiff that got the document Exhibit A-1 registered before the Sub-Registrar. She says in her evidence that the document was read out at the Sub-Registrar’s office and she was also told that that was an usufructuary mortgage and she was not told that it was a sale deed. It is obvious that if it was read out she could not have formed the impression that it was usufructuary mortgage. Her elder son Yusuf Sheriff was present and her second son was also present and none of them objected to the recitals in this document. Unless the allegation that the Sub-Registrar was also a party to the fraud is made out, the plaintiff cannot succeed in establishing that she was made to execute a sale deed under the impression that it was only a usufructuary mortgage. Further in Exhibit B-6 a notice issued by a lawyer on behalf of the plaintiff it is stated that the plaintiff executed a nominal sale deed in favour of the third defendant with regard to the suit house in or about 1956, but that it did not take effect. It is stated in that notice that at the instigation of third defendant’s husband she was made to execute a sale deed in favour of Basha. This Exhibit B-6 is in 1962, but the sale deed in favour of the third defendant is in 1955. If it was true that the plaintiff who had executed the document in favour of the first defendant intended it to be a mortgage, it should have been stated in Exhibit B-6 that the plaintiff had executed a usufructuary mortgage. That is why the plaintiff was anxious to deny that she authorised the issue of notice Exhibit B-6. There is then B-1 a printed pamphlet issued by the plaintiff and her son where it is stated that the plaintiff, her son, P.W.2 and the third defendant are entitled to the suit property. Thus, the conclusion of the lower appellate Court that Exhibit B-1 was not executed by the plaintiff under the impression that it was a usufructuary mortgage deed is amply supported by evidence. In the circumstances the decision of the Privy Council in Giresh Chunder Lahoree v. Mussumat Bhuggobutty Debia and Mussumat Ram Soandree Debie1and that of the Supreme Court in Mst. Kharbuja Kuer v. Jangbahadur Rai2, are wholly beside the point.

3. The only other point of importance that arises in this case is whether because the first defendant was not impleaded as a respondent by the sixth defendant in the appeal filed by her before the learned Subordinate Judge of Tiruppathur, she cannot get any relief. For this contention on behalf of the plaintiff reliance is placed upon a decision in Chockalingam v. Seethai Achi3. In that case a deed of transfer was executed by K.P. and firm in favour of the first defendant in 1911. The plaintiff purchased for Rs. 580, lands which he stated in his evidence, were worth Rs. 3,00,000. But the lands in the suit were valued at Rs. 40,000 and the remainder for which he had not instituted suits were worth Rs. 2,60,000. The plaintiff filed two suits. In the first suit