POTTI VELU PILLAI NATARAJA PILLAI Vs. ABDUL RAHIMAN KANNUTRIVANDRUM
LAWS(KER)-1962-3-26
HIGH COURT OF KERALA
Decided on March 23,1962

POTTI VELU PILLAI NATARAJA PILLAI Appellant
VERSUS
ABDUL RAHIMAN KANNU, TRIVANDRUM Respondents

JUDGEMENT

T.K.Joseph, J. - (1.) The plaintiff in 0. S. No. 543 of 1959 o1 the Munsiffs Court, Trivandrum, sued for cancellation of a decree for- specific performance of an agreement for sale of immovable property and recovery of possession of the property from the first defendant. The decree sought to be cancelled had been obtained by the first defendant against the second defendant, the father of the plaintiff who had sold the property to one Poti Velu Filial, after agreeing to sell the property to the first defendant. In execution of the decree, the court executed the sale deed to the first defendant and the consideration deposited in court by the first defendant was drawn by Poti Velu Pillai. The first defendant applied under Rule 1 cf Order 8-A of the Code of Civil Procedure for Issuing third party notice to the leeal representatives of Poti Velu Pillai. The persons served with third party notice entered appearance and objected to the same. Their objections were overruled and {he court passed an order stating that there was a question to be tried as to the liability of the third parties and that the same would be tried after the trial of the stit. The third parties have filed this revision petition against the order.
(2.) The main ground urged on behalf of the petitioners Is that the suit was not maintainable and that the court should have considered the question of maintainability of the suit before issuing third party notice. Another point urged is that if the trial is to proceed with the third parties on record, they should also be allowed to participate In the trial from the initial stage. After hearing both sides I am satisfied that the learned Munsiff did not pay attention to relevant aspects.
(3.) It is stated in the plaint that the parties are governed by Hindu Mithakshara Law and that the property in question was obtained by the second defendant from his maternal grandmother. It is urged on behalf of the petitioners that the plaintiff cannot have any interest in the property during her father's lifetime and that the suit is not maintainable on this ground. Another ground urged in support of the argument that the suit is not maintainable is that under the law in Travancore, which was in force when the former suit was decreed and the money paid to Poti Vein Pillai, there was no covenant of title, express or implied, and that the first defendant cannot therefore claim indemnity against Poti Velu Pillai's estate. The first point was one which could be disposed of as a preliminary issue. In fact there is an issje in the suit, "whether the suit is maintainable".;


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