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Full text of "The Indian decisions (New series) : being a reprint of all the decisions of the Privy council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875"

UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 



SCHOOL OF LAW 
LIBRARY 




THE INDIAN DECISIONS, NEW SERIES. 
MADRAS, VOL. VII. 



THE 

INDIAN DECISIONS 

(NEW SERIES) 



Being a re-print of all the Decisions of the Privy Council on appeals from India 

and of the various High Courts and other Superior Courts in India reported 

both in the official and non-official reports from 1875 




TRICHINOPOLY AND MADRAS 



MADRAS, VOL. VII 

(18971898) 
I.L.R., 20 and 21 MADRAS 



PUBLISHED BY 

T. A. VENKASAWMY ROW 

AND 

T. S. KBISHNASAWMY ROW 

Proprietors, The Law Printing House and The Lawyer's 
Companion Office, Tricbinopoly and Madras 

1914 

[Copyright Registered.] 



vl 

S6 



lo 

.Tn 



PBINTED AT 

THE LAW PRINTING HOUSE 
MOUNT ROAD, MADRAS. 



JUDGES OF THE HIGH COURT OF MADRAS 
DURING 1897-1898. 



Chief Justice : 
HON'BLE SIR ARTHUR J. H. COLLINS, KT., Q.C. 

Puisne Judges : 
HON'BLE H. H. SHEPHABD. 

S. SUBRAMANIA AYYAR, C.I.E. 
J. A. DAVIES. 
R. S. BENSON. 
H. T. BODDAM. 
L. MOORE (offg.). 

Advocate-General : 
HON'BLE J. H. SPRING BRANSON. 
C. A. WHITE. 
V. BHASHYAM AYYANGAR, C.I.E. (offg.}. 



REFERENCE TABLE FOR FINDING THE PAGES OF THIS 
VOLUME WHERE THE CASES FROM THE ORIGINAL 
VOLUMES MAY BE FOUND. 



Indian Law Reports, Madras Series, Vol. XX. 


Pages of 
20 Had. 


Pages of 
this volume. 


Pages of 
20 Mad. 


Pages of 
this volume. 


1 ... 


1 


124 ... 


... 87 


3 ... 


... 3 129 (F.B.) 


... 90 


6 ... 


4 145 ... 


... 101 


8 ... 


6 147 ... 


... 102 


10 ... 


7 149 ... 


... 104 


12 ... 


9 152 ... 


... 107 


16 ... 


... 12 155 ... 


... 109 


19 ... 


... 13 157 ... 


... 110 


21 ... 


15 158 ... 


... Ill 


23 ... 


... 16 159 ... 


... 112 


25 ... 


... 18 162 (P.C.) 


... 114 


27 (F.B.) 


19 


167 ... 


... 118 


29 ... 


... 21 189 (F.B.) 


... 132 


31 ... 


2?, 207 ... 


... 145 


33 ... 


... 23 224 ... 


... 160 


35 ... 


... 25 232 ... 


... 165 


40 ... 


... 29 235 ... 


... 167 


48 (F.B.) 


... 34 239 ... 


... 170 


51 ... 


... 36 243 ... 


... 173 


58 (F.B.) 


... 41 245 ... 


... 174 


68 ... 


48 249 ... 


... 177 


75 ... 


... 52 250 ... 


... 178 


78 ... 


... 54 253 ... 


... 180 


79 ... 


... 55 


254 ... ' 


... 181 


82 ... 


... 57 256 (P.C.) 


... 182 


84 ... 


... 59 


269 ... 


... 191 


87 ... 


... 61 


274 ... 


... 195 


88 ... 


... 62 


275 ... 


... 196 


89 ... 


... 63 


279 ... 


... 199 


91 ... 


... 64 


283 ... 


... 201 


97 ... 


... 68 


289 ... 


... 206 


107 ... 


... 75 


293 ... 


... 208 


112 ... 


... 79 


295 ... 


... 210 


118 (F.B.) 


... 82 


299 ... 


... 213 


120 ... 


... 84 


305 ... 


... 216 



VIII 



REFERENCE TABLE. 



I. L. B., MADRAS SERIES, VOL. XX (Concluded). 


Pages of 


Pages of Pages of 


Pages of 


20 Had. 


this volume. 20 Had. 


this volume. 


313 ... 


... 222 


421 ... 


... 299 . 


319 ... 


... 226 


433 ... 


... 307 


323 ... 


... 229 


435 ... 


... 308 


326 ... 


... 231 


442 ... 


... 313 


333 ... 


... 236 


444 ... 


. . 314 


339 ... 


... 240 


445 ... 


... 315 


342 ... 


... 243 


446 ... 


... 316 


349 ... 


... 248 


448 ... 


... 317 


354 ... 


... 251 


449 ... 


... 318 


358 ... 


... 254 


452 ... 


... 320 


360 ... 


... 255 


454 ... 


... 321 


362 ... 


... 257 


457 ... 


... 324 


365 ... 


... 259 


459 ... 


... 325 


366 ... 


... 260 


461 ... 


... 327 


367 ... 


... 261 


465 ... 


... 329 


369 ... 


... 262 


467 ... 


... 331 


371 ... 


... 264 


469 ... 


... 333 


375 ... 


... 267 


470 (F.B.) 


... 333 


378 ... 


... 269 


476 ... 


... 338 


383 .., 


... 272 


481 ... 


... 341 


385 ... 


... 273 


484 ... 


... 343 


387 ... 


... 275 


486 ... 


... 344 


388 ... 


... 276 


487 ... 


... 345 


389 ... 


... 277 


490 ... 


... 347 


392 ... 


... 279 


493 ... 


... 349 


395 (P.O.) 


... 281 


494 ... 


... 351 


398 ... 


... 283 


496 ... 


... 352 


407 ... 


... 289 


498 ... 


... 353 


418 ... 


... 297 






Indian 


Law Reports, Madras Series, 


Vol XXI. 


Pages of 


Pages of Pages of 


Pages of 


21 Had 


this volume. 21 Had. 


this volume. 


1 ... 


... 357 


28 ... 


... H76 


4 ... 


... 359 


29 ... 


... 377 


5 ... 


... 360 


30 ... 


... 378 


7 ... 


... 361 


32 ... 


... 379 


8 ... 


... 362 


35 


... 381 


10 ... 


... 364 40 ... 


... 384 


18 ... 


... 369 42 ... 


... 386 


27 ... 


... 375 


45 ... 


... 388 



REFERENCE TABLE. 



IX 



I. L. R., MADRAS SERIES, VOL. XXI (Continued). 


Pages of 


Pages of 


Pages of 


Pages of 


21 Mad. 


this volume. 


21 Mad. 


this volume. 


47 ... 


... 389 


228 ... 


... 516 


49 ... 


... 391 


229 ... 


... 517 


51 ... 


... 392 


231 ... 


... 518 


53 ... 


... 394 


232 ... 


... 519 


56 ... 


... 396 


234 ... 


... 521 


58 ... 


... 397 


236 ... 


... 522 


63 ... 


... 401 


237 ... 


... 523 


63-N 


... 401 


239 ... 


... 525 


64 ... 


... 402 


241 ... 


... 526 


69 ... 


... 405 


242 ... 


... 527 


74 (F.B.) 


... 408 


243 ... 


... 528 


78 ... 


... 411 


245 ... 


... 529 


83 ... 


... 415 


246 ... 


... 530 


91 ... 


... 421 


249 ... 


... 532 


100 ... 


... 427 


253 ... 


... 534 


105 ... 


... 430 


256 ... 


... 537 


109 ... 


... 433 


257 ... 


... 538 


110 ... 


... 434 


261 ... 


... 540 


113 ... 


... 436 


263 ... 


... 542 


114 ... 


... 437 


269 ... 


v . 546 


115 


... 438 


271 ... 


... 547 


116 (F.B.) 


... 439 


274 ... 


... 550 


124 (F.B.) 


... 444 


278 ... 


... 552 


128 (F.B.) 


... 447 


288 ... 


... 559 


134 ... 


... 451 


291 ... 


... 561 


136 ... 


... 452 


293 ... 


... 563 


138 ... 


... 454 


296 ... 


... 565 


139 ... 


... 455 


299 (P.O.) 


... 567 


141 ... 


... 456 


310 ... 


... 575 


143 ... 


... 457 324 ... 


... 585 


144 ... 


... 458 326 (F.B.) 


... 587 


148 ... 


... 461 344 (P,C.) 


... 599 


149 ... 


... 462 


352 ... 


... 604 


151 ... 


... 463 


353 ... 


... 605 


152 ... 


... 464 


356 ... 


... 608 


153 ... 


... 465 


358 (F.B.) 


... 609 


167 ... 


... 474 360 (F.B.) 


... 611 


169 ... 


... 476 363 ... 


... 613 


172 ... 


... 478 364 ... 


... 614 


179 ... 


... 483 


366 ... 


... 615 


222 ... 


... 512 367 ... 


... 616 


226 ... 


... 515 369 ... 


... 617 



M VII II 



REFERENCE TABLE. 



I. L. R., MADRAS SERIES, VOL. XXI (Concluded). 



Pages of 
21 Cal. 

371 . 

373 . 

385 ., 

388 ., 

391 . 

393 .. 

395 .. 

398 .. 

400 .. 

401 .. 

402 .. 

403 .. 

405 .. 

406 .. 
409 .. 
411 .. 
413 



Pages of 
the Reports. 



Pages of 
this volume 

. 619 
. 620 
. 629 
. 631 
. 633 
, 634 
, 636 

638 

639 

640 

641 

642 

643 

644 

646 

648 

649 



Pages of 
21 Cal. 

416 ... 

417 ... 
419 ... 

421 ... 

422 ... 
425 ... 
428 ... 
430 ... 
433 (F.B.) 
476 (F.B.) 
482 (F.B.) 
490 ... 
492 ... 
494 ... "" 
497 ... 
503 



Other Reports. 



Pages of 
this volume. 



Lav Reports, Indian Appeals, Vol. XXIV 

73 ... ... H4 

118 ... ... 182 

194 ... ... 281 

Law Reports, Indian Appeals, Vol. XXV. 

84 ... ... 567 

102 ... ... 599 

Saraswati'a P.O. Judgments, Vol. VII. 

185 ... ... 182 

205 ... ... 114 

252 ... ... 281 

313 ... ... 567 

325 ... ... 599 

Calcutta Weekly Notes, Vol. I. 
497 ... ... 114 

Calcutta Weekly Notes, Vol. II. 
337 599 



Pages of 
the Reports 



Pages of 
this volume 

. 651 

. 652 
. 653 
. 655 
. 656 
. 658 
. 660 
. 661 
. 664 
. 693 
. 697 

703 
, 704 
.706 
, 708 

712 



Pages of 
this volume. 



Madras Law Journal, Vol. VI. 

64 ... ... 229 

218 ... ... 118 

229 ... ... 57 

232 ... ... 107 

235 ... ... 25 

241 ... ... 36 

259 ... ... 18 

266 ... ... 170 

272 ... ... 29 

278 ... ... 23 

281 ... ... 41 

Madras Law Journal, Vol. VII. 

16 ... ... 55 

18 ... ... 104 

26 ... ... 48 

30 ... ... 206 

52 ... ... 82 

59 ... ... 261 

61 63 



REFERENCE TABLE. 





OTHER REPORTS (Continued). 




Pages of 


Pages of 


Pages of 


Pages of 


the Reports. 


this volume. 


the Reports. 


this volume. 


Madras Law Journal, 


Yol. Mil- (Concluded) 


Madras Law Journal, Yol. VIII. 


66 ... 


... 75 


4 ... 


436 


71 ... 


... 262 


6 ... 


617 


76 ... 


... 79 


9 ... 


397 


87 ... 


... 195 


14 ... 


427 


89 ... 


... 269 


18 ... 


540 


94 ... 


... 177 


21 ... 


402 


100 ... 


... 165 


25 ... 


538 


102 ... 


... 90 


28 ... 


421 


134 ... 


... 201 


40 ... 


550 


140 ... 


... 254 


43 ... 


439 


143 ... 


... 145 


48 ... 


631 


167 ... 


... 132 


51 ... 


646 


188 ... 


... 516 


53 ... 


639 


196 ... 


... 451 


54 ... 


651 


198 ... 


... 344 


58 ... 


585 


201 ... 


... 351 


62 ... 


434 


204 ... 


... 349 


69 ... 


447 


207 ... 


... 243 


74 ... 


655 


213 ... 


... 248 


75 ... 


706 


222 ... 


... 174 


77 ... 


652 


225 ... 


... 318 


79 ... 


317 


229 ... 


... 320 


81 ... 


527 


233 ... 


... 389 85 ... 


478 


238 ... 


... 379 


92 ... 


465 


240 ... 


... 251 110 ... 


638 


246 ... 


... 329 112 ... 


640 


251 ... 


... 213 


113 ... 


357 


257 ... 


... 226 


117 ... 


476 


263 ... 


... 341 


119 ... 


644 


269 ... 


... 327 


121 ... 


559 


273 ... 


... 359 


126 ... 


512 


275 ... 


... 456 


137 ... 


561 


279 ... 


... 605 139 ... 


620 


290 ... 


... 361 154 ... 


693 


291 ... 


... 391 


165 ... 


525 


293 ... 


... 308 


189 ... 


642 


303 ... 


... 333 


189 ... 


644 


311 ... 


... 240 


207 ... 


712 


315 ... 


... 455 


210 ... 


697 


319 ... 


... 405 


Weir'a Criminal Rulings, 


Yol. I. 


324 ... 


... 299 


42 ... 


532 



REFERENCE TABLE. 



OTHER REPORTS (Concluded). 


Pages of 
the Reports. 


Pages of 
this volume. 


Pages of 
the Reports. 


Pages of 
this volume. 


Weir's Criminal Rulings, Vol. 


I (Concld ). 


Weir's Criminal 


Rulings, Vol. II (Concld). 


83 ... 


22 


40 ... 


... 167 


123 ... 


411 


42 ... 


... 62 


135 ... 


565 


46 ... 


... 415 


140 ... 


1 


120 ... 


... 132 


183 ... 


55 


142 ... 


... 132 


233 ... 


307 


144 ... 


... 132 


310 ... 


532 


175 ... 


... 240 


647 ... 


401 


240 ... 


... 275 


648 ... 


401 


251 ... 


... 276 


659 ... 


611 


312 ... 


... 523 


697 ... 


167 


374 ... 


... 415 


73S ... 


563 384 ... 


... 315 


751 ... 


530 452 ... 


... 314 


792 ... 


565 


470 ... 


... 61 


792 ... 


660 


470 ... 


... 437 


793 ... 


12 


503 ... 


... 415 


797 ... 


1 


593 ... 


... 444 


820 ... 


9 


613 ... 


... 272 


871 ... 


273 


638 ... 


3 


880 ... 


661 


643 ... 


... 333 


Weir's Criminal Rulings, 
17 ... 


Vol. II. 
530 


719 ... 
763 ... 


... 408 
... 132 



INDIAN DECISIONS, NEW SEEIES. 



MADRAS Yol. YII. 



NAMES OF CASES POUND IN THIS VOLUME. 



PAGE 



Abbubaker Sahib v, Mohidin Saheb, 20 M 10 ... 7 

Abdul Rahiman v. Mahomed Kassim, 21 M 29 ... 377 

Achuta Menon v. Achutan Nayar, 21 M 35 ... 381 

Achutan Nayar v. Narasiinham Patter, 21 M 411 ... 648 

Adikkan v. Alagan, 21 M 237 = 2 Weir 512 ... 523 

Alagirisami Naicker v. Bundareswara Ayyar, 21 M 278 ... 552 

Alangaran Ohetti v. Lakshmanan Gbetti, -20 M 274 = 7 M L J 87 ... 195 

Allapichai Ravuthar v. Mohidin Bibi, 20 M 3 = 2 Weir 638 ... 3 

Anna Pillai v. Thangathammal, 20 M 78 ... 54 

Appa Rau Sanayi Aswa Rau v. Krishnamurthi, 20 M 24Q---7 M L J 94 ... 177 

Aravamudu Ayyangar v. Samiyappa Nadan, 21 M 385 ... 629 

Ariya Pillai v. Thaogammal, 20 M 442 ... 313 

Arumugam Pillai v. Arunaohallam Pillai, 20 M 254 ... 181 

Arunachalam Chetti v. Ayyavayyan, 21 M 476 (F B) = 8 M L J 154 ... 693 

v. Meyyappa Chetty, 21 M 91 = 8 M L J 28 ... 421 

Arunagiri Mudali v. Ranganayaki Ammal, 21 M 40 ... 384 

Athappa Chetti v. Ramakrishna Nayakan, 21 M 51 ... 392 

Athikarath Nahu Menon v. Erathanikat Komu Nayar, 21 M42 ... 386 

Ayyavayyar v. Virasami Mudali, 21 M 393 ... 634 

B 

Balusami Pandithar v. Narayana Rau, 20 M 342 = 7 M L J 207 ... 243 

Barber Maran v. Ramana Goundan, 20 M 461 = 7 M L J 269 ... 327 

Bojjamma v. Venkataramayya, 21 M 30 ... 378 

Boyamma v. Balajee Rau, 20 M 469 ... 333 



Chengama Nayudu v. Munisami Nayudu, 20 M 75 ... 52 

Ghinna Krishna Reddi v. Dorasami Reddi, 20 M 19 ... 13 

Obayya v. Sura Reddi, 21 M 226 ... 515 

Ghinnasami Pillai v. Kuruppa Udayan, 21 M 234 ... 521 

Chintanallayya v. Thadi Gangireddi, '20 M 89 = 7 M L J 61 ... 63 

Chokkalinga Naicken v. Muthusawmi Naicken, 21 M 53 ... 394 

Collector of Vizagapatam v. Abdul Karim Sahib, 21 M 113 = 8 M L J 4 ... 436 
Court of Wards v. Venkata Surya Mahipati Ramakrisbna Rao, 20 M 167 = 6 M L J 

218 ... 118 

D 

Dharanipragada Durgamma v. Kroaiubari Virrazu, 21 M 47 = 7 M L J 233 ... 389 



Xiv NAMES OF CASES. 



PAGE 



Eressa Menon v. Bhamu Patter, 21 M 138 454 

F 

Fischer v. Kamakshi Pillai, 21 M 136 452 

v. Twigg, 21 M 367 61 6 

Foulkes v. Mutbusami Goundan, 21 M 503 = 8 M L J 207 712 

G 

Gadioherla China Seetayya v. Gadicherla Seetayya, 21 M 45 388 

Ganapati Ayyan v. Savithri Aminal, 21 M 10 ... 364 
Gantapalli Appalamma v. Gantapalli Yellayya, 20M470 (PB)=7 MLJ 303 = 2 

Weir 643 ... 333 

Giddayya v. Jagannatha Bau, 21 M 363 ... 613 

Gurumurtiv. Sivayya, 21 M 391 ... 633 

H 

Haji Mahomed Abdul Aziz Badsbah Sabib v. Subba Naidu, 27 M 490 ... 703 

I 

Ittappan v. Manavikrama, 21 M 253 = 8 M LJ 92 ... 465 

v. Parangodan Nayar, 21 M 291 = 8 ML J 137 ... 561 

Ittirarichan Unni v. Kunjunni. 21 M 144 ... 458 

J 

Jagapati Mudaliar v Ekambara Mudaliar, 21 M 274 = 8 M L J 40 ... 550 

K 

Kidar Hussain v. Hussain Saheb, 20 M 118 (F B) = 7 M L J 52 ... 82 

Kaliana Sundaram Ayyar v. Umamba Bayi Saheb, 20 M 421 = 7 MLJ i',24 ... 299 

Kaliappa Gounden v, Venkatachella Thevan, 20 M 253 ... 180 

Kamalammal v. Peeru Meera Levvai Rowthen, 20 M 481 = 7 MLJ 263 ... 341 

Ivamara/u v. Venkataratnam, 20 M 293 ... 208 

Kanakammal v. Rangachariar, 20M 25 = M L J 259 ... 18 

Kanaran v. Kuttooly, 21 M 110 = 8 M L J 62 ... 434 
Karuppanna Nadan v Chairman, Madura Municipality, 21 M 246 = 1 Weir 751 = 2 

Weir 17 ... 530 

Karuppannan Ambalam v. BamasamiChetti, 21 M 239 = 8 M L J 165 ... 525 

Kasturi Chetti v. Deputy Collector, Bellary, 21 M 269 ... 546 

Kollantanida Manikoth Oaakkin v. Tiruvallil Kolandan Aliyamma, 20 M 362 ... 257 

Kombi Aohen v. Kochunni, 21 M 352 ... 604 

v. Panji Achen, 21 M 405 ... 643 

Kommachi Kather v. Pakker, 20 M 107 = 7 M L J 66 ... 75 

Kondayya Chetti v. Narasimhulu Cbetti, 20 M 97 ... 68 

Koti Pujariv. Manjaya, 21 M 271 ... 547 

Krishna Bhatta v. Subraya, 21 M 228 = 7 M L J 188 516 

Menon v. Kesavan, 20 M 305 216 

Krishnan Nambiar v. Kannau, 21 M 8 ... 362 
Nambudri v. Raman Meuon, 20 M 484 343 



NAMES OP CASES. XV 



PAGE 

Krishna Patter v. Srinivasa Patter, 20 M 124 ... 87 

Krishnappa Ghetti v. Adimula Mudali, 2 M 84 ... 59 

Krishnasami Ayyangar v. Runga Ayyangar, 20 M 369 = 7 M L J 71 ... 262 

Krishnayyar v. Soundararaja Ayyangar, 21 M 245 ... 529 

Kumara Akkappa Nayanim Bahadur v. Sitbala Naidu, 20 M 47G ... 338 

Kumarasami Pllai v. Orr, 20 M 145 ... 101 

Kumara Tirumalai Naik v. Bangaru Tirumalai Sauri Naik, 21 M 310 ... 575 

Kunhi Mirakkar Haji v. KuttiUmma, 20 M. 496 ... 352 

Kuppu Nayudu v. Venkatakrishna Keddi, 20 M 82 = 6 M L J 229 ... 57 

Kuppus=ami Cbetti v. Papathi Ammal, 21 M 369 = 8 M L J 6 ... 617 



Lakshminarayana Pantulu v. Venkatrayanam, 21 M 116 ( B) = 8 M L J 43 ... 439 

Lilla Karuppa Settiyar v. Mahomed Iburam Siheb, 20 M 112 = 7 M L J 76 ... 79 

Lingum Krishnahhupati Devu v. Kandula Sivaramayya, 20 M 366 ... 260 

Lobo v. Brito, 21 M 231 ... 518 

M 

Madras Railway Company v. Govinda Row, 21 M 172 = 8 M L J 85 ... 478 

Mahabala Bhatta v. Kunhanna Bhatta, 21 M 373 = 8 M L J 139 ... 620 

Mahadevi v. Neelamani, 20 M 269 ... 191 

Maiden v. Janakiramayya, 21 M 371 ... 619 

Mamaaod v. Locke, 20 M 487 ... 345 

Mana Vikrama v Rama Patter, 20 M 275 ... 196 

Manicka Grarnani v. Ramachandra Ayyar, 21 M 482 = 8 M L J 210 ... 697 

Manickkam v. Tatayya, 21 M 388 = 8 M L J 48 ... 631 

Marimuthu v. Saminata Pillai, 21 M 366 ... 615 

MarudamuthuNadau v. Srinivasa Pillai, 21 M 128 (F B) = 8 M LJ 69 ... 447 

Minakshi Ammal v. Kaliacarama Rayar, 20 M 349 = 7 M L J 213 ... 248 

Mir Alii Hussain v. Sajuda Begum, 21 M 27 ... 375 

Muniappan Chetty v. Moppil Nayar, 21 M 169 = 8 M L J 117 ... 476 

Municipal Council, Cocanada v. Royal Insurance Co., Liverpool, 21 M 5 ... 360 

, Tanjore v. Visvanatha Rau, 21 M 4 = 7 M L J 273 ... 359 

Mutbappudayan v. Amman! Ammal, 21 M 58 = 8 M L J 9 ... 397 

Muthia Chetti v. Orr, 20 M 224 ... 160 

Muthu Ayyar v. Ramasami Sastrial, 20 M 158 ... Ill 

Vijia Raghunatba Ramachandra Vacha Mahali Thurai v. Venkatacballam 

Chetti, 20 M 35 = 6 M L J 235 ... 25 

N 

Nainappa Chetti v. Chidambaram Chetti, 21 M 18 ... 369 

Nallappa Reddi v. Ramalingachi Reddi, 20 M 250 ... 178 

Narasimma Chariar v. Sinnanan, 20 M 365 ... 259 

Narayana Chetti v. Lakshmana Chetti, 21 M 256 ... 537 

Narayanamma v Kamashamma, 20 M 21 ... 15 

Nateaan Chetty v. Soundararaja Ayyangar, 2 1 M 141 = 7 M L J t 275 ... 456 

Nathuram Siviji Sett v. Kutti Haji, 20 M 446 ... 316 

Nellaiyappa Pillai v. Thangama Nachiar, 21 M 406 = 8 M L J 119 .-. 644 

Nityananda Patnyudu v. Sri Radha Cherana Deo, 20 M 371 ... 264 



Oliver v. Anantharamayyar, 20 M 498 ... 353 



XVI NAMES OP CASES. 



PAGE 



Palaniandi Tevan v. Puthirangonda Nadan, 20 M 399 ... 277 

Palani Konan v. Masakonan. 20 M 243 ... 173 
Panchena Manchu Nayarv. Gadinhare Kumaranchath Padmanabhan Nayar, 20 M 

68 = 7MLJ26 ... 48 

Paramananda Das v. Mahabeer Doesji, 20 M 378 = 7 M L J 89 ... 269 

Parvathi Ammal v. Saminatha Gurukal, 20 M 40 = 6 M L J 272 ... 29 

v. Sundara Mudali, 20 M 459 ... 325 

Pattabhiramayya Naidu v. Ramayya Naidu, 20 M 23 ... 16 

Payyath Nanu Menon v. Thiruthipalli Raman Menon, 20 M 51 = 6 M L J 241 ... 36 

Pedda Subbaraya Chetti v. Ganga Razulungaru, 20 M 149 = 7 M L J 18 .-. 104 

Perianna Goundan v. Muthuvira Goundan, 21 M 139 = 7 ML J 315 ... 455 

Periatambi Udayan v. Vellaya Goundan, 21 M 409 = 8 M L J 51 ... 646 

Periavenkan Udaya Tevar v. Subramanian Chetti, 20 M 239 = 6 M L J 266 ... 170 

Perumal Ayyan v. Alagirisami Bhagavathar, 20 M 245 = 7 M L J 222 ... 174 

Pichuvayyan v. Vilalkudayan, 21 M 134 = 7 M L J 196 ... 451 

Pokree Saheb Beary v Pokree Beary, 21 M 32 = 7 M L J 238 ... 379 

Ponnambala Pillai v. Sundarappayyar, 20 M 354 = 7 M L J 240 ... 251 

Purnamal Ghund v. Veokato Subbarayalu, 20 M 486 = 7 M L J 198 ... 344 

Puthiandi Mammed v. Avalil Moidin, 20 M 157 ... 110 

Q 

Queen-Empress v. Abdul Kadar Sheriff Sahib, 20 M 8 ... 6 
-v. Arumugam, 20 M 189 (F B )=7 M L J 167 = 2 Weir 120, 142, 

144 and 763 ... 132 

v. Ayyakkannu Mudali, 21 M 293 = 1 Weir 738 ... 563 

v. Jayarami Reddi, 21 M 360 (F B) = l Weir 659 ... 611 

v. Kanappa Pillai, 20 M 387 = 2 Weir 240 ... 275 

v. Kandappa Goundan, 20 M 88 = 2 Weir 42 ... 62 

v. Karuppa Udayan, 20 M 87 = 2 Weir 470 .. 61 

v. Kattayan, 20 M 235 = 1 Weir697 = 2 Weir 40 .. 167 

v. Krishtappa, 20 M 31 = 1 Weir 88 ... 22 

v. Kutti Ali, 20 M 16 = 1 Weir 793 ... 12 

v. Mahalingam Servai,2l M 63 = 1 Weir 648 ... 401 

v. Motha, 20 M 339 = 7 ML J 311 =2 Weir 175 ... 240 

v. Muthayya, 20 M 457 ... 324 

v, Nanjunda Rau.20 M79 = 7M L J 16 = 1 Weir 188 ... 55 

v.Paul, 20 M 12 = 1 Weir 820 ... 9 

v. Poomalai Udayan, 21 M 296 = 1 Weir 135 & 792 ... 565 

v. Ramalingam. 20 M 445 = 2 Weir 384 ... 315 

v. , 21 M 430 = 1 Weir 880 ... 661 

- v. Raman, 21 M 83 = 2 Weir 46, 374 & 503 ... 415 

v. Ramasami, 21 M 114 = 2 Weir 470 ... 437 

v. Sesnadri Ayyangar, 20 M 383 = 2 Weir 613 ... 272 

v. Sinnai Goundan, 20 M 3S8 = 2 Weir 251 ... 276 

v. Srinivasalu Naidu, 21 M 124 (F B) = 2 Weir 593 ... 444 

v. SubbaNaik, 21 M 249 = 11 Weir 42 & 310 ... 532 

v. Subramania Ayyar, 20 M 385 = 1 Weir 871 ... 273 

v. Subramanian, 20 M 1 = 1 Weir 140 = 1 Weir 797 ... 1 

v. Tiruohittambala Patban, 21 M78 = l Weir 123 ... 411 

v. Tiruvengada Mudali, fcl M 428 =1 Weir 792 ... 660 

v. Venkataram Jetti, 20 M444 = 2 Weir 452 ... 314 

v. Virappa Chetti, 20 M 433 = 1 Weir 233 307 



NAMES OP CASES. XVII 



PAGE 



Ragavendra Ayyar v. Karuppa Gounden, 20 M 33 = 6 M L J 278 

Rail v. Jayaram Rau, 20 M 283 = 7 M L J 134 

Raja Goundan v. Rangaya Goundan, 20 M 449 = 7 M L T 225 

Rajah Eswara Doss v. Venkataroyer, 21 M 236 

Raja Rao Venkata Suriya Mahipati Ram Krishna Rao v. Court of Wards, 23 M 395 

(PC) = 24 I A 194 = 7 Bar PC J 252 ... 281 

Vellanki Venkata Rama Rau v. Raja Pappamma Rau, 21 M 299 (PC) = 25 I A 

84 = 7 SarPC J313 

Ramachandra Rayaguru v. Modhu Padhi, 21 M 326 (F B) 
Ramachari v. Durasami Filial, 21 M 167 
Ramakissoor Dossji v. Stiranga Charlu, 21 M 421 = 8 M L J 74 
Ramalinga Chetti v. Ragunatha Rau, 20 M 418 
Ramanadan Chetti v. Nagooda Maracayar, 21 M 395 

v. Pulikutti Servai, 21 M 288 = 8 M L J 121 

Ramasamayyan v> Virasami Ayyar, 21 M 222 = 8 M L J 126 
Ramasami Kottadiar v. Murugesa Mudali, 20 M 452 = 7 M L J 229 

Mudaliar v. Ralhna Mudaliar, 21 M 148 

Pillai v. Adinarayana Pillai, 20 M 465 = 7 M L J 246 

Ramayyar v Ramayyar, 21 M 356 

Ranga Ayyar v. Srinivasa Ayyangar, 21 M 56 

Chariar v. Balaramasami Chetti, 21 M 400 = 8 M L T 53 

Rangarumalv. Venkatachari, 20 M 323 = 6 M L J 64 
Ranga Pai v. Baba, 20 M 398 

Rangayya Appa Rau v. Kameswar Rau, 20 M 367 = 7 M L J 59 
v. Ratnam, 20 M 392 



-Chettiar v. Parthasarthi Naicker, 20 M 120 



Rasibi Annual v. Olaga Padayachi, 21 M 115 

Ratnam Ayyar v. Krishna Doss Vital Doss, 21 M 494 = 8 M L J 75 

Reference under Stamp Act, 8. 46, 20 M 27 (F B) 

,21M358(FB) 

, 21 M 422 

Rogo v. Abbu Behari, 21 M 151 

s 

Salemma v. Latchman Reddi, 21 M 100 = 8 M L J 14 427 
Sami Ayyangar v. Ponnammal, 21 M 23 - 376 
Saminatha Ayyan v. Mangalathammal, 20 M 29 

Sami Pillai v. Krishnasami Chetti, 21 M 417 = 8 M L T 77 652 

Sangili Veera Pandia Chinna Tambiar v. Sundaram Iyer, 20 M 279 199 

Saujivi v. Jalajakahi, 21 M 229 5 1 ? 

Sankara Ayyar v. NainergMooppanar, 21 M 241 526 

Sankaralinga Mudali v. Rathnasabapati Mudali, 21 M 324 = 8 M L J 58 585 

Sankaran v. Raman Kutti, 20 M 152 = 6 M L J 232 107 

Narayanan v. Anantha Narayanan, 20 M 375 267 

Sankara Subbayyar v. Ramasami Ayyangar, 20 M 454 

Basivarna Tevar v. Arulanandam Pillai, 21 M 261 = 8 M L J 18 540 

Seeni Chettiar v. Santhanathan Chettiar, 20 M 58 (F B) =6 M L J 281 41 
Besbadri Ayyangar v. Nataraja Ayyar, 21 M 179 
Seshamma v. Chennappa, 20 M 467 

Beshammal v. Mucusami Mudali, 20 M 358 = 7 ML J 140 

Sethurayar v. Shanmugam Pillai, 21 M 353 = 7 M L J 279 605 

Singa Reddi Obala Reddi v. Madava Rau, 20 M 360 255 
M VII-III 



XVIII NAMES OF CASES. 



PAGE 

Sitararua Charya v. Kesava Gharlu, 21 M 402 ... 641 

Siva Rau v. Vitla Bhatta, 21 M 425 ... 658 

Bivathi Odayan v. Rama Subbayyar, 21 M 64 = 8 M L J 21 ... 402 

Sladen, In re, 21 M 492 ... 704 

Sridevi v. Krishnan, 21 M 105 ... 430 
Srimant Raja Yarlagadda Mallikarjuna Prasada Nayudu Bahadur Garu v. Makerla 

Sridevamma, 20 M 162 (P C) = 1 G W N 497 = 24 I A 73=7 Bar P C J 205 ... 114 

Srinivasa Ayyangar v. Ayyathorai Pillai, 21 M 416 = 8 M L J 54 ... 651 

Srinivaaa Cbarlu v. Balaji Ran, 21 M 232 ... 519 

Srinivaearagava Ayyangar v, Muthu&ami Padayachi, 20 M 6 ... 4 
Sri Raja Cbelikani Veokataramanayamma Garu v. Appa Rau Bahadur Garu, 20 M 

207 = 7MLT 143 ... 145 

Rau Lakshmi Kantaiyammi v. Sri Haja Inuganti Rajagopal Rau, 21 M344 

(P C) = 25 1 A 102 = 2 C W N 337 = J Bar P C J 325 ... 599 

Raja Viranara Thodhramal Rajya Lakhsbmi Devi Garu v. Sri Raja.Viravara 

Tbodhramal Surya Narayana; Dhatrazu Babadur Gaiu, '2Q M 256 (P C) = 21 1 A 

118 = 7Sar PC J 185 ... 182 

Subbaraya Chetti v. Sadasiva Cbetti, 20 M 490 ... 347 

Pillai v. Vaithilingam, 20 M 91 ... 64 

Subbarayar v. Subbammal, 21 M 497 ... 708 

v. A&irvatha Upedeeayjar, 20 M 494 = 7 M L J 201 ... 351 

Bubbaiaja Ravuthaminda Nainar v. PcoiiUEami Nadar, 21 M 364 ... 614 

Bubbramania Ayyar v. Saminatha Ayyar, 21 M 69 = 7 ML J 319 ... 405 

v. Sitha Lakshmi 20 M 147 ... 102 

Chetti v. Rakku Servai, 20 M 232 = 7 M L J 100 ... 165 

Subramauia Pillai v. Subramauia Ayyar, 21 M 419 ... 653 

Budalaimsthu Pillai, in re (Cr. Rev. Case No. 639 of 1886), 21 M 63-N = l Weir 647... 401 

Suryaoarayaaa Pandarathar v. Gurunada Pillai, 21 M 257 = 8 M L J 25 ... 538 

Bastri v. Ramarnurti Pantulu, 21 M 253 ... 534 

Syamalarayudu v. Subbarayulu, 21 M143 ... 457 



Tbeivu Pandithan v. Secretary of State for India, 21 M 433 (FJB) ... 664 

Tbeave)an v. KochD, 21 M 7 = 7 ML J 290 ... 361 

Thillai Chetti v. Ramanatha Chetti, 20 M 295 ... 210 

Thirukumaresau Cbetti v. Subbaraya Chetti, 20 H 313 ... 222 

Tirupathi Goundan v. Rami Reddi, 21 M 49=7 M L J 291 ... 391 

Tirupati Razu v. Vibuam Raju, 20 ii 155 ... 109 

u 

Unichaman v, Ahmed Kutti Kayi, 21 M 242 = 8 M L J 81 ... 527 

Uthunganakath Anutbala v. Tbazhatbaiayil Kunbali, kO M 4b5 = 7 M L J 293 . 308 



Vairananda Nadar v. Miyakan Rowthar, 21 M 109 ... 433 

Varadarajulu Naidu v. BrinivasuluNaidu, 20 M 333 236 

Vasudevan v. Sankarao, 20 M 129 (F B) = 7 M L J 102 90 

Vaiudeva Upadyaya v. Vievaraja ThirthaBami, 20 M 407 289 

Velu Gounden v. Kumaravelu Goundan, 20 M 28'J =-7 M L J 30 206 

Venkatagiri Rajah v. Ramasami, 21 M 413 549 

v. Veukat Rau, 21 M 243 533 

Venkatanarasimba Naidu v. Dondamudi Kctayya, 20 M 2997 M L J 251 213 

Yenkatarsmayya v. VenkatalakehinsrDina, 20 M 493 = 7 M L J 204 349 



NAMES OP CASES. XIX 



PAGE 

Venkatarayadu v. Rangayya AppaRau, 21 M 152 464 

Venkatasubbaraya Chetti v. Zamindar of Karvetinagar, 20 M 159 ... 112 

VenkaUsubramaniam Gbetti v. Tayarammab, 21 M 63 ... 542 

Venkatramayya v. Krishnayya, 20 M 319 = 7 M L J 257 ... 226 

Venkayya v. Eagavacharlu, 20 M 448 = 8 ML J 79 ... 310 

Garu v. Venkata Narasimhulu, 21 M 401 = 8 M L J 112 ... 647 

Viokiti Nayak v. Murugappa Chetti, 20 M 48 (F B) ... 34 

Virabhadrappa Chetti v. Chinnamma , 21 M 403 = 8 M L J 189 ... 642 

Virasami Chetti v. Liladhara Vyass, 21 M 398 = 8 M L J 110 ... 638 

Viru Mamm;id v. Krishnan, 21 M 149 ... 462 

Visvalinga Pillai v. Palaniappa Chetti, 21 M 1 = 8 M L J U3 ... 357 



Yalla Gangalu v. Mamidi Dali, 21 M 74 (P B)= 2 Weir 719 ... 408 

Yaramati Krishnayya v. Chundru Papayya, 20 M326 ... 231 



THE 

INDIAN DECISIONS 

NEW SERIES. 
MADRAS VOL. VII. 



I.L.R., 20 MADRAS. 



20 M . 1 = 1 Weir 140 = 1 Weir 797. 1896 

APPELLATE CRIMINAL. SBP.JI. 

Before Mr. Justice Subramania Ayyar and Mr. Justice Davies. APPEL- 

LATE 

QUEEN-EMPRESS v. SUBRAMANIAN AND OTHERS.* CRIMINAL. 

[llth September, 1896.] M lT~ t - 

20 M, , 1 

Penal Code, Section 188 Local Boards Act Act V of 1884 (Madras), Sections 98, 100 1 Weir 140 
Disobedience to notice. I Weir 797. 

The President of a Local Board, acting under Act V of 1884, issued a notice 
calling upon a person to remove certain encroachments on a public road within 
ten days : 

Held, that such a notice was not an order within the meaning of Section 188, 
Indian Penal Code, and a person neglecting to obey it could not be convicted 
under that section. 

[F., 1 Bom. L.R. 166; R,, 12 Or. L.J. 63 = 9Ind. Cas. 329 = (1911) 1 M.W.N. 78.] 

CASES referred for the orders of the High Court under Section 438 of 
the Code of Criminal Procedure by J. Hewebson, Acting District Magis- 
trate of Malabar. 

The facts of this case appear sufficiently from the letter of reference, 
which was as follows : 

" The accused in each of the cases has been sentenced to a fine of 
" Es. 10, or in default to one week's simple imprisonment for disobedience 
" to an order of the Taulk Board President of Malapuram to remove 
" encroachments on the public road, an offence punishable under Section 
" 188, Indian Penal Code. 

" I am of opinion that failure to remove an obstruction in obedience 
" to a notice under the Local Boards Act is not punishable [2] under 
" Section 188, Indian Penal Code. The procedure to be observed ia 
" prescribed by Section 100 of the Local Boards Act, which says that the 
" president is to have the obstruction removed and recover the costs from 
" the defaulter. 

* Criminal Revision Cases Nos. 288 to 290 of 1896. 



20 Mad. 3 INDIAN DECISIONS, NEW SERIES [Vol. 

1896 " In criminal revision case No. 568 of 1835 (1) it wag laid down 

SEP. 11. " that a lawful order for the removal of an obstruction from a public 

~~" " way can only be issued in the mode and by the officer named in 

APPEL- "Chapter X of the Code of Criminal Procedure. The president of a 

LATE " taluk board is not one of the officers named in Section 133, Criminal 

CRIMINAL. " Procedure Code. 

" I have the honour, therefore, to request that the convictions in 
SOU. 1- "these cases may be set aside and the fines ordered to be refunded." 
1 Weir 140= The material portions of Sections 98 and 100 of the Local Boards 
1 Weir 797. Act necessary for the purposes of this report are as follows : 

"Section 98. (1) No wall, fence or other obstruction or encroachment 
" shall be erected on any public street; without the written permission of 
" the president of the taluk board or some person duly authorized by him 
" in that behalf; nor shall any building be erected without such permission 
" over any sewer or drain or any part of a sewer or drain, or upon any 
" ground which has been covered, raised or levelled wholly or in part by 
" street-sweepings or other rubbish. 

" (2) If any person erects such obstruction or building without such 
" permission, or, where such permission shall have been granted in a 
11 manner contrary to or inconsistent with the terms of such permission, 
" the president of the taluk board, or other person duly authorized as 
" aforesaid, may by notice in writing require the person who shall have 
" erected the obstruction or building to remove the same within a time to 
" be specified in such notice. 

" Section 100. (1) If any person to whom a notice shall have been 
" given under the provisions of this Act requiring him to execute any 
" work omits to comply with such notice, the president of the taluk board, 
"or any person authorized by him in that behalf, may cause such work to 
" be executed. 

" (2) The expenses incurred in the execution of such work shall 
" be paid by the person to whom the notice shall have been [3] given, 
" and shall be recoverable in the manner hereinbefore provided for the 
" recovery of the arrears of the tax on houses." 

The Acting Public Prosecutor (Mr. N. Subranianiam) , for the Crown. 
The accused persons were not represented. 

OKDER. 

Beading Sections 98 and 100 of the Local Boards Act (V of 1884) 
together, it is clear that the notice prescribed by the former section is a 
mere preliminary to the action to be taken by the president himself and 
not by the party under the latter section. The notice in question is, there- 
fore, merely a notice and not an order of the kind contemplated in Section 
188 of the Penal Code. 

We accordingly agree with the District Magistrate that the convic- 
tions were wrong and set them aside and direct that the fines, if paid, 
be refunded. 



(1) Weir, 3rd Ed. 77. 
2 



11] 



ALLA.PICHAI RAVUIHAR V. MOHIDIN BIBI 



20 Mad. -4 



20 M. 3 = 2 Weir 638. 
APPELLATE CRIMINAL. 



Before Mr. Justice Subramwia Ayyar and Mr. Justice Davies. 

ALLAPICHAI BAVUTHAE v. MOHIDIN BIBI.* 
[17th and 21st September, 1896.] 



Criminal Procedure Code, Section 
default. 



433 Miintemme Sentence of imprisonment on 



1896 

SEP. '21. 

APPEL- 
LATE 
CRIMINAL. 

20 M. 3 = 
Weir 638. 



The imprisonment provided by Section 433, Criminal Procedure Code, in default 
of payment of maintenance awarded is not limited to one month. The maximum 
imprisonment that can be imposed is one month for each month's arroar, and if 
there is a balance representing the arrears for a portion of a month, a further 
term of a month's imprisonment may be imposed for such arrear, 

fF.,250. 291 (293); R , 4 Ind. Gas. 900 = U.B.R. (1907-1909), Vol. II, Gr. Pro. Code 21; 
5 O.C. 316 (317); D., 4 Ind. Ca3.899 = U.B.R. (1907 1939), Vol. Ill, Or. Pro. Code 
19.] 

CASE referred by R. D. Broadfoot, Acting Sassions Judge of Triohino- 
poly, for the orders of the High Oourt, uadar S action 433 of tha Code of 
Criminal Procedure. 

The case was stated as follows : 

''Mohidin Bibi, on behalf of her minor daughters, pa*; in a patifcion 
" to the Head Assistant Magistrate against har husband [4] AUapichai 
"Ravuthar for realization of Rs. 83-14-5, being the acsunaulatel arrears 
M< of maintenance for 55 months and 23 days. 

" After full enquiry the Head Assistant M igistrate wag not satisfied 
"that the said AUapichai is unable to pay the said arrears and ordered 
" him either to pay Rs. 83-14-5. or to undergo sioaole imprisonment for a 
" term of six months. 

" I am of opinion that the said order of imprisonment for six months 
" is probably illegal (vide Queen- Empress v. Narain (1),) though in Biyacha 
" v. Mohidin Kutti (2) the period of imprisonment for dafault of payment 
" of accumulated arrears was four aod-a-half months, and the High Court 
" did not comment on this ; still tha 0133 wag not argued on that point, 
" and I doubt if their Lordships maant to approve of more than one 
" month. 

" Any way, I submit that, in my opinion, thasentanca of six months 
" is excessive. The man hag now served two months and three days. 

" Under these circumstances I have tha honour to raqiest the 
" Honourable Judges of the High Court to modify the sai 1 order of the 
" Head Assistant Magistrate: tae prisoner has this diy baen releasei on 
" bail." 

The parties were not represented. 

ORDER. 

The question before us is whether the maximum sentence which may 
be imposed on any one occasion under Section 488 of the Code of Criminal 
Procedure is one month, or whether a longer term may be imposed at the 
rate of one month's imprisonment for each month's arrear remaining 
unsatisfied. In High Court Proceedings, dated 19th Aoril 1871 (3), thia 
Court remarked that only one month's imprisonment could be awarded, 

* Criminal Revision Case No. 170 of 1896. 
(1) 9 A. 240. (2) 8 M. 70. (3) 6 M.H.C.R. App. 22. 

3 



20 Mad. 5 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 but this observation was made with reference to the terms of Section 316"- 
SEP. 21. of the Criminal Procedure Code then in force (Act XXV of 1861) which 

runs as follows : " The Magistrate may, for every breach of the order by 

APPEL- " warrant, direct the amount due to be levied in the manner provided for 
LATE " levying fines ; or may order such person to be imprisoned with or with- 
CHIMINAL. " ou ^ hard labour for any term not exceeding one month." 

The words of Section 488 of the present Code are very different. 
20 M. 3= They are: " the Magistrate may, for every breach of the order, issue a 
2 Weir 638. " warrant for levying the amount due in manner herein [8] before provided 
" for levying fines, and may sentence such person for the whole or any part 
" of each month's allowance remaining unpaid after the execution of the 
" warrant, to imprisonment for a term which may extend to one month." 
The change is significant, and the words "for the whole or any part of 
" each month's allowance " are unmeaning, if, in any case, the maximum 
sentence can only be one month's imprisonment. In the interpretation 
put upon the section by the Allahabad High Court (Queen- Empress v. 
Narain (1) ) we are therefore unable to agree. The difficulty suggested by 
Edge, C.J., in determining to which month out of several a sum levied 
should be appropriated does not seem to be important. The procedure 
contemplated by the Code appears to be to deduct the sum levied from the 
sum due, and then to ascertain how many months' arrears the balance 
represents. The maximum imprisonment that can be imposed will then 
be one month for each month's arrears, and if there is a balance represent- 
ing the arrears for a portion of a month a further term of a month's 
imprisonment may be imposed for such arrear. Our view is in accordance 
with the construction incidentally put upon the section by this Court in 
the Biyacha v. Mohidin Kutti (2). 

In the peculiar circumstances of this case we should not have been 
prepared to say the sentence was altogether excessive, but as the Sessions 
Judge has already released the prisoner on bail before the expiration of his 
sentence, we think it inexpedient that he should be again committed to 
jail. His bail may, therefore, now be discharged. 



20 H. 6. 
[6] APPELLATE CIVIL. 

Before Sir Arthur J. H. Collins, Kt., Chief Justice, and 
Mr. Justice Benson. 



SRINIVASARAGAVA AYYANGAR AND ANOTHER (Plaintiffs), 

Appellants v. MuTTUSAMi PADAYACHI AND ANOTHER 

(Defendants), Respondents* [7th October, 1896.] 

Limitation Adverse possession Rent Recovery Act (Madras) Act VIII of 1865 
Omission by inamdar to obtain registration of title under Regulation XXVI of 1801 
Effect of. 

An inamdar had cot obtained registration of his title under the registered 
landlord and could not therefore sue to enforce acceptance of pattas and bad not 
collected rent from the tenants for more than twelve years : 

Held, that the tenants had not by reason of these facts acquired rights against 
the inamdar by adverse possession. 

* Second Appeal No. 807 of 1895, 
(1) 9 A. 240. (2) 8 M. 70. 



YIL] 



SR1NIVASARAGAVA y. MUTTOSAMI 



20 Mad. 7 



SECOND appeal against the decree of E. J. Sewell, Acting District 
Judge of Taujore, in appeal suit No. 333 of 1894, reversing the decision of 
K. B. Glegg, Acting Sub-Collector of Tanjore, in summary suit No. 132 of 
1893. 

The facts of this case set forth in the judgment of the Sub-Collector 
were as follows : 

" This is a suit under Act Vf.II of 1865 to enforce acceptance of patta 
" for fasli 1302. The patta was tendered to the defendants on tbe 23rd 
" June 1893, but they refused it. There is no question of the tender of 
" patta. 

" The issues in this suit are : (i) whether the defendants are tenants 
" of the plaintiffs and are bound to accept a patta ; (ii) whether the terms 
" of the patta tendered are correct. 

" On the first issua tbe plaintiffs allege that they are registered inam- 
" dars of the ' Nadusetbu ' of Tirupatorai. Thev produce Exhibit A, a 
" sale- deed, dated 19th January 1878, under which they derive their bitle 
" as inamdars of this ' Setfcu ' from the former inamdar Sankara Peshwai. 
" Exhibit D is a copy of the revenue register, ordering the patta for the 
" lands purchased from [7] Sankara Row Peshwai to be entered in their 
" names on February 1884. 

" Tbe defendants' contention on this issue is that they have never 

" paid any rents to the olaintiffs for over twelve years ; that they have baen 

in possession of their lands with all rights of ownership for over twelve 

" years, and that, therefore, tha plaintiffs' claim is barred by limitation. 

" The defendants rely on a judgment in A. S. No. 419 of 1880 of the 
District Court, Tanjore. This was an appeal against the decree of the 
*' Head Assistant Collector in summary suit No. 84 of 1880 in which 
" Sankara Row Peshwai was first plaintiff and the present plaintiffs 
" second and third, respectively. The District Judge then held that as the 
" present plaintiffs had not then baen registered as inamdars in the 
" Collector's register, they were not entitled to tender patba though he 
*' ordered defendants to accept patta from Sankara Row Peshwai. The 
*' defect of revenue registry has now baen overcome, and the question is 
<l whether the defendants have acquired a title to the malvaram rights over 
" the land by adverse possession for more than twelve years." 

The Sub-Collector held that the defendants were bound to accept the 
patfca tendered subject to a modification not now material. 

The District Judge reversed this decree and dismissed the suit with 
costs with the following remarks : 

"The right of the plaintiffs to take action as the Und lords of the 

defendants was explicitly denied in 1880 and the mattar was decided 

" against plaintiffs. If the relation of landlord and tenant had ever exist- 

" ed between them, the tenancy was then put an end to. The defendants 

" have held possession ever since, although the bar stated in the decision 

" to the claim of the plaintiffs (want of registry of the inam in their 

" name) was removed in 1884. The present suit was not brought until 

1893. I am of opinion that the plaintiffs' suit as landlords is barred, 

and that the defendants are not their tenants." 

The plaintiffs preferred this second appeal. 

Mr. Krishnan, for appellants. 

No one appeared for the respondents. 
JUDGMENT. 

No one appears to oppose the appeal. We find ourselves unable to 
support the decree of the District Judge. 



1896 

OCT. 7. 

APPEL- 
LATE 
CIVIL. 

20 M. 6. 



20 Mad. 8 



INDIAN DECISIONS, NEW SEEIES 



[Yot 



1896 
OCT. 7. 

APPEL- 
LATE 

XJlVIL. 
20 M. 6, 



The decree in appeal suit No. 419 of 1880 (Exhibit I) did not decide 
that the then defendants' were in adverse possession of [8] the lands 
as against the then landlord. It merely decided that the present plaintiffs 
(then second and third plaintiffs) had not then obtained registration of 
their title under the registered landlord, and that they could not maintain 
a suit to enforce acceptance of patta until such registration had been made. 
The registration was made in 1884 and by that registration the plaintiffs 
for the first time obtained a complete title on which to enforce acceptance 
of pattas. There is no evidence that the possession by the tenants was 
at any time hostile to the plaintiffs or their vendor. The mere omission 
to collect rent does not make the tenancy hostile. 

We must reverse the decree of the District Judge and restore that 
of the Sub-Collector. The plaintiffs must have their costs throughout. 



20 M . 8. 

APPELLATE CRIMINAL. 
Before Mr. Justice Subramania Ayyar and>Mr. Justice Davies. 



QUEEN-EMPRESS v. ABDUL KADAR SHERIFF SAHEB.* 
[14th September, 1896.] 

Criminal Procedure Code, Sections 195, 433 Abetment of an offence, Section 109, Penal 
Code Sanction to prosecute unnecessary. 

Though sanction to prosecute is necessary in cases falling under the sections of 
the Penal Code set forth in Section 195, Criminal Procedure Code, no such 
sanction is required previous to the prosecution of a person charged with the 
abetment of such offences. 

[R.,32 A. 74 (76)=6 A.L.J. 983 = 10Cr. L. J. 497 = 4 Ind. Gas. 105; 32 M. 3 = 9 Or. 
L. J. 130 = 1 Ind. Gas. 36 = 5 M.L.T. 16.] 

CASE stated for the opinion of the High Court by W. E. Clarke,. 
Acting Chief Presidency Magistrate, in calendar case No. 18351. 

The case was stated as follows : 

" One Beejan Bi accused one Hyath Bi of criminal breach of trust in 
' calendar case No. 3732 of 1896 on the file of this Court. Accused was 
' discharged under Section 253. Criminal Procedure Code. Hyath Bi 
1 subsequently in calendar case No. 5988 of 1896 applied for sanction to 
' prosecute Beejan Bi and one Abdul Kadar Sheriff who was alleged to 
1 have abetted Beejan Bi to [9] bring a false charge against Hyath Bi. 
' This Court, after inquiry, sanctioned the prosecution of Beejan Bi for 
' bringing a false charge, but, thinking that a sanction was unnecessary to 
4 support an action for abetment of an offence under Section 211, Penal 
' Code, declined to grant sanction to prosecute the alleged abetter. Subse- 
' quently Beejan Bi complained of Abdul Kadar Sheriff having abetted an 
'offence under Section 211, Peual Code, and this Court issued a sum- 
1 mons against the said Abdul Kadar Sheriff. It is now argued no pro- 
' ceedings will lie against Abdul Kadar Sheriff for abetment of an offence 
1 under Section 211, Indian Penal Code, without sanction. I have now the 
' honour to solicit an opinion as to whether abetment being a substantive 
' offence punishable under sections of the Penal Code other than those 
' mentioned in Section 195 Clause (6) of the Criminal Procedure Code, sanc- 
4 tion is necessary before a Court can take cognizance of such an offence as- 



Criminal Referred Case No. 1 of 1896. 



11.] ABBUBAKER SAHIB V. MOHIDIN SAHBB 20 Mad. 10 

" abetment of an offence under Section 211, Indian Penal Code. I make 1896 
" this reference, as I am asked to do so, and the point seems one of SEP. 14, 

importance regarding which a definite ruling would be of advantage to 
" the public." APPEL- 

The Crown Prosecutor (Mr. R. F. Grant], for the Crown. LATE 

Srinivasaragava Chariar, for complainant. CRIMINAL. 

Mr. Ramasami Raju, for the accused. 

20 M. 8, 
OPINION. 

The abetment of an offence is an offence of itself and is punishable 
under separate sections of its own. None of those sections is mentioned 
in Clause (b) of Section 195 of the Code of Criminal Procedure, and there- 
fore sanction need not be obtained in respect to them. 

The fact that the Legislature has not included in Section 195 the 
sections of the Penal Code relating to abetment is probably due to the cir- 
cumstance that in the generality of cases the facts connected with the 
abetment are not likely to come before the Court. 

The costs of this reference must be paid by the accused at whose 
instance it was made. 



20 H. 10. 

[10] APPELLATE CIVIL. 
Before Mr. Justice Shephard and Mr. Justice Subramania Ayyar. 



ABBDBAKER SAHIB (Auction- Purchaser}, Appellant v. 

MOHIDIN SAHEB (Judgment-debtor), Respondent* 

[17th October, 1896.] 

Civil Procedure Code, Sections 224, 311 Application to set aside sale Effect of fraud 
Auction-purchaser no party to fraud Absence of certificate under Section 224 
Mere irregularity. 

A' judgment-debtor cannot have a Court sale set aside on the ground of fraud 
in the absence of proof that the auction- purchaser was a party to the fraud and 
that the fraud came to the judgment-debtor's knowledge subsequent to the con- 
firmation of the sale. 

The omission to transmit to the Court executing the decree the certificate 
required by Section 224, Civil Procedure Code, is a mere irregularity which 
would not vitiate the sale. 

[Digs., 6 C.L.J. Ill (118).] 

PETITION under Section 622 of the Code of Civil Procedure, praying 
the High Court to revise the order of the District Judge of South Malabar 
in civil miscellaneous appeal No. 26 of 1895, confirming the order of U. 
Achutan Nayar, Principal District Munsif of Calicut, in civil miscellane- 
ous petition No. 2298 of 1894. 

This was an application by the judgment-debtor to set aside a sale of 
immoveable property in execution of decree No. 408 of 1887 on the file of 
the Cannanore Munsif's Court transferred to the Court of the Principal 
District Munsif of Calicut for execution. The sale was effected on 6th 
June 1891 and was confirmed on 6th August 1891. 

The grounds alleged for setting aside the sale were : first, that no 
notice of execution was served upon petitioner ; secondly, that the decree- 
holder was guilty of fraud in preventing service of notice by false 

* Civil Revision Petition No. 474 of 1895. 



20 Mad. 11 



INDIAN DECISIONS, NEW SERIES 



[Yol. 



1896 

OCT. 17. 

APPEL- 
LATE 
CIVIL. 

20 M. 10. 



representation ; and, thirdly, that the transfer of execution to this Court 
was not accompanied by the certificate required by Section 224 of the Code 
of Civil Procedure. 

The District Munsif found that notice was not served on the judg- 
ment-debtor, secondly, that the service of notics upon the [11] defend- 
ant was prevented by the fraudulent representation of the decree-holder, 
and, thirdly, that the absenee of the certificate required by Section 224 
would noc vitiate the sale and he set aside the sale as prayed. On appeal 
the District Judge confirmed the order of the District Mnnsif and his 
order was as follows : 

" I am unable to agree with the Munsif that a notice to the judgment- 
" debtor was required in this case, for I consider that the order passed 
"under Section 312, Code of Civil Procedure, confirming the sale was 
11 distinctly an order passed against the person against whom execution 
" was applied for. Indeed such an order is expressly referred to in the 
" last clause of the section itself as an order made against a party. 

" But I can uphold the order of the Munsif on another ground, one 
'' that he would not allow, namely, the third objection taken by the 
" judgment-debtors that the decree was not executable by the Munsif in 
" the absence of the certificate required by Section 224, Code of Civil 
" Procedure. It must be taken that no such certificate ever existed 
" because (i) it is not found in the record, and (ii) if it had existed, the 
" Court would never have issued execution for the whole amount of the 
" decree when a substantial portion of it over Es. 1,000, about one-third 
" of the amount, had already been realized. Until the certificate and 
" copies required by Section 224, Code of Civil Procedure, are 'filed' (vide 
" Sections 225 and 226) there is no material for the Court to act upon, in 
" other words, it has no jurisdiction to execute. The execution proceed- 
" ings in this case were, therefore, null and void ab initio, and on this 
" ground I confirm the Munsif's order setting aside the sale and dismiss 
" the appeal with costs. " 

The auction-purchaser appealed. 

Narayana Rau, fcr appellant. 

Sankaran Nayar, for respondent. 

OEDEE. 

The petitioner, who was appellant in the District Court, seeks to 
have the order of the District Court set aside on the ground that the 
Judge exercised a jurisdiction which he did not possess. That order con- 
firmed the order of the District Munsif, which proceeded on the ground of 
fraud practised upon the judgment-debtor. 

It appears that the sale had been confirmed before the application to 
set it aside was made. That being so we are of opinion that the ground 
assigned by tba Judge for confirming the District [12] Munsif's order is 
not a valid one, because the omission to sead tb.3 certificate required by 
Section 224 could not affect the jurisdiction of the Court to sell. It 
would be a mere irregularity not entitling any party to have the sale set 
aside after confirmation. The only ground, as it appears to us, on which 
the order of the District Munsif could be supported would be that the sale 
had been brought about by fraud to which the purchaser was a party. 
Fraud as between the decree-holder and the judgment-debtor only could 
not affect the purchaser. 

8 



YII] 



QUEEN-EMPRESS V. PAUL 



20 Mad. 13 



The District Munsif does not find distinctly that the purchaser was 
party to the fraud, and he also omits to say whether the fraud was dis- 
covered after the confirmation of the sale. 

We are of opinion that, unless there was evidence that the purchaser 
was party to the fraud, and that the judgment-debtor discovered it subse- 
quently to the confirmation of the sale, the District Munsif would have 
had no jurisdiction to set it aside. In the absence of such evidence the 
case would be a proper one for interference under Section 622. We must 
ask the Principal District Munsif of Calicut to return a finding on the 
above question within one month from the date of the receiot of this order. 
Seven days will be allowed for filing objections after the finding has been 
posted up in this Court. 



20 M. 12 = 1 Weir 820. 

APPELLATE CEIMINAL. 

Before Mr. Justice Subramania Ayyar and Mr. Justice Davies. 



QUEEN-EMPRESS v. PAUL AND OTHERS.* [30th September, 1896.] 

Indian Christian Marriage Act Act XV of 1872, Section' QB Solemnize, 

In Indian Christian Marriage Act, Section 63, the word "solemnize" is equiva- 
lent to the words " conduct, celebrate or perform." Therefore any unauthorised 
person not being one of the persons being married, who takes part in performing 
a marriage, that is, in doing any act supposed to be material to constitute the 
marriage is liable to be convicted under that section ; and a charge of abetment 
is sustainable against the persons being married. 

[13] APPEAL under Section 417 of the Code of Criminal Procedure 
against the judgment of acquittal passed by E. J. Sewell, Sessions Judge 
of North Arcot, in sessions case No. 45 of 1895. 

The facts of this case were stated in the judgment of the Sessions 
Judge as follows : 

" The first defendant Paul is a Native Christian. The second defend- 
" ant Bakkaiyan is a Hindu by religion. The third defendant Simeon 
" is stated in the charge to be a Native Christian. Paul and Bakkaiyan 
" are charged under Section 68 of the Indian Christian Marriage Act with 
'' solemnizing or professing to solemnize a marriage between third defend- 
" ant, a Christian, and a woman professing Hinduism in the absence of 
" a Marriage Registrar, they not being authorized under the Indian Chris- 
" tian Marriage Act to solemnize marriages. The third defendant, the 
" man married, is charged under the same section with abetting the offence. 

" The first defendant's defence is that he was not even present at 
11 third defendant's marriage and did not solemnize it. The second defend- 
" ant's defence is that he took no part in the ceremony but only acted as 
" cook. 

" The third defendant's defence is that he had before the date of the 
" marriage 2nd September 1895 ceased to profess the Christian religion. 
'' He also denied that the marriage was solemnized by first and second 
" defendants so that, of course, he denies abetting them. 

" It appears from the evidence for the prosecution that the Reverend 

" L. R. Scudder, a Missionary of the American Reformed Church in North 

Arcot, having learnt that some of the Native Christians under his care 



M VII 2 



Criminal Appeal No. 255 of 1896. 
9 



1896 

OCT. 17. 

APPEL- 
LATE 
CIVIL. 

20 M. 10. 



20 Mad. 14 INDIAN DECISIONS, NEW SERIES [Yol 

1896 " in the village of Bassoor were contemplating marriage according to 

SEP. 30, " non-Christian rites, and without observing the provisions of the Indians 

" Christian Marriage Act went to Bassoor on 1st September and remons- 

APPEL- " fc ra ted with the elders of the church -of whom first defendant is one 

LATE and pointed out to them that if they carried out their intention they 

CRIMINAL. " would expose themselves to legal penalties. Dr. Scudder and other 

"witnesses called, state that the third defendant Simeon alias Vilvana- 

" than attended the church, listened to the proceedings and said nothing 

1 Weir 820. " w hatever in reply to these remonstrances. 

"The native pastor of the church, the catechist in immediate charge, 
" and other attendants at the services and members of the [14] church 
"depose that Simeon had up to 1st September been attending the weekly 
" worship and had taken part in the Lord's Suoper and that he continued 
" to do so after 1st September up to 15bh September. The registers of 
" the church and of attendance at the services are produced and corroborate 
" these statements." 

The Sessions Judge found that the defendant continued up to the 
date of his marriage to profess the Christian religion, but, acquitted him 
on the charge of abetment, and also acquitted defendants Nos. 1 and 2. 
He gave judgment as follows as regards the construction of the Act : 

" It appears to me that the word solemnization as used in the Act is 
" different to the mere conducting of the marriage and that it involves the 
" performance by some person possessing or claiming authority to do so 
" of religious rites appropriate to the occasion. There are two cases in 
" which a marriage without religious rites is permissible, viz., in the case 
" of a marriage in the presence of a Marriage Registrar and in the case of 
" marriage between Native Christians certified by a person licensed under 
" the Act to certify marriages of Native Christians ; the second case is 
" hardly an exception since by Section 60, Clause (3), a solemn appeal to 
the Deity is made a necessary part of the ceremonial. But the marriage 
" in this case is not spoken of as being solemnized by the person licensed 
" to give a certificate, but as solemnized by the parties in his presence (see 
" Sections 61 and 62). 

So also in the case of marriages before a Marriage Registrar, the 

" parties to the marriage are left free to solemnize the marriage between 

" them 'according to such form and ceremony as they think fit to adopt' 

(Section 51) and such a marriage is spoken of in Section 51 as solemnized 

' in the presence of some Marriage Registrar' and in Section 53, as 

" solemnized before a Marriage Registrar. In all other cases, the Minister 

1 of Religion is spoken of as solemnizing the marriage. 

" It is true that in Section 5 and in the heading to Part V the phrase 
is used ' marriages solemnized by or in the presence of a ' Marriage 
" Registrar.' 

" But it is doubtful whether this means that there are two different 

" t kinds of marriage, one solemnised by the Marriage Registrar and the 

^ other solemnized in his presence. There is in Part V only on procedure 

" t laid down and that is, in Part V itself [15] spoken of as solemnized by 

" the parties in the presence of the Registrar. 

" I think, therefore, that it is most consistent with the whole tenor 
^ of the Act to confine the description of a person solemnizing the marriage 
^ to some person having or claiming authority recognised by the parties 
^ to conduct the religious or ceremonial rites prescribed by his ecclesiaati- 
" cal authority (Section 5, Clauses 1 and 2) or chosen by himself (Part III,. 
" Section 25). 

10 



YII.] QUEEN-EMPRESS V. PAUL 20 Mad. 16 

" In the cases where there is no such person, the marriage is 1896 
" solemnized between the parties but not solemnized by any one. SEP. 

" If there be an exception to this, it is the case of a Marriage Eegistrar 

" and it exists because he is authorized to require a 'solemn' declaration APPEL- 
" from the parties (Section 51). LATE 

" If in the case now under consideration the recognised priest of 
" Pariahs, a Valluvan, had conducted the ceremonial usual in such cases, 
" he would, no doubt, come under the description of a person solemnizing 20 H. 12 = 
" or professing to solemnize a marriage given in Section 68. 1 Weir 820. 

" BUG in the absence of any such person, I do not think that any 
"person taking a part, even a leading parb, in the ceremonies adopted, but 
" neither claiming nor having any authority recognised by the parties, to 
" do so, can be said to have solemnized the marriage. 

" In such a case, I hold the marriage to have been, in the language 
<! adopted in the Act, solemnized between the parties, but not solemnized 
" by any one. 

' In the only reported case, the person held liable was a ' Hindu 
'priest ' (see Weir, 3rd edition, page 565 (1)). 

" I find therefore that the acts attributed to the first and second 
" defendants did not amount to a solemnization of the marriage by them 
" so that they are not liable under Section 68. 

" It is therefore needless to go at length into the evidence whether 
" they were present or not. I think that there is room for reasonable 
" doubt whether first defendant was present." 

The Acting Public Prosecutor (Mr. N. Subramaniam) , for the Crown. 

Sundara Ayyar, for the accused. 

JUDGMENT. 

[16] We cannot accept the Judge's interpretation that the word 
"solemnize" as used in the Act applies to only such marriage ceremonies 
as are performed by some person possessing or claiming authority to 
perform them by virtue of ecclesiastical authority. The Judge's view is 
quite inconsistent with the provisions of the Act which use the word 
"solemnization" with reference to marriages before the Marriage Eegistrar 
who is an official possessing no ecclesiastical character, and before whom 
no ceremonies are necessary. A marriage before him is a mere civil 
marriage and yet the word in question is applied to such a marriage 
equallyswith marriages accompanied by religious ceremonial. We, there- 
fore, take the meaning of the word to be equivalent to conduct, celebrate 
or perform. In this view any person, not being the persons being married, 
who actually took part in performing this marriage, that is, in doing any 
act that was supposed to ba material to constitute the marriage was clearly 
guilty under Section 68 of Act XV of 1872 as parties either solemnizing 
a marriage or professing to do so. 

In the case of the persons being married, we consider a charge of 
abetment is sustainable as without their presence and aid the marriage 
could not possibly take place. On this ground the acquittal by the Judge 
of the third accused was wrong. For these reasons we set aside the 
acquittal of all the accused and direct that they be re-tried with reference 
to the merits of the case. 

Ordered accordingly. 

(1) S.C. 6 M.H.C.R. App. XZ = 1 Weir 801. 

[REPORTER'S NOTE. Compare Queen-Empress v. Yoltan and otiwrs, 17 M. 
391. j 

11 



20 Mad. 17 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 20 M. 16 =1 Weir 793. 

9. APPELLATE CEIMINAL. 

APPEL- Before Sir Arthur J. H. Collins, Kt., Chief Justice, and 

LATE Mr. Justice Benson. 



CRIMINAL. QUEEN-EMPRESS y. KUTTI ALL* [29fch September 1896.] 

20 M. 16== Local Boards Act Act V of 1884 (Madras), Section 87, Clause 3 Government stores 
1 Weir 793 . Equipages. 

Stores and ctrts belonging to the Government jails come within the words 
[17] Government Stores and Equipages in Clause 3, Section 87, Act V of 1884, 
and are free from tolls under that Act. 

PETITION under Sections 435 and 439 of the Criminal Procedure 
Code, praying the High Court to revise the finding of M. Swaminatha 
Ayyar, Sub-Divisional First-class Magistrate of Calicut Division, in 
Calender case No. 12 of 1896, wherein the accused was discharged, under 
Section 253, Criminal Procedure Code, of offences, under Section 417, 
Indian Penal Code, and Section 165 of Act V of 1884 (Madras). 

The facts are as follows : 

" Sheik Moideen, a warder of the Central Jail, Cannanore, laid a 
"complaint before the Town Second-class Magistrate, Cannanore, charging 
"the defendant, Kutti Ali, the Edakkad Toll-keeper, with illegal collection 
" of the toll from him under Section 60, Act V of 1884. 

" The evidence shows that articles manufactured at the jail are sent 
" by the jail carts to Public Departments as well as to private parties, 
" and a pass is given by the Superintendent, Central Jail, claiming exemp- 
" tion from payment of tolls. The defendant refused to accept the passes 
" at the Local Fund Toll-gate at Edakkad and stated that the hukum- 
" namah given to him by the President, District Board, did not contain 
" any clause to allow the exemption claimed." 

Section 87 of Act V of 1884 runs as follows : 

"If the District Board notify under Section 60 that tolls on carriages, 
" carts and animals passing along any road within the district shall be 
" levied at the rates specified in the notification, such tolls shall be levied 
" as provided in Sections 88 to 92. 

" The District Board may compound with any person for a sum to 
" be paid annually or half-yearly in lieu of all such tolls either generally 
" in respect of all roads in the district or specially in respect of any parti- 
" cular road, and may issue licenses to any such person in respect of his 
41 carriages, carts and animals ; 

" Provided always that such composition shall include all the 
" carriages, carts and animals possessed by the person compounding. 

" No tolls shall be paid for the passage of troops on their march, or 
" of military and Government stores and equipages, or of military and 
" police officers on duty, or of any person or [18] property in their custody, 
41 or for the passage of vehicles and animals licensed by the District Board 
" while such licenses are in force." 

The exemption is claimed on two grounds, namely : 

(a) That the articles conveyed come within the category of ' Govern- 
ment Stores,' and 

(6) That the jail carts come within the meaning of the term 
4 Equipages.' 

* Criminal Revision Case No. 340 of 1896. 
12 



YII.] CH1NNA KRISHNA REDDI V. DORASAMI REDDI 20 Mad. 19 

The Magistrate acquitted the accused being of opinion that the arti- 1896 

cles conveyed were not Government Stores and that the jail carts are not SEP. 29. 

included in the term 'Equipages.' APPFT 
The Acting Public Prosecutor (Mr. N. Subramaniam) , for the Crown. 

Mr. Krishnan, for the accused. LATE 

CRIMINAL. 
ORDER. 

We are of opinion that stores and carts belonging to the Government ' 

jails come within the words 'Government Stores and Equipages' in Section 
87 of Act V of 1884, and are free from tolls under that Act, 

The First-class Magistrate was, therefore, wrong in discharging the 
accused on the grounds assigned by him in his judgment. 

We, therefore, direct the said Magistrate to restore the case to his file 
and proceed to dispose of it in accordance with law. The Acting Govern- 
ment Pleader informs us that the object of Government in moving the 
Court to interfere in this case is merely to ascertain the law. We are of 
opinion that, if a conviction is obtained against the accused, a purely 
nominal fine will suffice, as the sense in which the word ' Equipages ' is 
used in the Act is not free from doubt and the construction placed upon 
it by the toll-keeper was not an unnatural one or, in our opinion, so far 
as the records show dishonest. 



20 H. 19. 
[19] APPELLATE CIVIL. 

Before Sir Arthur J.H. Collins, Kt., Chief Justice and 
Mr. Justice Benson. 



CHINNA KRISHNA REDDI (Plaintiff], Appellant v. DORASAMI 

REDDI AND ANOTHER (Defendants), Respondents.* 

[7th September, 1886.] 

Specific performance of contract Sale-deed fraudulently suppressed by defendant before 
registration Cause of action. 

Where the defendant agreed to sell certain land to the plaintiff and executed 
a sale-deed in favour of the plaintiff to that effect, but subsequently obtained 
possession of it before registration and fraudulently suppressed it 

Held, that the plaintiff was entitled to enforce specifh performance of the 
contract by the execution and registration of a fresh document! 

[Bel., 12 C.L.J. 464 = 8 Ind. Gas. 794 (795) ; 7Ind. Gaa. 408 (409) = 7 A.L.J. 887 (889); 
D,, 16 Ind. Gas. 433 (434) = 12 M.L T. 301.] 

SECOND appeal against the decree of S. Russell, District Judge of 
Chingleput, in appeal suit No. 193 of 1893, confirming the decree of K. 
Ramachandra Ayyar, District Munsif of Chingleput, in original suit 
No. 142 of 1891. 

The facts of this case were as follows : 

The suit is for specific performance of a contract of sale. 

Plaintiff alleged that in March 1890 the first defendant agreed to sell 
to him certain lands and a document was actually drawn up and executed 
by first defendant. Plaintiff says the consideration duly passed from him, 
and it was so recited in the document. 

* Second Appeal No. 687 of 1895. 
13 



20 Mad. 20 INDIAN DECISIONS, NEW SERIES [Yol. 

1886 Defendant admitted the execution of a sale-deed, but says the trans- 

SEP. 7. action fell through as plaintiff failed to pay the consideration. 

~ There was a subsequent sale by 1st defendant to second defendant, 

API EL- but thig was ne i(j t o be a nominal transaction. 

LATE rpk e District Munsif dismissed the suit and his decree was confirmed 

ClVIL. on appeal by the District Judge, who however found that the plaintiff has 
2o~w~~ig paid full consideration and that the defendant had in fact executed the 
document which was delivered to plaintiff, but subsequently redelivered 
to the first defendant who has regained possession, but dismissed the 
suit on the authority of Venkatasami v. Kristayya (1) . 
[20] The plaintiff appealed. 

Pattabhirama. Ayyar and Srirangachariar, for appellant. 
Masilamani Pillai, for respondent. 

JUDGMENT. 

The case relied on by the District Judge (Venkatasami v. Kristayya (1)) 
is not in point. In that case the plaintiff was in possession of the docu- 
ment, and it was solely by reason of his own negligence that he was unable 
to register the document; ani it was for this raason that the High Court 
in that case decided that no suit would lie to compel the defendant to 
execute a fresh document. 

The present case stands on a totally different footing. In it the first 
defendant fraudulently made away with the document after its execution 
and before registration. It was therefore impossible for the plaintiff to 
register it. In such a case the plaintiff is clearly entitled to have a fresh 
document executed and registered just as he would be so entitled if, after 
execution, the document had been accidentally lost or destroyed. 

The decision in Nynakka Routhen v. Vavana Mahomed Naina Routhen 
(2) is exactly in point. There a document, after execution, but before regis- 
tration, was accidentally destroyed by fire, and the High Court held that 
the plaintiff was entitled to have a fresh document executed in the terms 
of that destroyed. 

The High Court then observed "the execution of a fresh instrument 
" of sale is an act required to perfect the title sold to the plaintiff in the 
" way the contract between him and the first defendant intended it 
" should be perfected ; and the cause of action, on which the prayer for 
" the enforcement of that act rests, is not attributable in any way to 
" breach of contract or neglect on the part of the plaintiff, nor does it 
" involve the doing of anything prejudicial to the first defendant. On 
" every just principle therefore the first defendant is under an obligation 
" to renew the sale-deed . . . and so place the plaintiff in the posi- 
" tion to register the sale." 

The District Judge has found that the plaintiff has paid considera- 
tion for the document and done everything on his part to complete the 
sale, but; that the first defendant has fraudulently maie away with the docu- 
ment before registration. On these findings and having regard to the true 
principles applicable in [21] such oases as set forth above, we must set 
aside the decrees of the lower Courts dismissing the suit, and give judg- 
ment for plaintiff with costs throughout. 

The defendant must execute and register a document in the terms of 
Exhibit A within six weeks from this date. 

(1) 16 M. 341. (2) 5M.H.C.E. 123. 

14 



YIL] NAEAYANAMMA V. KAMAKSHAMMA 20 Mad. 22 

20 M. 21. 1896 

APPELLATE CIVIL. OCT. 22. 

Before Mr. Justice Shephard and Mr. Justice Subramania Ayyar. APPEL- 



LATE 

NARAYANAMMA (Petitioner) v. KAMAKSHAMMA, (Counter-petitioner).* CIVIL 
[16th and 22nd October, 1896.3 ' 

20 II 21 

Civil Procedure Code, Sections 617, 647 Village Court's Act (Madras) Act lof 1889, 

Section 13, proviso 3 'Land 1 includes house. 

In Act T of 1889, Section 13, proviso 3, the word land includes land covered 
by a house and consequently a suit for house-rent unless due under a written 
contract signed by the defendant is not cognizable in a Village Munsif'a Court. 

CASE stated for the opinion of the High Court under Sections 617 

and 647, Civil Procedure Code, by Y. Janakiramayya. District Munsif of 

Tirupati, in suit No. 32 of J895 on the file of the Village Munsif of Puthur. 

The facts appear sufficiently from the letter of reference, which was 

as follows : 

" The counter-petitioner, Kamsala Kamakshamma, brought on 21st 
" September 1895 a suit (suit No. 32 of 1895) against the petitioner Ghan- 
41 dhavady Narayanamma in the Village Court of Puthur for Rs. 19, 
" arrears of rent for a house due on an oral lease. The Village Munsif 
41 passed a decree in plaintiff's favour on 18th November 1895, and the 
" defendant preferred an application to this Court under Section 73 of the 
" Village Courts Act (Madras Act I of 1889) on the ground, inter alia, 
" that the Village Courb has no jurisdiction to try the suit. Thepetition- 
" er's pleader contends that suits for house-rent on oral leases are 
41 excepted from the jurisdiction of the Village Courts by Section 13, 
4< proviso (3), while the counter- petitioner's pleader contends that the 
41 expression 'land' in the said proviso does not include house and is 
" meant to cover only agricultural lands, but neither houses [22] nor 
" dwelling sites ; relying on this construction of the proviso, the learned 
" vakil contends that the suit in question is cognizable by a Village 
" Court under the main section (Section 13). 

" The points referred for the decision of Honourable the Judges of 

41 the High Co art are whether the word ' land' in proviso (3), Section 13, 

41 of the Village Courts Act includes houses and dwelling sites also, and a 

" suit for rent for a house is cognizable by a Village Court when it is not 

41 due " upon a written contract signed by the defendant." My answer to 

1 the first question is in the affirmative and to the second question is in 

41 the nagative. I have no doubt that the word 'land' in Section 13 is used 

' in a very wide sense and includes houses and dwelling sites also. The 

" policy of the Village Courts Act seems to me to exclude all rent suits 

41 from the jurisdiction of the Village Courts when the rent is not due on 

any written contract, and the reasons for adopting this policy are obvious. 
4 ' The legislature must have thought it dangerous to invest these illiterate 

and inferior tribunals, vis., Village Courts, with power to try questions 
' relating though incidentally, to title to immoveable property, and to the 

abatement, increase, or decrease of rents which questions may not 
41 unfrequently crop up in rent suits if the terms of the leases are not 
(( reduced to writing. A suit for rent for an agricultural land, on an 

oral lease, is admittedly not cognizable by Village Courts, and I cannot 

see why a similar suit for a house-rent should be made cognizable by 

* Referred Case No. 6 of 1896, 
15 



20 Mad. 23 



INDIAN DECISIONS, NEW SEEIES 



[Yol. 



1896 
OCT. 22. 

APPEL- 
LATE 
CIVIL. 

20 H. 21. 



" such Courts ; the same reasons and considerations are applicable aliku 
" to both classes of suits (suits for house- rent as well as rent on agricul- 
" tural lands). Holding this opinion as I do, I have held that the Village 
" Court of Puthur has no jurisdiction to try the suit in question and set 
" aside with costs the decree passed by it. But, as the counter-petitioner's 
" pleader requests me to state the case for an opinion of the Honourable 
" High Court, and as there are not any decisions on the point I am aware 
" of, and as it is said that the practice in this matter is not uniform in 
" several Courts, I venture to state this case for an authoritative ruling 
" from Honourable the Judges and have made my order setting aside the 
" Village Court's decree, contingent on their opinion." 
The parties were not represented. 

JUDGMENT. 

The house-rent in question was not alleged to be due upon a written 
contract signed by the defendant. The case, [23] therefore, falls under 
proviso 3 to Section 13 of Act I of 1889, which lays down that a Village 
Munsif cannot entertain a suit for rent of land, unless such rent is due upon 
a written contract signed by the defendant. In Civil revision petition No. 48 
of 1894, BEST, J., held the proviso to be inapplicable to a claim for house- 
rent. But we are unable to agree with the learned Judge, as we see nothing 
in the language of the proviso or in the reason for the enactment thereof 
to make us suppose that the term 'land' is used in a restricted sense ex- 
cluding land built upon from the operation of the proviso. In the absence 
of any ground for putting such a limited construction on the term in 
question, it should, we think, be understood in its ordinary sense, which 
of course includes land not covered by buildings as well as that so cover- 
ed. It follows that the Village Munsif had no jurisdiction to entertain the 
suit, and the conclusion of the District Munsif is right. 



20 H. 23. 
APPELLATE CIVIL. 

Before Sir Arthur J. H. Collins, Kt., Chief Justice, and 
Mr. Justice Benson. 



PATTABHIRAMAYYA NAIDU AND OTHERS (Defendants Nos. 1. 

2, 6, 20, 22, 23, 24, 27, 31, and 33), Appellants v. 
EAMAYYA NAIDU AND ANOTHER (Plaintiffs), Eespondenla. 
[16th September, 1896.] 

Limitation Act XV of 1877, Scliedule, II, Articles. 61, 99, 120 Decree for rent against 
tenants jointly Execution against one defendant Suit by him for contribution. 

The holder of a zamindari village obtained a decree jointly against sixty-eight 
person?, including the present plaintiff and defendants, for Rs. 4,100, being rent 
accrued due on lands in the village and in execution he brought to sale property 
of the plaintiff and on 28th October 1889 he received, out of the sale-proceeds, 
Rs. 2,650. The share payable by the plaintiff was Rs. 183-10 10 only, and ha 
instituted the present suit against the defendants on 28th October 1892 to recover 
the amounts which they were liable to contribute : 

Held, that Limitation Act, Schedule, II, Article 99, did not govern the case 
and that whether Article 61 or Article 120 was applicable, the suit was not barred 
by limitation. 

[R., 26 A. 407 (425) (P.B.) = A.W.N. (1904) 74 ; 26 M. 686 (695) (P.B).] 
Second Appeal No. 731 of 1895. 
J6 



'YIL] PATTABHIRAMAYYA NAIDU V r . .RAMAYYA NAIDU 20 Mp,d/ 25 



SECOND appeal against the decree of J. P. Fiddian, District Judge 
of Ganjam, in appeal suit No. 48 of 1394, confirming the decree of [24] 
C. Baoayya Pantulu, District 'Munsif of' >om pet, in original suit No. 625 
of 1892.,. 

This was a suit to recover by way of : contribution Rupees 1,288-13-4 
from the defendants 1-35 according to the shares specified in the list pre- 
sented with the plaint. 

The plaint, presented on 28th October 1892, set out that, qn 24th 
September 1879, that the late Jayanti Kamesen, Pantulu rented the village 
of Nandigam from Gajapaty Radhika P'a'tta Mahadevi, Zemindarni of 
Tekkali, for three years, Faslis 1288 to 1290, and transferred the same to 
one Attada Kurmi Naidu for Rs. 7,000 : that the latter brought a suit in 
the Ganjam District Court in original suit No. 2 of 1883 against sixty- 
eight persons including tbe plaimiffs for Rs. 4,100, rent due for Fasli 1289, 
and obtained a joint decree against all of them ; that in execution of this 
decree, the said Kurmi Naidu put the plaintiffs' lauds to sale and received 
Rs. 2,650 on 28th October 1889 from the sale proceeds of tbe lands ; that 
out of this sum tbe plaintiffs' share of rent, according to the Veelu Jabita 
(list; of rents) of the village, comes to Rs. 183-10-10, and the defendants 
and other persons not in this suit were bound Co contribute to the plaint- 
iffs the remaining sum of Rs. 2,466-5-2, out of which the defendants 
ought to pay the suit amount. 

Both the lower Courts found that the amounts claimed from each 
defendant were due, and gave a decree for tha plaintiff as prayed over- 
ruling the plea of limitation. 

Defendants 1, 2, 6, 20, 22, 23, 24, 27, 31 and 33 appealed. 

Bhashyam Ayyangar, for appellants. 

Sadagopachariar. for respondents. 

JUDGMENT. 

The only plea urged before us is that the suit is barred under Articles 
61 and 99, Schedule 2 of the Indian Limitation Act, on the ground that 
tbe suit was not brought until more than three years had elapsed from 
the realization of the money from plaintiffs by sale of their property by 
tbe Court. 

We think that the words of Article 99 sh6w that it cannot apply to 
a case like this where not the whole, but only a part, of the money due 
under a joint decree was realized from plaintiffs. 

We think, too, that it may be doubted whether Article 61 is 
applicable to the present case where there was no payment by plaintiffs, 
but where their property was seized and sold by tbe Court and the 
proceeds paid by the Court to the decree-holder. If, [25] however, 
that article does apply, then we are disposed to adopt the view of tbe 
learael Judges in Fuckoruddesn Mahomed Ahsan v. Mohima Chunder 
Chowdhery (1) and to hold that time begins to run from the date of tbe 
payment to the decree- bolder, not from the date of the realization of the 
money by the Court. If Article 61 does not apply, then the case falls 
.under the general article No. 120, and the plaintiffs have six years within 
which to bring their suit. In any view, therefore, the suit is in time. 

We confirm the decree of the Lowe.r Appellate Court and dismiss 
dbhis second appeal with costs. 



1896 
SEP. 16, 

APPEL- 
LATE 
CIVIL. 

20 M. 23. 



M. VII 3 



(1) 40. 529. 

-17 



20 Mad. 26 INDIAN DECISIONS, NEW SERIES [Vol. 

1393 20 M. 25 = 6 M.L J 259. 

APPELLATE CIVIL. 

APPEL- Before Sir Arthur J. H. Collins. Kt., Chief Justice, and 

LATE Mr. Justice Benson. 

CIVIL. 

20M~25= KANAKAMMAL AND OTHERS (Defendants), Appellants v. 

r \ ORQ KANGACHARIAR AND ANOTHER (Plaintiffs), Respondents* 

M.Jj.tf. 0. MCH.L. o._i I.. IftQfi 1 



Civil Procedure Code, Section 562 Remand Preliminary point. 

Wbere a District Munsif, without entering into the merits of a case, dismissed 
a suit on the ground that the plaintiffs had no cause of action, and on appeal 
the Appellate Court reversed bis decree and remanded the case : 

Held, that the suit had been disposed of upon a preliminary point within the 
meaning of Section 562, Civil Procedure Code, and that the remand was right. 

F., 7M.LT. 125; R., 2 P.R 1908 (F,B.) = 96 P.L.R. 1909 = 12 P.W.R. 1908; 56 
P.R. 1903 = 161 P.L.R. 1908 = 107 P.W.R. 1908.] 

APPEAL against the order of P. Narayanasami Ayyar, Subordinate 
Judge at Negapatam, in appeal suit No. 18 of 1895, reversing the decree 
of N. Sambasiva Ayyar, District Munsif of Trivadi, in original suit No. 38 
of 1894. 

The facts of the case were as follows : 

'' Suit to declare that the alienation made by first defendant to second 
" defendant and the alienations by second defendant to the other defend- 
" ants Nos. 3 to 5 of the plaint lands are not valid as against plaintiffs 
" who are entitled to succeed to them on first defendant's death. 

" The property in dispute belonged to one Allundu Krishnamachariar. 
" He left a daughter named Kanakammal. Her [26] husband Srinivasa- 
"chariar left two sons Srinivasaraghavachariar and Venkatachariar. The 
" former had two sons Rangachariar and Raghavachariar. The former 
" is the first plaintiff in this suit, and the latter having died, his son 
" is the second plaintiff. The said Kanakammal is the first defendant. 
" Venkataehariar the second defendant and defendants Nos. 3 to 5 are the 
" alienees under second defendant. The plaintiffs' case is that the property 
" in dispute was made a gift of by Allundu Krishnamachariar in 1858 to 
" Srinivasaraghavachariar, his grandson by his daughter, that patta was 
" transferred to his name that he enjoyed the property up to 14th 
"February 1875, when he executed a will devising it in favour of his 
"mother, the first defendant, for her maintenance that she continued to 
" enjoy the property up to 17th August 1888, when she executed a deed 
"of settlement making a gift of it in favour of second defendant who 
*' since alienated the property to defendants Nos. 3 to 5. 

" The defendants deny the said gift of 1858 and state that the pro- 
" perty devolved on first defendant by right of inheritance from her father, 
" that plaintiffs have no right to the property and that the second defend- 
" ant is first defendant's reversioner. 

" The District Munsif dismissed the suit on the preliminary point 
' that plaintiffs have no cause of action to bring this suit and they appeal." 

On appeal the Subordinate Judge reversed the decree of the Munsif 
and remanded the suit to be disposed of on the merits. 

Exhibit I was as follows : 

* Appeal against order No. 174 of 1895. 
18 



YII.] REFERENCE UNDER STAMP ACT, S. 46 20 Mad. 27 

" Settlement-deed, dated 17th August 1888, executed by me, Kana- 1896 
" kammal, wife of Chakravarthi Sreenivasachariar, caste Brahmin, religion SEP. 18. 
" Vishuavite, housewife, residing at Periatheru (Big street), Kumbakonam, 
" in favour of my son Cbakravarthi Venkatachariar, caste Brahmin, APPEL- 
'' religion Vishnavite, occupation Miras. LATE 

" As you are alone entitled to get, after me, the lands particularized CIVIL. 
" hereunder which belonged to my father Krishnamachariar and which 
" after his death, without male issue, passed into my hands and have been ' 
" in my enjoyment, and (further) out of the affection which I bear towards 6 *!* 
" you and the service you reader to me, I have this day given over to you 
" the nunjah, punjah, &c., lands mentioned hereunder and of the value 
" of Rs. 2,500, together with all samudayams, poramboke, &c., apper- 
"taining thereto as per custom of the village ; hence you shall yourself 
"enjoy the said [27] lands, wifch all rights and with powers of disposition 
" over them, such as gift, sale, &a. I have this day delivered possession 
" of the said lands to you." 

Defendants appealed. 

Krishnasami Ayyar, for appellants. 

Seshagiri Ayyar, for respondents. 

JUDGMENT. 

We think that the District Munsif did decide tha suit on a preli- 
minary point within the meaning of Saction 562, Civil Procedure Oode 
(Ramachandra Joishi v. Hazi Kassim (1) ). The order of remand was 
therefore legal. 

As to the merits of the remand order, it is urged that Exhibit I is 
merely a transfer of the life interest of the first defendant so as to accele- 
rate the succession of the next heir. We observe that there is no 
statement in Exhibit ], that a life interest merely is transferred, and the 
concluding words in which she spaaks of the donee possessing henceforth 
full powers of sale, &c., indicate that the woman purported to transfer 
such absolute interest. We observe further that the donee at once pro- 
ceeded to exercise the rights of an absolute owner and transferred the 
property to the defendants Nos 3 to 5. In these circumstances, we think 
that the view taken by the Subordinate Judge is correct, and that plaintiffs 
had a cause of action. 

We therefore dismiss this appeal with costs. 



20 M. 27 (F.B.). 
APPELLATE CRIMINAL FULL BENCH. 

Before Sir Arthur J. H. Collins, Kt., Chief Justice, 
Mr. Justice Subramania Ayyar and Mr. Justice Davies. 



REFERENCE UNDER STAMP ACT, SECTION 46.* 
[5th September, 1896.] 

Stamp Act Act 1 of 1879, Section 46, Scliedule I, Article 21 Conveyance. 

The amount payable on a conveyance under Stamp Act, Schedule I, Article 21, 
is properly calculated ou the consideration set forth therein ; and not on the 
intrinsic value of the property conveyed. 

* Referred Case No, 16 of 1895. 
(1) 16 M. 207. 

19 



20 Mad. 28 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 

SEP. 5, THIS was a case stated for the opinion of the High Court by the 

Board of Revenue under Section 46 of the Indian Stamp Act, 1879, on 
FULL the 16th August 1895. 
BENCH. [28] The Acting Collector of Kistna referred the case to the Board 

of Revenue as follows : 

20 H. 27 " TWO persons Pitchayva and Venkannah executed a conveyance 

(F.B.). '- on 3 r( j July 1893 on a 30-rupees stamp, transferring their title and 

" interest in a certain estate to one Korrapati Paupiah. In this docu- 

" ment Rs. 3,000 was stated to be the amount of consideration for the 

" transaction. 

" When the document was presented for registration before the Sub- 
" Registrar of Isallapalli, a petition was presented to this office by one 
" Purnayya of Isallapalli, stating that the document was undervalued for 
" the purpose of evading the payment of stamp duty. 

" This petition was forwarded to the District Registrar. In reply, he 
" requested me in his letter No. 1141, dated 25th May 1893, to get the 
" property valued by the Tahsildar of Bandar. It appears also that the 
" District Registrar instructed the Sub-Registrar not; to return the docu- 
" ment pending inquiry. 

" A Revenue Inspector of Bandar taluk, deputed for the purpose, 
" valued the property with the aid of two arbitrators and assessed the 
" value at Rs. 10,041-5-6. 

While the process of valuation was going on, the Registrar and the 
" Sub-Registrar received similar complaints of under-valuation. The 
" Registrar in his letter No. 1239, dated 6th August 1893, informed me 
" that he asked the Sub-Registrar to impound the document and send it 
" to me tor adjudication of stamp duty, and the Sub-Registrar accord- 
ingly forwarded it to me with his letter No. 216, dated 17th August 
1893. 

" On this it was ordered that the deficient stamp duty of Rs. 70 plus 

" a penalty of Rs. 350 should be paid, and it was remarked the case did 

" not call for prosecution. The Tahsildar of Bandar was directed to in- 

" timate the fact to the parties and report at the end of a month whether 

this amount had been collected. 

" The Tahsildar in his arzi No. 403, dated 12th December 1893, 
" reported that the stamp duty and penalty had been collected." 

The Board of Revenue in referring the matter to the High Court 
said : 

" The Board ruled that, under Article 21 of Schedule I of the Stamp 

Act, the stamp duty must be levied on the amount of the consideration 

for the conveyance as set forth in the deed, viz., Rs. 3,000 ; and that if 

" the Collector had reason to believe [29] that the amount of the con- 

'' sideration was falsely stated in the deed, he should take action with 

" a view to prosecute the offenders under Section 63. 

" The penalty levied in the case was ordered to be refunded. 

" The Collector now reports that the parties concerned in the above 

" case were prosecuted, but were acquitted, as it- was very doubtful that 

" there was an under-valuation fraudulently made for the purpose of depriv- 

" ing Government of stamp duty ; that although the property was worth 

" about Rs. 10,000, the vendor had not possession of it, and if; had been 

sold to the vendee for the small sum of Rs. 3,000, as it was probable 

" that protracted litigation with a certain individual who held possession 

" of the lands would be necessary before the vendee could get possession 

" of them. 

20 



YII.] SAMINATHA AYYAN U. MANGALATHAMMAL 20 Mad. 30 

Under the circumstances the Board considers that the patitioners 1896 

" are entitled to a refund of the deficient stamp duty erroneously levied, SEP. 5. 
" and solicits the orders of the Honourable Che Judges of the High Court, 

" as the Board has no power to sanction it." FULL 

Venkatarama Sarma, for vendors. BENCH. 

OPINION. 2 . *' . 2T 

ir.u.) 

We are of opinion that the proper stamp duty leviable on the convey- 
ance was Rs. 30, that being the amount payable on the consideration as 
set forth therein. 



20 M. 29. 

APPELLATE CIVIL. 

Before Sir Arthur J. H. Collins, Kt., Ghief Justice and 
Mr. Justice Benson. 



SAMINATHA AYYAN (Defendant), Appellant v. MANGALATHAMMAL 
(Plaintiff), Respondent* [28th September, 1896.] 

Provincial Small Cause Courts Act Act IK of 1887, Scliedule II, Article 39 Suit for 
arrears of maintenance. 

A suit for arrears of m*intenaace payable under a written agreement does not 
lie iu a Provincial Small Ciase Court. 

[F., 10 A.L.J. 185 = 16 Ind. Gas. 13 (14) ; 1 O.C. 93.] 

[30] SECOND appeal against the decree of V. Srinivasa Charlu, 
Subordinate Judge of Kumbakonam, in appeal suit No. 540 of 1894, 
reversing the decree of J. C. Fernandez, District Munsif of Shiyali, in 
original suit No. 99 of 1894. 

The facts of this case as set forth in the District Munsif'a judgment 
were as follows : 

" The plaintiff sues to recover from defendant Rs. 138-0-6, being 
' maintenance with interest thereon alleged to ba due under an agreement 
" executed to her by defendant's deceased father and three others on the 
'' 19ch May 1874, undertaking to pay her maintenance at the rate of Rs. 7 
" per month. Tne maintenance claimed is alleged to be due for defendant's 
" father's one-fourth share from the 20th May 1889 up to the date of the 
" plaint. 

" The defendant pleads that plaintiff has no right under the agree- 
" ment sued on co claim separately defendant's father's share of the 
" maintenance stipulated for, and that plaintiff has no cause of action 
" against him as he did not derive any assets from his father." 

The District Munsif dismissed the suit with costs. 

On appeal the Subordinate Judge gave the plaintiff a decree against 
the defendant as the legal representative of his father deceased. 

Defendant appealed. 

Krishnasami Ayyar, for appellant. 

Sundara Ayyar ^ for respondent. 

* Second Appeal No. 778 of 1895. 
21 



20 Mad. 31 INDIAN DECISIONS, NEW SERIES [Vol. 

1896 JUDGMENT. 

A preliminary objection is raised that no second appeal lies in this 
APPEL- case ' nasrnuc ^ as the suit is one for Ra. 138-0-6, and is of a nature cogniza- 
ble by a Court of Small Causes. The suit is to recover the above sum 
under an agreement, Exhibit A, whereby the defendant's father and others 
CIVIL, promised to nay maintenance at the rate of Rs. 7 per mensem to the 
20 M~29 plaintiff- I D other words, it is a suit to recover arrears of maintenance 
fixed by contract at a certain monthly sum. 

We are of opinion that this is " a suit relating to maintenance" and 
therefore excluded from the jurisdiction of a Small Cause Court (Article 
38, Schedule 2, Act IX of 1887). It is argued that the decision in Komu 
v. Krishna (I) is an authority opoosed to this view ; but we observe that 
this is not so, for that case was [31] decided under the law (Act XI of 
1865) in force before Act IX of 1887 was passed, and the terms of that; 
Act were quite different from those of the present Act. 

Under the old Act certain suits relating to maintenance, viz., those 
for maintenance claimed on a special bond or contract had been decided 
by the Courts to be cognizable by a Court of Small Causes, while suits 
to determine the amount of maintenance had been decided not to he so 
cognizable (Sidlingapa v. Sidava Kom Sidhngapa (2), Nurbibi v. Husen 
Lai (3). The language of the present Act was apparently adopted so as 
to exclude from the cognizance of the Small Cause Court suits for main- 
tenance claimed on a special bond or contract, which, under the former 
law, were held to be triable by a Small Cause Court (Bhagvantrao v. 
Ganpatrao^}} . 

We, therefore, disallow the preliminary objection. On the merits 
the only ground of appeal argued before us is that, as there is no proof 
that the defendant received assets from his father, the suit against him 
personally ought to have been dismissed. We observe that the decree is 
merely against the defendant as the legal representative of his late father, 
and such decree can only be executed against assets of the father in defend- 
ant's hands. The second appeal fails and is dismissed with cos*;s. 



20 M. 31 1 Weir 83. 
APPELLATE CRIMINAL. 
Before Mr. Justice Subramania Ayyar and Mr. Justice Boddam. 



QUEEN-EMPRESS v. KRISHTAPPA.* 
[16th October, 1896. J 

Penal Code, Section 174 Non-attendance in obedience to an order of a public servant 
Absence of public servant. 

The offence contemplated by Section 17*. Penal Code, is an omis-ion to appear 
at a particular time and at a particular pUce before a specified public function- 
ary. Where therefore th 3 public servant was absent on the date fixed in a 
summons : 

[32] Hi I i, that the person summoned could not be convicted under this sec- 
tion, though be failed to attend, having the intention to disobey the summons. 

[R., 38.L.R. 155 (Cr.) ] 

* Criminal Revision Case No. 415 of 1866. 
(1) 11 M. 134. (a) 2 B. 624. (3) 7 B. 537. (4) 16 B. 267. 

22 



YIIJ RAGAVENDRA AYYAB V. KARUPPA GOUNDBN 20 Mad. 33 

CASE referred for the orders of the High Court under Section 438 of 1896 
the Code of Criminal Procedure by K. C. Manavedan Raja, Acting District OOT. 16. 
Magistrate of Anantapur. 

The facts of this case appear sufficiently from the judgment of the APPEL- 
High Court. LATE 

The parties were not represented. CRIMINAL, 

JUDGMENT. 20M.ll- 

The accused, the karaam of Maravapalli village, on being summoned 
by the Tahsildar of Gooty to appear before him ac Gooby on a particular 
day, failed to^attend. For the non-attendance he was convicted under 
Section 174, Indian Penal Code. Ic appears that, on the day fixed, the 
Tahsiidar was absent from the station on public business. 

Now it- is manifest that the offence contemplated by the section is 
not an omission on the part of the person summoned to be at a particular 
place and at a particular time, but an omission to appear at such time 
or place before a specified public functionary. Moreover, the object of the 
summons was the meeting between the two. How could this object be 
realised unless the person summoning was present to meet the person 
summoned? Would it not have been futile, even if the latter turned up 
at the fixed place ? But the law compels no man to do that which is futile 
or fruitless. Lex neminem cogit ad vana sen inutilia peragenda. No 
doubt in this case the accused did not say that he failed to go to Gooty 
because of the Tahsildar's absence. Assuming that he intended to disobey 
the summons, such intention alone is, of course, not punishable under 
Section 174, or under any other provision of law. 

We, therefore, set aside the conviction and order the fine, if levied, 
to be refunded. 



20 M. 33 = 6 M.LJ. 278. 

[33] APPELLATE CIVIL. 

Before Mr. Justice Subramania Ayyar and Mr. Justice Benson. 



RAGAVENDRA AYYAR (Plaintiff), Appellant v. KARUPPA 

GOUNDEN AND OTHERS (Defendants), Respondents.* 

[10th August and 15th September, 1896.] 

Bent Recovery Act Act VIII of 1865 (Madras), Sections 38, 39, 40 Limitation Act 
Act XV of 1877, Article 12. 

vVhore a plaintiff sued to recover land alleged to have been sold under the 
provisions of the Rant Recovery Act, alleging that the provisions of Section 7 of 
that Act had not been complied with and that therefore the sale was illegal : 

Held, that the suit could not proceed without setting aside the sale and that the 
sale having taken place more than a year before the institution of the suit, the 
suit was barred. 

SECOND appeal against the decree of M. B. Sundara Rau, Subordi- 
nate Judge of Salem, in appeal suit No. 25 of -1893, reversing tbe decree 
of Syed Tajudin Saheb, District Munsif of Namakkal, in original suit 
No. 411 of 1891. 

This suit was brought for the recovery of certain land which bad 
been sold under the provisions of Act VIII of 1865 and purchased by the 



* Second Appeal No. 419 of 1895. 
23 



20 Mad. 34 INDIAN DECISIONS, NEW SE&IES lYol. 

1896 second defendant, who resold it to the third defendant under the circum- 

SEP. 15. stances set forth in the judgment of Subramania Ayyar, J. 

The District Munsif gave a decree for the plaintiff, which was 

APPEL- reversed on appeal by the Subordinate Judge. 

LATE The plaintiff appealed. 

CIVIL. Sadagopachariar and Krishnasami Ayyar, for appellant. 

Srirangachariar, for respondents. 

8 M.*J 8 276. : JUDGMENT. 

SUBRAMANIA AYYAR, J. The facts of the case material for our 
present purpose are as follows :| The land, for the possession of which 
the appellant sues, was held by him under a mittadar who is a landlord 
within the meaning of the Rent Recovery Act (VIII of 1865J and the< 
interest possessed b,y the appellant in the land was a saleable interest. 
The landlord, alleging that the rent due by the appellant for fasli 1297 
was not duly [34] paid, proceeded to recover the amount by sale 
of the latter's interest in the land under the provisions of the enact- 
ment referred to. On the notice prescribed by Section 39 of the Act 
being served by the landlord upon the appellant, he tiled a summary suit 
under Section 40, questioning the legality of the landlord's proceedings, 
chiefly on the ground that exchange of patta and muchilika had not been 
dispensed with and that there was neither an interchange of such engage- 
ments between him and the landlord, nor a tender of a proper patta to 
the former by the latter as required by Section 7. But the suit was 
dismissed, as the appellant failed to prosecute it. Thereupon the Collector 
directed the appellant's interest to be sold, and it was sold on the 31st 
August 1889 and purchased by the second respondent, who subsequently 
conveyed his right to the third respondent. This suit was brought in 
Ssptember 1891. 

The first question for determination is whether the suit is time-barred. 
Though the plaint does not pray for a cancellation of the sale, there is no 
doubt that the relief claimed cannot be granted without setting aside the 
sale, unless it was ab initio null and void, and therefore did not require to 
be set aside as contended on behalf of the appellant. In support of this 
contention bis vakil relied upon the alleged omission, referred to above, on 
the landlord's part to comply with the provisions of Section 7 of the 
Act. But this argument is palpably unsound. 

Special powers, like those exercised by the Collector under the Act, 
may be circumscribed (a) with respect to place, (6) with respect to persons, 
(c) with respect to the subject-matter of those powers (Narohari v. 
Anpurnabaid)). Now, as to the first, no question arises here. As to the 
second, the appellant and the mittadar were undoubtedly persons falling 
within the class of tenants and landlords to whom the enactment applies ; 
and as to the third, the interest sold was of a description liable to be seized 
and transferred at the instance of the landlord. 

Therefore the non-compliance with the provisions of Section 7 relied on 
on behalf of the appellant, though it has an essential bearing on the 
party's right to enforce the terms of the tenancy, has yet none with 
reference to any of the three matters as to which jurisdiction might be 
shown to fail. 

[35] Consequently the order under which the sale in the present 
case took place was; passed with jurisdiction and, if the sale be impeach- 
able, it can be impugned only in a suit instituted within one year from 

(1) 11 B. 160. 



YII J M. VIJIA BAGHUNATHA V. VENKATACHALLAM CHBTTI 20 Mad. 3<J. 

the date mentioned in Article 12 of the Limitation Act. This action, 1896 

having been brought long after expiry of that period, was clearly barred. SEP. 1$^ 

It is therefore unnecessary to consider the other questions urged. 

The appeal fails and must be dismissed with costs. APPEL- 

BENSON, J. I am clearly of opinion that the appellant cannot LATE 

succeed without setting aside the revenue sale, and this can only be done GlVIL. 
by suit brought, within one year. 

No such suit having been brought, the sale stands good. 20 M. 38 = 
I agree that the appeal fails and must be dismissed with oosts. 6 M.L.J. 278, 



20 M. 35 = 6 H.L.J. 235. 
APPELLATE CIVIL. 

Before Mr. Justice Subrahmania Ayyar and Mr. Justice Davies. 



MUTHU VIJIA BAGHUNATHA BAMACHANDRA VACHA MAHALJ THURAI 
(Son and Legal Representative of the deceased Defendant No. 3), 
Appellant v. VENKATACHALLAM CHETTI AND OTHERS (Plaintiff 
and Defendants Nos. 1, 2 and 4 to 10), Respondents.* [14th August 
and 7th, 8th and 29th September 1896.] 

Transfer of Property Act Act IV of 1882, Section 86 Suit by sub-mortgagee Decree 
for sale. 

A sub-mortgagee is entitled to a decree for the aa!o of the original mortgagor's 
interest in cases and in circumstances which would have entitled the original 
mortgagee on the date of the sub-mortgage to claim such relief. 

[F., 12 C.L.J. 357 = 7 Ind. Gas. 166 (169) ; 3 Ind. Cas. 311 = U C.W.N. 165 ; 5 Ind. 
Gas. 834 = 7 M.L.T 125 = (1910) M W.N. 4 ; 9 C. 233 ; (1900. P.L.R. 219 
(F.B.) ; Rel. on, 10 L.J. 470 = 4 Ind. Gas. 433 (434) ; Ap., 27 A. 472 = 2 A L.J. 
162 = A.W.N. (1905)58; R.. 29 A. 385 (F.B)=4 A. L.J. 273 = A W.N. (1907) 97; 
35 B. 342(346) = 12 Bom. L.K. 1044 = 8 Ind. Cas. 752; 9 C.L.J. 429 (431); 12 
C.L.J. 137 (139) = 5 Ind. Cas. 654 ; 16 Ind. Cas. 601 (608) = 23 M.L.J. 430 (433) 
= 12 M.L.T. 315 = 11912) M.W.N. 919; 1 C. 59: 1 O.C. 105; 5 O.U. 335; 
U.B.R (1906), Sub-mortgage, 1.] 

APPEAL against the decree of P. Narayanasami Ayyar, Subordinate 
Judge of Madura (East), in original suit No. 14 of 1893. 

The plaintiff was the trustee of a temple, and he sued to enforce his 
mortgage right on certain property which originally belonged to defendants 
Nos. 2 and 3 jointly. On the 9th of August 1886, those defendants re- 
spectively, borrowed Bs. 3,000 and Bs. 4,825 from defendant No. 1 on the 
security of the land under a [36] registered mortgage deed. On the follow- 
ing day defendant No. 1 on the security of this mortgage borrowed Bupees 
7,300 from one Avichi Chetti under a registered mortgage deed. On 23rd 
November 1889, Avichi Chetti assigned to the plaintiff his rights under 
the mortgage of 10th August 1886 for Bs. 10,898-4-8. 

The Subordinate Judge passed a decree as follows : 

'' It is ordered that the first defendant do pay plaintiff Bs. 9,372-10-0 
'' within six months from this day together with subsequent interest at 
' six per cent, per annum, and in default the interest of the third defend - 
" ant in items 1 to 7 be sold for Bs. 8,294-4-0 with subsequent interest 
" at six per ceot. per annum on Bs. 4,825 from date of plaint up to date 
" of payment ; as the plaintiff is entitled to recover only the sum paid by 
" him for the assignment with interest from date of payment to date of 
" decree and the incidental expenses of sale (Nilakanta v. Krishna- 

Appeal No. 13 of 1895. 

25 
M VII 4 



20 Mad. 37 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 " sami (1) and Ramachandra v. Venkatarama (2)), the said sum represents 

SEP. 29. " third defendant's proportionate share of tho debt which he should pay 

" under Exhibit A, item No. 4, will be sold subject to eighth defendant's 

APPBL- " mortgage right in i chey therein as admitted by plaintiff, and items 

LATE " Nos. 1, 5, 6 and 7 will be sold subject to first defendant's mortgage 

GlVIL. " right therein as stated in the plaiut. The parties .are ordered to bear 

" their own costs." 

20 M. 38= The representative of defendant No. 3 ureferred this appeal. 

M.L.J, 233. Krishnasami Ayyar, for appellant. 

Bhashyam Ayyangar and Rangaramanujachariar, for respondents 
Nos. 11 and 12. 

Rangachariar, for respondent No. 3. 

JUDGMENT. 

SUBRAHMANIA AYYAR, J. The late third defendant, father of the 
appellant, on tho 9th August 1886, executed to the first defendant a 
simple mortgage on the security o f the third defendant's moiety of eight 
villages attached to the Zemindari of Elayathakudi in Madura. The first 
defendant on the 10th idem sub-mortgagad his mortgage interest to one 
Avichi Chebti. This man assigned his rights to the plaintiff who instituted 
this suit uuon the sub mortgage transferred to him. 

In the Court below the Subordinate Judge took an account of the 
amount due by third defendant to the first and by the latter to the 
plaintiff, and among other reliefs, grantel the usual order [37] for the 
sale of the third defendant's interest in the propjrty originally mort- 
gaged, if payment of the amount, due by him, be not made within the 
time fixed. 

The first question for decision is whether a sub mortgagee is entitled 
to ao order for sale of the original mortgagor's interest, if other circum- 
stances justifying such a decree exists. 

In contending that the sub rnortieagee was noi so entitled the vakil 
for the appellant urged that there is no warrant whatever in the Trans- 
fer of Property Act, for an order like the one in question being passed. 
This argument seems to be quite opposed to the express provisions of 
Section 86 of the Act, since the words " where the plaintiff claims by 
derived title," which are to be'found therein distinctly cover such a case as 
this. It was said, however, that the clause just quoted refers only to an 
assignee or other person in whom the while cf the interest of the mort- 
gagee ha* become vested, but not to a sub-mortgagee who has only a 
qualified right therein. But I am at a loss to understand how it can 
pos-iibly be denied that a sub-mortgagee does claim by title derived from 
the original mortgagee and it is scarcely necessary to point out that 
"derivative mortgagee " is a term used in text books and inSdecided cases 
as synonymous with "sub-mortgagee." I am, therefore, unable to see 
any adequate ground for putting the restricted construction suggested on 
behalf of the apnellant and DO exclude, from tUe ooera<ion of the section 
referred to, the cuse of a sub-mortgagee, which the words, in question, 
naturally and grammatically comprehend. 

If we turn to the English law, we find there also, from Section 12 of 
Chapter 47 of " Seton on decrees" and Bobart v. Abbot (3) cited for the 
respondents, that the point has long been settled in favour of the sub- 
mortgagee. 

(1) 13 M. 225. (2) 13 M. 516. (3) 2 Peere Williams, 642. 

26 



M. VIJIA RAGHUNATHA y. VENKATACHALLAM CHETTI 20 Mad. 39 

Nor is the above view unsupported by principle. It is true that in 1896 
the case of a simple mortgage, the mortgagor's ownership in the property SEP. 29. 
mortgaged is not, evon in form, transferred to the mortgagee. Neverthe- 
less ic is iuauosaible to doubt that che mortgages, so far as the recovery of APPEL- 
the debt owing to him is concerned, is treated in law, as an assignee of LATE 
the mortgagor. Tnis becomes quite evident in the case of a second mort- ClVIL. 
gage. Referring to it, an American author of high repute writes : " Thus 
" a second [38 3 mortgage is as to the second mortgagee, but an assignment 2 ^ " 38 = 
"of the mortgagor's interest .... As an assignee of the morbgagor^ ".L.J. 235. 
" the second mortgagee may insist upon all the rights of a mortgagor against 
"the first mortgagee, such as that of calling him to account, redeeming 
" from htm and the like." (Washburn on Real Property, 5th edition, 
Vol. II, pp. 116 and 117). This way of looking at the matter is not 
peculiar to any particular system of law, but seams well established in 
jurisprudence, as treatises on the Oivil law show. In Salkowski's work on 
Roman Private Law, it is pointed out that a party who holds a hynothe- 
cation acts, in selling the hypotheca, as " the representative of the 
" pawnor or owner, although by virtue of his own right and in bis 
"own interest." (Whitneld's Translation at page 491). Further it is 
a recognised rule under that law, that wben what is hypothecated is 
-a claim, the hypobhecatee may alienate it or enforce it in action instituted 
in his own name (Mackeldey's Roman Law, Special Part, Book I, Section 
336, paragraph 2). 

There is another argument in favour of the view that a sub-mortga- 
gee has the right in dispute. The original mortgagor and the sub-mort- 
gagee, as the Holders of differont interests in one and the same specific 
property, stand to one another in a relation that gives rise to certain 
rights and duties inter se. It is admitted that a mortgagor whose right to 
redeem originally existed as against the mortgagee alone, becomes by 
virtue of the sub-mortgage, entitled to excercise that right as against 
the sub-mortgagee also, who consequently must be made a party to 
redemption proceedings. Now, as the sub-mortgagee may be redeemed 
by the original mortgagor, it ought to be held that the former may 
foreclose the latter, where that relief can be claimed or, where such relief 
cannot be granted, he may obtain an order, for sale and thereby put an 
end to the other party's right to redeem. For it is only just and reason- 
able that, whilst the law, on the one hand, recognizes a right in the 
original mortgagor to redeem the sub-mortgage, it should give the latter, 
as against the former, the generally correlative right (Daniel's Chancery 
Practice, 6tb edition at page 1412) to foreclose or sell. 

I confess I am not impressed with the suggestion, made on behalf 
of the appellant, that to allow a sub-mortgagee to sue the original mort- 
gagor, as was done here, would be productive of general inconvenience to 
litigants in tbe position of the present C39] parties. On the contrary I 
think that to permit such a course to be adopted would prevent multipli- 
city of suits and the possibility of conflicting decisions being pronounced 
in respect of the same matter ; since, at all events, the accounts, between 
the original mortgagor and the original mortgagee on the one hand and 
the latter and the sub-mortgagee on the other, would ba taken once for all 
And the respective claims of the three parties adjusted and settled at the 
.same time. (See Narayan Vital Maval v. Ganoji (1).) 

(1) 15 B. 692. 
27 



20 Mad. 40 INDIAN DECISIONS, NEW SERIES [Yol, 

1896 The Allahabad cases of Mata Din Kasodhan v. Kazim Husain (1) 

SEP. 29. and Ganga Prasad v. Chunni Lai (2) relied on on behalf of the appellant, 

cannot be followed here, inasmuch as they proceed upon the supposition 

APPEL- that the term " property" as used in Chapter IV of Act IV of 1882, 
LATE means- an actual physical object ; and does not include mere rights 
CIVIL, relating to physical objects a view wbich, so far as I am aware, has 
hitherto not been accepted as correct in this Court and in which I am 
20 M. 35= myself unable to agree. As to Padgaya v. Baji (3), it is difficult to 
6 H.L.J. 235. believe that the learned Judges who decided it, held that there was no 
sort of legal relation between the original mortgagor and the sub- mort- 
gagee. The actual decision there is itself supnortable on the clear ground 
that the representative of the deceased original mortgagee, as a person 
interested in the redemption there sought for, was a necessary party to 
the litigation which could nob, therefore, proceed further owing to the 
omission, on the part of the original mortgagor, to bring on to the record, 
the legal representative of the original mortgagee who had been made a 
defendant when the suit was filed. The statement; made in the course of 
the judgment of PARSONS, J., that there was no privity between the 
original mortgagor and the sub-mortgagee, if intended to lay down that 
absolutely none of any kind subsisted between those parties, would be 
totally inconsistent with the unquestionable fact, already referred to, viz., 
the existence of that relation between them, from which springs the 
original mortgagor's right to redeem from the sub- mortgagee also. 

I am, therefore, of opinion that the appellant's contention, under 
consideration, is unsound and that a sub-mortgagee can ask for a sale of 
the original mortgagor's interest in cases and in [40j circumstances which 
would have entitled the original mortgagee, on the date of the sub-mort- 
gage, to claim such relief. 

The second and the only remaining question for decision is. whether 
the discharge, set up on behalf of the third defendant, is true. I agree with 
the Lower Court that the evidence, called in support of the plea, is unsatis- 
factory and unreliable. Nor do I see any reason for discrediting the state- 
ment of the first defendant that no portion of the debt due to him was 
liquidated by the collections made by him from the tenants of two out of 
the eight mortgaged villages, under the power of attorney. Exhibit II, 
dated 9&h August 1886, and that when the said power was revoked, a few 
months afterwards by Exhibit F, he accounted to the third defendant's 
father-in-law, with that defendant's knowledge, for the comparatively small 
amount that had been collected by him under the power. The decree of 
the Lower Court is in my view right. I would confirm it and dismiss the 
appeal with costs. The appellant will also pay the costs of the second 
defendant who was unnecessarily brought in. 

DAVIES, J. I concur. 



(1) 13 A. 432. (2) 18 A. 113. (3) 20 B. 549. 

28 



1TII.] PARVATHI AMMAL V. SAMINATHA GUEUKAL 20 Mad. 41 

20 H. 40 = 6 H.L.J. 272. 1896 

APPELLATE CIVIL. Nov ' 24< 

Before Mr. Justice Shephard and Mr. Justice Davies. APPEL- 

LATE 

PARVATHI AMMAL (Plaintiff], Appellant v. SAMINATHA GURUKAL CIVIL. 
AND OTHERS (Defendants), Respondents* oniT~Ift 

[3rd, 5th and 24th November, 1896.] 

6 M.L.J. 2 

Limitation Act Act XV of J877, Schedule II, Article 118 Suit for possession by Hindu 
luidow as heiress Defendant in possession under an alleged adoption Limitation. 

A Hindu died in 1884, leaving the plaintiff, his widow, and certain landed and 
other properties. The defendant claimed, to the knowledge of the plaintiff in 
1885, to have been adopted by the deceased, and from that date he had claimed 
as an adopted son to be entitled to the estate of which the plaintiff never enjoyed 
[41] possession. She now sued in 1893 for possession with mesne profits alleging 
in the plaint that the adoption bad been falsely set up, but seeking no declaration 
with regard to it : 

Held, that the suit was barred by limitation. 

[Diss., 24 A. 195 = A.W.N. (1902) 10; 25 C. 354; 9 C.W.N. 222; F., 24 B. 260 
(P.B.); 27 B. 614; 26 M. 291 (F.B.) ; 1 P.R. 1907 = 31 P.W.R. 1907 ; 20 P.R. 
1902 = 11 P.L.R. 1902; R., 24 M. 405; 1 Bom.L.R. 799; 56 P.R. 1903(F.B.) = 
93 P L.R. 1903 ; 68 P.L.R. 1903 = 13 P.L.R. 1904 ; D., 1 O.C. 35.] 

APPEAL against the decree of E. Srinivasa Charlu, Subordinate Judge 
-of Kumbakonam, in original suit No. 27 of 1893. 

The plaintiff was the widow of one Soma Gurukal who died in January 
1884. She averred that he left no heirs other than herself and that on 
his death she entered into possession and remained in enjoyment for some 
years of the property forming his estate. The plaint further stated that 
the nrst defendant falsely claiming to be the adopted son of the deceased 
disturbed her enjoyment, in consequence of which she brought a declara- 
tory suit in 1890, which was dismissed on the ground that it was not 
maintainable for the reason that it was not shown that the lands were then 
in her possession. 

Paragraph 5 of the plaint was as follows : " During the pendency of 
" the said suit and subsequently, the first defendant and the other defend- 
ants who claim right through him entered upon and usurped the lands 
"from the year 1891." 

It was alleged that the cause of action arose in February 1891 and 
the prayer of che plaint was for possession of the specified properties with 
mesne profits and for such other reliefs, which to the Court might seem 
proper. The first defendant pleaded that he was adopted by the deceased 
on 15th August 1877, from which date be lived with him until his death 
and that since that event he had been in enjoyment of the property. 

The Subordinate Judge held that the alleged adoption was established 
by the evidence. On the second and third issues which raised the ques- 
tions as to whether the suit was maintainable as framed, seeing that there 
was no prayer that the adoption be set aside and whether it was barred 
by Limitation, the Subordinate Judge expressed an opinion on the first in 
favour of plaintiff and on the second in favour of the defendant. His 
judgment on this part of the case was as follows : 

" I am not prepared to say that the suit is unsustainable, because the 
" plaintiff has not expressly sought to have the first defendant's alleged 

* Appeal No. 88 of 1895* 

29 



20 Mad. 42 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 " adoption declared untrue. The omission to ask for such a relief is 

Nov. 24. "certainly not accidental but intentional. A suit for a declaration that an 

" alleged adoption had never taken [42] place,=should be brought within six 

APPEL- " years from the time when the party suing and entitled to sue for it came to 

LATE "know the alleged adoption under Article 118 of Schedule II of Act XV of 

CIVIL. "1877. As the plaintiff in this case had known that the first defendant was 

" set up as an adopted son soon after her husband died in January 1884, her 

20 M. 40= " advisers must have known chat an express claim for such a declaration 

ft tf F T O7O 

would be at once met and that successfully by the plea of limitation ; and 
" they have accordingly omitted it. But it seems to me upon the latest 
" authorities that, whether she prayed for it or not, the framing of the plaint 
" can give her no advantage. In the case of Jagadamba Chaodhrani v. 
" Dakhina Mohun Roy Chaodhri (1) decider! by the Privy Council, ' it was 
settled that a suit to set aside an adoption within the meaning of these 
words in the Limitation Act need not be a suit having declaratory con- 
clusions, but that any suit in which the decree prayed for involves the 
decision of the question of the validity of an adoption set UD in defence 
' ' a suit to set aside an adoption.' These remarks were emphasized again 
" by their Lordships in the more recent case of Mohesh Narain Munshi v. 
" Taruck Nath Moitra (2) . In the case then for consideration, there was, 
" like the present one, no prayer for a declaration that the defendant's 
"adoption was invalid or never took place, and their Lordships held that 
" that suit was. in substance, a suit ' to set aside an adoption ' within the 
meaning of Article 129 of Act IX of 1871, the Act of Limitation 
" which preceded Act XV of 1877, and which applied to the circumstances 
" of that case. Their Lordships observed in the first case quoted above 
" that the Legislature, having deemed fit to allow ' only a moderate time 
within which such delicate and intricate questions as those involved in 
' 'adoptions shall be brought into dispute, it should strike alike at all suits 
''in which the plaintiff cannot possibly succeed without displacing an 
apparent adoption by virtue of which the defendant is in possession.' 
"The plaintiff's vakil in the present case adopted the contention of 
"the learned counsel for the plaintiffs in Jagadamba Chaodhrani v. Dak- 
" hina Mohun Roy Chaodhri (1) that she was suing not to set aside any 
" adoption, but to recover possession on her prima facie title as heir to the 
" deceased, that it was the defendant who alleged his adoption and that, 
" on his failure to prove it, it need [43] not be set aside, but taken 
" as never having existed : and relied on among other authorities Basdeo v. 
" Gopal (3), Ganga Sahai v. Lekhraj Singh (4) and Sundaram v. Sitham- 
" mat (5). The answer given by their Lordships to that argument which 
'' they characterised as ' ingenious ' was 'that the defendants are in posses- 
' 'sion in che character of adopted sons: the prima facie title is with them 
'and until that is displaced they ought to retain their possession' (see 
" Jagadamba Chaodhrani v. Dakhina Mohun Roy Chaodhri (l)). The 
" same answer should be given in answer to the plaintiff's contention. If 
" the plaintiff by reason of her laches failed to have the defendant's title in 
" virtue of an adoption declared untrue or invalid, within the time allow- 
" ed by law, which in the present case is six years from when the fact was 
" known to her, she cannot afterwards sue to deprive the defendant of the 
" possession he has. 

" The last Allahabad case, though on all fours with the case now 

(1) 130. 308 (318). (2) 20 C. 487. (3) 8 A. 644. 

(4) 9 A. 253 (267). (55 16 M. 311. 

30 



PARVATHl AMMAL V. SAMINATHA GURUKAL 20 Mad. 44 



" under consideration, is no binding authority against the two rulings of 
the Privy Council already quoted : and following the same I 6nd that 
" the second issue should be decided in plaintiff's favour and on the third 
" issue that the suit is barred by the six years' rule of Article 118." 

In the result the Subordinate Judge dismissed the suit. 

The plaintiff preferred this appeal. 

Narayana Rau and Sundara Ayyar, for appellant. 

Bhashyam Ayyanyar, Desikachariar, Jivaji Rau and Kuppusami 
Ayyar, for respondents. 

JUDGMENT. 

SHEPHARD, J. There is no doubt that the plaintiff knew of the 
first defeadant's adoption as long ago as in 1885, that is more than six 
years before the institution of the present suit. The Subordinate Judge 
finds that since the death of Swarna Gurukal, the adoptive father, the 
defendant has been in possession, though for a time after his father's 
death his possession was disturbed. In 1890, a suit was brought by the 
plaintiff, alleging that she had all along, since her husband's death, been 
in possession of all his property. It was found in that suit that the 
plaintiff was not and never had been in possession of the property. It 
was necessary for the Judge to find whether the plaintiff was in possession 
at the [44] date of that suit, because she asked for a declaration of her 
title. It having been found that she was not in possession, the suit was 
dismissed on the 28th February 1891. In her present plaint, she alleges 
that she was dispossessed in that very same month. No attempt is made 
to prove this allegation, whicb in itself is most improbable, but it is 
suggested that the evidence shows that the plaintiff was in possession 
before 1890 and that it is open to her, notwithstanding the decree in 
the suit of 1890, to establish that possession. It is argued that, if she 
was in possession between 1884 and 1890, there was no occasion for her 
to challenge the first defendant's adoption and therefore Article 118 can- 
not properly be applied. Whatever weight may be due to this argument 
in a case in which the plaintiff can show an undisturbed possession in 
defiance of the alleged claim by adoption, the point does not really arise 
in the present case, because it is clear that the plaintiff's possession was 
at the best an interrupted and incomplete possession. The evidence 
seems to show rather that there was a constant struggle for possession on 
her part than that she was in actual enjoyment. 

Holding, then, that the plaintiff is seeking to recover property of which 
she, since her husband's death, has not been in possession, and which has 
been all along claimed by the defendant in virtue of his alleged adoption, 
we have to consider whether the suit is barred by limitation. On the facts 
stated, it unquestionably would be barred, if the Act of 1871 still remained 
in force, for it has been decided by the Judicial Committee with reference 
to Article 129 in the schedule of that Act that a plaintiff, whose claim is 
met by the assertion of an adoption and cannot be made good without 
negativing the adoption, must bring this suit within the time fixed in that 
article. It is contended that the ruling of the Judicial Committee is not 
applicable to cases governed by the existing Act, or, in other words, that 
the law as it stood under the earlier Act has been altered by the passing 
of the Act of 1877. 

Comparison between Article 129 in the schedule of the repealed Act 
and Article 118 of the Act; of 1877 shows that an alteration of the 
language has been etfected in all three columns. The period has been 
reduced from twelve years to six ; the starting point has been altered by 



1896 

Nov. 24* 

APPEL- 

LATE 

ClVIL. 

20 M. 40 = 
M.L.J. 272. 



31 



20 Mad. 45 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 substituting the date when the plaintiff knows of the adoption for the date 
Nov. 24, of the adoption ; the description of the suit has been altered. This last 
alteration is the only [45] one material to the present question, for 
APPEL- it cannot be suggested that the other alterations affect the applicability of 
LATE the article. To support the plaintiff's contention, it is necessary to show 
ClVIL. that the change in the language descriptive of the suit points to a change 
of policy on the part of the legislature and to the intention to restrict the 
20 M. 40= application of the article to suits in which a mere declaration is sought 
8 M.L.J. 272. f or Unfortunately for this contention, we know the reason for the change 
of language and can, therefore, account for it fully without ascribing any 
change of policy to the legislature. It is plain, as is pointed out by the 
Judicial Committee in Jagadamba Chaodhrani v. Dakhina Mohun Roy 
Chaodhri (1), and it also seems to have been pointed out before 1877, 
that the phrase "a suit to set aside an adoption " is an inaccurate one. 
Hence the substitution in the 118th article of the expression "suit to 
obtain a declaration that an alleged adoption is invalid or never took 
place." I am at a loss to understand how this substitution which is 
in accordance with the observations of the Judicial Committee, though 
not consequent upon them, can be taken to effect a change of law in 
favour of the plaintiff. The observations of the Judicial Committee 
apply to the suit of a person in the present plaintiff's position, whether it 
is incorrectly called a suit to set aside an adoption or correctly called a 
suit to declare an adoption invalid. In Mohesh Narain Munshi v. Taruck 
Nath Moitra (2), there is a strong dictum to tbe effect that the plaintiff's 
position has not been altered for the better by the change of expression 
and in a later case, it appears to have been assumed that, notwithstanding 
the change, a plaintiff suing for possession must bring his suit within six 
years of his knowledge of the defendants' adoption. (Lachman Lai 
Chowdhri v. Kanhay Lai Mowar (3). ) A string of cases was cited in 
which a different view of the law has been taken by other High Courts. 
I do not find in the juigmants in those cases any sufficient reason given 
for attributing to the legislature an intention, which in itself is most 
improbable, when it is remembered that before the Act of 1871 was 
repealed, tbe interpretation put by the Judicial Committee on Article 129 
had not been enunciated. 

An argument is founded on the fact that the language descriptive of 
suit has not been changed in Article 91 corresponding [46] to Article 92 
of the Act of 1871. (Natthu Singh v. Gidab Singh().} The reason for 
this is plain. Tbe phrase " suit to cancel or set aside an instrument " is not 
an in accurate one, and therefore there was no need to alter the language in 
the new Act. If it had been the object of the legislature to place parties 
challongiLgor maintaining an adoption in a position more favourable tban 
that assigned to them by the Act of 1871, as interpreted by the Judicial 
Committee, the simplest course would have been to repeal Article 129 and 
leave declaratory suits, relating to adoptiou to be governed be the general 
article. The preservation of the special provision for suits in which such 
questions are raised, shows that the policy which actuated the legislature 
in 1871, was still maintained in 1877. The reduction of the period from 
twelve years to six in cases in which the plaintiff has from the first 
knowledge of the alleged adoption or of the fact that the adoption is 
denied, points to the desire to restrict, as far as possible, the time 
within which such questions may be raised. There was no nee3 for the 

(1) 13 C. 308 (318). (2) 20 C. 487 (494). (3) 22 C. 609. (4) 17 A. 167. 

32 



YII.] PARVATHI AMMAL V. SAMINATHA GURUKAL 20 Mad. 47 

-abbreviation of the period or indeed for the retention of any special article, 1895 
if i& was intended to apply only in cases in which the plaintiff seeks a Nov. 24. 
declaration and nothing more. 

For these reasons, I am of opinion that the law has not been altered APPEL- 
so as to make Article 118 inapplicable to the present suit and that, there- LATB 
fore, in the circumstances above stated, the suit is barred by the law of CIVIL. 

limitation. 

DAVIES, J. I concur in the conclusion of my learned colleague, as 2 & ". *=* 
it appears clear, for the reasons stated by him, that the plain ruling of 6 M L.J. 272. 
their Lordships of the Privy Council has not been in any way affected 
by the mere change in the wording as to the character of the suit in the 
new article. It has been urged, however, that the effect of that ruling 
may not have been foreseen and that it may lead to unnecessary litigation 
on the one hand or to a denial of justice on the other. 

The case is put for instance that supposing the widow hero had been 
in actual possession, there was no occasion for her to sue until she was 
ousted, and yet if that ouster had taken place more than six years after 
the adoption became known to her, she would not, under the present; 
ruling, have been able to contest it. This result, it is contended, involved 
either her bringing a suit at a time[47] when none was necessary, or the 
hardship that when it did become necessary, it was not allowed. 

But the obvious answer to the first part of the argument is that ib 
-was not unnecessary for her to sue, for it was necessary for the purpose 
of completing her title, which, so long as the adoption stood in the way, 
was a bad one. And the answer to the second part of the argument is 
that the widow would be in no worse a position than the adopted son, 
for, if her six years' possession had begun with a denial of his adoption, 
he would, after the lapse of that time, be equally debarred under the next 
Article (119) from suing to establish it. 

Another case put is that of a reversioner, say a brother, entitled to 
inherit his divided brother's estate but for an adoption made by the latter. 
Supposing that adoption to have been made six years before his death, is 
the brother, it is asked, bound to sue to declare the adoption invalid before 
his right to inherit accrues, and when if he should happen to predecease 
his brother, it would never accrue. The answer must be in the affirmative 
and not unreasonably, for although the litigation may, in a case here and 
there, turn out to have been in vain, that disadvantage is small compared 
with the advantage to the community generally in the security of titles, if 
they are not challenged within a reasonable time. The principle has 
always been the same. The only difference now is that the time for 
impeaching an adoption has been changed from twelve years from the 
date of it absolutely, to six years from the time that it became known to 
the party ready to dispute it. This is indeed a more favourable starting 
point for him than the old one. 

The only case that could arise of a supposed denial of justice might be 
the case of a remote reversioner suddenly finding himself in the position 
of next reversioner but too late to sue. It could be answered to him 
that it was owing to his want of due diligence to safeguard his rights, 
while there was yet time. 

It is pointed out that to no other status than that of adoption is thia 
six years' rule applicable. That seems to be so ; but it is open to tba 
Legislature, I presume, to extend the provision to the cases of marriage 
and legitimacy, if it so pleased. 

The appeal is accordingly dismissed with costs. 

33 

M VII-5 



20 Mad. 48 INDIAN DECISIONS, NEW SERIES [ Vol 

1896 20 M - *8 (P.B.). 

OCT.J20. [48] APPELLATE CIVIL FULL BENCH. 

FULL Before Sir Arthur J. H. Collins, Kt., Chief Justice, Mr. Justice 
BENCH Shephard, Mr. Justice Subramania Ayyar and 

' Mr. Justice Davies. 

20 M. 48 

(P.B.). VENKITI NAYAK AND OTHEES (Defendants), Appellants v. 

MURUGAPPA CHETTI (Plaintiff), Respondent.* 
[2nd and 20th October, 1896.] 

Limitation Act Act XV of 1877, Section 14 Cause of like nature Misjoinder of causes- 
of action Want of leave under Civil Procedure Code, Section 44. 

In March 1891 the plaintiff sued the defendant to recover the sum of money 
due on the taking of an account between the plaintiff and the defendant, who 
was his agent, and to recover possession of certain land. The plaintiff did not 
obtain leave under Civil Procedure Code, Section 44 for the institution of this suit 
which was accordingly dismissed for misjoinder of causes of action. The plaintiff 
now instituted on 5th April 1893 two suits, the one for the money and the other 
for the land : 

Held, that the plaintiff was entitled under Limitation Act, Section 14, to have 
the time occupied in the previous proceedings deducted in the computation of th& 
period of limitation applicable to his auit for money which accordingly was not 
barred by limitation. 

[F., 22 M. 494 =9 M.LJ. 37; 24 M. 361; R., 22 A. 248 (F.B.); 23 M. 583 ; D., 29 B. 
219 = 7 Bom.L.R. 90.] 

APPEAL against the order of W. Dumergue, District Judge of Madura, 
in Appeal Suit No. 200 of 1894, reversing the decree and remanding for 
trial Original Suit No. 152 of 1893 on the file of the District Munsif of 
Tirumangalam. 

A suit for Ks. 2,315 due on accounts. The plaintiff was a cotton 
dealer and money lender and had a shop at Sengapadai, which was 
managed by defendant as his agent from 5th July 1831 to the llth 
January 1889, when his agency ceased. Accounts not having been'settied 
between him and plaintiff, on 19th March 1891 the plaintiff sued to- 
recover the sum of money due on the taking of an account, and also to 
recover with damages two pieces of land said to have been conveyed 
benami to the defendant as his agent, without obtaining the leave of the 
Court under Civil Procedure Code, Section 44. The District Munsif, in 
whose Court the suit was instituted, made an order on the 17th June, in. 
which, after quoting Section 44, he said that the suit was liable to be 
dismissed, on the ground of misjoinder of causes of action, but that he 
would give the plaintiff [49] an opportunity to amend the plaint and file 
separate suits in respect of these different causes of action and allowed 
7 days for that purpose. No amendment was made, and on the 25th 
June the District Munsif made an order dismissing the suit which was 
confirmed on appeal on 24th October 1892. The plaint in tbe present 
suit was presented on 5th April 1893. 

The District Munsif held that the claim was res judicata by reason 
of the previous order which he said was passed under Section 158 of Civil 1 
Procedure Code ; he also held that the suit was barred by limitation, the 
plaintiff not being, in his view, entitled to the deduction under Limitation 
Act, Section 14, of the time occupied by the previous proceedings and he 
accordingly dismissed the suit. On appeal the District Judge held that 

* Appeal against Order No. 78 of 1894. 
34 



YII.] VBNKITI NAYAK V. MDRUGAPPA CHETTI 20 Mad. 50 

there was no bar by res judicata and also that the suit was not barred by 1896 

limitation, as to which he quoted Narasimma v. Muttayan (1). He OCT. 20. 
accordingly reversed the decree and remanded the suit for trial on the 

merits. FuLL 

The defendants preferred this appeal. BENCH. 

Bhashyam Ayyangar, for appellants. 20~M~W 

Krishnasami Ayyar, for respondent. ' 

This appeal coming on for disposal before BEST and SUBBAMANIA * 
AYYAR, JJ., on 3rd May 1895, they made the following order of reference 
to Full Bench. 

ORDER OF EEFEEENCE TO FULL BENCH. 

We defer our decision in this case pending decision of the Full Bench 
" of the question whether misjoinder of causes of action is a cause for 
" which time should be deducted under Section 14 of the Limitation 
Act." 

The case came on for hearing before the Full Bench on 2nd October 
1896. 

Bhashyam Ayyangar, for appellant. 

There is a conflict of decisions upon the question referred. The 
decision appealed against is inconsistent with the judgment in Tirtha Sami 
v. Seshagiri Pai (2) where it was held that misjoindor is not a cause of 
like nature within the meaning of Limitation Act, Section 14, dissenting 
from the case followed in Narasimma v. Muttayan (1). That case follows 
Deo Prosad Sing v. Pertab Kairee (3) which is approved in Mullick Kef ait 
Hossein v. Sheo Pershad Singh (4) and dissented from Jema v. Ahmad Ali 
Khan(5). [50] The leading cases in Bombay are Bai Jamna v. Bai Ichha(&) 
and Krishnajt Lakshman v. Vithal Eavji Ranji (7). The expression cause 
of a like nature cannot on the right construction be held to include those 
which are due to the action of the suitor. This is deducible from the 
cases last cited. See also Chunder Madhub^v. Bissessuree Debea (8), 
Rajendro Kishore Singh v. Bulaky Mahton (9) " and Nobin Chunder Kurr 
v. Rojomoye Dossee (10). 

Krishnasami Ayyar, for respondent. 

Most of the cases quoted in favour of the appellant are really cases 
of defective jurisdiction. The term jurisdiction being used generally and 
not restricted to the pecuniary or territorial limits of jurisdiction. 
In Section 14 the expression " cause of like nature " must include formal 
defects which reader the Court incompetent to entertain the suit. 
Moreover the subsequent suit must be, in effect, the same suit as the 
first and the other cases quoted for the appellant proceed on this ground. 
See also Mohun Chunder Koondoo v. Azeem Gazee Chowkeedar(ll'), Dhan 
Singv. Basant Sing (12) and Subbarau Nayudu v. Yagana Pantulu (13). 

The Court (COLLINS, C.J., SHEPHARD, SUBRAMANIA AYYAR and 
DA VIES, JJ.) delivered judgment as follows : 

JUDGMENT OF THE FULL BENCH. 

In the case which gave rise to this reference, it appears that the 
former suit was dismissed, because, without leave of the Court, claims in 

(1) 13 M. 451. (2) 17 M. 299. (3) 10 C. 86. (4) 23 C. 821. 

(5) 12 A. 207. (6) 10 B. 604. (7) 12 B. 625. (8) 6 W.R. 184. 

(9) 7 C. 367. (10) 11 0. 264. (11) 12 W.R. 45. (12) 8 0. 519, (527). 
(13) 19 M. 90 (95). 

35 



20 Mad. 51 INDIAN DECISIONS, NEW SERIES [Vol. 

1896 respect of moveable and immoveable property had been united in one plaint 
OCT. 20. in violation of the provisions of Section 44 of the Civil Procedure Code. 
The real question to be decided is whether the reason for the failure of 
FULL j^at gu jj; wag o f 8U( jh a character as to entitle the plaintiff in the present 
BENCH, suit to take advantage of Section 14 of the Limitation Act. It was 
~TT~ argued on behalf of the plaintiff that any misjoinder of causes of action 
_ ' rendering the Court unable to entertain the suit, should be deemed to be 
" a cause of a like nature " with defect of jurisdiction within the meaning 
of Section 14. The argument, indeed, was pushed to this length, that 
any plaintiff, whose plaint had been rejected- under Section 53 or 54 of 
the Civil Procedure Code, might, provided that other conditions were 
fulfilled, claim to have the time expended on the abortive proceeding de- 
ducted in the computation [81] of the period applicable to his new suit. 
If it had been intended to embrace such a large class of cases within tho 
scope of Section 14, one would have expected correspondingly general 
words to be used. The phrase "defect of jurisdiction or other cause of 
a like nature" seerns quite inadequate to denote the miscellaneous cases of 
defect mentioned in Sections 53 and 54. For the purpose of the present 
case, however, it is unnecessary to deal with the argument of the plain- 
tiff's vakil. 

The case was not one in which mere misjoinder of causes of action 
bad proved fatal to the first suit. It was rather the absence of the leave 
required by Section 44 of the Civil Procedure Code which rendered the 
Court unable to entertain it. Such a defect as absence of leave was held 
in a recent case decided in this Court to bring the case within the provi- 
sions of Section 14, and we think that case was rightly decided. Subbarau 
Nayudu v. Yagana Pantulu (1). 

Following that case, we hold that the question, whether such mis- 
joinder as there was in the present instance was a cause for which time 
should be deducted under Section 14 of the Limitation Act, must be 
answered in the affirmative. 

FINAL JUDGMENT. 

This appeal coming on this day for final hearing, the Court (SUBRA- 
MANIA AYYAR and BODDAM, JJ.) dismissed the appeal. 



20 H. 51-6 M.L J. 211. 

APPELLATE CIVIL. 
Before Mr. Justice Subramania Ayyar and Mr. Justice Davies. 



PAYYATH NANU MENON (Plaintifi's Representative), Appellant 

v. THIRUTHIPALLI EAMAN MBNON AND OTHERS (Defendants), 

'Respondents* [25th August and 15t;h September, 1896.] 

Malabar Law Adoption by the Karnavan of a Marumakkatayam tarwad Want of 
consent by the rest of the tarwad Civil Procedure Gode, Section 365 Legal re- 
presentative. 

A tarwad in Malabar subject to Mirumakkatayam Lvw was reduced in 
number to two persons, tie., the krnavan and his younger brother the plaintiff. 
[82] They quarrelled and the former without the consent of the latter alopted us 
members of the tarwad his son and daughter and her childern On his death 



Appeal No. 88 of 1895. 
(1) 19 M. 90. 

36 



11.] PAYYATH NANU MENON V. T. RAMAN MENON 20 Mad. 53 

the plaintiff sued for possession of the tar wad property and for a declaration that 1896 
the adoptions were invalid : SEP' 15 

Held, that the plaintiff was entitled to the relief asked for. 

After an appeal was presented by plaintiff, who had obtained a decree for pos- APPEL- 
session but no other relief, he died leaving a will making certain dispositions of T.ATE 
the property to which he was solely entitled on the assumption that the adop- 
tions in question were invalid and his executor was admitted as his legal repre- GlVIL. 

sentative for prosecuting the appeal. 

20 M. 51=. 

APPEAL against the decree of A. Venkatramana Pai, Subordinate 6 H.L. J. 241. 
Judge of Calicut, in Original Suit No. 39 of 1892. 

The facts of the case and the decree of the Subordinate Court are 
stated sufficiently for the purposes of this report in the judgment of 
SUBRAMANIA AYYAR, J. 

Plaintiff preferred this appeal. 

Krishnasami Ayyar and Sundara Ayyar, for appellant No. 2. 
Bhashyam Ayyanqar, Sankaran Nayar and Sankara Menon, for res- 
pondents Nos. 1, 2, 6 and 7. 

Subramania Sastri, for respondents Nos. 3, 4 and 5. 

JUDGMENT. 

SUBRAMANIA AYYAR, J. One Govindan Nair and his younger 
brother Nanu Menon were, in the year 1892, the only surviving members 
of a tarwad subject to the Marumakkatayam law. The former, who was 
the karnavan, adopted on the 21st April of that year four persons, viz., his 
son Eaman the first defendant, and his daughter Lakshmi the second 
defendant, and her children Paru and Krishnan the sixth and the seventh 
defendants. He made the adoptions without the express or implied con- 
sent of Nanu Menon, who had, prior to the date of the adoptions, been 
for many years on unfriendly terms with his brother. In June 1892 
Govindan Nair died. Subsequently Nanu Menon brought the suit, out of 
which this appeal arose, for a declaration that the said adoptions were 
invalid, for possession of the property which bad been held and managed 
by Govindan Nair as the karnavan and for certain minor reliefs. In the 
Court below, he got a decree for the property, &c., but his prayer as to 
the adoptions was not granted. He preferred this appeal chiefly against 
such refusal to declare them to be invalid. After the appeal was presented, 
be having died leaving a will making certain dispositions of the property to 
which he was solely entitled if the adoptions in question be found to be 
invalid, [53] his executor was admitted as the legal representative for 
prosecuting the appeal. 

On the one side, the adoptions were impeached, among other grounds, 
for the reason that one essential requisite for a valid adoption, viz., the 
assent of all the members of a tarwad was wanting in this case, inasmuch 
as Nanu Menon had not consented. On the other side, it was urged that 
such consent was unnecessary since Govindan Nair, as karnavan, had sole 
authority in the matter. Without entering into the question whether the 
consent of all, or only that of the majority of the members of a tarwad is 
necessary, it is sufficient for the purposes of this case to determine whe- 
ther the latter contention is sound. 

No decision of this Court or of the local Courts directly bearing on 
that contention was cited. 

Nor has any satisfactory evidence been adduced to show that the 
actual usage of the people is in favour of the view urged on behalf of the 
defendants. The evidence as to custom, called for them, is that of their 

37 



20 Mad. 54 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 ninth, tenth and eleventh witnesses. The first of these, the Zamorin of 
SEP. 15. Calicut, was not very consistent in the evidence he gave. At first he 

stated that the karnavan can adopt without; the consent of his anandravan. 

APPEL- But later on he qualified this statement by adding that if the anandravan 
LATE was neither an outcaste nor an insane person, his assent also was necess- 
OlVIL. arv - He, however, again, changed his answer and adhered to his original 
statement. The tenth witness, a Nambudri, was more positive in asserting 
20 M. 51= that an anandravan's consent was unnecessary. The eleventh witness, 
M.L.J. 241 another Brahman, gave it as his opinion that a karnavan was entitled to 
adopt, even against the will of the anandravans. But he contradicted 
himself as to a point intimately connected with that under consideration, 
viz., the question whether, if a karnavan was opposed to any adoption 
being made, but the anandravans insisted upon one, whose will should 
prevail ? As to this in his chief examination the witness observed that 
the adoption should take place in spite of the karnavan's dissent. But in 
cross-examination he said it should not a statement which was subse- 
quently retracted. None of the three witnesses was able to speak 
even to a single instance in which a karnavan did in fact adopt without 
the consent of his anandravan or anandravans. Without such corro- 
boration, the bare opinions of these witnesses are hardly of much value. 

[54] Nor does the evidence on the other side throw any light on the 
question. The documentary evidence, which consists of Exhibits UUU, 
VVV, WWW, only shows that, in each of the cases to which they relate, 
all the persons interested in the particular adoption concurred in it. But 
it would be wrong to accept such inconclusive conduct in so very few 
cases as evidence of a general consciousness on the part of the people that 
without the consent of his anandravan a karnavan cannot adopt. As to 
the oral evidence neither the third nor the tenth witness, relied upon, 
possesses any special qualifications that would lend weight to their view 
that the karnavan alone cannot act in the matter. 

In the absence, therefore, of judicial decisions or satisfactory proof 
of custom for or against the defendants' contention, the question has to 
be dealt with on principle. 

But before doing so, it will be convenient to say a few words with 
reference to an authority, cited as one distinctly in favour of the defend- 
ants, viz., paragraph 403 of Mr. Justice Strange's Manual of Hindu 
Law, second edition, published in 1863, which contains the statement 
that " on failure of the sister's progeny, male and female, the bead of 
" the family may make adoption." If it were clear that, in penning the 
words just quoted, the learned author had in contemplation a case like the 
present, his opinion, though unsupported by any other authority than his 
own, would, having regard to his great experience of the people of Malabar, 
be entitled to much weight. But in the passage in question, the author 
merely glances at the general subject of adoption in Marumakkatayam 
families, and seems to mean nothing more than that when a tarwad finds 
it necessary to make an adoption, it acts through its chief member the 
karnavan. That a question, like the one now under discussion, was 
present to the mind of the author, there is nothing in the paragraph itself 
to suggest. Consequently, the passage relied on, cannot be treated as 
an authority in favour of the view for which it was cited. 

How then does the matter stand on principle ? No doubt, a karnavan 
possesses, under the law, large powers with reference to the concerns 
of his tarwad. He is by birth the head of the family, holds possession 
of its property, receives the income and distributes the same according to 

38 



YII.] PAYTATH NANU MENON V. T. RAMAN MENON 20 Mad. 56 

his own discretion among those under his protection. And no doubt, in 1896 
transactions with outsiders as well [55] as in litigation with such persona, SEP. 15. 
he generally represents the family. But it does not follow that he possesses 
similar independent authority with reference to adoptions into the family. APPEL- 
For the powers just above referred to, are obviously all more or less con- LATE 
nected with management only ; whereas adoption, on the other hand, is an OlVIL. 
act which clearly falls outside the scone of mere management. Such 
affiliation involves bringing in strangers into a tarwad and the exercise of 20 M. 51 
the power so to affect its very constitution is prima facie not a matter to 6 M.L.J. 241. 
be entrusted to any one member, however prominent the position he occu- 
pies in that body is. Here it may be asked, is not a similar power vested 
in a father of a Hindu family to whom a karnavan has been compared? 
(Vide in Eravanni Revivarman v. Ittapu Revivarman (1).) It is true that 
such a father has full authority to sanction the introduction of a stranger 
into the family by empowering a widow of one of his sons to make an 
adoption to her husband. But that exceptional power of tbe father rests 
upon a special provision of the Hindu law. So far therefore as the present 
question goes, there appears to be no analogy between the father and tbe 
karnavan. Moreover, considering that, unlike under the Hindu law, a 
practically unlimited number of persons of both sexescan be adopted under 
the Marumakkatayam system, it is scarcely necessary to point out that 
the power in question, if it were exercisable by a karnavan alone, is, 
should he happen to be an unscrupulous man, capable of being used by 
him with im'puniby so as to cause serious detriment to the other members 
oi his tarwad. 

In these circumstances, with every desire not to weaken the establish- 
ed authority of a karnavan, one cannot, especially when called upon to 
lay down almost for the first time a definite rule on the subject, ignore 
altogether the inexpediency of recognising that a karnavan by himself is 
entitled to adopt ; since that would only add one fresh ground for discord 
and dissension between a karnavan and those subject to his authority, of 
which the constant conflict of the former's interest with his duty , 
referred to in Eravanni Revivarman v. Ittapu Revivarman (1) is a fruitful 
cause, and which are said to be so rife in many families in different parts 
of Malabar,. 

Before concluding this discussion, it remains to notice an argument 
urged on behalf of defendants, viz., that should it be found [56] that an 
adoption made by a karnavan was, having regard to all the circumstances 
of the case, prejudicial to the true interests of the other members of the 
tarwad, it is open to a Court to cancel the same, as it would cancel a sale 
of property belonging to the family but improperly alienated by a karnavan 
without the assent of the other members. It is hardly necessary to say that 
there is more than one solid distinction between the two classes of cases. 
In the first place, it cannot be denied that, under certain circumstances, 
the power to transfer, even by way of sale, is part of the powers of a 
manager like a karnavan (compare the observations in Kalliyani v. 
Narayana (2) whereas, as already pointed out, the power to import stran- 
gers into the family by adoption is essentially of a different and higher 
nature. In the second place, while the Courts, in interfering with an un- 
warranted transfer of property by a karnavan, exercise a jurisdiction, on 
the whole beneficial to the family, they would be instruments of doing 
.little but harm if they are also required to set aside adoptions, not on the 

(1) 1 M. 153 (157). (2) 9 M. 266 (267). 

39 



20 Mad. 57 INDIAN DECISIONS, NEW SERIES [ Yol 

-1896 ground that they contravene some definite rule of law, such as that relating. 

SEP. 15, to the vamsam or tribe of the person to be adopted, but on the ground of 

the undesirableness of the adoption, the unsuitability of the person or 

APPEL- persons selected, or for other like reasons. Surely these are matters for 

LATE the final decision of the party making the adoption. To leave such ques- 

ClVIL. tions open for adjudication by Courts cannot but introduce a mischievous 

element of uncertainty and doubt as to the status of the persons adopted, 

20 M. 81= operate as a premium to vexatious litigation, and, above all, throw upon 

M.L.J. 241. the tribunals a duty that, from its very nature, they are not ia a position 

to discharge satisfactory. 

It would seem, therefore, that the view that a karnavan, at his sole 
unfettered discretion, can adopt, finds little or no support even in principle. 
And as on this ground the adoptions in question fail, it is unnecessary to 
consider the other reasons urged against their validity. 

The only other point to be noticed is the objection taken by the ap- 
pellant as to the amount of damages awarded in respect of certain mate- 
rials of a dilapidated building removed and used by the defendants. There 
is no good reason to think that those [57] materials were worth more 
than the sum granted by the Subordinate Judge. 

The decree of the Lower Court will be modified by declaring that 
the adoptions are invalid, and in other respects it must be confirmed. The 
respondents will pay the appellant's costa here. 

DA VIES, J. I quite agree in the conclusions of my learned colleague, 
I would, however, add two additional reasons in support of the view we 
have taken on general principles, namely, that the karnavan as such has 
not the sole power to make an adoption. 

In the first place, there has been no attempt GO prove that a legal or 
moral obligation is cast on the member or members of a moribund tarwad 
to make an adoption. On the contrary, the witnesses in the case do not 
go further than saying it is proper not that it is obligatory. This is con- 
firmed by the fact that the practice is by no means universal or there 
would not be the frequent escheats to the State of tarwad property for 
want of a successor. The making of an adoption then being optional, how 
can the karnavan, without the consent of his anandravans, forestall them 
and deprive them of that option which in the nature of things must reside 
in the last surviving member or members of the tarwad ? If they should 
agree there is an end of the matter, but if they do not agree, the karnavan 
in acting on bis sole authority is arrogating to himself a power of making 
a final disposition of the family property. The powers of a karnavan are 
great, but none of the powers so far recognized in him is so large as that 
now claimed for him. It is tantamount to allowing him to make a gift of 
the tarwad property, which he cannot ordinarily do. 

And in the second place, even if it be obligatory, there is no actual 
necessity for making the adoption until the tarwad is reduced to a single 
member. As the occasion for the exercise of the power really arises only 
then, it would seem to follow that the right, when disputed, must be held 
necessarily to vest in the last surviving member. The necessity has then 
become absolute. 



YII.] SEENI CHETTIAB V. SANTHANATHAH CHETTIAR 20 Mad. 59 

20 M. 58 (F.B.)=6 M.L.J. 281. 1896 

[58] APPELLATE CIVIL FULL BENCH. Nov> 12> 

Before Sir Arthur J. H. Collins, Kt., Chief Justice, FULL 

Mr. Justice Subramania Ayyar and Mr. Justice Davies. BENCH. 



SEENI CHETTIAR (Defendant No. 1), Appellant v. vn\- 

SANTHANATHAN CHETTIAE AND OTHERS (Plaintiff and Defendants f I j ~OQ 
Nos. 2 and 3), Respondents* [25bh September and 12th November, 1896.] 6 " Lljt Zl 

Registration Act Act III of 1877, Sections 3, 17 <d) Interest in land Timber Lease 
Specific Relief Act Act I of 1377, Section 36 Injunction. 

The plaintiff (who held on lease a share in a village and in the trees stand- 
ing in the village tank), in consideration of Rs. 200 and a promissory note for 
Rs. 3,200, executed hi favour of the defendant a document by which he assigned 
to the latter the right "to cut and eajoy the trees, &c.," fora period of four years 
from its date. The instrument was not registered. The defendant felled the 
trees which were mature at the date of the instrument and subsequently felled 
others since matured. The plaintiff now sued for a declaration of his title to the 
remaining trees and for an injunction to restrain the defendant from intermed- 
dling therewith, alleging that he had sold to the defendant orally the right to 
fell only such trees as were then matured : 

Held, tint the unregistered instrument purported to convey an interest in 
immoveable property, and was not a lease and was inadmissible in evidence ; and 
that the plaintiff was not entitled to relief by way of injunction or otherwise. 

[F., 29 M. 353; 15 Ind. Gas. 234(239); R., 13 Eim. L.R. 874 (877) = 12 Ind. Cas. 
375; 17 O.W.N. 166 = 16 Ind. Gas. 705 (707) ; 1 Ind. Cas. 903 = 5 N.L.R. 21 ; 
5 M.L.T. 295; D., 28 A. 277 = 3 A.L.J. 138 = A.W.N. (1906) 4.] 

APPEAL under Letters Patent, Section 15, against the judgment in 
second appeal No. 319 of 1894, which was preferred against the decree of 
F. H. Hamnett, Acting District Judge of Tinnevelly, in appeal suit No. 214 
of 1893, confirming (save as to costs) the decree of S. Gopalachariar, 
Subordinate Judge of Tinnevelly, in original suit No. 12 of 1892. 

Tbe plaintiff alleged that he and defendant No. 2 were joint lessees 
under a lease in the village of Pattampatfcur and in the trees standing in 
the village tank, that in October 1890 when there were 3,500 trees fit for 
felling, defendant No. 2 sold his half share therein to che plaintiff who 
cdnveyed them orally to defendant No. 1 in January 1891 for Es. 200 
paid in cash and Rs. 3,200 secured by a promissory note, that defendant 
No. 1, having felled the trees above referred to, proceeded to fell others 
since matured, [59] alleging that his rights remained in force during the 
whole currency of the lease to the plaintift and defendant No. 2. The 
plaintiff prayed for a declaration of his right to the trees standing in the 
tank and for an injunction restraining defendant No. 1 from felling them. 

Defendant No. 1 claimed to be in possession and to be entitled to the 
trees under an instrument executed in his favour by the plaintiff on 1st 
January 1891. That instrument which was not registered was in the fol- 
lowing terms : 

" In respect of the transaction of business heretofore taken on 
" contract from Madura Pattamars in Fasli 1294 by me and A. N. 
Meenakshisundaram Settiar Avergal, I have paid on 16th December 1890 
" in current Fasli 1300, value for the said Meenakshisundaram Settiar's 
' half share, excluding my share, in the karuvela, velvala, morgosa and 
" manjanatti trees, &c., in Pattambudur tank to the north of the said 
" village and in the gum (resin) karuvalam nuts, grass, kora, &c., standing 



M VII- 6 



Letters Patent Appeal No. 73 of 1895. 
41 



20 Mad. 60 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 " thereon ; and been enjoying the same till this day. As I have settled a 

Nov. 12. " value of Es. 3,400 for the said two shares together with the tank and 

" bed of the said tank so that you may cut and enjoy the trees, &c., and the 

FULL " grass, korai, gum, karuvela nut, &c., from this day till the close of Fasli 

BENCH. " 1304, and executed a yadast to you on receipt of a note from you 

" promising payment within a period of six months, you will enjoy in the 

" said tank, as mentioned above. Should there be any trees or other 

F j B j )= " materials whatever in the said tank on 1st day of the Fasli 1305, the 
M.L.J. 281, " aDOve ga^ per8oa 8 h a ii no t interfere (with it)." 

The Subordinate Judge held that the instrument relied on by the 
defendant was inadmissible for want of registration on the ground that it 
dealt with immoveable property and he passed a decree for the plaintiff as 
prayed with costs. OQ appeal the District Judge was ol opinion that the 
unregistered instrument could operate only with regard to the trees ready 
to be felled, at the date when it was executed. Ha modified the decree 
appealed against only by directing that each party should bear his own 
costs. 

Defendant No. 1 preferred the above second appeal which came on for 
hearing before SHEPHARD and BEST, JJ. 

Ramachandra Ran Saheb, for appellant. 

[60] Bhashyam Ayyangar, Ramakrishna Ayyar and Tiruvenkata- 
chariar, for respondent No. 1. 

Krishnasami Ayyar, for respondent No. 3. 

SHEPHARD, J. The first question is whether the yadast tendered in 
evidence by the defendant is a lease, and, as such, requires registration. 
The interest acquired by the defendant under the instrument consisted 
in the right to enjoy the produce of all the trees in the tank bed as also the 
grass and the reeds, and further to cut and remove the trees for a period ex- 
ceeding four years. It was not merely the trees and grass then growing 
and ready to be cut that the defendant was to acquire. He was further to 
be at liberty to take all the trees which might grow on the ground within 
the period named. The intention was, in my opinion, to create an interest 
in imraoveable property and certainly it was intended that the defendant 
should have exclusive enjoyment of the products named in the yadast. 

There was, therefore, a lease of immoveable property and not a mere 
license (see Sukry Kurdeppa v. Goondakull Nagireddi (1)) and as the 
enjoyment was given for term exceeding one year, registration of the 
yadast was compulsory. Failing the evidence which the instrument would 
afford, the defendants' claim to continue cutting the trees cannot be 
substantiated. The question, howevor, remains whether the plaintiff is 
entitled to relief by way of injunction. 

The judgments of the Courts balow, while discussing at length the 
question of law, do not state the facts with sufficient fullness and adequacy. 
It appears, however, to be found that the plaintiff received from the defend- 
ant Ks. 200 in cash and Rs. 3,200 in the shape of a promissory note and 
that this payment was made in consideration of the plaintiff allowing the 
defendant to cut the trees and take the other produce for a period 
of years. It also appears to be found that the defendant was not, 
at the time of the suit, in actual possession of the ground. The District 
Judge finds against the plaintiff on his contention that a particular num- 
ber of trees only were sold to the defendant. He also appears to 
think that all the timber and grass standing at the date of the yadast had 

(1) 6 M.H.C.R. 71. 

42 



YII.] SEENI CHETTIAB V. SANTHANATHAN CHETTIAE 20 Mad, 62 

been removed. It is not stated explicitly, but I think it may ba inferred, 1896 
that the note for Es. 3,200 which was produced by [61] the plaintiff has Nov. 12. 
never been liquidated by the defendant. Under these circumstances, the 
question which I suggested at the hearing does not arise. I mean the FULL 
question whether the Court should assist by an injunction a plaintiff who, BENCH. 
while he has himself received the greater part of the agreed consideration, 9n ~^~o 
is endeavouring to prevent the defendant from enjoying that for which he J? ' 
has paid. Seeing that the defendant has actually paid only Rs. 200 and ' ' 
must have had in the shape of timber and other things a sufficient quid M>lj ' Ji *" 
pro quo, I do not think he has any cause to complain of the injunction. I 
would dismiss the appeal with costs. 

BEST, J. The yadast on which appellant relies is no doubt an 
instrument creating an interest in immoveable property for a period of four 
and a half years extending from its date (1st January 1891) to the close 
of Fasli 1304 (30th June 1895). It is not merely a license to cut trees 
and grass in existence on the tank bed at its date, but to " cut and enjoy 
the trees, &c., and the grass, korai, gum, nuts, &c., from this day till the 
close of Fasli 1304." It is, therefore, a document that should have been 
registered and in default of registration, is inadmissible as evidence of any 
transaction affecting immoveable property. Consequently it would be of 
no avail to defendant if produced by him in support of a suit for posses- 
sion of the tank or for enforcement of his right to take grass, nuts, &o. 
(see Sukry Kurdeppa v. Goondakull Nagireddi (1)). Nor would it be 
admissible as evidence to resist a claim by the plaintiff for possession of 
the tank. The present suit, however, is not for possession of the tank, 
but only for a declaration of plaintiff's right to certain standing trees and 
for an injunction restraining defendant from felling the same. An unreg- 
istered document inadmissible as evidense affecting immoveable property 
is none the less admissible when the question relates only to moveables 
(see Thandavan v. Valliamma (2)). Standing timber is moveable property 
according to the definition given in Section 3 of the Eegistration Act itself. 
Consequently, the non-registiation of the document in question is no bar 
to its admissibility for the purposes of this suit. The genuineness of the 
yadast is found as a fact and the payment by defendant of Es. 3,400 as 
consideration is not denied. 

[62] The District Judge would no doubt have dismissed the plaintiff's 
suit, had it not been for his finding that the unregistered yadast could not 
be considered. 

As, in my opinion, the yadast is admissible as evidence for the pur- 
poses of this suit, in which no immoveable property is sought to be affected, 
I would allow this appeal, and setting aside the decrees of the Courts below, 
dismiss the plaintiff's suit and direct him to pay first defendant's costs 
throughout. 

In consequence of the difference of opinion between their Lordships, 
the following order was made by Mr. Justice BEST under Section 575 of 
the Civil Procedure Code. 2 

OEDER. 

Under Section 575 of the Code of Civil Procedure Mr. Justice 
^Shephard's judgment prevails and the appeal is dismissed. 

Defendant No. 1 appealed as above under the Letters Patent. 
Ramachandra Ban Saheb, for appellant. 

(1) 6 M.H.C.R. 71. (2) 15 M. 336. 

43 



20 Mad. 63 INDIAN DECISIONS, NEW SERIES [VoL 

1896 Bhashyam Ayyangar and Ramakrishna Aiyar, for respondent No. 1. 

Nov. 12, Seshachariar, for respondent No. 3. 

Ramachandi a Rau Saheb, for appellant, referred on the question 

FULL whether the instrument was a lease or not to Venkatachellam Chetti v_ 

BENCH. Audian (1), and he contended on the authority of Sukry Kurdeppa v. 

Goondakull Nagireddi (2), Misri Lai v. Mozhar Hossain (3) and Bansi- 

?F B )= 8 dhar v. Sant Lai (4) that the property dealt with thereby was moveable 
6 M L j 281 P r P erty - He also contended that the transaction was in the nature of a 
'contract to sell property (5), Rajah Sahib Prahlad Sen v. Baboo Budhu 
Sing (6). 

He also argued that in any view of the above questions the suit 
was not maintainable under Specific Relief Act, Section 42, against the 
defendant who was legally in possession of the trees and finally that the 
conduct of the plaintiff had been such as to disentitle him to receive 
relief by way of injunction, which a Court was not bound to grant under 
Specific Relief Act, Section 56, save in the exercise of a sound discretion. 
Bhashyam Ayyangar, for respondent, contended that the plaintiff waa 
in possession and that in second appeal the High Court should not inter- 
fere with the discretion, which the Lower Courts had [63] exercised in 
granting to the plaintiff the relief by way of injunction. On the con- 
struction of the document it is clear that it deals with an interest in im- 
moveable property and consequently it is inadmissible in evidence for 
want of registration unless it is a lease exempted under the notification of 
3rd May 1871. But it is not a lease under the definition in the Indian Act 
which are based on English decisions of which see Marshall v. Green (7) 
moreover the notification is only applicable to leases in which a rent is 
reserved and in the document now in question no annual rent is reserved. 

JUDGMENT. 

COLLINS, C.J. This second appeal No. 319 of 1894 was originally 
heard before Shephard and Best, JJ., and those learned Judges dis- 
agreed in the conclusion they arrived at ; and in consequence of BEST, J.,. 
having left the Court, the Letters Patent Appeal had to be heard before 
three other Judges. 

The principal point in dispute was whether the yadast, dated 1st 
January 1891, created an interest in immoveable property, and, if so, 
whether it could be used as evidence not being registered. The yadast is 
as follows : "In respect of the transaction of business heretofore taken on 
|| contract from Madura Pattamars in Fasli 1294 by me and A. N. Mee- 
" nakshisundaram Settiar Avergal, I have paid, on 16th December 1890 
" in current Fasli 1300, value for the said Meenakshisundaram Settiar's 
" half share, excluding my share, in the karuvela, velvala, margosa and 
" manjanati trees, d-c., in Pattambudur tank to the north of the said village, 
" and in the gum (resin), karuvela nuts, grass, korai, &c., standing thereon ; 
" and been enjoying the same till this day. As I have settled a value of 
' Rs. 3,400 for the said two shares, so that you may cut and enjoy the 
" trees, &c., and the grass, korai, gum, karuvela nut, &c., on bank and the 
" bed of the said tank from this day till the close of Fasli 1304, and ex- 
" ecuted a yadast to you on receipt of a note from you promising to pay 
" within a period of six months, you will enjoy in the said tank, as men- 
" tioned above. Should there be any trees or other materials whatever in 

(1) 8 M. 858. (2) 6 M.H.C B. 71. (3) 13 0. 262. 

(4) 10 A. 133. (5) 5 M.L.J. 253. (6) 2 B.L.B. P.O. 111. 

(7) L.R. 1.C.P.D.85. 

44 



YII.] SEENI CHETTIAB V. SANTHANATHAN CHETTIAB 20 Mad. 63 

" the said tank on the first day of Fasli 1305, the above said person shall 1896 
*' not interfere (with it)." Nov. 12. 

It appears to me that there can be no doubt but that the yadast 

does convey an interest in immoveable property : the [64] contrary FULL 
proposition is not arguable. It has long been settled that an agreement BENCH, 
for the sale and purchase of growing grass, growing timber or underwood, ft Tr~ai 
or growing fruit, not made with a view to their immediate severance and 
removal from the soil and delivery as chattels to the purchaser, is a con- ^ ' ' 
tract for the sale of an interest in land. I, therefore, hold that the yadast Mil<> '' 1 28 
does convey an interest in immoveable property and is not receivable in 
evidence being unregistered. 

The next question is to what relief (if any) is the plaintiff entitled. 
For the reasons given by Subramania Ayyar, J., in his judgment, I am 
of opinion that the plaintiff is nob entitled to any relief. I would, therefore, 
reverse the decree passed in plaintiff's favour and dismiss the suit. The 
other Judges having decided that each party should pay his own costs 
throughout, I am not inclined to differ from them on that point. 

SUBRAMANIA AYYAR, J. The first question argued in this case was 
whether the document, dated the 1st of January 1891, found to have 
been executed by the plaintiff to the first defendant, was rightly held to 
be inadmissible in evidence for want of registration. 

The determination of the question depends upon the soundness or 
unsoundness of the contentions urged on behalf of the plaintiff, viz., first, 
that the transaction evidenced by the said document amounted to a lease 
of the plaintiff's interest in the tank of the village of Pattambadur men- 
tioned therein for a term of a little more than four years, and secondly, if 
that contention fails that the document created in favour of the said 
defendant an interest in immoveable property of the value of more then one 
hundred rupees. 

First, as to the contention that there was a lease, it is to be observed 
that, to constitute such a transfer, it is essential that exlcusive possession 
of the property which is the subject of the transfer, should be intended to 
be vested in the transferee (Woodfall on Landlord and Tenant, 14th 
edition, page 129J. If the possession is, however, not of that character, 
the transaction, whatever else it may ba, is not a lease. This being clear, 
we have to see whether the instrument in the present case secured to the 
defendant any possession, and, if so, exclusive possession. 

Neither the language cf the instrument nor the nature of the case, 
in my opinion, supports the view that the plaintiff, who, as [63] the 
lessee of a sharer of the village, had joint possession of the tank, divested 
himself of such possession and transferred it to the first defendant under 
the document. 

The term " lease" does not occur in the instrument at all. Nor is 
anything stated therein which, in the slightest degree, suggests that the 
plaintiff's right to the possession of the Sank was in any way to be affected 
by the instrument. Again, the tank being a work of irrigation attached 
to the village, it cannot be supposed that the plaintiff, in entering into 
the contract with reference to the trees, &c., growing or likely to grow 
upon the bed or the embankment of the tank, agreed that, during the 
period mentioned in the document, the tank was not to ba enjoyed, either 
by himself or by others entitled thereto, as a reservoir for the water 
required by them for the irrigation of their lands, or that such parties 
should not be at liberty to use the tank in any other way in which they 
were entitled to use it, provided their action did not injuriously affect the 

45 



20 Mad. 66 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 special rights conferred upon the first defendant with respect to the trees, 

Nov. 12. &c., already referred to. It follows, therefore, that the plaintiff did not 

part with such possession of the tank as he had and that the first 

FULL defendant obtained merely a right of access to the place for the reasonable 

BENCH, enjoyment of what he was entitled to under the contract. Further, even 

if by a stretch of language the first defendant were to be considered to 

have acquired a right to some sort of possession of the tank bed, it is 

quite clear that such right was not exclusive, or, in the language of Lord 

6 M.L.J. 281. Hatberley, it was not unattended by a simultaneous right of any other 

person in respect of the same subject matter Cory v. Bristow (1). 

My conclusion, therefore, is that the transaction was not a lease. 

As to the second contention, it is scarcely necessary to observe that 
though standing timber is, under the Registration Act III of 1877, moveable 
property only, still parties entering into a contract with reference to such 
timber may expressly or by implication agree that the transferee of the 
timber shall enjoy, for a long or short period, some distinct benefit 
to arise out of the land on which the timber grows. In a case like that, 
the contract would undoubtedly be not one in respect of mere moveables, 
but would [66] operate as a transfer of an interest in immoveable property. 
Therefore, the point is whether the contract in question falls under the 
latter description. Taking all the provisions of the document together, I 
think there was here more than a sale of mere standing timber and that, 
in the words of Sir Edward Vaughan Williams quoted with approval in 
Marshall v. Green (2) cited for the plaintiff , "itwas contemplated that the 
" purchaser should derive a benefit from the further growth of the thing 
" sold, from further vegetation and from the nutriment to be afforded by 
" the land." The fact that the comparatively long period of a little more 
than four years was granted to the defendant for cutting and removing the 
trees is, to my mind, strongly in favour of the above view. 

I am, therefore, of opinion that the document in question did create 
an interest in immoveable property, as urged on behalf of the plaintiff, and, 
being unregistered, it was rightly rejected. 

The next question is whether the plaintiff is entitled to any relief. 
As to the injunction which is the more important of the reliefs claimed by 
him, I think he is not entitled to it for several reasons. According to 
Castelli v. Cook (3) " a party who seeks such relief is bound to tell the 
" Court what the case is on which he relies ; and when he brings forward 
" prominently, and relies upon a given case, the Court will not allow him, 
" if he should fail in that case, to spell out another and say he might have 
" framed his case so as to show a title to the relief asked." In the present 
instance, the plaintiff came into Court alleging that the contract between 
him and the first defendant, the terms of which the latter was said to be 
violating, was for the sale of a specific number of trees, to be cut and re- 
moved within six months, from the date of the contract. This allegation 
has been established to be untrue, and yet the plaintiff seeks now to rest 
his prayer for the injunction on a ground absolutely ignored in the plaint, 
namely, the invalidity of the totally different contract set up by the 
defendant, which the plaintiff denied but which has been found to be 
true. The case last cited seems to me to prohibit relief being granted on 
such a change of ground. Moreover, the state of things, from which the 
plaintiff asks the Court to extricate him, is the direct outcome of the fact 
that the document was not registered ; and as the plaintiff [67] himself, 

(1) L.B. 2 App. Cases 362, 276. (2) L.R. 1 C.P.D, 35. (3) 7 Hare. 89, 

46 



YII.] SEENI CHETTIAB V. SANTHANATHAN CHBTTIAR 20 Mad. 68 

equally with the first defendant, is responsible for it, the former 1895 
cannot complain if the Court declines to assist him on the principle Nov. 12. 
laid down by Lord Eldon in Eundel v. Murray (1), viz., a Court fre- 
quently refuses an injunction, where it acknowledges a right, when the FULL 
conduct of the party complaining has led to the state of things that occa- BENCH. 
sions the application. For another reason also the case is one which an~if~Btt 
falls under the comprehensive rule embodied in Clause J of Section 56 of _ ' 
the Specific Eelief Act. That rule rests on the maxim that he who seeks * ' i go*, 
equity must do equity and implies that a plaintiff seeking an injunction ' ' 
must come with clean hands. With reference to this point, it is laid 
down in Kerr on Injunctions, on the authority of the case therein cited, 
that a plaintiff, who asks for an injunction, must be able to satisfy the 
Court that his own acbs and dealings in the matter have been fair and 
honest and free from any taint of fraud or illegality, and that if, in his 
dealings with the person against whom he seeks relief or with third par- 
ties, he has acted in an unfair or inequitable manner, he cannot have relief 
(3rd edition, page 16). 

Now turning to the facts here, according to the contract Rs. 3,400 
was payable not merely for the trees already taken away by the first de- 
fendant, but also for a considerable numbar still on the ground as well as 
any others that may grow during the remaining period of the contract. 
As the defendant cannot now enjoy the full benefit of the agreement, it is 
not just that he should have to pay the whole of the consideration. The 
plaintiff, who, in addition to Rs. 200 paid in cash, had received a pro- 
missory note for Rs. 3,200, has not offered unconditionally or on terms to 
return the note to the first defendant. On the contrary, he has through- 
out maintained that he has a right to the entire amount. There is nothing 
to prevent his suing the first defendant upon the note. What amount, if 
any, the plaintiff might recover in that suit, it is not now possible to say. 
However that litigation may end, it is quite clear that the plaintiff has it 
in his power to harass the first defendant by suing him for the whole 
amount. In these circumstances, the plaintiff's conduct seems to be un- 
fair and inequitable within the meaning of the authorities on the point. 
Whilst refusing an injunction on the above ground, it would not be a 
sound exercise of the discretion, vested in the Court under Section 42 [68] 
of the Specific Relief Act, to grant the plaintiff the other relief claimed, 
viz., declaration of his right to the trees. 

I would, therefore, allow the appeal, reverse the decree passed in 
favour of the plaintiff and dismiss the suit, each party being made to pay 
his cost throughout. 

DAVIES, J. I entirely concur. 



(1) Jacob 311 (316). 
47 



20 Mad. 69 



INDIAN DECISIONS, NEW SERIES 



[Yol. 



1896 

DEC. 16. 

APPEL- 
LATE 
CIVIL. 

20 M. 68 = 
7 M.L.J. 26. 



20 H. 68 = 7 M.L.J. 26. 

APPELLATE CIVIL. 

Before Mr. Justice Subramania Ayyar and Mr. Justice Davies. 



PANCHENA MANCHU NAYAR AND OTHERS (Defendants 

Nos. 2 to 6), Petitioners v. GADINHARE KUMARANCHATH 

PADMANABHAN NAYYAR (Plaintiff), Respondent* 

[16th December, 1896.] 

Companies Act Act VI of 1882, Section 4 Unregistered association for gain Illegal 
contract. 

The prize winners in a lottery in which more than twenty persons took tickets 
covenanted with the promoters of the lottery to continue their subscriptions in 
respect of the successful ticket for two more years in accordance with the arrange- 
ment under which the lottery was established. The money not having been paid 
the promoters brought a suit on the covenant : 

Held, that there was no association of twenty persons for the purpose of gain 
or at all, and consequently, tht the plaintiSs ware not precluded from suing for 
want of registration under Companies Act, Section 4. 

[Ap., 29 M. 477 (F.B.) = 16 M.L.J. 385 = 1 M.L.T. 237 ; 2 M L.T. 52 ; R , 16 Ind. Gas. 
686 (687) = (1912) M.W.N. 1235 ; D., 11 M.L.J. 130 ; 1 M.L.T. 106.] 

PETITIONS under Small Cause Courts Act, Section 25, praying the 
High Court; to revise the proceedings of E. K. Krishnan, Subordinate Judge 
of South Malabar, in Small Cause Suit No. 1072 of 1895. 

The Subordinate Judge described the suit as " a suit to recover 
" Us. 119-3-6, principal and interest due on a kuri scheme in which defend- 
" ant No. 1, and her deceased son, Sankaran Nayar, held three-fourths of 
" a ticket." The defence was based on Companies Act, 1882, Section 4, 
and it was pleaded that the suit was not maintainable because the claim 
arose out of a numerous association for [69] gain which had not been 
registered. The so-called kuri scheme was embodied in the document 
(Exhibit I), which was translated as follows : 

"Programme of lottery drawn up on 15th Edavam 1064 (27th May 
" 1889). We, Puliakkot Devaki Amma's sons, Kunhikrishnan Nayar and 
" younger brother Panku Nayar of Peruvemba Amsom and Desam in 
" Palghaut taluk, do hereby start a kuri (lottery) with the following 
" terms : The lottery shall be to the total value of Rs. 325, and shall consist 
" of thirteen tickets each worth Rs. 25. The tickets shall be drawn twice 
" a year, i.e., on 15th Edavam and 15bh Vrischigam. The amount for 
" the first drawing, i.e., the proprietor's lot, shall be collected and taken by 
" proprietors on 15th Edavam current. The lottery shall come to a close 
" on 15th Vrisobigam 1070. All the members that have come in for lots, 
" shall be prepared to pay the amount due by them at 12 o'clock noon on 
" the day of each drawing at the proprietor's house. The amount so 
" brought in shall be received by the oroprietors, and a receipt written in 
'' the hand of Panku Nayar, executant No. 1, and signed by Kunhikrishnan 
" Nayar, executant No. 2, shall be granted to each member who pays money. 
" If any member fails to pay the amount due by him on the date of 
"drawing, he shall pay a penalty of 8 annas a day for those days, for 
" which the sum remains unpaid. In the receipt granted for the first 
" time the amounts paid at subsequent drawings shall be credited as having 
" been received for respective drawings. The tickets shall ba drawn 

* Civil Revision Petition No. 196 of 1896. 
48 



YII.] P. MANCHD NAYAR V. G. K. PADMANABHAN NAYAR 20 Mad. 71 

" before 4 P.M. on the day fixed therefor. From the amount due to the 1896 
" winner of the prize at a drawing. Bs. 25 shall be taken off. and the remaind- DEC. 16. 
" er alone paid to the winner. This sum of Es. 25 shall be distributed in 
" equal shares among the non- winners of prizes towards the interest on the APPEL- 
" amount paid by them. This system of reserving and distributing Ss. 25 LATE 
" shall conbinue till the last drawing but one. Tho winners of prizes shall CIVIL. 
" give the proprietors such amount of security as may be required by 
*' proprietors for the money which has yet to be paid by them. If the 20M. 68 = 
" winners fail to pay at subsequent drawings the amount due by them in 7 M.L.J. 26. 
" time, they shall, without any consideration of the term, pay the whole 
" amount remaining unpaid by them with interest at 2 per cent, per 
" mensem. If, before winning the prize, any member remits money regu- 
" larly at some drawings but fails to pay at some others, the proprietors 
" 70] shall either by themselves or by admitting some others, conduct the 
" lottery, and pay the whole amount to the winner at the time of drawing, 
" and to the defaulter only the amount be has already paid, and that too 
" without interest and after the termination of the lottery. If, after obtain- 
ing security from the winners, the proprietors fail to pay them the amount 
*' due, they shall pay it with interest at the rate mentioned above. The 
" proprietors shall insert to this programme an account of the money 
" collected by them from the date of first drawing, i. e., proprietor's lot to 
" the last one, and shall also insert in a schedule subjoined hereto, the 
" names of members who have come in for lots, with number and 
" amount of tickets purchased by them. Giving their assent to these 
" stipulations, all the members have subscribed to, and signed in, this." 

The first schedule to this document gave the names of twenty-seven 
persons therein described as members and stated that each had purchased 
either one ticket or a fraction of a ticket as therein specified. The whole 
amounted to thirteen tickets of Es. 25 each. The other schedules were 
lists of the amounts received and credited for interest as the result of seven 
drawings of which the last was dated 15th Edavam 1067. 

The first defendant and her son executed a document filed as Exhibit 
A, which bore date 26th May 1891, and was translated as follows : 

" Deed executed jointly by Punchena Chimmu Amma's daughter 
" Narayani Amma, and son Sankaran Nayar of Peruvemba Amsom and 
" Desom in Palghaut taluk, to Cheria Puliakkottu Kunhi Krishnan 
" Nayar, and younger brother Panku Nayar jointly, of the said amsom 
" and desom. Whereas in the lottery in which interest is distributed 
" among non-winners for the total value of Es. 325 started by you as 
" proprietors on 15th Edavam 1064 (27th May 1889) with thirteen tick- 
" ets in all including the proprietor's lot, each ticket being worth Es. 25, 
" and the lots having been arranged to be drawn twice a year, we have gone 
" in for three-fourths of a lot and having won the prize at the fourth draw- 
" ing including the proprietor's lot which took place on 16th Vrischigam 
" 1066 (November 1890), we do hereby acknowledge receipt of Es. 225 
(two hundred and twenty five rupees) due to us exclusive of interest, 
" in accordance with the terms of the lottery, and agree to pay 
" regularly at future [71] drawings, in accordance with the said terms 
"the sum of Eupees 168-12-0 (one hundred and sixty-eight rupees 
" and twelve annas), obtaining receipt therefor on the back of this doou- 
11 ment. Should we fail at any drawing to remit the amount in time, we 
" hereby agree to pay in a lump the whole amount which may remain un- 
11 remitted by us, with interest at 2i per cent, per mensem from the day 
" on which default is made by us. Written on 14th Edavam 1066 (26th 

49 
M VII 7 



20 Mad. 72 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 " May 1891) in the hand-writing of Pekkanchath Sekharan Nayar of 
DEC. 16; " Peruvemba Amsom and Desom in presence of the undersigned witnesses." 
APT,,,.. The Subordinate Judge overruled a plea based on the want of regis- 

tration under Companies Act, 1882, Section 4, and held that the sum 
LATE claimed was due by the first defendant on the footing of the above arrange- 
ClVIL. ment, and that it was a family debt for which the other defendants were 
liable as members of the tarwad, and passed a decree as prayed. 

20 M . DO 

7 M L.J 26. Some of the defendants preferred this petition. 

Narayanan Nambiar, for petitioners. 
Sundara Ayyar, for respondent. 

JUDGMENT. 

From the instances which have come before this Court since Rama- 
sami Bhagavathar v. Nagendrayyan (l) was decided, it would seem that 
a nobion is coming to be entertained that every chit or kuri in which more 
than twenty persons are concerned tails within Section 4 of the Indian 
Companies Act and, therefore, if unregistered, is illegal. It is scarcely 
necessary to point out that whether an undertaking which generally goes 
by the name of chit or kuri falls within the said section, depends, of course, 
not upon the mere name given to the undertaking, but on the existence of 
the essential characteristics required by that provision of the law. 
Whether these requirements are present must be ascertained in each case. 
In the present instance the Subordinate Judge has paid attention to this 
matter. He has taken evidence as to it and has eome to the conclusion 
that the case is not governed by the above-mentioned Section 4 and is 
distinguishable from Eamasami Ehagavaihar v. Nagendrayyan (1). 

The question is whether the Subordinate Judge's view is correct upon 
the facts established by the evidence. Now, in cases like the pre- 
sent, to warrant the application of the section in [72] question, the 
first point to be made out is that there is a ' company ' or ' partnership ' or 
' association ' consisting of more than twenty persons. It cannot be 
pretended that there is here either a 'company' or a 'partnership.' Is 
there then an ' association ' of more than twenty persons within the mean- 
ing of the Act ? The answer to this question depends upon the signification 
to be attached to the word 'association ' in the section. This and certain 
other points us to the construction of the corresponding section of the 
English statute, the words of which are identical with those of the section 
of the Indian Act, underwent elaborate consideration in Smith v. Ander- 
son (2). There James, Brett and Cotton, L.JJ., differed from the 
construction put upon the section by Jessel, M.B. 

For our present purpose it is enough to quote a couple of passages 
from the judgments of Brett and Cotton, L.JJ., which deal with the 
interpretation of the term ' association.' The former observed: "In order 
" to come within this clause, there must be a joint relation of more than 
" twenty persons for a common purpose .... I confess I have some diffi- 
" culty in seeing how there could be an association for the purpose of carry- 
ing on a business which would be neither a company nor a partnership, 
"but I should hesitate to say that, by the ingenuity of men of business, there 
" might not some day be formed a relation among twenty persons which, 
" without being strictly either a company or a partnership, might yet be 
41 an association. But according to all ordinary rules of construction, if 

(1) 19 M. 81. (2) L.R. 15 Oh. D. 247, 

50 



YII.] P. MANCHU NAYAR V. G. K. PADMANABHAN NAYAR 20 Mad. 74 

41 the association mentioned in Section 4 is not, strictly speaking, a com- 1896 
" pany or a partnership, it must be something of a similar kind. It must DEC. 16. 

" be a relation established between twenty persons or more ' for the 

" purpose of carrying on business,' i.e., in order that such company, asso- APPEIi- 
" ciation, or partnership may carry on the business. The business, LATE 
" therefore, whatever the word ' business ' may mean is to be carried on CIVIL. 
" by those twenty persons or more." Cotton, L.J., used the following 
language : " I do not think it very material to consider how far the word 2 & ". 68= 
' ' association ' differs from company or partnership, but I think we may 7 M.L.J. 26. 
" say that if ' association ' is intended to denote something different from 
" a company or partnership, it must be judged by its two companions 
" between which ifc stands, and it [73] must denote something where the 
" associates are in the nature of partners." 

Clearly, therefore, to constitute an association, within the meaning 
of the section, the existence of a legal relation between more than twenty 
persons giving rise to joint rights or obligations or mutual rights and 
duties is absolutely necessary. Otherwise there would be a mere con- 
glomeration of persons as Cotton, L.J., put it, but not an ' association.' 

Turning now to the facts of the present case it is perfectly plain from 
Exhibit I, which sets forth the terms on which the kuri is carried on, 
that no such relation exists between the various persona who have execu- 
ted the document. The contracting parties are on the one hand, Kunhi 
Krishna Nayar and Panku Nayar. who organised the kuri, and who are 
called the proprietors in Exhibit I, and on the other, each of the remaining 
ticket holders individually. The right to collect the subscriptions due 
periodically by each ticket-holder rests only with the two organisers. The 
duty of paying the amount collected to the person entitled is cast upon 
them. It is to them that unlike in the case of Eamasami Bhagavathar 
v. Nagendrayyan. (1) the particular ticket-holder who, as the prize winner, 
has received the periodical collection, has to give the necessary securities 
for the payment of the future instalments due by him. Further, if any 
ticket-holder commits any default in paying his subscriptions according to 
the instalments, the proprietors alone are responsible to make up the defici- 
ency caused by such default and are, consequently, at liberty to admit at 
their discretion persons not mentioned in Exhibit I as ticket-holders in lieu 
of the defaulters. The only obligation each ticket-holder lies under, is to pay 
his subscription from time to time to the proprietors ; and the only right 
possessed by him is to get from them his several share of the Bs. 25 deduct- 
ed at the drawing of each lot out of the total collections and distributed 
among the ticket-holders other than those who have received prizes and 
also to receive from the same parties the amount of the prize when he in 
his turn becomes the prize winner. It is thus manifest that the only 
persons associated with each other in the sense of possessing joint rights 
or being subject to joint obligations or of having mutual rights and duties 
are the two proprietors, whilst the other ticket- holders are [74] in the 
" language of James, L.J., " from the first entire strangers who have 
entered into no contract whatever with each other."* 

It follows therefore that the very first condition laid down by the 
section relied on is wanting here. 

In arriving at the above conclusion, we have not overlooked the 
observation made in one of the cases cited, to the effect that no hyper- 
critical attempt should be made to withdraw from the operation of the 

(1) 19 M. 31. * 15 Ch. D. at p. 274 ED. 

51 



20 Mad. 75 INDIAN DECISIONS, NEW SERIES [Vol. 

1896 legislative provision in question any case which reasonably falls within its 
DEC. 16. purview. This is no doubt true. On the other hand, it is to be borne in 
mind that the enactment was intended, as stated by James, L.J., " to 
APPEL- " prevent the mischief arising from large trading undertakings being 
LATE " carried on by large fluctuating bodies, so that persons dealing with them 
CIVIL. " did not know with whom they were contracting, and so might be put to 
" great difficulty and expense, which was a public mischief to be repressed." 
20 M. 68= When an Act framed with such intention is sought to be availed of for 
7 M.L.J. 26 getting rid of obligations incurred in connection with compaiatively small 
undertakings like the present, carried on on the responsibility of a very few 
known individuals and resorted to by ticket-holders from prudential mo- 
tives as a means of effecting some savings from their petty incomes, it is 
the duty of the Courts to guard against the extension of the statute, from 
an undue zeal for carrying out the policy of the enactment, to cases clearly 
not within its meaning. 

Being satisfied, as already stated, that here the very first requisite 
under the section has failed, it is unnecessary to consider the other ques- 
tion which was argued at length, viz., assuming that the ticket-holders 
and the proprietors do constitute together an association of the kind con- 
templated by the section, whether the association can be said to have 
been formed for the purpose of carrying on business, having for its object 
the acquisition of gain. 

We agree, therefore, with the Subordinate Judge's conclusion and 
dismiss the petition with costs. 



20 H. 75. 

[73] APPELLATE CIVIL. 

Before Mr. Justice Subramania Ayyar and Mr. Justice Boddam. 

CHENGAMA NAYUDU (Plaintiff), Appellant v. MUNISAMI 

NATUDU AND OTHERS (Defendants), Respondents.* 

[12th and 20th November, 1896.] 

Hindu law Partition Subsequent acquisitions After-born son Right to partition. 

A Hindu having two sons divided his property between them, reserving no 
share for himself. A third son was subsequently born who now sued for a par- 
tition of the property which had been divided and other property subsequently 
acquired by hie brothers by means of its proceeds: 

Held, that the plaintiff was entitled to the relief claimed. 
[R., 33 B. 267 = 10 Bom. L. R. 778 ; Expl., 23 B. 636.] 

SECOND appeal against the decree of M. B. Sundara Rau, Subordi- 
nate Judge of North Arcot, in appeal suit No. 113 of 1893, confirming the 
decree of T. Swami Ayyar, District Munsif of Chittore. in original suit 
No. 337 of 1892. 

The plaintiff sued for partition of certain property as the ancestral 
estate and property acquired with profits derived from the ancestral 
estate of the family, of which the plaintiff and his brothers, defendants 
Nos. 1 and 2, were the members. Defendant No. 3 was alleged to be 
a stranger in possession of part of the property of which partition 
sought. 

* Second Appeal No. 680 of 1895. 
52 



YH.] . CHENGAMA NAYUDU V. MUNISAMI NAYUDU 20 Mad. 77 

The first defendant pleaded that his share of the ancestral proparty 1896 
had been separated and delivered to him many years before suit, and that Nov. 20. 
part of the property now ia question had been acquired by him since that 
date. Defendant No. 3 claimed to be anillatom member of the family, APPEL- 
and raised other pleas similar to those of defendant No. 1. LATE 

The Subordinnte Judge found that the third defendant was a member OlVIL. 
of the family as he claimed to be ; that there had been partition of the 
family property before the plaintiff was born ; that in 1891 when the 
plaintiff was an infant, the partition was re-adjusted under an instrument 
executed by the adult members of the family. He also found that at 
the time of the original partition the father had reserved no share for 
himself. The [76] Subordinate Judge, upon these findings confirmed 
the decree of the District Munsif, under which the plaintiff obtained a 
one third share of the lands originally divided between defendants Nos. 1 
and 2, but not in the subsequent acquisitions. He said : " The acquisi- 
" tions could not ba considered as self -acquired if there was no previous 
" division. There having been already a division, subsequent acquisition 
" made by their profits must be held to be the acquirer's separate properties 
" in ordinary circumstances. Here, we have a case of an after-born son. 
The father reserved no share for himself and the whole property was 
" distributed among the sons in existence at the time of partition. There 
" is no contention that the father had any subsequent acquisitions. In 
"such a case Yagnavalkya says, that the posthumous son, whoso mother's 
" pregnancy was not manifest at the time of partition, must receive, out 
" of his brothers' allotments, a share equal to their shares after computing 
the income which has accrued and the father's debts that have been 
" discharged. 

" Mitakshara, Chapter I, Section VI, paragraph 8, ordains that 
" in such case the allotments must be made out of the visible estate, and 
" paragraph 9 explains the meaning of the visible estate by saying 
Received by the brethren.' From this it is evident that the Mitakshara 
" contemplates a share to bs allotted out of the shares previously allotted, 
" but not out of acquisitions subsequently made by the brethren. 

" I think, therefore, that the finding of the Lower Court in regard to 
"plaintiff's share out of the shares allotted to first and second defendants 
" is not open to question." 

The plaintiff preferred this second appeal. 

Sriranga Chariar, for appellant. 

Jumbulinga Mudaliar, for respondents. 

JUDGMENT. 

There was a partition between the appellant's brothers, the first and 
second respondents, and their deceased father before the appellant was 
born. At that partition the father reserved no property to himself. The 
Lower Courts have held that the appellant is entitled to a share out of 
the property taken by the said respondents at the partition. The appel- 
lant was, however, not allowed a share out of certain other items of pro- 
perty in the hands of his brothers. These were excluded from the partition 
decreed to the appellant, not because they were the separate property of 
the parties in possession, having been acquired by [77] them without the 
aid of the ancestral estate, but, as we understand the Subordinate Judge, 
simply on the ground that acquisitions after the partition, even though 
made with the aid of the property obtained at the partition, belong solely 
to the acquirer. This view is clearly not supported by the authorities, to 

53 



20 Mad. 78 INDIAN DECISIONS, NEW SERIES [Yoh 

1896 some of which the Subordinate Judge himself refers. The word ' income ' 
Nov. 20. or 'profit' in Yagnyavalkya's text "The visible estate corrected for income 

or expenditure " (as translated by Colebrooke) (1) or " the visible estate 

APPEL- corrected by profit or loss " (as rendered by Mandlik) (2) on which the 

LATE Mitakshara in Chapter 1, Section VI, 8 and 9, bases its conclusion on this 

CIVIL, point, undoubtedly includes accretions made to the shares taken on 

partition and gives to the after-born son a right to obtain his allotment 

20 M. 73. out O f the subsequent additions also, provided, of course, they are shown 

not to have been acquired without the aid of ancestral property. The 

principle of the rule as pointed out by Subodhini when commenting on 

Mitakshara, Chapter I, Section VI, 9, cited above, is that so far as the 

after-born co-parcener is concerned, the individual shares taken by the 

parties who made the division prior to his birth are as much patrimony 

after the division as before it and consequently he, the after-born son, is 

entitled to participate in the gain arising out of such patrimony (1). 

The appellant is thus entitled to his share also out of the properties in 
the hands of the first and second respondents in respect of which his claim 
was rejected by the Lower Courts. The decree passed by them must, 
therefore, be modified accordingly. The said respondents will pay the 
appellant's costs disallowed in the Lower Court as well as his costs in this 
second appeal. But as against the third respondent the appeal is dismissed 
with costs. 



20 H. 78. 

[78] APPELLATE CIVIL. 
Before Mr. Justice Subramania Ayyar and Mr. Justice Davies. 

ANNA PILLAI (Petitioner), Appellant v. THANGATHAMMAL 
(Counter-Petitioner), Bespondent* [27th November, 1896.] 

Transfer of Property Act Act IV of 1882, Sections 88, 99 Form of decree. 

In November 1882 a decree was passed on a hypothecation bond for the pay- 
ment of the secured debt and it contained the following words: "the pro- 
perty hypothecated in the bond being also held liable for the whole amount 
thus awarded : " 

Held, that the decree was in reality a decree for sale and could be executed 
as such. 

[R., 20. C. 338.] 

APPEAL against the order of P. Narayanasami Ayyar, Subordinate 
Judge of Negaptam, on civil miscellaneous petition No. 606 of 1895, 
which was an application for the dismissal of a petition for execution 
preferred by the decree-bolder in original suit No. 32 of 1882. 
The decree in question was in the following terms : 
" Claim for the recovery of Rs. 5,679-11-0 due under the bond A 
" executed to the plaintiff by the first and second defendants and 
" Amirthanatham Pillai, the deceased father of the third, fourth and fifth 
11 defendants, hypothecating the immoveable property specified in the bond 
" on the 25th September 1877, the principal being repayable on the 25th 
" September 1881 and the interest once a year. 

Appeal against Order No. 61 of 1896. 
(1) Stoke'a Hindu Law Books, p. 395. (2) Mandlik's Hindu Law, p, 216. 



YII.] 



QUEEN-EMPRESS V. NANJUNDA BAU 



20 Mad. 80 



" This cause coming on on the 15th November 1882 for final disposal 
" before M. E. Ey. E. Vasudeva Eau Avergal, Subordinate Judge in the 
" presence of Mr. G.T. Oliver, vakil on the part of the plaintiff, and of A. 
" Kannoosami Pillai, vakil on the part of the defendants, this Court doth 
" order and decree that plaintiff do get from first and second defendants 
" the sum sued for with costs and further interest at 6 per cent, per 
" annum until payment on the principal from the date of the suit and 
" ou the costs from the present date, the property hypothecated in the 
" bond A being also held liable for the whole amount thus awarded, 
" and the Court doth further order and decree that the defendants do 
bear their costs. " 

[79] The decree-holder objected that the boundaries of the land in 
question were not sufficiently specified either in the decree or in the 
mortgage, and that the decree, not having been made in accordance with 
the Transfer of Property Act, gave the decree- holder no right to have the 
property sold and could not be executed. 

The Subordinate Judge dismissed the application and permitted 
execution to proceed. 

The petitioner preferred this appeal. 

The memorandum of appeal comprised, among others, the following 
paragraphs : 

" The suit having been brought after the coming into operation of the 
" Transfer of Property Act, the decree herein in the form in which it has 
" been passed cannot be executed by attachment and sale of the mort- 
" gaged properties. 

"Under Section 99 of the Transfer of Property Act the property 
" cannot be sold, unless the suit had been brought under Section 67 and 
' the decree be passed under Section 88 of the Act." 

Tiagaraja Ayyar, for appellant. 

Eespondent did not appear. 

JUDGMENT. 

The decree was not so formal as it should have been under the 
Transfer of Property Act. Tbis is no doubt due to the fact that that Act 
had only just come into force at the time when the decree was passed. The 
decree is in reality a decree for sale. There is nothing to show that the 
property to be sold is not liable to the debt. 

The appeal is dismissed under Section 551, Code of Civil Procedure. 



20 M. 79 = 7 M.L.J. 16 = 1 Weir 188. 
APPELLATE CEIMINAL. 

Before Sir Arthur J. H. Collins, Kt., Chief Justice, and 
Mr. Justice Benson. 



1896 

NOV. 27. 

APPEL- 
LATE 
CIVIL. 

20 H. 78. 



QUEEN-EMPRESS v. NANJUNDA EAU.* [29th October, 1896.] 

Penal Code, Section 211 False charge of dacoity made to a police station- house officer . 

A false charge of dacoity was made to a Police Station-house officer, who, 
after some investigation, referred it to the magistrate as false, and the magistrate 
[80] ordered the charge to be dismissed without taking any action against the 
parties implicated. The person who preferred the charge was now tried under 
Penal Code, Section 211, and was found to have acted with the intent and 

* Criminal appeal No. 384 of 1896. 
55 



20 Mad. 81 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 the knowledge therein mentioned, and he was convicted and sentenced to four 

Q CT gg years' rigorous imprisonment : 

Held, that the prisoner had instituted criminal proceedings within the mean- 

AUTXD-T ing of that section, and that the conviction and sentence were in accordance 

with law. 

LATE j. R 31 M 506 = 9 Cr L j 77 = 18 M.L.J. 573; 4 Or. L J. 240 = 2 N.L.R. 119 

CKIMINAL. uao).] 

20 M. 79- APPEAL against the conviction and sentence of T. M. Horsfall, Acting 

7 M L J. 16 Sessions Judge of Bellary, in Session Case No. 57 of 1896. 
= 1 Weir 188. -^ ne accus ed was convicted of having made a false charge against the 
complainant with intent to injure him and was sentenced to four years' 
rigorous inprisonment under Section 211, Indian Penal Code. The charge 
in question was one of dacoity, and it was made to the Police Station- 
house officer of Bellary. That officer being of opinion, after some investi- 
gation, that the charge was unsupported, referred it as false, and the case 
was struck off the police file. The Sessions Judga and assessors were of 
opinion that the charge was substantiated and the prisoner was sentenced 
as above. 

The prisoner preferred this appeal. 

Mr. Smith and Venkatarama Sarma, for appellant. 

The Public Prosecutor (Mr. Powell], for the Crown. 

JUDGMENT. 

The appellant was convicted of having made to the police a false 
charge of dacoity against certain persons and wag sentenced under Section 
211, Indian Penal Code, to suffer four years ' rigorous imprisonment. 

In appeal it is urged that though the charge to the police may have 
been false, yet, as they referred the charge to the magistrate as false, and 
as the magistrate ordered the charge to ba dismissed as false without 
taking any action against the accused, there was no 'institution of criminal 
proceedings' within the meaning of Section 211, and the offence was there- 
fore only punishable with a maximum of two years' imprisonment under 
the first part of the section, instead of with seven years' imprisonment 
under the second part of the section. 

In support of this view the rulings of the Allahabad High Court in 
Empress of India v. Pitam Rai (l) and Queen-Empress v. Bishesha (2) and 
Queen-Empress v. Karim Buksh (3) were relied [81] upon. These cases 
no doubt support the construction of the sestion for which the appellant 
contends, but that construction was considered and dissented from by a 
Full Bench of five Judges of the Calcutta High Court in the case of Karim 
Buksh v. Queen- Empress (4), when they followed along series of earlier 
rulings of the same Court;. We think that the view taken in the latter case 
is correct. We are unable to find any warrant for holding that the words 
' the institution of criminal proceedings ' should be limited to the bringing 
of a charge before the magistrate, or to action by the magistrate or police 
against the person charged. It seems to us that when, as in this case, a 
charge of a cognizable offence is made to the police against a specified 
person, criminal proceedings within the meaning of the section have been 
instituted just as much as if the charge had been made before the 
magistrate. It is argued that, when a charge is preferred to the police, 
it merely sets them on enquiry, and they may find the charge to be false 
and refuse to proceed with the charge without the accused being even 
aware that any complaint has been made against him ; but precisely the 

(1) 5 A. 215. (2)16 A. 124. (3) 14 C. 633. (4) 17 C. 574. 

56 



YII.] KUPPU NAYUDU V. VENKATAKRISHNA REDDI 20 Mad. 82 

same may be the case when a complaint is made to a magistrate. He is 1896 
not bound to take any action against the person accused. He may refer OCT. 29. 
the charge to the police for enquiry, and on receipt of their report may ~ 
refuse to proceed or take any action against the accused person. In such APPEL- 
a case the accused might be unaware that any complaint had ever been LATE 
made, yet it could hardly be contended that the complaint to the magis- CRIMINAL. 
trata did not amount to 'the institutiou of criminal proceedings' within 
the meaning of the section. 20 " 79== 

We are of opinion, as already stated, that the true construction of the 7 M.L.J. 1J 
section is that laid down by the Calcutta High Court in the case we have " 4 Welp 188t 
referred to. Adopting that construction we find that the offence of the 
appellant in the case before us falls under the latter part of Section 211, 
Indian Penal Code, and the sentence is not illegal. 

Looking to the gravity of the offence charged and the malice of the 
complainant, we certainly do not consider the sentence excessive. We 
confirm it and dismiss this appeal. 



20 M. 82 = 6 M.L.J. 229. 
[82] APPELLATE CIVIL. 

Before Sir Arthur J. H. Collins, Kt., Chief Justice, and 
Mr. Justice Benson. 



KOPPU NAYUDU (Defendant), Appellant v. VENKATAKRISHNA 
REDDI (Plaintiff), Respondent* 
[8th and 29th September, 1896.] 

Civil Procedure Code, Section 43 Transfer of Property Act, Section 85 Ejectment suit 
by a mortgagor' s vendee against the purchaser under a mortgage decree Subsequent 
suit to redeem. 

Certain land mortgaged to A wag sold to B. A brought a suit on his mort- 
gage without joining B as a pirty, obtained a decree for sale and became the 
purchaser under the decree. B then sued to eject him praying fora declaration 
that the sale was not binding on him. The suit having been dismissed, he now 
sued to redeem : 

Held that the suit was not barred under Civil Procedure Code, Section 43, and 
the plaintiff was entitled to redeem. 

SECOND appeal against the decree of S. Russel, District Judge of 
Chingleput, in appeal suit No. 245 of 1894, affirming the decree of T. A. 
Krishnasami Ayyar, District Munsif of Chingleput, in original suit 
No. 114 of 1893. 

The plaintiff sued to redeem certain land which had been conveyed 
to him on 12th August 1884, and placed in his possession. In original 
suit No. 859 of 1884 the present defendant, being mortgagee under an 
instrument, executed by the father of plaintiff's vendor sued to enforce 
his mortgage, obtained a decree for sale without joining the present 
plaintiff as a party, and purchased the land at the Court sale. In original 
suit No. 259 of 1888 the plaintiff sued to eject the defendant ; but the 
suit was dismissed on the ground that his remedy, if any, was by a suit 
for redemption. It was now contended, inter alia, that the plaintiff was 
precluded from maintaining this suit under Civil Procedure Code, Section 
43. This objection was overruled by the District Munsif who passed a 
decree as prayed, which was confirmed by the District Judge on appeal. 



M VII 8 



Second Appeal No. 1777 of 1895. 
57 



20 Mad. 83 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 Defendant preferred this second appeal. 

SEP. 29. Pattabhirama Ayyar and Narayana Ayyangar, for appellant. 

Mr. Krishnan, for respondent. 
APPEL- 
LATE JUDGMENT. 

CIVIL. [83] The first ground of appeal urged is that the suit is not sustainable 

with regard to Section 43, Civil Procedure Code, and we are referred to 

20 M. 82= t ne decision of this Court in Muthunarayana Reddi v. Eayalu Beddi (1). 

6 M.L.J. 229. iph Q cage re f erre d t o j s no k j n point, for there the plaintiff in his first suit 
ignored the existence of the defendant's mortgage and falsely alleging that 
the defendant was a trespasser sued to eject him as such. In the present 
case, the plaintiff in his earlier suit (original suit No. 259 of 1888) did not 
ignore the defendant's earlier mortgage. On the contrary he recited it 
and the sale under it, but he complained that the defendant had fraudu- 
lently failed to make him a party to the suit (original suit No. 859 of 
1884) on the mortgage and be, therefore, sought for a declaration that the 
auction-sale was not binding on him and that the land should be restored 
to him (plaintiff). The final decree in that suit was that plaintiff could not 
get possession without redeeming the defendant's mortgage, and the Court 
expressly refused to decide the other issues. The plaintiff was not then 
suing to redeem, nor was he bound to do so. He merely wished to get 
rid of the effect which the defendant's purchase at the auction might have 
on his rights. He was clearly entitled to do this without, at the same 
time, suing to redeem, inasmuch as the defendant had omitted to make 
him a party to the suit on the mortgage, as he was bound to do under 
Section 85, Transfer of Property Act. There is thus no foundation for the 
plea that plaintiff's suit is res judicata, or is barred under Section 43, Civil 
Procedure Code. 

The plaintiff not having been made a party to original suit No. 859 
of 1884 is not bound by the sale thereunder. It was the defendant's duty 
to have made him a party so as to give him an opportunity of exercising 
his right (as purchaser of the equity of redemption) to redeem the defend- 
ant's mortgage. The defendant having failed in that duty cannot now 
take advantage of bis own omission so as to shut out the plaintiff's right 
to redeem. Even if the defendant was ignorant of plaintiff's purchase, 
which may well be doubted in the present case, that will not affect the 
plaintiff's inherent right to redeem nor will the fact that plaintiff became 
aware of the defendant's suit (original suit No. 859 of [84] 1884) before 
the judgment therein was pronounced. The decree of the Lower Appel- 
late Court was, therefore, right. We confirm it and dismiss this second 
appeal with costs. 



(I) Second Appeal No. 181 of 1895 unreported. (Reported in 6 M.L.J. 51-En.) 

58 



, 



II.] KRISHNAPPA CHBTTI V. ADIMULA MDDALI 20 Mad. 85 

20 M. 8i. 1896 

APPELLATE CIVIL. OOT.J6. 

Before Mr. Justice Shephard and Mr. Justice Subramania Ayyar. APPEL- 



LATE 

KRISHNAPPA CHETTI (Plaintiff) v. ADIMULA MUDALI (Defendant).* CIVIL 
[16th October, 1896.] ' 

20 M 84 

Contract Act Act IX of 1872, Section 23 Unlawful agreement Promissory note given 

in fraud of insolvency law. 

In a suit on a promissory note it appeared that it had been given by the de- 
fendant to the plaintiff in consideration of his withdrawing his threatened 
opposition to the discharge of an insolvent and consenting to an arrangement 
among the general body of creditors, who were not though the insolvent was 
aware of this transaction whereby the plaintiff was to obtain a special advantage : 

Bell, that the contract was unlawful and the suit could not be maintained. 
[R., 16 M.L.J. 418.] 

CASE referred for the opinion of the High Court under Civil Procedure 
Code, Section 617, and Presidency Small Cause Court Act. Section 69. 

The case was stated as follows : 

The plaintiff sues' to recover from the defendant Rs. 763 due on a 
" promissory note, payable on demand, executed by the latter on the 4th 
" November 1893. 

" The defendant's pleas are (i) no consideration ; (ii) consideration, if 
" any, is unlawful ; (iii) not liable for interest;. 

" The facts of this case are not disputed ; they are spoken to by the 
" plaintiff, who was examined as the defendant's witness, and are as 
" follows : 

" One Kondalswamy Naidu. who failed in business and was indebted 
" to several creditors, applied to the Insolvent Court for the benefit of 
" the Act. At the same time efforts were made to enter into an arrange- 
" ment with the creditors to pay them 4 annas in the rupee, and defendant 
" and another were appointed trustees to carry out the arrangement. 
" Most of the creditors [85] consented to this arrangement, but plaintiff, 
" a creditor to whom a sum of Es. 1,400 was due, would not consent, 
" and threatened to oppose the discharge of Kondalswamy by the Insol- 
" vent Court. He, however, agreed with Kondalswamy that if he would 
" pay him a sum of Rs. 700, being 8 annas in the rupee, separately, he 
would sign the agreement along with others to take 4 annas in the 
" rupee, and would not oppose the discharge of Kondalswamy by the In- 
" solvent Court. Accordingly Kondalswamy got defendant to execute the 
" promissory note A on which this suit is now brought ; the plaintiff at 
" the same time executed a counter-agreement (Exhibit II), and it was 
" only after this that he executed the agreement (Exhibit I), by which all 
" the creditors agreed to take 4 annas in the rupee. This arrangement 
" between plaintiff Kondalswamy and defendant for the payment of 
" Rs. 700 by Kondalswamy through the defendant to the plaintiff was a 
" secret one. and made without the knowledge of the other creditors, well 
" knowing that, if they knew of it, they would not enter into the composi- 
" tion deed. All the creditors except the plaintiff were paid 4 annas in 
" the rupee ; and the plaintiff was offered a similar sum of 4 annas in the 
"rupee if he would give up the promissory note; but he would not give 
" it up and has not been paid as per agreement I. 

Referred Case No. 15 of 1896. 
59 



20 Mad. 86 



INDIAN DECISIONS, NEW SERIES 



[Vol. 



1896 

OCT. 16. 

APPEL- 
LATE 
CIVIL. 

20 H. 84. 



" The point for determination '19 whether, upon these facts, the plaint- 
" iff is entitled to a decree in the suit. I am of opinion thit he is not. 
" The consideration for the promissory note is unlawful within the mean- 
" ing of Section 23 of the Indian Contract Act, as being against public 
" policy and in fraud of creditors ; and therefore the promissory note is 
" void. It is only necessary in support of my view to refer to the case 
" Agar Chand v. Viraraghavalu Chetti (1) ; see also McKeivan v. Sander- 
" son (2). But my attention has been drawn to a recent decision of the 
" Madras High Court in Amthul Lathe&f Syed Onissa Begum Saheba v. 
" Choonoolalji Sowcar (3) : and it is argued that the promissory note 
" being executed by a third party, and nob by the debtor, it is not invalid. 
" This question was not necessary to ba dacided in that suit, as upon the 
" other finding that the promissory note was executed in the settlement 
" of her and her husband's [86] accounts, the judgment must be against 
" the defendant. In ex parte Milner in re Milner (4), it was decided that 
" there was no difference between an agreement executed by the debtor 
" himself or by a third party. 

" The question I refer for the opinion of the High Court at the re- 
" quest of the plaintiff is, whether, upon the facts as found by me, the 
" plaintiff is entitled to a decree on the promissory note, or whether it is 
" void as being against public policy or in fraud of creditors or for any 
"other reason ; and subject to such opinion I reserve judgment." 

Mr. K. Brown, for plaintiff. 

Krishnasivami Chetli, for defendant. 

JUDGMENT. 

The circumstances under v<hich the promissory note was given by 
the defendant are stated in the reference. Tbe consideration was the 
withdrawal of threatened opposition to the discharge of the insolvent and 
the plaintiff's consent to the arrangement among the creditors. 

By the promissory note the plaintiff secured for himself a larger pay- 
ment than he was entitled to under the composition deed, and this was 
unknown to the other creditors. 

It is contended on plaintiff's behalf that the circumstance that the 
note was given by a third party and not by the insolvent rendered the 
transaction an innocent one as far as the law of Insolvency is concerned. 

In our opinion it makes no difference whether the note is given by 
the insolvent or by a stranger if it is given with the insolvent's knowledge 
and as a part of an arrangement for securing to one creditor an advantage 
over the others. The case is on all fours with Knight v. Hunt (5). The 
case cited (Amthul Latheef Syed Onissa Begum Saheba v. Choonoolalji 
Sowcar (3)) is distinguishable, for there it was expressly found that there 
was no fraud. 

Here the other creditors being ignorant of the arrangement must be 
taken to have been deceived. 

Tiruvengadasami Subbayya, Attorneys for plaintiff. 



(1) 3 M.H.C.B. 172. 

(8) O-8. Appeal No. 16 of 1995 unreported. 

(5) 5 Bing. 432. 

60 



(2) L.R. 20 Eq., 65. 

(4) L. R. 15 Q.B.D. 605. 



SHI.] QUEEN-EMPRESS V. KARUPPA UDAYAN 20 Mad. 88 

20 M. 87 = 2 Weir 470 1896 

[87] APPELLATE CEIMINAL. CT ' 1| 

Be/ore Mr. Justice Subramania Ayyar and Mr. Justice Davies. APPEL- 



LATE 



QUEEN-EMPRESS v. KARUPPA UDAYAN AND OTHERS.* CRIMINAL. 

[1st October, 1896.] 

&\) n. of = 

\Criminal Procedure Code Act X of 1882, Section 419 Presentation of appeal petition 2 Weir 170. 
by the clerk of the appellants' pleader. 

Presentation of an appeal petition by the clerk of the appellants' pleader is 
equivalent to a presentation by the pleader himself when it is signed by him and 
he is duly authorised. 

PETITION under Sections 435 and 439 of the Code of Criminal Pro- 
cedure praying the High Court to revise the proceedings of T. Gopalan 
jNayar, Deputy Magistrate of Salem, in criminal appeal No. 33 of 1896. 

The petitioners were convicted by Second-class Magistrate of the 
offence of voluntarily causing hurt. The petition of appeal against this 
'conviction was presented by the clerk of the appellants' pleader who duly 
I signed it, to the Court of the Deputy Magistrate. The Deputy Magistrate 
rejected the appeal as not having been properly presented. A similar 
appeal subsequently presented by the pleader in person was dismissed as 
being barred by limitation. The accused preferred this petition. 

Ragavendra Ban, for the petitioners. 

The Acting Public Prosecutor (Mr. N. Subramanyam) for the 
Crown. 

JUDGMENT. 

The Deputy Magistrate's reason for not accepting the appeal at first 
'made by the four petitioners was that it was not presented by themselves 
or their pleader, but only by their pleader's clerk. Such presentation has 
been held by this Court to be equivalent to a presentation by the pleader 
himself, when the petition of appeal is signed by the pleader and he is 
duly authorised as was the case here (vide Queen- Empress v. Gudiyati 
Samuel (1), Queen-Empress v. Virappan Chetti (2), and Queen- Empress v. 
Chinna Basuva Chetti(3)). 

[88] We must therefore direct the original appeal to be replaced on 
the file and heard and disposed of according to law. The order on the 
second appeal filed by the petitioners is set aside. 



Criminal Revision Case No. 305 of 1896. 

(1) Criminal Revision Case No. 153 of 1894 unreported. 

(2) Criminal Revision Case No. 50 of 1895 unreported. 

(3) Criminal Revision Case No. 652 of 1895 unreported. 

61 



20 Mad. 89 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 20 M. 88 = 2 Weir 42. 

N ^Il 5 ' APPELLATE CRIMINAL. 

APPEL- Before Mr. Justice Shephard and Mr. Justice Davies. 
LATE 

CRIMINAL. QUEEN-EMPRESS v. KANDAPPA GOUNDAN.* 

20 M. 88= [5th November, 1896.] 

2 Weir 42. Criminal Procedure Code Act X of 1882, Section 88 Attachment of property as of an 
absconding person Claim to property attached Procedure. 

When a claim is made to property attached under Section 88 of the Code of 
Criminal Procedure, the Magistrate should stay the sale to Rive the claimant 
time to establish his right. If the Magistrate errs, the remedy of the aggrieved 
party is by civil suit and not by criminal revision petition. 

[P., 4 L. B. R. 109 ; Rat. Unrep. Cr. C. 976 ; R., 12 Or. L. J. 392 = 11 Ind. Gas. 256 
= U. B. R. (1910) 4th Qr. p. 66.] 

CASE referred for the orders of the High Court by W. J. Tate, 
Sessions Judge of Salem, being criminal revision case No. 35 of 1896 on 
the file of that Court. 

The facts of the case were as follows : 

The brother of the petitioner in the District Court was accused of an 
offence and suspected of absconding to avoid a warrant, and the Magistrate 
ordered the attachment of bis property under Criminal Procedure Code, 
Section 88. Cattle, grain and other property having been attached, the 
petitioner preferred a petition to the Magistrate stating that they belonged 
to him. The Magistrate dismissed the petition without examining the 
witnesses cited in support of his allegation, and this was the order com- 
plained against. The District Judge was of opinion that the Magistrate 
erred in not giving the petitioner an opportunity of proving his case. He 
accordingly referred the case to the High Court. In his letter of reference 
he cited Queen v. Chumroo Roy (I), In re Chunder Bhon <Sw0/i(2), Queen- 
Empress v. Sheodihal Rai (3), and Queen-Empress v. Umayan (4). 

[89] Parties were not represented. 

JUDGMENT. 

We do not think this is a case for interference. 
In the first place the Magistrate, whose action is impugned, gives 
in our opinion good reasons for his order. But secondly we are disposed 
to agree with the view taken in other Courts of Section 83, Criminal 
Procedure Code. What may be said with regard to that section would 
equally apply to Section 386. In both cases we think, if the Magistrate 
errs, the remedy of the aggrieved party is by civil suit. All that we can 
say is that, in cases of dispute, the Magistrate should stay the sale of the 
property seized to give the claimant time to establish his right. 






Criminal Revision Case No. 178 of 1896. 

(1) 7 W.R.Cr. 35. (2) 17 W. R. Cr. 10. (3) 6 A. 487. 

(4) Criminal Revision Case Mo. 560 of 1893 unreported, 

62 



YIL] CHINTAMALLAYYA V. THADI GANGIREDDI 20 Mad. 90 

20 M. 89 = 7 M.L.J. 61. 1896 

APPELLATE CIVIL. DEC - 2 - 

Before Mr. Justice Subramania Ayyar and Mr. Justice Davies. APPEL- 

CHINTAMALLAYYA (Plaintiff), Appellant v. THADI GANGIREDDI 
(Defendant), Respondent* [2nd December, 1896.] 

Civil Procedure Code Act XIV of 1882, Sections 521, 522, 526 Application to file 20 M. 89 = 
award Objection that submission was revoked be/ore award made Jurisdiction of 7 M.L.J. 61. 
Court to determine objection Subsequent suit to annul award. 

The plaintiff's case was that arbitrators, to whom differences between him and 
the defendant had been referred, had out of enmity to him and at the defend- 
ant's instance, made a fraudulent award oa 17th February after be had revoked 
his submission and had antedated it as on 1st February ; that tbe defendant 
had instituted proceedings under Civil Procedure Code, Chapter XXXVII, and his 
objections to the above effect having been overruled, a decree was passed in 
terms of the award. He now sued to have it declared that neither the decree 
nor the award was binding : 

Held, that the Court bad jurisdiction to determine the genuineness or validity 
of the award in tbe proceedings under Chapter XXXVII, and that the present suit 
was not maintainable. 

[F., 16 M.L.J. 474; R., 11 C.L.J. 131 = 5 Ind. Gas. 98 (99) ; 13 C.P.L.R. 53 ; 84 P.R. 
1901 = 112 P.L.R. 1901; D., 13 M.L.J. 275.] 

APPEAL against the decree of K. Krishna Rau, Subordinate Judge of 
Cocanada, in orginal suit No. 40 of 1894. 

The plaintiff alleged that he and the defendant had carried on 
business in partnership till 29th July 1892, when the partnership [90] 
was dissolved, and that certain differences between them were referred 
to arbitration ; "that one of the arbitrators afterwards misappropriated 
" Es. 1,800 which had been deposited with him by the plaintiff as part of 
' the assets of the partnership firm, and entertaining feelings of animosity, 
" induced the other arbitrator to join with him at the defendant's 
" instance in making an incorrect and fraudulent award against the 
" plaintiff after 17th February 1893, on which date the plaintiff had sent 
41 the arbitrators a notice of revocation, but they antedated the award 
" making it appear that it was made on the 1st February 1893." The 
defendant having applied under Civil Procedure Code, Chapter XXXVII, 
to have this award filed in Court, the above objections were advanced by 
the present plaintiff and were overruled and a decree was passed in the 
terms of the award. The plaintiff now sued "for declarations setting aside 
" the decree and cancelling the award and for such further relief as he may 
" be found entitled to." 

The Subordinate Judge held that the Court had power to overrule the 
present plaintiff's objections in the proceedings under Chapter XXXVII 
and that the present suit was not maintainable. He referred to Micharaya 
Guruvuv. Sadasiva Parama Guruvu(l), Hurronath Chowdhry v. Nistarini 
ChowdraniQ), Surjan Raotv. BhikariRaot(3), Dandekarv. Dandekars(&), 
Samal Nathu v. Jaishankar Dalsukrain(5) and Amrit Ram v. Dasrat 

The plaintiff preferred this appeal. 
Krishnasami Ayyar, for appellant. 
Ramachandra Rau Saheb and Subba Rau, for respondent. 

Appeal No. 199 of 1895. 

(1) 4 M. 319. (2) 10 C. 74. (3) 21 C. 213. (4) 6 B. 663. (5) 9 B. 254. 

(6) 1? A. 21. 

63 



20 Mad. 91 INDIAN DECISIONS, NEW SERIES [Vol. 

1896 JUDGMENT. 

DEC 2 
'__ ' The argument is that the Subordinate Judge had no jurisdiction to 

APPEL- inquire into the genuineness or validity of the award apart from such 
grounds as would fall under Sections 520 and 521 of the Code of Civil 
Procedure, his authority .being limited under Section 526 to the matters 
OIVIL. mentioned in those two sections. 

20 M. 89= I fc ' s ^ rue kbat different views of this matter have been taken by the 

7 M.L.J. 61, Different High Courts. In our opinion the correct view is that held by 
the Full Bench of the Allahabad High Court in Amrit Earn v. Dasrat 
Bam (1). It is also in accordance with the opinion expressed by this 
Court so far back as 1881 in Micharaya Guruvu v. Sadasiva Paramo, 
Guruvu^) which we believe has [91] always been acted on. The weight 
due to that opinion and practice is not lessened by the fact that the deci- 
sion in that case, so far as it relates to the right of appeal, has since been 
overruled in Husananna v. Linganna(3). No doubt, Parker, J., in that 
case expressed himself as inclined to take a different view, but we, how- 
ever, are unable to do so. 

The objection that the Subordinate Judge had no jurisdiction there- 
fore fails and his decision in the previous case must be held to be bind- 
ing in the present suit. 

The appeal fails and is dismissed with costs. 



20 M. 91. 

APPELLATE CIVIL. 

Before Sir Arthur J. H. Collins, Kt., Chief Justice, and 
Mr. Justice Benson, 



SUBBARAYA PlLLAI (Plaintiff) Appellant V. VAITHILINGAM 
(Defendant), Respondent* [8th and 16th September, 1896.] 

Trustee of composition deed Managing member of a firm appointed as trustee Right of 
suit after dissolution of tlie firm. 

Certain traders having been adjudicated bankrupts in the Courts of Mauritius, 
the creditors agreed to a composition deed, which was sanctioned by the Court, 
whereby the present plaintiff therein described as the managing member of the 
firm of 8. and Company was appointed trustee and his firm guaranteed the pay- 
ment of a dividend of 50 per cent. The firm was subsequently dissolved and 
its assets were assigned to a third party. The plaintiff now sued to recover 
costs decreed to him in his capacity as trustee in various suits in Mauritius, and 
it was objected that he was precluded from suing by the dissolution of his firm 
and the assignment away of its assets : 

Held, that the plaintiff was entitled to maintain the suit. 

SECOND appeal against the decree of E. J. Sewell, Acting District 
Judge of Tanjore, in appeal suit No. 300 of 1894, confirming the decree of 
V. Srinivasacharlu, Subordinate Judge of Kumbakonam, in original suit 
No. 21 of 1893. 

The plaintiff sued to recover the costs incurred in suits brought by 
the defendant against him in the Courts in Mauritius and [92] awarded 
to him by the final decrees of those Courts.. It appeared that the plaintiff 
had been the managing member of a firm now dissolved which carried on 

Second Appeal No. 720 of 1895. 
(1) 17 A. 21. (2) 4 M. 319. (3) 18 M, 423. 

64 



YIIJ 



SUBBABAYA PILLAI V. VAITHILINGAM 



20 Mad. 93 



business as V. Subbarayan and Company and were creditors of Coo. 
Vait'iilingam and his firm Coo. Vaithilingam and Company carrying on 
business in Mauritius. In 1887 the debtor and his partners were adjudicat- 
ed bankrupts and Mr. G. Newton, the Accountant in Bankruptcy, was 
appointed receiver and manager of their respective estates, effects and 
properties. Exhibit C filed in this suit was a report of proceedings had in 
the Bankruptcy Court of Mauritius in this matter, and it appeared that at 
a meeting of creditors held in that Court under the chairmanship of the 
Judge in bankruptcy, the following resolutions were passed : 

" First, that a composition of fifty cents in the rupee he accepted in 
41 full satisfaction of the debts, principal and costs, due to the creditors of 
" the bankrupts, exclusive of all privileged costs and preferential claims 
" which are to be paid in full and on condition that the two orders of 
41 adjudication in this matter, respectively, dated the 25th April last and 
"23rd May also last, be annulled by the Gourd; second, that such com- 
" position be payable in eight equal monthly instalments to be paid one 
" month after tbe date of the annulling by the Court of the above orders 
" of adjudication, the privileged costs lawfully incurred to be paid cash 
41 on the annulment of the orders of adjudication ; third, that the security 
" of V. Subbarayan and Company of Port Louis, traders, be accepted for 
" the payment of the above composition and that, in consideration of such 
*' security all t,he joint and separate estate, effects and property both real 
" and personal of the firm Coo. Vaithilingam and Company and of the 
" individual members thereof, situate in Mauritius and in India be assign- 
" ed to the said V. Subbarayan and Company, and fourth, that Naga 
" Pillai Subbarayan, the managing member of the said firm, V. Subbarayan 
11 and Company, be appointed trustee to recover and realise all the estate, 
" effects and property assigned as aforesaid and to carry out the above 
" arrangement." 

A deed was drawn up to give effect to these resolutions and having 
been approved by all parties and duly executed by the receiver and mana- 
ger, the insolvents and Subbarayan and Company, and also by the Judge 
in bankruptcy who sanctioned it, an order was made on the 22nd July by 
which it was, inter alia, ordered as [93] follows: " It is further ordered 
4 ' that the orders of adjudication of bankruptcy in this matter, dated, 
4< respectively, the 25th day of April and the 23rd day of May last, be and 
" the same are hereby annulled, and it is further ordered that all the 
41 estate and property of the bankrupts both in Mauritius and in India, 
" and all the books, papers and documents of the bankrupts be and the 
il same are hereby vested in Naga Pillai Subbarayan of Port Louis, trader, 
" managing member of the firm V. Subbarayan and Company, who is 
" hereby appointed trustee to carry out the said composition with full 
" power to recover and realise all the said estate and property." 

By the composition deed V. Subbarayan and Company to whom 
the official receiver and manager and the bankrupts assigned all the joint 
and separate estates, effects and properties, both real and personal of the 
said bankrupts, situate in Mauritius and in India, bound themselves 
jointly and in solido with the bankrupts to the payment of 50 per cenfe. 
and of the privileged costs and preferential claims as therein stated. 

The firm of V. Subbarayan and Company, on the termination of the 
period of their partnership, entered into an agreement with Rayappan, 
Appon, which was reduced to writing and filed in this suit as Exhibit B, 
in July 1891, whereby tbe firm conveyed and assigned to Rayappan Appon 
" all that the firm of V. Subbarayan and Company could touch and receive 



1896 

SEP. 16. 

APPEL- 
LATE 
CIVIL. 

20 M. 91, 



M VII 9 



65 



20 Mad. 94 



INDIAN DECISIONS, NEW SERIES 



[Yol. 



1896 

SEP. 16. 

APPEL- 

IiATE 

CIVIL. 

20 M. 9i. 



" at whatever title from Coo. Vaithilingam and Company or from Coo. 
" Vaithilingam personally and principally all sums whatever in general that 
" could fall due to the said firm in connection with the law suits which are 
"actually pending before the tribunals of India and which are instituted 
" against Coo. Vaithilingam and Company and against Coo. Vaithilingam 
" oersonally by V. Subbarayan acting for and in behalf of the firm 
" V. Subbarayan ami Company, because V. Subbarayan, as P. Kandasarni 
" in his capacity, declares it in name only as of Coo. Vaithilingam and 
" Company and because all the sums paid by him in that capacity are 
" coming out of the funds belonging to the said firm of V. Subbarayan and 
" Company." 

In December of the same year, and on 29th March 1892, two other 
deeds were entered into between Naga Pillai Subbarayan as trustee of the 
above composition deed and Rayappan Appon of [94] which the second 
containing a recital of the first was filed as Exhibit A. 

This document was in the following terms : 

Mr. Jean Baptist Rayappan Appon was onlyt|he guaranteed cession- 
" ary of the rights of the society, V. Subbarayan and Company versus. 
" Mr. Coo. Vaithiliogam and Company and Coo. Vaithilingam in person ; 
" and in order to facilitate the recovery of the above-mentioned rights by 
" the trustee of the arrangement, Coo. Vaithilingam and Company and 
" Coo Vaithilingam in person, the above-named Jn. Appon made over 
" again to Mr. Naga Piilai Subbarayan, trustee of the above-mentioned 
" arrangement, the rights yielded to himself, by virtue of a private deed r 
" registered on the seventh of last December. 

"And now, the undersigned agree to annul purely and plainly the above 
" mentioned private and registered deed of the seventh of last December. 

" The parties do will and mean that things be put again in the same 
" state as before the signing of the mentioned private deed as if this latter 
" one were not made. 

" Mr. Naga Pillai Subbarayan, in his capacity as trustee, promises and 
" engages himself to do all diligence in India, in order to realise and 
" recover the rights given over to V. Subbarayan and Company by 
"Coo. Vaitbilingam and Company and Coo. Vaithilingam in person ; 
" and he engages himself to make every settlement with the above- 
" mentioned Jn. Appon in order to cover him and the other securities of 
" V. Subbarayan and Company with all the balances that could be due 
" to him for all ibe sums guaranteed and paid by him to the creditors of 
" V. Subbarayan and Company." 

Various suits were brought in the Mauritius Court by the present 
defendant against the present plaintiff in his capacity as trustee and 
decrees for costs were given against the former. These decrees were 
unsatisfied and the present suit was brought to recover the amounts 
payable under them. It was objected by the defendant that the plaintiff 
had no right to sue by reason of the dissolution of the firm of Subbarayan 
and Company, and the assignment contained in Exhibit B. This objection 
prevailed with the Subordinate Judge, who passed a decree dismissing 
the suit and his decree was confirmed by the District Court. 

[95] The plaintiff preferred this second appeal. 

Krishnaswami Ayyar and Srinivasa Ayyangar, for appellant. 

Sundara Ayyar and Itamachandra Ayyar, for respondent. 
JUDGMENT. 

The facts in this case have been set out with sufficient accuracy by the 
Lower Appellate Court, but we are of opinion that some of the documents 

66 



YII-] SUBBABAYA PILLAI V. VAITHILINGAM 20 Mad. 96 

have been misconstrued, and the rights of the plaintiff have been misunder- 1896 
stood. We are clearly of opinion that the plaintiff is entitled to maintain SEP. 16; 
this suit as trustee appointed by the Mauritius Court under its order of the 
22nd July 1887. The District Judge has misunderstood the intention of the APPEL- 
composition deed, Exhibit G, and has not given due weight to the language LATE 
and intention of the above order of the Court, made with a view to effec- OlVlL. 
tually carry out the object of the compensation deed. We do not doubt 
but that Naga Pillai Subbarayan (the plaintiff) was nominated in Exhibit 2 * '* 
C, as trustee in consequence of his being the managing member of the firm 
of V. Subbarayan and Company, who had undertaken to pay the creditors 
of the insolvents Coo. Vaithilingam and Company for whose benefit 
the estate of the insolvents was to be collected. But we find it difficult to 
understand what the Courts below mean by holding that plaintiff was ap- 
pointed a trustee in his capacity as manager of that firm. 

If the intention was that the manager, for the time being, of that 
firm, should be ex-officio, trustee, it would have been easy to have said so ; 
yet, if this is not the meaning, we are unable to attach any definite 
meaning to the expression. Exhibit C does not say that N. Subbarayan 
should be appointed in his capacity as managing member. It merely 
describes him as holding that position. The words are " that Naga 
Pillai Subbarayan, the managing member of the said firm, V. Subbarayan 
and Company, be appointed trustee," &c. 

That these words are merely descriptive appears even more clearly 
from the vesting order of the Court of Bankruptcy, dated 22nd July 1887. 
It runs : " It is further ordered that all the estate and property of the 
" bankrupts both in Mauritius and in India .... be, and the same 
" are, hereby vested in Naga Pillai Subbarayan of Port Louis trader, 
" managing member of the firm, V. Subbarayan and Company, who is 
" hereby appointed ' trustee ' to carry out the said composition with full 
" power to recover and realise all the said estate and property." The 
[96] interposition of the plaintiff's address and of his description as a 
' trader ' between bis name aud the words 'managing member,' &c., seems 
to us to show clearly that the latter words are merely descriptive just as 
the word ' trader ' undoubtedly is. It is, we think, this fundamental 
misconception that has led the Courts below to misunderstand the plain- 
tiff's position. 

The arrangement evidenced by the above two documents is that V. 
Subbarayan and Company should pay the creditors of the bankrupts fifty 
per cent, of their debts, that, in consideration of this, the bankrupts assign 
their property for the benefit of V. Subbarayan and Company and the 
plaintiff is appointed by the Court a trustee to collect the property of the 
bankrupts for the benefit of the firm of V. Subbarayan and Company and 
the property is ' vested ' in him as such trustee. The Subordinate Judge 
thought that, as the plaintiff was suing for costs awarded against defendant 
after the date of the composition deed, the plaintiff as trustee could not sue 
for those costs, but the District Judge has pointed out that those suits were 
brought by the defendant against plaintiff for acts done by him as trustee 
and the costs were awarded to plaintiff as trustee. There is nothing to 
prevent the plaintiff from now suing as trustee to recover costs awarded to 
him in suits maintained by him as trustee, though those suits were main- 
tained for the benefit of V. Subbarayan and Company and were financed 
by that firm. Plaintiff, no doubt, may be bound to account to the firm for 
such costs, but that cannot affect the plaintiff's right to recover them from 
the defendant in accordance with the decrees. If any of the costs were 

67 



20 Mad. 97 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 awarded, as the Subordinate Judge seems to think they were to the firm, 
SEP. 16. the plaintiff alone could not sue for them, but we understand that this is 

not the case. 

APPEL- rph e District Judge has also, we think, misapprehended the effect of 

LATE Exhibit B. He rightly states that what may be called the legal estate of 

CIVIL, the bankrupts vested in the plaintiff, though their equitable estate 

vested in the firm of V. Subbarayan and Company, but when he adds 

20 M. 91. tj na f; Exhibit B assigns the whole estate both legal and equitable to Rayap- 

pan Appon and that the latter is, therefore, the only person entitled to 

maintain this suit, we think he misconstrues Exhibit B. Exhibit B transfers 

to Appon all the interest which the firm of V. Subbarayan and Company 

had acquired in the estate of the bankrupts. It neither could nor [97] 

did transfer anything more. Plaintiff, as a member of the firm, 

assented to and admitted that he was bound by that document, but it did 

not, and could not, assign either the rights or the duties of the plaintiff 

as trustee. 

Even if the plaintiff desired to do so, he could not delegate his rights 
or duties as trustee, but there is nothing to show that he attempted to 
do so. 

The only effect of the document (Exhibit B) is that Eayappan 
Appon, instead of the firm of V. Subbarayan and Company, thereby be- 
came the beneficiary for whom the plaintiff is to collect the bankrupt's 
assets, and to whom he must account for the same, or for other moneys 
received by him as trustee. Exhibit A shows that Appon and the plain- 
tiff both correctly understood their respective rights, and the duty of 
plaintiff as trustee. 

The result, then, is, that the plaintiff as trustee can maintain this 
suit. We may observe that the position which we have assigned to plain- 
tiff is in harmony with that which held in the case reported in Subbaraya 
v. Vythilinga (l), a case arising out of the same transactions and practically 
between the same parties. 

We set aside the decrees of the Courts below and direct that suit be 
restored to the file of the Subordinate Judge, and be disposed of according 
to law. 

Plaintiff must have his costs in the Lower Appellate and in this 
Court. The costs in the Subordinate Judge's Court will abide and follow 
the result. 



20 M. 97. 
APPELLATE CIVIL. 

Before Sir Arthur J. H. Collins, Kt., Chief Justice and 
Mr. Justice Benson. 



KONDAYYA CHETTI (Plaintiff), Appellant v. NABASIMHULU 

CHETTI (Defendant), Respondent* > [21st, 22nd September and 

13th November, 1896.] 

Contract Act Act IX 0/1872, Section 122 Agency to sell, coupled with interest Discre* 
tion as to price left with agent Power of principal to impose limits as to price. 

The defendant consigned goods to a firm in London for sale, and in respect 
of each consignment be received an advance from the plaintiff who was the 

Appeal No. 6 of 1896. 
(1) 16 M. 85. 

68 



Y1I.] KONDAYYA CHETTI V. NARASIMHULU CHETTI 20 Mad. 99 

[98] agent of the London firm, and signed a consignment note, which contained 1896 
the following passage : NOV. 13. 

" I hereby authorize you to sell the above goods at the best price obtainable 
" without reference to me an i I give you full discretion and power to act on my APPEL- 
" behalf to the best of your judgment in regard to such sile and in all matters 
" connected with the m-vn*ge mem of this consignment. Should there be auy LATE 
" shortfall after realization of the above consignment, I hereby authorize you to QlVIL. 

" draw on me for the amount, and I engage to honour such draft and to pay it 

" on presentation." 20 H 97. 

The plaintiff guaranteed the payment of the redrafts to the London firm on 
whose account he in i In the advances to the defendant Shortfalls having occur- 
red on certain consignments and the London redrafts having been dishonoured, 
the plaintiff pud them, and now sue) to recover the amount from the defendant. 
It appeared that oosignnnnt* ha1 been sold at prices less than certain limits 
which have been fired by the defendant subsequent to the receipt of the advances 
and the signature of the consignment notes : 

Held, that the defendant had no right (regard being had to the terms of the 
consignment note and the course of dealing between the parties) so to impose 
limits of price, and that the plaintiff was entitled to recover. 

[R.. 13 Cr.L.J. 721 (722) = 16 Ind. C*s. 753~6 S.L.B. 76 (79).] 

APPKAL against the judgment of Mr. Justice Subramania Ayyar, in 
civil suit No. 120 of 1894, OQ the original side of the High Ooart. 

The plaintiff sued to recover Rs. 4,765 under the circumstances stated 
on the judgment of Subramania Ayyar, J. 

Mr. K. Broivn, for plaintiff. 

Mr. B. F. Grant, for defendant. 

SUBRAMA.NIA AYYAR, J. The plaintiff sues for Rs. 4,765 being 
the amount paid by him o i the 13th July 1894 to Messrs. Robert Von 
Glehn & Co. of London on account of two Bills of Exchange, drawn by 
them on the defendant for the difference between the amount advanced 
by them on cerbain consignmints of Saiemporos or blue cloths forwarded 
by the defendant through the plaintiff to Von Glehn & Co. for sale in 
London, and the price realized by the sale of the goods, which fell short 
of the advances ; the plaintiff, in consequence of the defendant's refusal 
to honour the bills having had to pay the amount due under them as drawee 
in case of need, in accordance with a contrast of guarantee he had entered 
into with Von Glehn & Co. to make good to them any deficiency that 
might arise in circumstances similar to those in the present instance. 

The substantial defence is that Von Glehn & Co. allowed the goods 
to be sold for prices below those limited by the defendant. [99] that if an 
account be taken with reference to the rates fixed bv the defendant, Von 
Glehn & Co. would be found indebted to him, that Von Glehn & Co. were 
not entitled to claim the deficiency caused by their wrongful act and the 
plaintiff is therefore not entitle! to the amount sued for. 

The main questions raised an 1 discussed a h . the trial were (i) whether 
assuming that the defendant did place limits as alleged, Von Glehn & Co. 
were entitled in law to sell under the limits without the assent of the 
defendant; (ii) whether the defendant did in fact place limits and Von 
Glehn & Co. did sell in disregard of such limits. 

With reference to the question of law stated above, one contention 
urged on behalf of the plaintiff was that, in consequence of the advances- 
admittedly received by the defendant from Von Glehn & Co., the consign- 
ments became a pledge in their hands entitling them to sell the goods, for 
the purpose of reimbursing themselves the amount advanced, irrespective of 
the wishes of the defendant. This proposition is quite unsustainable, for 
the relation of principal and factor, where money has been advanced on. 

69 



20 Mad. 100 INDIAN DECISIONS, NEW SERIES [Yol. 

i896 goods consigned for sale, is not that of pawnor and pawnee" Smart v. 

"Nov. 13, Sandars (l). The factor acquires only a lien which gives no right to sell 
the goods (Donald v. Suckling (2). 

APPEL- Another contention urge! on hehalf of the plaintiff was that the rela- 

LATE tion between Von Glehn & Co. and the defendant was, in consequence of 

CIVIL, the advances, an agency coupled with interest which was irrevocable. Now 
in Smart v. Sandars (1) already cited it was laid down that a factor, to 

10 M. 97. w hom goods have been consigned generally for sale and who has subse- 
quently made advances to his principal on the credit of the goods, has no 
right to sell them contrary to the orders of his principal on the latter 
neglecting on request to repay the advances, although such sale would be a 
sound exercise of discretion on his part ; his authority to sell not becoming, 
by reason of the unoaid advances, irrevocable as an authority coupled 
with an interest. And in De Comas v. Prost (3) the Judicial Committee 
of the Privy Council folio wed Smart v. Sandars (1) and held that mere 
advances made by a factor whether at tha time of his employment as snob or 
[100] subsequently cannot have the effect of altering the revocable nature 
of an authority to sell unless the advances are accompanied by an agree- 
ment that the authority shall not be revocable. 

The learned Counsel for the plaintiff drew my attention to Parker v. 
Branker (4) where the Supreme Judicial Court of Massachusetts held 
that a Commission merchant, having received goods to sell at a certain 
limited price and made advances upon them, had a right to reimburse 
himself by selling such goods at the fair market price, though below the 
limit, if the consignor had refused an application and after a reasonable 
time to repay the advances. Substantially the same view was taken in 
Brown v. McGran (5) and in Field v. Farrington (6) and in Section 371 
-of Story on Agency the law is stated in accordance with that view. But 
Brown v. McGran (5) was brought to the notice of the Court in Smart v. 
Sandars (1), and since the judgments contain no reference to that case, I 
think it must be taken that the American rule did not commend it- 
self to the Court of Common Fleas whose decision, having been adopted 
by the Judicial Committee, should be followed by the Courts in this coun- 
try. Even if it be contended that De Comas v. Prost (3) was a Colonial 
case, it will be seen from the observations in Murtunjoy Chuckerbutty v. 
Cockrane (7) the Judicial Committee held that in the absence of any 
usage or custom qualifying the general mercantile law of England that 
law applied to India also. 

A third contention was that if the law before the Indian Contract 
Act was as stated above, that enactment has changed the law in conform- 
ity with the American rule. In support of this contention the learned 
Counsel relied on illustration (6) to Section 202. But the case put in 
that illustration seems to be an ordinary instance of a power couplod with 
interest comine within the well established rule stated by Wilde, C.J., in 
Smart v. Sandars (8) thus : " Where an agreement is entered into on a 
sufficient consideration whereby an authority is given for the purpose of 
securing some benefit to the donee of the authority such an authority 
is irrevocable." For, the language of the illustration in question shows 
distinctly that the power to sell was given [101] expressly for the purpose 
of enabling the consignee of the goods to repay himself the advances made, 

(1) 3 C.B. 400 (401) = 5 C.B. 895. (2) L.R., 1 Q.B. 585. 

(3) 3 M.P.C- (N.B.I, 158. (4) 22 Pickering. 40. (5) 14 Peters 479. 
(6; 10 Wallace 141. (7) 10 M.I. A. 229. (8) 5 C.B. 895 (917). 

70 



YH.] KONDAYYA CHETTI V. NARASIMHULU CHETTI 20 Mad. 102 

see observations of Sargent, C.J., in Jafferbhoy Ludhabhoy Chattoo v. 
Charlesivorth (1). The result of the authorities (to borrow the language 
of the Chief Justice in the case just cited) is " Where the factor for sale 
who has made advances claims the right to sell invito domino, the ques- 
tion is whether there was an agreement between the parties express or to 
be inferred from the general course of business or from the circumstances 
attending the particular consignment that the factor should, under any 
and what circumstances, have the power to sell against the will of the 
owner of the goods, the onus of proving which lies on the factor who has 
made the advances. 

Let us now see whether any agreement express or implied can be made 
out; from the facts of this case. The plaintiff's counsel relied on paragraph 
two of the consignment letters (Exhibits B to N) and contended that 
taking them along with the advances, it should be held that the defendant 
created expressly an agency coupled with interest. This contention is un- 
sustainable ; for although the paragraph in question authorizes Von Glenn- 
^ Co. to sell the goods at the best price obtainable without reference to 
the defendant, and gives them full discretionary power to act on his behalf 
to the best of their judgment in regard to such sale and in all matters con- 
nected with the management of the consignments, it does not say that the 
defendant agreed that the power so conferred will not be altered or modifi- 
ed. In truth the contention is only another way of asking me to hold that 
mere advances made by a factor at the time of his employment has the 
effect of altering the revocable nature of the authority to sell, which, the 
Privy Council ruled, they had not. It is thus clear there was in this case 
no express contract not to revoke. Nor are there any circumstances from 
which such a contract can be implied. I must therefore hold that the 
plaintiff has failed to make out that Von Glehn & Co. were entitled to sell 
irrespective of the limits, if any imposed by the defendant. 

The next question is whether the defendant did place limits as alleged 
by him and whether the goods were sold in disregard of such limits. The 
defendant's evidence on this point is supported not only by the admissions 
made by the plaintiff in the course of [102] his examination but also by 
the correspondence produced on both sides. 

[The learned Judge then proceeded to discuss the evidence on this 
point, and in the result dismissed the suit with costs.] 
The plaintiff preferred this appeal. 

Mr. K. Broivn, for appellant, contended, firstly, that regard being 
had to the nature of the contract between the parties, the factor had a 
right to sell regardless of the limits imposed on the defendant, under the 
rule deducible from Smart v. Sandars (2) and other English authorities 
relating to the subject, and, secondly, that, even if it were not so, the case 
was governed by the Contract Act, which in Section 202 laid down with- 
out qualification the rule which Wilde, C v J. in the case above cited 
(see p. 915) explained to be subject; to various qualifications in England. 
Bank of England v. Vagliano (3), Damodara v. Secretary of State (4).' 

Mr. R. F. Grant, for respondent, supported the judgment; on the 
grounds stated therein. 



1896 

NOV. 13. 

APPEL- 
LATE 
CIVIL. 

20 M. 97. 



(1) 17 B. 520 (543). 
(3) [1891] A.C. 144. 



(2) 3 C.B. 400 (401) 
(4) 18 M. 91. 



= 5C. B. 895. 



71 



20 Mad. 103 INDIAN DECISIONS, NEW SERIES [Yol 

1896 JUDGMENT. 

Nov.J.3. Plaintiff and defendant are merchants trading in Madras. The defend- 

. ant used to consign goods to Messrs. Von Glehn and Co. of London for 

sale. The consignments were made through the plaintiff. As each con- 
LATE gigoment was shipped, the defendant drew on Von Glehn and Co. for th& 
ClVIL. value in favour of the plaintiff, who negotiated the drafts with a Bank, and 
~^~" paid the proceeds to the defendant. The course of business was to have- 
the goods valued and sold in London by Von Glehn and Co., who repaid 
themselves out of the proceeds, and, in case of a shortfall, drew on defend- 
ant for the amount. If defendant failed to Day the redraft plaintiff was 
bound to do so. He, in fact, guaranteed Von Glehn and Co. On certain 
transactions of the above character which took place in 1893-94, therejwaa 
a shortfall amounting in all to Rs. 4,765. Von Glehn and Co. drew on 
defendant for the amount, but he refused to honour the drafts, and the 
plaintiff then paid them. The plaintiff's present suit was to recover the 
sum so paid. 

The substantial defence was that Von Gleha and Co. sold the goods 
under the limits imposed by the defendant, and that the latter was, there- 
fore, not bound to pay the shortfall. 

[103] The learned Judge who tried the case found for the defendant 
on the above issue and dismissed the suit. Plaintiff appeals on the 
ground, inter alia, that under the terms of the contract with defendant, 
and in all the circumstances of the case Von Glehn and Co. had power to 
make the sales, notwithstanding the limits imposed by the defendant. 
The learned Judge has referred at some length to the English authorities 
which deal with the right of a factor who has made advances on goods 
consigned to him for sale to sell them invito domino ; and we are not dis- 
posed to dissent from his conclusions as to the general result of those 
cases. We are, however, of opinion that those cases do not decide 
the exact question which arises in the present case, nor do we think that 
the present case can be decided by a reference to the English authorities 
alone. The Indian Contract Act (IX of 1872) is the law with reference 
to which the rights of the parties in the present case must be decided. 
We are not prepared to say that the law on the matter in issue, as laid 
down in the Indian Contract Act, differs from the law which prevails 
in England, but if it does differ we are bound to decide in accord- 
ance with the Indian Act. This proposition is, indeed, self-evident, 
and the principle has recently been strongly affirmed by Lord Her- 
schell in Bank of England v. Vagliano (1) in these words : " I think 
the proper course is, in the first instance, to examine the language 
of the statute and to ask what is its natural meaning, uninfluenced 
by any considerations derived from the previous state of the law, and 
not to start with enquiring how the law previously stood, and then, 
assuming that it was probably intended to leave it unaltered, to see if 
the words of the enactment will bear an interpretation in conformity 
with this view. If a statute intendei to embody in a code a particular 
branch of the law, is to be treated in this fashion, it appears to me that 
its utility will be almost entirely destroyed, and the very object with 
which it was enacted will be frustrated. The purpose of such a 
statute surely was that on any point spaoially dealt with by it, the law 
should be ascertained by interpreting the language used instead of, 
as before, by roaming over a vast number of authorities in order to- 

(1) [1891] A. C. 144. 

72 



YII.] 



KONDAYYA CHETTI V. NARASIMHULU CHETTI 20 Mad. 105 



discover what the law was." He then refers to circumstances in which 
a reference to prior authorities is legitimate and proper, as, for [104] 
instance, where the words of the statute are of doubtful import, 
and adds " What, however, I am venturing to insist upon is, that the 
first step taken should be to interpret the language of the statute, and 
that an appeal to earlier decisions can only be justified on some special 
ground." 

It is to be observed that no evidence of the general custom of 
merchants in Madras in reference to the matter in issue has been given, 
so that we are left to decide it by applying the provisions of the Indian 
Contract Act to the terms of the contract entered into between the parties 
and the general course of their business. 

Section 202 of the Contract Act runs as follows : " Where the agent 
has himself an interest in the property which forms the subject-matter 
of the agency, the agency cannot, in the absence of an express contract, 
be terminated to the prejudice of such interest ; " and illustration (6) 
shows how the rule may be applied in a concrete case, as follows : A 
consigns 1,000 bales of cotton to B, who has made advances to him on 
such cotton, and desires B to sell the cotton, and to repay himself out of 
the price the amount of his own advances. A cannot revoke this authority, 
nor is it terminated by his insanity or death." 

The terms of the contract between the parties, so far as those terms 
are express, are contained in the consignment notes, which are all worded 
in the same way. The following is one of them : 

" Madras, 10th October 1893. 

To MESSRS. ROBERT VON GLEHN AND SONS, 

LONDON. 
DEAR SIRS, 

I have the pleasure to advise consignment to your care for sale on my 
account through Mr. A. Kondayya Chetti. 

V. N. i = 2 B 1 Blue Salempores. 
29/35 = 7 B/ 
,, 1/5 = C 1 Bees wax. 

per C/Macdonald against which I have valued on you at three months' 
sight for 205 and I beg your acceptance of my drafts. 

I hereby authorize you to sell the above goods at the best price 
obtainable without reference to me and I give you full discretionary 
power to act on my betialf to the best of your judgment in regard to such 
sale, and in all matters connected with the management of this 
consignment. 

[105] Should there be any shortfall, after realization of the above 
consignment, I hereby authorize you to draw on me for the amount and I 
engage to honour such draft and to pay it on " presentation, without dis- 
puting the sales or the accuracy of account sale and account current, 
" rendered by you. 

" I further hereby declare that this letter has been read and explained 
to me and T fully understand its meaning. 

I remain, Dear Sirs, 

Yours faithfully, 
V. NARASIMMULU CHETTI." 

It seems to us that the reasonable interpretation of this contract i& 
that the consignee shall have authority to sell the goods at his discretion. 



1896 
NOV. 13. 

APPEL- 
LATE 
CIVIL. 

20 M. 97. 



M VII 10 



73 



20 Mad. 106 



[Yol. 



1896 and repay himself the advance out of the proceeds, drawing on the con- 

Nov. 13. signor in the event of a shortfall. The course of business between the 
parties shows that Von Glehn and Co. were intended to recoup them- 

APPEL- selves out of the sale-proceeds and to draw ou the defendant for any 
LATE shortfall. 

ClVIL. Illus'ration (b) seems to us to be in point. The learned Judge in one 

passage, following a remark of Sir C. Sargent, C. J., in Jafferbhoy Ludha- 

20 M. 97. boy Chattoo v. Charlesworth (1), denies the applicability of the case in 
illustration (b) to the present case ou the ground that the power to sell 
is, in illustration (b), given 'expressly' for the purpose of enabling the con- 
signee of the goods to repay himself the advances made. No doubt in the 
illustration the authority to so appropriate the sale proceeds is expressly 
given, but in the section itself there is no limitation to cases where the 
authority is so expressly given. In the section itself all that is necessary 
is that the ageut should himself have 'an interest in the property,' to be 
sold, and it seems to us that such interest may he inferred from the language 
of the document and from the course of dealings between the pirties, and 
need not be expressly given. It is the existence of an interest, not the 
mode in which it is given, that is of imoortance. The terms of an illus- 
tration are not always co-extensive with the terms of the section, or pro- 
position of law, intended to be illustrated ; and it is contrary to true princi- 
ples of interpretation to cut down the scope of a section by a reference to 
its illustrations. Apparently [106] if the consignment note had said in 
express words "you are to repay yourself the above advance out 
" of the sale-proceeds of the consignment " the learned Judge would 
have considered Section 202 applicable, and the authority to sell 
irrevocable, and would have decided in plaintiff's favour. As already 
stated there is nothing in the section to show that the authority 
to appropriate the sale-proceeds to the debt must be 'expressly' given, 
nor can we find any ground in reason for such a limitation. The provision 
in the oonsignment note that the consignee is to sell at his discretion and 
in the event of a shortfall is to draw on the defendant taken with the 
course of business between the parties, shows that it was their intention 
that Von Glehn and Co. should repay themselves the advances out of the 
proceeds. That intention, being clearly indicated, is as valid and as 
effectual for the creation of an interest in the consignees as if it were 
expressly stated. If the consignees had such an interest the authority to 
sell could not be revoked to the prejudice of such interest, except in 
accordance with an express contract reserving such power to the defendant, 
but of such express contract there is no proof in this case. 

The authority to sell at the consignee's discretion, and without 
reference to the consignor, is given in the consignment note in the widest 
terms, and the only limit imposed is that the price should be ' the b sst 
obtainable. ' The plain meaning of the words is that the consignee is 
to choose the time and mode of sale without reference to the consignor 
and obtain the best price available in the market. It was open to the 
consignor to have made it a part of the contract th*t he might impose 
limits from time to time, and, had he done so, the consignee who was mak- 
ing advances, would have baen able to protect himself against the greater 
risk that he would have thus run. Bat th 3 consignor expressly gave up 
to the consignee the discretion with regard to sale, and it can hirdly be 
doubted but that his doing so enabled him to o')tain ber.ter terms in regard 

(1) 17 B. 520 (543). 
74 



KOMMACHI RATHER V. PAKKER 



20 Mad. 108 



to the advances. It seems to us unreasonable fco hold that, under these 
circumstances, the consignor could on the next day revoke the authority 
to sell, or that the consignee would allow him to do so without considera- 
tion. The consignor by placing too high a limit on the goods might keep 
the consignee out of the money he had advanced for a far longer 
time than that contemplated, and in the end leave him without remedy, 
except the slow and inadequate one of a suit to recover the [107] 
advances. No doubt the letters between defendant and Von Glehn and Co. 
show that the former imposed limits after the consignments were sent, and 
neither plaintiff nor Von Glehn and Co. at first repudiated, or protested 
.against, his right to do so. Von Glehn & Co. protested against the advis- 
ability of his holding out for impossible prices, and put off sales in defer- 
ence to his wishes, but we do not think that this action amounts to an 
admission by Von Glehn & Co that they were bound, in all circumstances, 
to obey his instructions. They were naturally anxious to please a client 
and bo defer to his wishes but when the market continued to fall month 
after month, and the security in their hands to become less and less, they 
at length resorted to the power of sale given to them and sold without 
regard to the limits named by the defendant. They would, no doubt, have 
postponed the sales still further if defendant had complied with their 
request to remit them a sufficient sum to cover the estimated fall in the 
value of the goods, so that the security in their hands might still be suffi- 
cient, but this the defendant did not do. In these circumstances it seems 
to us that the consignees were justified in exercising their legal right of 
sale, instead of allowing the security in their hands to diminish still 
further. 

We must, therefore, reverse the decree and give judgment for plaintiff 
.as sued for with costs throughout. 

Wilson (I King, attorneys for appellant. 
Branson & Branson, attorneys for respondent. 



20 M. 107 = 7 H.L.J. 66. 
APPELLATE CIVIL. 

Before Sir Arthur J, H. Collins, Kt., Chief Justice and 
Mr. Justice Benson. 



KOMMACHI KATHER (Plaintiff), Appellant v. 

PAKKER AND OTHKRS (Defendants), Respondents.* 

.[8th and 20th October, 1896.] 

Civil Procedure Code Act XIV of 1882, Section 295 Rateable distribution Decree for 
money Mortgage decree. 

The plaintiff and defendant, respectively, held successive mortgages on the sime 
land. Tbe defendant obtained a decree on his mortgage against; the land and 
[108] in respect of any unrealized b*lanc^ against the mortgagor, two months' 
ume for redemption being given. The plaintiff then obtained a like decree. 
The defendant abandoned his claim on the mortgage premises and attached other 
property of the mortgagor. The plaintiff applied to execute his decree against 
the mortgage premises and the other property, but with regard tn the latter his 
application was rejected. The defendant, having brought to sale the property 
attached, the plaintiff applied under Civil Procedure Code, Section 295, for 
rateable distribution which was refused. The plaintiff then brought to sale the 



1896 

NOV.. 13.- 

APPEL- 
LATE 
CIVIL. 

20 M. 97. 



* Second Appeal No. 819 of 1895. 

75 



20 Mad. 109 INDIAN DECISIONS, NEW SERIES [Vol. 

1396 mortgage premises which did not realize the amount of the debt, and he now sued 

Q 2Q to recover the sum which would have been payable to him under Section 295 : 

__L_ Held, that the plaintiff's decree was a decree for money within the meaning of 

APPFL Section 295, and that he was entitled to reoover the sum claimed : 

Per cur. the property ought not to have been sold and the money paid to the 

LATE defendant until the mortgaged property had been sold and had been found insuffi- 

OlVIL. cient to pay bis debt. 

[Dlss., 27 C. 285 (289) ; P., 28 M. 224 ; Appr., 28 M. 473 (477) = 15 M.L.J. 126; R., 
20 M. 107= 3 A.L.J. 585 = A.W.N. (1906) 237 = 1 M.L.T. 247; 21 M.L.J. 1036 (1040) = 10 M. 

7 M.L.J. 66. L.T. 429 = (19U) 2 M.W.N. 458 (460) = 12 Ind. Cas. 689 ; D., 17 Ind. Gas. 940 

(941) = 23 M.L.J. 699 = 12 M L.T. 660 (662).] 

SECOND Appeal against the decree of A. Thompson, District Judge 
of North Malabar, in Aopeal Suit No. 445 of 1894, confirming the decree 
of K. Imbichunni Nayar, District Munsif of Taliparamba, in Original Suit 
No. 199 of 1894. 

The facts of this case were stated by the District Muosif in paragraph 
8 of his judgment as follows : 

" The plaintiff in the present case was the mortgagee of eight items 
" of real properties under one K. V. Ghintan and five of his Anandiravans. 
" The first defendant held a ouisne mortgage OQ two or three of the same 
"items. In Original Suit No. 76 of 1893, the first defendant sued his 
" mortgagors and the present plaintiff for the recovery of his mortgage 
" amount by the sale of the properties mortgagad and from the persons of 
" the mortgagors A decree was recorded in his f tvour to the effect that 
" in default of the defendants' paying the amount of his claim within two 
" months, the properties mortgaged should be sold subject t > r,he prior claim 
" of the present plaintiff and if the sale-proceeds be insufficient to satisfy 
"the whole of his decree, tha balance should be paid by the mortgagors 
"personally. The present plaintiff then brought a suit on hid prior mortgage 
" and a decree worded almost as above was recorded in favour of him also. 
" The present defendant was a party to it. He then gave up his claim on 
" the properties mortgaged to him and caused attachment of the parambas 
" mentioned in the present plaint which wera finally sold in auction for 
" Rs. 1,377. The sale-proceeds wers set off against the first defendant's 
" decree amount. Over two months before the aforesaid sale, the oresent 
" plaintiff applied for the realization of his decree [109] by the sale 
" of the properties mortgaged, and by attachment of other properties. 
" The first part of his prayer was allowel while the second part was dis- 
" allowed. In the case of the plaintiff, then, the judgment-debtors ap- 
" plied for an adjournment of the sale and obtained time till September 
" 1893. The sale, at the instance of the first defendant, took place in the 
" meantime and the plaintiff asked for rateable share. His application 
was rejected on the ground that he had then no decree which was 
" capable of being executed against the judgment-debtors personally. The 
" plaintiff appealed and the appeal was rejected as being not maintainable. 
" In a subsequent application for share made by the plaintiff after the 
" properties mortgaged to him were sold atri the sale-proceeds were found 
" to be insufficient to fully meet his claim, he was given Rs. 25. The plain- 
" tiff now sues to recover Rs. 495-15-0, alleging that be was entitled to 
" get the same when he first applied for share." 

The terms of the decree in question are given in the judgment of 
the High Court. 

The District Munsif dismissed the plaintiff's suit and the District 
Judge upheld bis decision for the reasons stated by the High Court. 

76 



1TIL] KOMMACHI RATHER V. PAKKBR 20 Mad. Ill 

The plaintiff preferred this seoond appeal. 1896 

Ryru Nambiar, for appellant. OCT. 20. 

Sankara Menon, for respondents. 

APPEL- 
JUDGMENT. LATB 

The facts of the case are correctly stated in paragraph 8 of the CIVIL. 
District Munsif's judgment. 

The District Munsif, assuming that the plaintiff had a ' decree for 20 M. 107= 
money' within the meaning of Section 295, Civil Procedure Oode. still dis- ^ "^ * 6 
missed the suit on the ground that it was incapable of execution, except 
as against the mortgaged property, at the time when the plaint property , 
was sold at the instance of first defendant. 

The District Judge confirmed the District Munsif's decree for two 
reasons, firstly, because Section 295 (c) in his opinion barred the plaintiff's 
claim, and secondly, because the plaintiff's decree was not ' a decree for 
money' within the meaning of Section 295, Civil Procedure Code. 

The plaintiff appeals, and we think, with good reason. The District 
Judge is manifestly in error in supposing that Clause (c) [110] of 
Section 295 governs the case. That clause refers only to property sold " in 
-execution of a decree ordering its sale for the discharge of an incumbrance 
thereon." In the present case, the property sold by first defendant was 
not the encumbered property, but other property of the judgment-debtor. 

The plaintiff and defendant had respectively a first and a second mort- 
gage over other property of the same mortgagor, but neither of them held 
any incumbrance on the property sold by first defendant. It seems to us 
that the plaintiff and first defendant were in exactly the same position 
with regard to this property, and each was equally entitled to a rateable 
share of the sale proceeds. 

The District Judge is, in our opinion, wrong in holding that the 
present decree is not 'a decree for money ' within the meaning of Section 
295, Civil Procedure Code. No doubt, his view is supported by the lan- 
guage used in Bam Charan Bhagat v. Sheobarat Rai (1) ; but the opposite 
view was held by the Calcutta High Court in Hart v. Tara Prasanna 
Mukherji (2). The exact terms of the decree in the Allahabad case are 
not reported, nor is the Calcutta case referred to therein ; but in our 
opinion the law is correctly stated in the latter case. 

The decree before us runs as follows : " That the defandants do pay 
"plaintiff wirhin two months from this date Es. 2,500 with interest and 
" costs and that in default plaintiff do recover the same by sale of the 
" plaint property, and the balance, if any, from first to sixth defendants." 
It seems to us that this is a decree for money and that it does not lose 
this character, because the decree declares the mode and the order of the 
procedure by which it is to be realized. 

The first paragraph of Section 295 runs as follows : " Whenever 
" assets are realized by sale or otherwise in execution of a decree, and 
" more persons than one have, prior to the realization, applied to the Court 
" by which such assets are held for execution of decrees for money 
" against the same judgment-debtor, and have not obtained satisfaction 
" thereof, the assets, after deducting the costs of the realization, shall be 
" divided rateably among all such persons." 

[ill] It is under this paragraph that the plaintiff claims the right to 
a rateable share of the property. Formerly the creditor who first attached 

(1) 16 A. 418. (2) 11 C. 718. 

77 



20 Mad. 112 



INDIAN DECISIONS, NEW SERIES 



[Vol. 



APPEL- 
LATE 
CIVIL. 



1896 property had a prior claim to have his decree satisfied out of the sale-pro- 
OOT. 20. ceeds to the exclusion of other creditors, but now all judgment-creditors 
who apply to the Court, prior to realization, are entitled feo share rateably, 
and under the penultimate paragraph of the section, if any of such assets 
be wrongly paid to any person, a judgment-creditor entitled to a rateable 
share may sue to recover the same from the person wrongly paid. It is 
under this paragraph that the plaintiff brings his suit. In the words of 
20 M. 107= fch Q Calcutta case already referred to "The object of the section appears to 
7 M.L.J. 68. " U8 t o be to provide for the rateable distribution of the assets of a judg- 
" ment-debtor among all persons who have obtained decrees ordering the 
" payment of money to them from the judgment-debtor; and the fact 
" that a person, who has obtained such a decree, also holds security or is 
" entitled to any other relief under the decree, is immaterial. There is, 
" therefore, we think nothing in the section which takes away the right of a 
"mortgagee, who has obtained a decree upon his mortgage, to proceed in the 
" same suit against property of the mortgagor not subject to the mortgage 
" when there are other creditors nothing which shows that the only per- 
" sons entitled to share rateably in the proceeds of sale of property sold in 
" execution of a decree are those who have obtained decrees for money 
' only. We think, therefore, that every decree, by virtue of which money 
" is payable, is to that extent a ' decree for money ' within the meaning of 
" the section, even though other relief may be granted by the decree ; and 
" that the holder of such a decree is entitled to claim rateable distribution 
" with holders of decrees for money only." 

If it were held otherwise it would often result that the insufficiently 
secured creditor might find himself worse off than bha wholly unsecured, 
but more prompt and pressing, creditor, ani an inducement w->uld exist 
for that scramble for first attachment which tha recent alterations of the 
law were designed to remove. The unsecured creditor is not placed at 
an unfair disadvantage, since he advanced his money on the faith of the 
debtor's general credit aoart from the prooertv mortgaged, and it is always 
open to such a creditor to compel the sale of mortgaged property, if it is 
likely to yield any surplus over and above the mortgage money. 

[112] It remains to consider the ground on which the District Munsif 
dismissed the suit, viz., that the plaintiff's decree was incapable of execu- 
tion against anything save the mortgaged property, at the time when the 
first defendant attached the other property. It is true that at that time the 
plaintiff was not in a position to immediately execute his decree, but 
neither was the first defendant, for the decree in favour of the latter was 
subject to precisely the same limitation as the plaintiff's decree. The 
property ought not, therefore, to have been sold and the money paid to 
the first defendant until the mortgaged property had been sold and had 
been found to be insufficient to pay his debt. His title to receive 
payment out of the property sold, did not arise until the mortgaged pro- 
perty was found to be insufficient, and the plaintiff's title arose at precisely 
the same time. The payment of the whole of the sale-proceeds to the 
first defendant was, therefore, wrong, as the plaintiff was entitled to a 
rateable share. 

In this view we must set aside the decrees of the Courts below, 
and give judgment for plaintiff as sued for with costs throughout. 



78 



YII.] NALLA KARUPPA SETTIAB V. MHD. IBURAM SAHEB 20 Mad. 113 

20 M 112 = 7 H.L.J. 76. 1896 

TJrw 9fi 

APPELLATE CIVIL. wovjo. 

Before Sir Arthur J. H. Collins, Kt., Chief Justice, and APPEL 

Mr. Justice Benson. LATE 

CIVIL. 

NALLA KARUPPA SETTIAR (Plaintiff), Appellant v. 20M~Ti2 = 

MAHOMED IBURAM SAHEB (Defendant}, Respondent* ?MLJ ?g 

[19fch, 20bh and 21 at October and 26fch November, 1896.] 

Suit on a foreign judgment Jurisdiction of foreign Court Residence of defendant 
Constructive residen ce. 

The plaintiff having obtained against defendant a judgment in the District 
Court of Kandy now sued in British India to enforce it. It appeared that the 
defendant was domiciled and ordinarily resident in British India and that he 
had not appeared to defend the suit at Eandy and was not at the date of that suit 
or subsequently even temporarily resident in Ceylon ; but he was a partner in a 
firm which carried on business at Kandy and he was interested inlands at that 
place which he had visited once or twice. 

Held, that the Court at Kandy had no jurisdiction over the defendant. 
[Appr., 24 B. 86 (88) ; R., 29 M. 239-N (269) ; 24 M.L.J. 619 (624).] 

[H3] SECOND Appeal against the decree of E. J. Sewell, Dis- 
trict Judge of Tanjore. in Appeal Suit No. 477 of 1893, reversing the- 
decree of C. Venkobachariar, Subordinate Judge of Tanjore, in Original 
Suit No. 5 of 1893. 

The plaintiff sued to recover from the defendant certain sums due 
under decrees passed against the defendant by the District Court of 
Kandy in Ceylon. 

The defendant pleaded, among other things, that the District Court 
of Kandy bad no jurisdiction, as he was, at the time the suits were brought 
and the decrees passed, permanently residing in British India, that he 
had no notice of the suits, and was not aware of their institution, and 
that the decrees were not properly passed against him. 

The Subordinate Judge found that there was sufficient service of notice 
of the suits to make the defendant liable, and that the Court in Kandy 
had jurisdiction, and passed a decree as prayed. 

The defendant appealed against this decision and the District 
Judge reversed the decree appealed against on the grounds which are stat- 
ed in the judgment of the High Court. 

The plaintiff preferred this second appeal. 

Bhashyam Ayyangar, for appellant. 

Pattabhirama Ayyar, for respondent. 

JUDGMENT. 

The plaintiff sued in the Tanjore Subordinate Judge's Court in British 
India to recover certain sums under decrees passed in his favour by the 
District Court of Kandy in Ceylon. The defendant raised a number of 
pleas, but the Subordinate Judge found against him on all the issues and 
decreed the claim. 

On appeal the District Judge tried three main questions, viz. 

(i) whether notice of the suit in the Kandy Court was so served on 

the defendant as to justify the British Indian Court in -passing a decree 

on the judgment of the foreign (Kandy) Court : 

* Second Appeal No. 854 of 1895. 

79 



20 Mad. 114 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 (ii) whether the foreign Court had jurisdiction over the person of the 

"Nov. 26. defendant who was domiciled and resident in British India ; and 

(iii) whether the defendant was a minor when the judgment was 
APPEL- given, and whether, in consequence, the judgment was one which could be 
LATE made the .basis of a suit in British India. 
CIVIL. [114] On all these issues the District Judge decided in defendant's 

favour, and, therefore, dismissed the suit. 

20 M. 112= The plaintiff now appeals on all the issues decided against him. 

7 M.L.J. 76. ^ e fl Q no ^ Dowever) think it necessary to discuss the first and the 

third of the above issues, as we are of opinion that the decision of the 
District Judge on the second issue is right, and that the plaintiff's suit 
must fail on that ground, whatever the decision on the other issues 
might be. 

The defendant was the chief partner in the firm of Iburam Saheband 
Company, which carried on business in Kandy under the terms of a deed 
of partnership (Exhibit A). The plaintiff was domiciled and ordinarily 
resident in British India, but he visited Kandy once or twice and his family 
owned some immoveable property there in which he claimed to have an 
interest 

The plaintiff was not even temporarily resident in Ceylon when the 
suits were instituted in the Kandy Court or subsequently. The business 
was, under the terms of Exhibit A, managed by one of the other partners 
who lived in Kandy. When the suits were filed, summonses on the 
partners, including the defendant, were served on the resident partners. 
It is not shown that they informed the defendant. He did not appear 
to defend the suits, and decrees ex parte were passed against him. 

The question which we have to decide is this. 

Assuming that service of notice of the suit on defendant's partner is 
sufficient service on defendant, and assuming that defendant is entitled to 
no protection on the score of minority, had the Kandy Court jurisdiction, 
in the above state of facts, to pass a decree against the defendant's person? 

It is conceded that for the present purpose the Kandy Court must be 
considered to be a foreign Court. The Courts of British India will be 
guided in this matter by the same principles as are adopted by the Courts 
of England. The true principle on which the judgments of foreign Courts 
are enforced in England is that the judgment of a Court of competent 
jurisdiction over the defendant imposes a duty, or obligation, on the 
defendant to pay the sum decreed which the English Court is bound to 
enforce, and consequently that anything which negatives that duW, or 
forma a legal excuse for not performing it, is a defence to the action. 
[115] Schibsby v. Westenholz (1). In the case of Eousillon v. Rousilion (2) 
Fry, L.J., referring to Schibsby v. Westenholz (I) and Copin v. Adamson (3), 
explained the circumstances which have been held to impose upon 
the defendant the duty of obeying the decision of a foreign Court. He 
said " the Courts of this country consider the defendant bound where he 
" is a subject of the foreign country in which the judgment has been 
obtained ; where he was resident in the foreign country when the action 
" began : where the defendant in the character of plaintiff has selected the 
" forum in which he is afterwards sued ; where he has voluntarily appear- 
" ed ; where he has contracted to submit himself to the forum in which 
41 the judgment wa.s obtained, and, possibly if Becquet v. Mac Carthy (4) 

(1) L.B. 6 Q.B. 155, 159. (2) 14 Oh. D. 351, 370, 371. 

(3) L.R. 9 Ex. 345. (4) 2 B. & Ad. 951. 

80 



YIL] NALLE KARUPPA SETTIAE V. MHD. IBDRAM SAHEB 20 Mad. 116 

" be right, wbeie the defendant has real estate within the foreign jurisdic- 1896 
" tion, in respect of which the cause of action arose whilst ha was within Nov. 26 

11 that jurisdiction." 

If these tests are adopted in the present case, it will be seen that APPEL- 
not one of them applies. It is, however, urged that the law as to the LATE 
authority to be ascribed to foreign judgments is in course of development CIVIL, 
by means of judicial legislation ; and we are asked, on the analogy of 
Becquet v. MacCarthy (1), to hold that the defendant by carrying on 20 M. 112 = 
business through his partners at Kandy should be regarded as construct- 7 M.L.J. 76, 
ively resident there, and as having impliedly bound himself to submit to 
the jurisdiction of the Court under the protection of which his business 
was being carried on. We do not thinK that the current of decided cases 
will justity us in going so far. In Becquet v. MacCarthy (1) the defend- 
ant still held, at the time of the suit, a public office in the colony in which 
he was sued, and the cause of action arose out of or was connected with 
it. His duties required him to be present in the colony, and, therefore, 
amenable to the jurisdiction of its Courts. It was on this ground that he 
was held to be constructively present in the colony, though, in fact, 
temporarily absent, This case was stated in Don v. Lippmann (2) " to go 
to the verge of the law, " and the Privy Council in the recent case of Sirdar 
Gurdyal Singh v. Rajah ofFandkote (3) were of the same opinion, and stated 
that, it the case could not have been distinguished bythe said special features 
[116] from the case of any absent foreigner, who, at some previous time, 
might have served the Colonial Government, they would have regarded 
the case as wrongly decided. In the present case there was no obligation 
on the defendant to reside in Kandy, nor did he do so except for very 
short periods. The business was carried on by a resident partner who, by 
the fact of his residence, was liable to the colonial jurisdiction, but we are 
unable to find any ground for holding that the defendant was construc- 
tively resident, or at the time of the suit present within the jurisdiction of 
the Kandy Court. Nor does the possession by the defendant of some im- 
moveable property in Kandy give that Court jurisdiction over him in 
matters of contract like the present, for in Schibsby v. Westenholz (4) it 
was observed : " We doubt very much whether the possession of pro- 
" perty, locally situated in that country and protected by its laws, does 
'' afford such a ground. It should rather seem that, while every tribunal 
" may very properly execute process against the property within its juris- 
" diction, the existence of such property, which may be very small, affords 
" no sufficient ground for imposing on the foreign owner of that property 
" a duty or obligation to fulfil the judgment." The general law is laid down 
very clearly by the Privy Council in the case of Sirdar Gurdyal Singh v. 
Rajah of Faridkote (3) in these words: "All jurisdiction is properly terri- 
" torial and extra territorium jus dicenti, impune non paretur. Territorial 
" jurisdiction attaches (with special exceptions) upon all persons either 
" permanently or temporarily resident within the territory while they 
" are within it ; but it does not follow them after they have withdrawn 
" from it, and when they are living in another independent country. 
" It exists always as to land within the territory, and it may be exercised 
" over moveables within the territory ; and, in questions of status or succes- 
" sion governed by domicil, it may exist as to persons domiciled, or who 
" when living were domiciled, within the territory. As between different 



(1) 2 B. & Ad., 961. (2) 5 01. & F-, 1. (3) 21 LA. 171 (186). 

(4) L. B. 6Q. B. 155 (159). 

81 
M VII 11 



20 Mad. 117 INDIAN DECISIONS, NEW SERIES [Yol 

1896 " provinces under one Sovereignty (e.g., under the Roman Empire) the 

Nov. 26, " legislation of the Sovereign may distribute and regulate jurisdiction ; 

" but no territorial legislation can give jurisdiction which any foreign Court 

APPEL- " ought to recognise against foreigners, who owe no allegiance or obedience 

LATE " to the power which so legislates. 

CIVIL. [117] " In a personal action, to which none of these causes of juris- 

*' diction apply, a decree pronounced in absentem by a foreign Court to 
20 M 112= " the jurisdiction of which the defendant has not in any way submitted 
7 M.L.J. 76. " himself is by international law an absolute nullity. He is under no 
" obligation of any kind to obey it ; and it must be regarded as a mere 
"nullity by the Courts of every nation, except (when authorized by special 
" local legislation) in the country of the forum by which it was pronounced. 
" These are doctrines laid down by all the leading authorities on inter- 
" national law ; among others, by Story (Conflict of Laws, 2nd edition, 
" Sections 546, 549, 553, 554,556, 586. and by Chancellor Kent (Commenta- 
" ries, vol. I, p. 284, note c lObh edition), and no exception is made to them 
" in favour of the exercise of jurisdiction against a defendant not otherwise 
" subject to it, by the Courts of the country in which the cause of action 
" arose, or (in cases of contract) by the Courts of the locus solutionis. In 
" those cases, as well as all others, when the action is personal, the Courts 
" of the country in which a defendant resides have power, and they 
" ought to be resorted to, to do justice. 1 ' 

We do not think that there are any special circumstances in the 
present case to take it out of the general rule that the plaintiff must sue 
in the Court to which the defendant is subject at the time of the suit a 
rule which is stated by Sir Robert Phillimore (International Law, vol. 4, 
Section 891), and by the Privy Council in the case already quoted " to lie 
at the root of all international and of most domestic jurisprudence on this 
matter. " That was the course which the plaintiff in this case ought to 
have followed, if he desired a remedy against the defendant personally. 

On the ground that the Kandy Court had no jurisdiction over the 
defendant, the Lower Appellate Court rightly dismissed the suit. We, 
therefore, confirm the decree of that Court and dismiss this second appeal 
with costs. 



20 M. 118 (F.B.)-7 M.L.J 52. 
[118] APPELLATE CIVIL FULL BENCH. 

Before Sir Arthur J. H. Collins, Kt., Chief Justice, Mr. Justice 

Shephard, Mr. Justice Subramania Ayyar and 

Mr. Justice Davies. 



KADAR HOSSAIN (Plaintiff), Appellant v. HUSSAIN SAHEB 

AND ANOTHER (Defendants), Respondents.* 
[5th November and 4th December, 1895 and 2nd October, 1896. j 

Limitation, Act Act XV of 1877, Schedule II, Article 12 (a)^L}ispossession. 

Limitation Act, Schedule II. Article 12 fa) is. not applicable to a case in which 
dispossession is the cause of action and in which the plaintiff was not a party 
to, or hound by, the sale : 

Held, accordingly that a suit brought in 1892 to recover possession of the 
plaintiff's share of land sold by mistake in execution of a decree agaiust his uncle 
in 1881, was not barred by limitation. 

* Second Appeal No. 62 of 1895. 

82 



11.] KADAB HUSSAIN V. HUSSAIN SAHEB 20 Mad. 119 

[P., 4L. B.R. 40; Rel., 11 Ind. Caa. 76 (77) -15 P.R, 1912 = 203 P.L R. 1911; R., 34 1896 

0.811 (F.B.) = 5C.L.J. 696 = 11 O.W.N. 756 = 2 M.L.T. 371; 24 M. L. J. 228 Orfp 

(229) = 13 M.L.T. 95 = (1913) M.W.N. 93 ; 13 O.C. 297 (301) ; 14 O.C. 343 (351) ; _ 
D..24M.L.J.619.] 



SECOND appeal against the decree of E. C. Rawson. Acting District BENCH. 
J-idge of Vizagapatana, in appeal suit No. 299 of 1893, reversing the 
decree of G- Jagannadha Eau, District Munsif of Razam, in original 20 M. 118 
suit No. 4 of 1893. (P.B.)- 

The plaintiff sued to recover a moiety of certain land which had been ? M.L.J. 52 
sold in November 1881, in execution of a decree in original suit No. 290 
of 1878, on the file of the District Munsif of Vizianagaram, 

The District Munsif passed a decree for plaintiff, but his decree was 
reversed on appeal by the District Judge, who held that the suit was barred 
by limitation. 

The plaintiff preferred this second appeal which came on for hearing 
before Collins, C. J., and Parker, J., who made the following order of 
reference to the Full Bench : 

ORDER OP THE REFERENCE TO FULL BENCH. The following are 
the facts which give rise to this reference : 

Plaintiff's paternal uncle Dada Miyya owned half an Inam land, and 
plaintiff's father owned the other half. Dada Miyya mortgaged his half 
to defendant's father in 1870. Defendant's father obtained a decree upon 
this mortgage in suit No. 290 of 1878, and the property mortgaged was 
ordered to be sold. The sale took place in November 1881, but by some 
mistake the whole [119] land was sold instead of DadaMiyya's half share. 
Defendant's father purchased the land and was put in possession. Plain- 
tiff brought this suit on November 25tb, 1892, to recover possession of 
his half share. 

The District Judge on the strength of the Ruling in Suryanna v. 
Dunji (1), held that the suit was governed by Article 12 (a) of the 
Limitation Act and that the suit was barred. 

There are however various decisions in which it has been held that 
Article 12 of the Limitation Act does not apply to suits in which bhe 
plaintiff was not a party to, and not bound by, the sale sought to be set 
aside. Sea Sadagopa v. Jamuna Bhai (2j, Haji v. Atharaman (3), (which 
was a decision by the same Bench) ; Nilakandan v. Thandamma (4), Nathu 
v. Badri Das (5), Parekh Ranchor v. Bai Vakhat (6) and Vishnu Keshav 
v. Ramchandra Bhiskar (7). 

The ground of decision appears to be that Article 12 is inapplicable to 
suits in which dispossession is the cause of action, since dispossession 
may not have taken place till some time after the confirmation of the sale. 

The decision in Suryanna v. Durgi (l) has been recently doubted by 
a Bench of this Court in Narasimha Naidu v. Ramasami (8). 

The question referred to the Full Bench is whether Article 12 (a) of 
the second Schedule of the Limitation Act is applicable to a case in which 
dispossession is the cause of action and in which plaintiff was not a party 
to, or bound by, the sale. 

The reference came on for hearing before the Full Bench. 

R. Subramania Ayyar for appellant, argued that Suryanna v. Durgi(l) 
was wrongly decided and referred to Narasimah Naidu v. Ramasami (8). 

Ramachandra Rau Saheb for respondent, contended that when a 
man knows that bis property was put up for sale and sold in execution of 

(1) 7 M. 258. (2) 5 M. 54. (3) 7 M. 512. (4). 9 M. 460. 

(5) 5 A. 614. (6) 11 B. 119. (7) 11 B. 130. (8) 18 ft. 478. 



20 Mad. 120 INDIAN DECISIONS, NEW SERIES [Yol 

1896 a decree of Court, he ought to object before the sale is confirmed, and 

OCT. 2. accordingly that, in the absence of proof of fraud, whereby the confirmation 

of the sale was concealed from the [120] plaintiff as was found to be 

FULL tDQ case i D Parekh ^anchor v. Bai Vakhat(l), the plaintiff was bound 

BENCH, by the one year's rule. 

20 M~iiB Tne Ful1 Bench (Collins, C.J., Shepbard, Subramania Ayyar and 

(F B')= Davies, JJ.) delivered the following judgment. 
7M.L.J. 52. JUDGMENT. 

In the circumstances stated we think there can be no doubt that 
Article 12 (a) of the second schedule of the Limitation Act cannot properly 
be applied to the suit brought by the plaintiff. 

Whatever was the intention of the parties who took part in the 
execution sale, the transaction could not affect the title of the plaintiff, 
and therefore it was not necessary for him to have the sale set aside. 

We cannot agree with the decision in Suryanna v. Durgi (2) which 
was also a case of a sale in execution of a decree. 

[After the delivery of the above judgment the decree of the District 
Court was set aside, and the appeal was remanded to be disposed of on 
the merits.] 



20 H. 120. 

APPELLATE CIVIL. 
Before Mr. Justice Shephard and Mr. Justice Subramania Ayyar. 



KANGAYYA CHETTIAR (Plaintiff), Appellant v. PARTHASAEATHI 
NAICKER AND OTHERS (Defendants Nos. 1 to 7), Bespondents* 
[26th March, 1896.] 

Mortgage Decree on first mortgage a puisne mortgagee, not being joined purchase of 
mortgaged property by decree-holder Jor inadequate price Bight oj puisne mortgagee 
Improvements Interest. 

A mortgaged land to B and then to C. B sued on his mortgage and obtained 
a decree for sale without joining as defendant C, of whose mortgage he bad 
notice ; D the son of the decree- holder became the purchaser in execution and 
improved the land at a considerable cost. C now sued tbe sons and representa- 
tives of A and B (both deceased), on his mortgage and sought a decree for sale : 

Held, (1) that tbe plaintiff was entitled to a decree for sale subject to the 
right of tbe representatives of B, if the purchaser did not elect to redeem ; 

[121] (2) that the purchaser was not entitled to allowances for improvements; 
(3) that the plaintiff was entitled to interest at the agreed rate to tbe 
date of decree. 

[P., 31 M. 425=l8M.LJ.298-=3 M.L.T. 397 ;R., 30 C. 599 (P.B.) ; 11 C.P.L.R. 75; 
12 C.P.L.R. litf ; 21 M.L.J. 213 = 9 M.L.T. 431 and 499 = (1911) 1 M.W.N. 165 
(170) ; 1 O.C. 53 ; 1 O.C. 105 ; Exp)., 24 M. 171 = 10 M.L.J. 347 ; Expl. & D., 
10 Ind. Cas. 83 = 14 Ind. Cas. 449 (453) = 22 M.L.J. 129 = 10 M.L.T. 544 ; D.,26 
M. 537.] 

APPEAL against the decree of T. Bamasami Ayyanger, Subordinate 
Judge of Negapatam, in original suit No. 35 of 1893. 

Suit to recover Rs. 7,992, being principal and interest due on a hypo- 
thecation bond, dated 7th December 1880, and executed by the father 

* Appeal No. 121 of 1895. 
(1) 11 B. 119. (2) 7 M. 258. 

84 



YII.] BANQAYYA CHETTIAR V. PA.RTHASABATHI NAICKBR 20 Mad. 122 



(deceased) of defendants Nos. 1 and 2 in favour of the plaintiff. The mort- 
gagor had previously mortgaged the land to one Subbarayar the father 
(deceased) of defendants Nos. 3 6 to secure Es. 12,000 under mortgage 
deed, dated 29fch August 1878. 

Original suit No. 21 of 1884 was brought on the mortgage of 1878, 
and a decree for Rs. 18,896-9-9 was obtained, in execution of which the 
land was brought to salo and it was purchased by defendant No. 3 for 
Rs. 1,300. The purchaser was placed in possession on 23rd January 1886. 

Plaintiff's case was that Subbarayar who had notice of his mortgage 
from the date of its execution not having impleaded him as a party to 
original suit No. 21 of 1884, he was now entitled to enforce his charge 
against the property purchased by the third defendant in execution of the 
decree. He alleged that the property was sufficient for payment of both 
debts, and he now sought a decree for payment by the defendants of the 
debt due to him, or for the sale of the mortgaged property in satisfaction 
of it. The Subordinate Judge said : "In the village No. 2, plaintiff 
" claims the liability of 13 mahs and 36f kulies as the remaining extent 
" was sold away in Court sale in satisfaction of a prior mortgage held by 
" one Alamelu Ammal. The entire land in the village No. 3 and L mah 
" and 84J, ^ 5 kulies in the village No. 5 were sold for arrears of revenue. 
' The whole extent in the village No. 6 was sold by the mortgagor for 
'' Rs. 3,000 which plaintitl received in part liquidation of his debt. These 
11 three items of land are not therefore sought to be held liable to plaintiff's 
" claim." 

It was contended by the third defendant that neither he nor his 
father had notice of the plaintiff's mortgage ; that the property other than 
what was bought by him was sufficient to satisfy the plaintiff's 
claim; that at the sale held in execution of the decree in suit No. 21 
of 1884, no one came forward to bid higher than Rs. 1,300 for which 
he purchased; and that a sum of Rs. 4,300 [122] was expended by 
him upon the improvement of the land after his purchase. The Subor- 
dinate Judge said : "It is further contended that the land referred to 
" in Schedule No. 1 appended to the statement of the third defendant 
" having been bought by him at a revenue sale, the same cannot be ren- 
'' dered liable to plaintiff'*? claim ; that the land in the village No. 6 was 
" worth Rs. 4,000, and the plaintiff was not justified in consenting to the 
" sale of it for Rs. 3,000 ; that 1 mab and 80 kulies in the village No. 5 
" worth Rs. 75 has been purchased by the plaintiff for a small value ; 
" which was neither included in the plaint, nor its price deducted from 
" the amount of the mortgage ; and that he has also acted similarly in res- 
" pect of the land in the village No. 3. It is added that third defendant 
" has no objection to 4 velieg, 8 mahs, 16 kulies and 8 cents in the village 
" No. 1 being sold for plaintiff's mortgage debt." 

It was found, inter alia, that the plaintiff in the suit of 1884 had 
notice of the plaintiff's mortgage ; that the property purchased by defend- 
ant No. 3 was at the date of his purchase worth Rs. 35,000, and that 
the purchaser had improved it at a cost of Rs. 4,300. A decree was passed 
as follows : 

This Court doth order and decree that unless defendants 1 and 2 pay 
" into Court within six months from this date the sum sued for Rs. 7,992- 
" 1-0 and costs Rs. 588, the lands hypothecated to plaintiff and specified 
" below with the exception of the land in the villages of Kothamangalam 
" and Nanakadu Vadapathi included in the third defendant's father's 
' mortgage and in the purchase made by the third defendant in revenue 

85 



1896 

MARCH 26. 

APPEL- 
LATE 
CIVIL. 

20 H. 120. 



20 Mad. 123 



INDIAN DECISIONS, NEW SERIES 



[Vol. 



1896 " sale, be sold first and the sale proceeds applied towards the decree 

MARCH 26. " amount, that then for the balance, if any, of the decree amount which 

" may remain unpaid after the said sale, the property comprised in the third 

APPEL- " defendant's father's mortgage be sold unless the defendants 3 to 6 pay 

LATE " that balance into Court within three months from the date of the first 

CIVIL. " sale ; that out of the sale proceeds defendants 3 to 6 be paid the amount 

" decreed to them in original suit No. 21 of 1884 and costs and 

20 M. 120. ' f ur t ner interest as provided therein until January 1886 when they 

" entered into possession of the land purchased by third defendant 

" in execution together with costs of execution, all to be ascertained in 

" the execution of this decree and Ks. 4,300 the cost of improve- 

" ments made to the land by third defendant, that the balance, if 

" [123] any, be taken in satisfaction of this decree, that if, at the latter sale, 

" the property be not bid for more than the amount due to defendants 3 

" to 6 as stated above the sale shall be stopped and the defendants 3 to 6 

" should by virtue of auction purchase hold the property and plaintiff's 

" claim against that property shall stand dismissed, and that further in- 

" terest under the decree in original suit No. 21 of 1884 subsequent to 

" January 1886, be disallowed as defendants 3 to 6 have enjoyed the land." 

" This Court doth further order and decree that plaintiff having ob- 

" tained large amount for interest his claim for further interest be disallow- 

" ed ; that defendants do bear their own costs ; and that no direction 

" be given for taking an account of what is due to third defendant under 

" the decree subsequent to January 1886, as the profits of the land after 

" deducting the cultivation expenses and kist would, according to the evi- 

" dence produced in this case, have been sufficient only to meet the third 

defendant's claim for further interest." 

The plaintiff preferred this appeal. 

Rajagopala Ayyar, for appellant. 

Sankaran Nayar, for respondents. 

JUDGMENT. 

It is contended on the respondents' part that the suit ought to have 
been dismissed, the plaint not being properly framed. It is said that the 
plaintiff ought, as second mortgagee, to have sued to redeem, or at least 
prayed for a sale subject to the first mortgage. The first mortgagee 
having purchased the equity of redemption, it was open to the second mort- 
gagee to ask for the sale of the property and so give the purchaser an 
opportunity of redeeming him. It is unnecessary that he should expressly 
ask for the sale to be made subject to the prior incumbrance. In the 
nature of things no other sale could be made. We think the decree, on the 
whole, gives full effect to the rights of the parties, inasmuch as it allows 
the first mortgagee who has purchased to redeem, if he wishes to do so. 
On the other hand, the decree makes the sale subject to the rights of 
the first mortgagee. 

The claim for alleged improvements said to have been effected by 
the first mortgagee since his purchase cannot, we think, be allowed. In 
this respect he is in no better position than the mortgagor himself who 
may choose to spend money on his property. We cannot accede to the 
view that the improvements were made by the purchaser in the character 
of mortgagee, for in that [124] capacity he is not shown to have been 
entitled to possession. The decree must be varied in that respect. 

We can see no reason why the plaintiff should not be entitled to the 
interest payable under his mortgage. Interest at the contract rate must 



YH.] 



KRISHNA PATTER V. SRINIVASA PATTER 20 Mad. 125 



be allowed up to dtUe of decree of the Subordinate Judge and from that 1896 

date at 6 per cent. The decree must also be amended by directing that MARCH -26. 

any surplus after paying both mortgages be paid to the defendants 3 to 6. ~ 

The memorandum of objections is disallowed with costs. APPEL- 

Respondents must pay appellant's costs of appeal. LATE 

CIVIL. 



20 M. 121. 
APPELLATE CIVIL. 

Before Mr. Justice Subramania Ayyar and Mr. Justice Boddam. 



KRISHNA PATTER (Petitioner), Appellant v. SRINIVASA 
PATTER (Counter-petitioner), Respondent.* 
[30th October and llth November, 1896J 

Mortgage Malabar Kanom Redemption Improvements Depreciation of, between 
decree and date of redemption, 

A decree for the redemption of a kanom in Malabar was passed in December 
1894 when there were on the land improvements in the form of trees. &c., to the 
value of Rs. 1,429. Within the six months limited by the decree for redemption 
the mortgagor applied for execution, and it appeared that the value of improve- 
ments had diminished by the loss of trees to the value of Rs. 157. The loss was 
the result of want of water and was not attributable to neglect on the part of 
the mortgagee. 

Held, that the loss should fall on the mortgagee. 

[R., 24 M. 47 (F.B).] 

APPEAL against the order of the District Judge of South Mala- 
bar, in civil miscellaneous appeal No. 49 of 1895, reversing the order of 
A. Annasami Ayyar, District Munsif of Themmalapuram, in execution peti- 
tion No. 211 of 1895. 

This was an application in execution of a redemption decree. At the 
time of the decree on the 4bh December 1894, improvements to the value 
of Rs. 1,429-11-3 were found payable to the mortgagee by the mortgagor, 
who was allowed six months witbin which to [125] redeem after paying 
for the improvements and the mortgage amount. The mortgagor applied 
for execution on 3rd April 1895 and stated that mortgagee had done damage 
to the improvements since the date of decree. It was found that trees to 
the value of Rs. 157-14-3 had withered since the date of decree owing to 
want of water. Theie was no proof that the mortgagee was responsible 
for the loss, and it was found by the Courts to have been caused by vis 
major. The question then was, as stated by the District Judge, who was 
to bear the loss, the mortgagee, as being still in possession because the 
mortgage money and compensation for improvements had not been paid or 
the mortgagor who had the right to possession under hia decree for re- 
demption but delayed to redeem. 

The District Munsif held that the loss should fall on the mortgagee. 
The District Judge was of the contrary ooinion and ordered that the mort- 
gagor should pay the sum of Rs. 157-14-3. 

The mortgagor preferred this appeal. 

Sundara Ayyat, for appellant. 

Ryru Nambiar, for respondent. 

* Appeal against Appellate Order, No. 5 of 1896. 

87 



20 M. 120. 



20 Mad. 126 



INDIAN DECISIONS, NEW SERIES 



[Yol. 



1896 

NOV. 11. 

APPEL- 
LATE 
CIVIL. 

20 H. 124. 



JUDGMENT. 

On the 4th December 1894 a decree was passed in favour of the 
appellant enabling him to redeem certain lands mortgaged to the respond- 
ent by way of kanom. At the time of the decree improvements to the 
value of Rs. 1,429-11-3 were on the land. But when, on the 3rd of 
April 1895, i.e., within the six months' time allowed by the decree for the 
redemption, the appellant applied for execution, it appeared that of the 
improvements which had existed at the date of the decree, trees to the 
value of Rs. 157-14-3 had withered owing to want of water. 

The question is whether the appellant is bound to pay to the respondent 
the said sum of Rs. 157-14-3. It does not appear that the kanom instru- 
ments, on which the decree was obtained, contained any agreement as to 
compensation for improvements. The claim for it rests therefore upon 
the local custom, and the covenant implied according to that custom is 
to pay for all' unexhausted improvements' (Wigram's Malabar Law and 
Custom, page 137). In other words, the basis on which the liability in 
question stands is, of course, that the mortgagor would, when he redeems, 
enjoy the benefit of the improvements effected by the mortgagee. Conse- 
que'ntly, when no such advantage accrued to the former, he cannot, on 
principle, be called upon to pay. 

[126] Now, can the fact that a valuation of the improvements has 
been made and embodied in a decree alter the case ? It is difficult to see 
how it can. According to the course of decisions here, it is established 
that, notwithstanding the passing of a decree for redemption, the relation 
of mortgagor and mortgagee fully subsists, if the decree be not executed 
and therefore the right to redeem can be again asserted and enforced, pro- 
vided it had not been lost by lapse of time or otherwise. Suppose a 
mortgagor, having obtained a decree for redemption, does not execute it, but 
allows the property to remain in the hands of the mortgagee for a consider- 
able time and the latter during that period makes more improvements. 
Surely his right to the value of those cannot be denied, whether the ques- 
tion arises in execution proceedings or in a separate suit ; nay, according 
to Ramunni v. Shanku (1) even in respect of improvements referred 
to in a decree which the mortgagor does execute, the mortgagee can, in 
such execution proceedings, claim a re-valuation if he can show that, since 
the passing of the decree, the value of the improvements has increased. 
How then can the mortgagor, with any justice, be held to be disentitled 
to obtain a reduction of the amount mentioned in the decree if he can 
prove that any part of the improvements assessed therein, has since 
ceased to exist ? That the final adjustment of the amount of compensa- 
tion must be made with reference to the stafc ~f things at the time of the 
actual redemption, is also shown by the practice followed by the Courts 
prior to July 1880 according to which the question used to be reserved for 
execution. The present system of holding an enquiry into the matter 
before decree, no doubt originated with this Court's Circular order, dated 
the 14th July 1880 (Weir's Rules of Practice, page 197). But all that the 
circular lays down is that Courts should, before passing a decree, decide 
in respect of what improvements the party in possession is up to the date 
of the decree entitled to compensation ; and the amount of compensation. 
The circular, therefore, does not and cannot affect the right of the mort- 
gagor to ask for a revision of the amount awarded by the decree, if such 
revision is rendered necessary by events that have occurred since the 

(1) 10 M. 367. 
88 



YII.] 



KRISHNA PATTER V. SRINIVASA PATTER 20 Mad. 128 



decree. Accordingly, if, during execution, improvements as ascertained 
and awarded by a decree, be not found on the land or were destroyed 
[127] by the tenant, the Courhs have, in acting under Section 244, Civil 
Procedure Code, been in the habit of ascertaining the amount of the loss 
and deducting it from the sum originally fixed. 

The pleader for the respondent next urged that a loss like that under 
discussion, if it is not due to any act or default of the mortgagee, should 
fall on the mortgagor, as the property in the improvements was, at the 
time of the loss, in him. Thie assumption about the property being in 
the mortgagor even before compensation is paid by him, is not only not 
supported by any authority, but is directly contradicted by the Fifth Report 
where it is stated, " The buildings and plantations are in fact the property 
" of the tenant ; and he can mortgage or sell them, in the same manner, 
" as the jenmkar mortgages or sells his own property in the land." 
(Higginbotham's edition, Vol. II, p. 82). Moreover, if the above con- 
tention were well founded, a person, who mortgages by way of kanom, 
would be liable for every improvement once effected, though it had dis- 
appeared before the decree. But no one has as yet ventured to put for- 
ward such a manifestly unreasonable claim. In support of the above 
contention on behalf of the respondent, it was urged that the holder of a 
kanom is, by the usage of the district, prohibited from cutting, without 
the mortgagor's consent, treea on the land, though they had been 
planted and grown by the mortgagee himself ; and Changaram v. Chiru- 
tha (l) was relied on. Without entering into the question whether the 
actual decision there is sound or not, which we are not called upon to 
consider, we may say that it is quite clear that the case cannot be 
treated as establishing the proposition for which it was cited. For, 
curiously enough, the District Munsif's judgment opened with the obser- 
vation : "It is now admitted that the trees belonged to the first defend- 
" ant having bean planted by him as kanom tenant of the plaintiff," and 
referring to this observation, Bast, .!., pointed out that the District 
Munsif's opinion that the kanom tenant was not entitled to cut the trees 
without the permission of the plaintiff the landlord was open to ques- 
tion. 

In the present case no evidence was adduced as to the alleged custom 
prohibiting a kanom tenant from removing trees which had been planted 
by him. We cannot, therefore, express any opinion as to whether such 
a custom exists or not. But, assuming for [128] argument's sake that 
a usage of the kind does prevail, that does not necessarily prove that the 
property in improvements, not yet paid for, vests in the mortgagor. For 
the alleged usage would be perfectly consistent with the view that in such 
a case the property is in the mortgagee until the payment of compensation ; 
the restriction on his power to remove such improvements as trees beings 
explained as impose:! on grounds of policy, similar to that which underlie 
the provision in Section 63 of the Transfer of Property Act relating to an 
accession, made at the expense of the mortgagee to preserve the property 
from destruction, &c., but which accession is not capable of being separa- 
tely possessed or enjoyed by the mortgagee. Considering that the mort- 
gagor in cases like the present is bound to pay compensation for improve- 
ments even when the contract between the parties is silent on the point, 
the above view as to the relative rights of the parties would seem to be a 



1896 
Nov. 11. 

APPEL- 
LATE 
CIVIL. 

20 M . 124. 



(1) Civil Revision petition No. 445 of 1895 unreported. 

89 
M VII 12 



20 Mad. 129 INDIAN DECISIONS, NEW SERIES [Yol 

1896 more reasonable interpretation of the alleged local usage than that sug- 
Nov. 11. gested on behalf of the respondent. 

The conclusion, therefore, to be arrived at appears clearly to be that 

APPEL- j ne appellant is bound to pay only for such improvements as at the time 

LATE of the redemption, are on the land in a reasonably good condition (com- 

ClVlL. pare Gubbins V. Creed (1), and therefore he is not liable for the amount 

in dispute. To hold otherwise would certainly tend to incline mortgagees 

20 M 124. O ne g| ec t; between the date of the decree and that of its execution, the 

duty of properly looking after the improvements, compensation for which 

has been assessed, and in some cases even to destroy them to the injury 

of the mortgagors. 

The order of the Lower Appellate Court must be reversed and that 
of the District Munsif restored. 

The respondent will pay the appellant's costs in this and in the Lower 
Appellate Court. 



20 M 129 (P.B.) ----7 M.L.J. 102. 
[129] APPELLATE CIVIL FULL BENCH. 

Before Sir Arthur J. H. Collins, Kt., Chief Justice, Mr. Justice 

Shephard, Mr. Justice Subramania Ayyar, and Mr. 

Justice Davies. 



VASUDEVAN AND OTHERS (Plaintiffs), Appellants v. SANKARAN 
AND OTHERS (Defendants Nos. 1 to 14 and 17 and 18), 
Respondents.^ [23rd April 1896 and 27th January, 1897.J 

Malabar law Decree against karnavan- binding on tarwad. 

A decree in a suit in which the karnavan of a Nambudri illom or a Maru- 
makkatayam tarwad is, in his representative capacity, joined as a defendant and 
which he honestly defends is binding OB the other members of the family not 
actually made parties. 

[F., 27 M. 375; 8 Ind. Gas. 435 = 9 M.L.T. Ill ; R., 24 M. 658 ; 29 M. 390 (P.B.) = 16 
M.LJ. 307 = 1 M.L.T. 183 : 17 Ind. Gas. 473 (475) = 23 M.L.J. 706 (709) = 12 
M.L.T. 585 = (1913) M.W.N. 79 (81); 21 T.L.B. 239.] 

SECOND appeal against the decree of R. S. Benson, District Judge 
of South Malabar, in appeal suit No. 343 of 1893, confirming the decree of 
A. N. Anantarama Ayyar, District Munsif of Angadipurm, in original suit 
No. 673 of 1892. 

Suit to recover certain land of which defendant No. 18 was in pos- 
session. The land was formerly the property of a Nambudri illom which 
had become extinct. A conflict as to the right of succession to its pro- 
perty arose between the illom to which the plaintiffs belonged and of which 
defendants Nos. 15 and 16 were respectively, the karnavan and the senior 
anandravan on the one hand, and that of which defendant No. 17 was 
karnavan and defendants Nos. 1 to 14 were members on the other hand. 
In 1876 the karnavan of the plaintiffs' illom sued the karnavan and senior 
annndravan of the rival illom for partition of the properties in dispute, and 
in a subsequent suit of 1878 against the same parties he obtained a decree 
for possession of the land now in question. The junior members of the 

* Second Appeal No. 501 of 1895. 
(1) 2 Sch. & Lef. 225. 

90 



YII.] VASUDEVAN V. SANKARAN 20 Mad. 131 

unsuccessful defendants' illom brought a suit in 1877 against the decree- 1897 
holder and his senior anandravan to recover the land now in question and JAN. 27. 
for a declaration of their right of succession to the property of the extinct 
illom. In that suit the present sixteenth defendant was described as the FULL 
karnavan and manager of the illom, and the present plaintiffs Nos. 1 and 2, BENCH. 
[130] who were then minors, were sued by him as their guardian ad vT~4*Q 
litem. That suit was determined on second appeal in favour of the then ' 

plaintiffs. See Shankaran v. Kesavan (1). The present plaintiffs now 7 ' L j^ ft ,, 
sued to recover the land, alleging that they were not parties to that suit 
and that the decree was not binding on them. 

The District Munsif held that the question was res judicata and dis- 
missed the suit, and his decree was affirmed on appeal by the District 
Judge. 

The plaintiffs preferred this second appeal. 

This second appeal having come on for hearing before Mr. Justice 
Shephard and Mr. Justice Subramania Ayyar, their Lordships made the 
following order of reference to Full Bench : 

ORDER OP REFERENCE TO FULL BENCH. 

Vakils on both sides agreeing to this form of question, we refer it to 
a Full Bench having regard to the importance of the matter and the 
conflict of decisions : Whether the decree, made in a suit in which the kar- 
navan of a Nambudri illom or a Marumakkatayam tarwad is, in his repre- 
sentative capacity, joined as a defendant and which he honestly defends, 
is binding on the other members of the family not actually made parties? 

The case came on for hearing before the Full Bench consisting of 
COLLINS, C.J., SHEFHARD, SUBRAMANIA AYYER and DAVIES, J.T. 

Mr. /. Adam and Sankaran Nayar, for appellants. 
Krishnasami Ayyar, for respondents. 
Sankaran Nayar, for appellants. 

Ittiachan v. Velappan (2) decides that a decree against a karnavan as 
such alone, is not binding on the tarwad see Sri Devi v. Kelu Eradi (3). 
Subramanyan v. Gopala (4). In Varanakot Narayanan Namburi v. Varana- 
kot Narayanan Namburi (5), Kernan, J., upholds the contention that the 
decree is binding. These decisions proceed on a consideration of Civil 
Procedure Code, Section 13, Explanation 5, relating to cases where a pri- 
vate right is claimed for the plaintiff in common with others. The position 
of a karnavau is defined in Kombi v. Lakshmi (6) ; see also [131] Kalliyani 
v. Narayana (7). A karnavan cannot alienate land directly, and be cannot 
do it indirectly by suffering a decree to be passed against him. He is not 
the agent of the family to make alienations. In each case he must have 
actual authority. Supposing a suit is brought by a creditor against a 
karnavan for a debt alleged to be due by a tarwad and a decree is passed 
and tarwad property is attached, it is open to the Judge to go behind the 
decree and see if it is binding on the property. Where the debt is con- 
tracted for the benefit of the tarwad the consent of the anandravans is 
implied Vasudeva v. Narayana (8). In that case the decree was passed 
for land in possession of the karnavan, who alleged that it belonged to 
this tarwad. The tarwad having been dispossessed in execution the junior 

(1) 15 M. 6. (2) 8 M. 484. (3) 10 M. 79. (4) 10 M. 223. 

(5) 2 M. 328. (6) 5 M. 201, (7) 9 M. 266. (9) 6 M- 121 (124). 

91 



20 Mad. 132 INDIAN DECISIONS, NEW SERIES [Yol. 

1897 members were permitted to sue. In Thenju v. Chimmu (1) the karnavan 

JAN. 27. offered to be bound by an oath as to whether or not the decree so obtained 

~ was binding on the tarwad. Kombi v. Lakshmi (2) was the case of a 

FULL defendant. By analogy with the law relating to members of a numerous 

BENCH, partnership, all the members of a tarwad should be served. The question 

TT~oo referred should, on the principles now established, be answered in the 

TP *'.)= ne ati ' 

7 M.L.J. 102. Krishnasami Ayyar, for respondent. 

It is not open to the plaintiffs to re-open the suit. Assuming, of course, 
that the karnavan has been guilty of no fraud, the decree against him 
cannot be impeached. The claim in Ittiachan v. Velappan (3) raised a 
question of the character of the debt, and the plaintiffs sought a declara- 
tion that it was not binding on them the decision in that case was followed 
in Subramanyan v. Gopala (4) and also in Sri Devi v. Kelu Eradi (5) 
where the limitations of the rule are explained. The result of the authorities 
is that where a suit is brought as here against a karnavan in his capacity as 
such the other members are bound by the decree is binding unless fraud is 
proved. Under Hindu Law one member of the family could only impugn 
the decree to the extent of his share. Here one member seeks to set aside 
the decree, not in part but in its entirety. The distinction between cases 
where the karnavan is plaintiff or defendant is pointed out in Vasudeva v. 
Naraayna (6) [132] see also Cockburnv. Thompson (7). Under Civil Pro- 
cedure Code, Section 13, persons who were represented by parties to the 
former action'mav be bound by the decree. A suit on beahlf of a minor 
brought by his guardian is really a suit by a guardian representing the 
minor, but the adjudication is binding as against the minor. Compare 
Jogendro Deb Roy Kut v. Funindro Deb Roy Kut (8) which was a case of 
Hindu law. The present case is stronger one, because the karnavan has 
larger powers than the managing member of a Hindu family, Narayan 
Gop Habbu v. Pandurang Ganu (9), Gansavant Bal Savant v. Narayan 
Dhond Savant(W); seealso Harrison v . Steward/ton (11), IDaniell's Chancery 
Practice, Chapter IV, Seotion 1. Section 13, Explanation 5, is not confined 
to cases under Section 30. See Madhavan v. Keshawm (12), Chandu v. 
Kunhamed(l3), Latchanna v. Saravayya(l). Hukum Chand on Resjudi- 
cata, paragraph 89. Where it is an indivisible right, one party represents 
the others. It is otherwise where the right i<* divisible. Hazir Gazi v. 
Sonamonee Dassee (15). De Hart v. Stevenson (16). If such a decree is not 
final, further suits will be instituted on the chance of the different con- 
clusion being arrived at. Daioan Singh v. Mahip Singh (17). 

Mr. J. Adam in reply. 

Moidin Kutti v. Krishnan (18) re-affirms Ittiachan v. Velappan (3) 
and to disturb the rule there laid down and to revert to what may have 
been the law before, would disturb many rights and give rise to much 
litigation. The possession for which the appellants contend involves no 
hardship, as persons desirous of binding a tarwad can always adopt the 
procedure provided by Section 30, see Komappan Nambiar v. Ukkaran 
Nambiar (19). 

(1) 7 M 413. (9) 5 M. 201. (3) 8 M. 484. (4) 10 M. 223. 

) 10 M. 79. (6) 6 M. 121 (124). (7) 16 Ves. 321. (5) 14 M.I.A. 367. 

(9) 5 B. 685. (10) 7 B. 467. (11) 2 Hare 530 (12) 11 M. 191. 

(13) 14 M. 324. (14) 18 M. 164. (15) 6 C. 31. '161 1 Q.B.D. 313. 

(17) 10 A. 425 (441). (18) 10 M. 322. (19) 17 M. 214. 

92 



YII.] VASUDEVAN v. SANKARAN 20 Mad. 134 

JUDGMENT OF THE FULL BENCH. 1897 

COLLINS, C.J. The question referred to the Full Bench is, whether JAN> 27< 
the decree, made in a suit in which the karnavan of a Nambudri illom FULL 
or a Marumakkatayam tarwad is, in his representative capacity, BENCH 

joined as a defendant and which he honestly defends, is binding on 

the other members of the family not actually made parties. I take 20 M. 129 
it that the word 'honestly' means that the karnavan acted in good (F.B.)=> 
faith and in what he believed to [133] be the interest of the carwad. The? M.L.J. 102 
karnavan of a Malabar tarwad is, except under certain circumstances, 
the eldest male member of the tarwad ; in him is vested actually all the 
property moveable and immoveable belonging to the tarwad ; he manages 
the property of the tarwad and can invest the money of the tarwad 
either on loans or other security as he may think fit. He can also grant 
the land on kanom or on otti mortgage. No member of the tarwad can 
call for an account of the income, nor can a suit be maintained against 
him for an account of the tarwad property in the absence of fraud on his 
part. He can sue in his owniname for the purpose of recovering or protect- 
ing the property of the tarwad, and none of his acts in relation to the 
above matters can be questioned, provided he has acted in good faith. He 
is restrained, it is true, from alienating the lands of the tarwad in his capa- 
city as manager except in certain instances, e.g., when a decree is in 
course of execution against bhe tarwad property and against the karnavan, 
and he alienates such property in good faith there being no other means 
available, and in the case where it is absolutely necessary to do so to pay 
arrears of revenue. The karnavan is not a mere trustee of the property of 
the tarwad ; he is the natural guardian of every member within the family, 
and it was well said by Mr. Holloway in appeal suit No. 120 of 1862 
(Malabar) " a Malabar family speaks through its head the karnavan, and 
" in Courts of Justice except in antagonism to that head can speak in no 
" other way." It appears that, during the time Holloway, J., was in the 
High Court, the proposition that the members of the tarwad were bound 
by the acts of the karnavan in cases in which he sued or was sued in his 
representative capacity was never seriously disputed, and the cases cited 
at the bar do not appear to me to overrule the proposition. I would 
adopt the view ol the powers of the karnavan as laid down in Varanakot 
Narayanan Namburi v. Varanakot Namyartan Namburi (1), and there are 
many cases quoted by Mr. Wigram in his work on Malabar Law and 
Custom which support the proposition. 

I would hold, therefore, that when a karnavan sues or is sued in his 
representative capacity and acts, in the terms of the order of reference, 
' honestly,' the other members of the tarwad are bound [134] by the 
decision. I answer, therefore, the order of reference to the Full Bench in 
the affirmative. 

The sections of the Code of Civil Procedure cited in argument do not 
affect the matter one way or the other. 

SHEPHAED, J, The question raised by the reference is one of consi- 
derable importance. Since 1880, it has constantly been discussed in this 
Court. Different views have been propounded, and it would not be easy 
to reconcile all the decisions. I propose first to examine these decisions 
and afterwards to consider the question from other aspects, and also with 
reference to the arguments which are urged against the admission of the 

(1) 2 M. 328. 
93 



20 Mad. 135 INDIAN DECISIONS, NEW SEEIES [Yol. 

1897 principle that a karnavan can properly represent his tarwad in suits pro- 

JAN. 27. fessedly brought by. or against, the tarwad. 

In Varanakot Narayanan Namburi v. Varanakot Narayanan Nam- 

FULL buri (l), the senior member of an illom had been sued as such for the re- 

BENCH. covery of land alleged by him to belong to the illom. A decree having been 
~~~ passed against him, a junior member of the illom, alleging fraud, sued for 

(V R\ - a Declaration with regard to tbe same land as against the plaintiff in the 
7 fif' T 02 first suit. It was held that the junior was properly represented by his 
1 'senior in the first suit, and that therefore having failed to prove fraud, he 

could not succeed in the second suit. In Kombi v. Lakshmi (2) a decree 
for money had been obtained against the karnavan and a suit was brought 
by the anandravan to set aside the sale in execution of tbe decree. It 
does not seem to have been proved that the karnavan was sued or sought 
to be made liable otherwise than in his personal capacity. The Court 
distinguished the case of a debt from the case of land such as was under 
consideration in Varanakot Narayanan Namburi v. Varanakot Narayanan 
Namburi (1). It held that the junior members were entitled to a 
decree on the creditor failing to prove that the debt was properly 
incurred for the purposes of the tarwad. It was in effect said that if the 
creditor intended to make the tarwad liable he ought to have made them 
parties or applied under Section 30 of the Code. 

In Vasudeva v. Narayana (3) Mr. Justice Innes who was a party to 
the last decision, expresses the same view again. That was a case in which 
a member of an illom, apparently the eldest, was [135] defeated in a suit 
brought against him for redemption of certain land. In the second suit 
brought by his brother to recover the same land, it was held by Innes, J., 
that, although no fraud was alleged the brother was not bound by the 
former decree. Mr. Justice Kernan, who had taken part in the judgment 
in Varanakot Narayanan Namburi v. Varanakot Narayanan Namburi (1), 
considered that it was unnecessary to decide the question whether the 
case of a Malabar tarwad was an exception from the ordinary rule that 
all persons sought to be affected by a suit should be made parties to it. 
The learned Judges agreed that the case was distinguishable from that in 
Varanakot Narayanan Namburi v. Varanakot Narayanan Namburi(l). With 
all deference, I must say that, assuming that the elder brother in Vasu- 
deva v. Narayana(3) was sued in his representative capacity, I can see no 
material distinction between the two cases. The circumstance that, in the 
earlier case, the plaintiff alleged fraud and left it to be assumed that other- 
wise he was bound by the decree is suggestive as indicating the opinion en- 
tertained by him and his advisers as to the position of the head of a Mala- 
bar family. But I do not understand why, because he failed to prove the 
alleged fraud, he should not have had relief on the simple ground that he 
was not duly represented in the former suit, if that ground was considered 
tenable. It appears to me that the judgment in Varanakot Narayanan 
Namburi v. Varanakot Narayanan Namburi (1) was clearly intended to 
show that that ground was not tenable. In Thenj'u v. Chimniu, (4) the 
two extreme views are stated : First, "a judgment is only binding inter 
paries and the judgment against the karnavan is in no case binding on the 
anandravans" ; Second, " a karnavan is the head and representative of the 
family, and the judgment against him binds the anandravana unless he 
was guilty of fraud or collusion." It was not necessary in that case to 
attempt a reconcilement of the decisions. 

(1) 3 M. 828. (2) 5 M. 201. (3) 6 M. 121. (4) 7 M. 413. 



YIL] VASUDBVAN V. SANKAEAN 20 Mad. 137 

In Haji v. Atharaman (1) it apears to have been assumed that a 1897 
decree against the karnavan for a debt alleged to be the tarwad debt was JAN. 27. 
binding on the tarwad. There was no actual decision. In Ittiachan v. 
Velappan (2) the question came before a Full Bench with reference to lULL 
decrees for debt. The question stated in the [136] judgment was as BENCH. 
follows : " Under what circumstances a decree passed against a karnavan M~~<OQ 
of a Malabar tarwad will be binding on the other members of the tarwad ' 

who may not have been made parties to the suit, so that a sale in 71 L r ', n 
execution will convey the rights of the tarwad in the property sold in ' ' ' ' 
execution to a purchaser ?" As might have been expected no definite 
answer was given to this question. The general effect of the observa- 
tions made in the first part of the judgment seems to be that, in the 
opinion of the Court, the admitted practice of treating the karnavan 
as a sufficient representative of the tarwad was not strictly regular, 
but that notwithstanding it must be tolerated within certain bounds. In 
dealing with the particular cases under reference, the Court treated 
the circumstance that the karnavan had or had not been sued in 
his representative character as the cardinal point on which to decide 
whether or not the tarwad was bound by the decree. The next case Sri 
Devi v. Kelu Eradi (3) is of importance because, in deciding it, the Court 
considered the Full Bench decision and acted upon their view of it. At 
the same time it must be said that, having regard to the facts found by the 
District Judge, the observations made on the general question of the force 
of decrees against a karnavan were not strictly necessary. The District 
Judge on appeal held that the karnavan had, in the first suit in which he 
was impleaded as defendant, fraudulently admitted the plaintiff's title. 
But the Court decided the case on the ground that apart from fraud the 
anandravans were entitled, notwithstanding the decree, to have the 
question of title examined and to show that the decree was erroneous in 
point of fact. They considered that they were precluded by the Full 
Bench decision from holding that the anandravans were bound by the 
decree against their karnavan unless they proved mala fides on his part. 

The next case Subramanyan v. Gopala (4) was heard by a Court com- 
posed of the same Judges as those who took part in the last cited case. 
This case differs from the former cases in the circumstance that the man- 
ager of the family had figured as plaintiff in the former suit. It was found 
that she had sued not on her own account, but on behalf of the tarwad and 
that she had contested the suit honestly and with due diligence. On this 
finding returned in answer to questions sent down by the Court on the 
[137] first hearing of the second appeal, the Court dismissed the suit 
brought by the junior members of the tarwad, founding their judgment 
on the fact that the manager had been the plaintiff in the first suit and 
thus distinguishing the case from Sri Devi v. Kelu Eradi (3). 

Some other cases were cited, but they have no immediate bearing on 
the point now under discussion. Oae negative proposition is clearly es- 
tablished by the cases to which I have referred a decree made against a 
karnavan is clearly not binding on the larwad, unless he sued or was 
sued in his representative character. It is also difficult to avoid the ad- 
mission that the cases justify this further proposition that, in some cases, 
!a decree against the karnavan may be binding on the tarwad and unim- 
peachable save on the ground of fraud. This limited proposition is 
admitted in Subramanyan v. Gopala (4). The distinction there insisted 



(1) 7 M. 512, (2) S M. 484. (3) 10 M. 79, (4) 10 M, 223. 

95 



20 Mad. 138 INDIAN DECISIONS, NEW SERIES [Vol. 

1897 upon I fail to understand or appreciate. If the tarwad may be adequately 
JAN. 27. represented by their karnavan in litigation promoted by him, I cannot see 
why this may not equally be represented by him in proceedings which are 
FULL directed against the tarwad. The distinction between the case of the kar- 
BENCH. navan sued for debt and the karnavan sued for property is also, I think, 
one which cannot be maintained. It is suggested in the case in Kombi v. 
Lakshmi (1), but since then does not seem to have been insisted uoon. I 
( B.)- concede that distinctions founded on the nature of the right or the way in 
7 H.L.J. 102. w hj c h ^ com es to be litigated may be material in considering whether the 
karnavan really did represent the tarwad and honestly represent it ; but 
otherwise I fail to see how they can be material. There are, it appears to 
me, only two alternatives. We must either hold that the status of the 
karnavan has nothing in it to make a decree against him binding on the 
tarwad, or that, in all cases in which he is sued or sues in his represen- 
tative character, the tarwad is bound, cases of fraud or collusion only being 
excepted. Having regard to the authorities already cited. I do not think 
we are precluded from affirming this latter proposition. The former 
proposition it would not be easy to reconcile with the Full Bench decision, 
which alone is binding on us. 

[138] I will now consider the question apart from the recent cases 
and with reference to the position of karnavan as understood in Malabar. 
I believe there can be no doubt that, prior to 1880, the theory that the 
tarwad was fully represented by the karnavan was universally admitted 
(see Varanakot Narayanan Nambitfi v. Varanakot Narayanan Namburifty, 
Kombi v. Lakshmi (1), Wigram's Malabar Law). It is noteworthy that, 
as long as Mr. Justice Holloway, who was intimately acquainted with Ma- 
labar Law, was in this Court, the theory does not seem to have been 
questioned. In the Travancore State, I find from a recent judgment of 
the Court there that it is maintained to the present day (Narayanav. 
Narayana (3j). It is unnecessary to repeat at length what has been said 
in several cases as to the rights and duties of the karnavan. He is the 
manager of the tarwad property ; he is entitled to possession of it even against 
anandravans ; he is authorised, subject to certain limitations, to alienate 
the family property and to pledge the credit of the family. He 
cannot be removed from office at the instance of the junior members 
arid dispossessed of tbe family property except on proof of gross malad- 
ministration. Apart from this, the junior members have no other claim 
against him except for maintenance. No claim for division of the property 
is admissible (Eravanni Eevivarman v. Ittapu Revivarman (4), Varanakot 
Narayanan Numburi v. Varanakot Narayanan Niimburi (2) ; Tod v. 
Kunhamod Hajee (5j, Kannan v. Tenju (6). If the karnavan being so placed 
with regard to the tarwad, was, for many years prior to 1880, universally 
regarded as the person through whom tbe tarwad should speak in Courts 
of law and was so treated by the Courts, the remaining question is whether 
the Code of Civil Procedure forbids u^ to continue to treat him in the 
same way. This is a question which ought to be argued without refer- 
ence to considerations of convenience or expediency, which, however, 
in my opinion, favour the maintenance of the old practice rather than 
its abolition. The argument used in several of the cases seems to 
have been that, because the Civil Procedure Code does not provide for 
the case of karnavans as it does, for instance, for the case of executors, 

(1) 5 M. 201. (2) a M. 328. (8) 11 Travanoore L.E. 112. 

(i) 1 M. 153. (51 3 M. 176. (6) 5 M. 1. 

96 



YII.] VASUDEVAN t>. 8ANKABAN 20 Mad. 140 

and does contemplate the joinder of all parties interested in the sub- 1897 
[139] ject matter of the suit, the anandravans of a tarwad cannot be JAN. 27. 
affected by a decree to which they are not parties either actually or 
constructively under the provisions of Section 30. The general proposition FULL 
that all persons intended to be prejudicially affected by a decree ought to BENCH. 
be joined as parties to the suit cannot be denied ; but there are exceptions vT~4a 
from this rule, and the question whether one person represents another is ^ ' _ 
rather a question of substantive law than of procedure. One of the * ' ~__ 
classes of exception consists of the cases of vfhioh Bissessur Lall Sahoo^ ' 
v. Maharajah Luchmessur Singh (1) is an instance. Another consists of 
the cases in which the principle is admitted that the female heiress under 
Hindu Law represents the estate in such a manner that a decree against 
her in a suit properly framed may bind the reversioner. These exceptions 
have been allowed and maintained, notwithstanding the provisions of the 
Civil Procedure Code. The Section of the Code to which we are specially 
referred are the 30th and the 13th, Explanation V. The 30th Section is of 
a permissive character. So far as concerns the principle involved there 
was nothing new in the provision. It had been acted on before the Code 
of 1877 came into force (Srikhanti Narayanappa v. Indupuram Ramaling- 
am (2)). If it were shown to have been invoked, in the case of the karna- 
van and his tarwad, it might be said that a decree against a karnavan 
could, since the enactment of the Code, be no longer held binding on 
the tarwad, unless the procedure prescribed by the section were followed. 
But this is not so, and I do not think it can properly be said that a karnavan 
and his anandravans have ' the same interest ' in a suit brought by, or 
against, the tarwad. The interest of the former, with his right of mana- 
gement and possession and his obligation to maintain the junior members, 
is surely not identical with the interest of a junior member, who has a 
claim for maintenance only. The whole contention in favour of the view 
that the karnavan represents the tarwad rests on the fact that he is in a 
position of authority having obligations and duties to perform, for discharge 
of which superior rights in the tarwad property are conferred upon him. 
With regard to Section 13, Explanation V, if it has any application to 
the case of a Malabar tarwad, it rather supports the view that the tarwad 
may be bound by a decree against the karnavan bona fide [140] litigating 
on its behalf. I am disposed to agree with Kernan, J., in thinking that 
the explanation refers alike to claims made by a defendant and claims by 
a plaintiff. The conclusion at which I arrive is that the Code of Civil 
Procedure does not prevent our giving effect to the theory of the karnavan's 
representative character. I cannot help thinking that learned Judges 
have been induced to discountenance the theory on the ground that the 
interests of the tarwads require that all their members should be joined 
in suits concerning their property or obligations. It was observed in 
some of the cases that to allow the karnavan to represent the tarwad in 
suits would practically amount to allowing him to alienate tarwad pro- 
perty indiscriminately. No doubt, the remedy by suit impeaching the 
decree against their karnavan on the ground of his fraud or collusion, 
would not afford the anandravans a complete indemnity against the possible 
misconduct of the karnavan. But the inconvenience resulting is, I think, 
more than counterbalanced by the evil consequences, which have resulted 
from the departure from the old practice. The result has been that, 
although a man may have obtained a decree for a debt or for property 

(1) 6 I. A. 233. (2) 3 M.H.C.R. 226. 

97 
M VII 13 



20 Mad. 141 INDIAN DECISIONS, NEW SERIES [Yoi. 

1897 against the karnavan and some of his anandravans, he has been exposed 

JAN. 27. to successive suits by the remaining members of the tarwad. It is always 

open to some unconsidered infant to re-open the litigation and insist on 

FULL having the whole question re-tried. The rule of impartiality, which pre- 

BENCH. vails according to Malabar Law, renders the consequences of an omission 

II~~ to join all the members of the tarwad, if they are to be deemed necessary 

' parties, much more serious than it is in a similar case under the ordinary 

7 v i i ~i02 Hindu Law. Whereas, according to the latter, the creditor or the purchaser 

' might, at least, retain, under his decree against the manager, the share of 

that manager in the family property, in Malabar he is deprived even of 

that consolation when the Court holds that a junior member of the tarwad 

may re-open a litigation which has been fairly conducted by his karnavan 

and is persuaded to upset the former decree. In such a system it is not 

astonishing that a rule making the karnavan the exclusive representative 

of the tarwad should find a place. 

For these reasons I am of opinion that the question must be answered 
in the affirmative 

SUBBAMANIA AlYAR, J. I have also arrived at the same conclusion, 
and, in my opinion, that is the conclusion to which the [141] principle 
governing the case leads, there being nothing in the Code of Civil Proce- 
dure to preclude effect being given to that principle. 

The question here really turns upon the peculiar characteristics of 
a Malabar family and the unique position which its karnavan holds. 
The family property is not liable to partition, except with the consent 
of all ; the right of the members other than the karnavan being practically 
limited to claim maintenance and to prevent the karnavan from wasting 
or improperly alienating the family property ; and the title to hold 
possession of the estate and to receive and expend its income is vested in 
the karnavan, not by the sufferance of the other members, but of right, 
which is indefeasible so long as he exercises his functions without injury 
to the family. Therefore according to the substantive law to which he 
is subject, a karnavan is necessarily the natural representative of the 
family in all matters concerning it as between it on the one hand and 
outsiders on the other. 

The question is whether in litigation also, when it concerns the 
family, a karnavan is not entitled to represent all the other members so as 
to bring cases like the present within the exception to the general rule 
requiring all parsons materially interested in the subject of a suit to be 
made parties to it, viz., even those not actually before the Court are bound 
by the judgment given in a suit, if their interest was sufficiently repre- 
sented therein. Now it is conceded that, when a karnavan sues on 
behalf of the family, he fully represents all its other members and an 
adjudication therein, if there is no fraud or collusion, is binding on the 
whole family (Subramanayan v. Gopala (1)); It is obvious that in such 
cases it is not possible to maintain any other view. For the entire execu- 
tive authority baing exclusively vested in the karnavan, it is not open to 
the party sued by him to raise any objection to the action on the ground 
of the non-joinder of the other members, Byathamma v. Avulla (2). A 
defendant in that position cannot, in common fairness, be allowed to be 
sued again and again by each and every member of the family after a suit 
instituted by a karnavan had bean properly tried and adjudicated upon. 
By parity of reasoning, then, it follows that a kirnivan cam be sued on 

(1) 10 M, 223, (2) 15 M. 19. 



11.] VASUDEVAN V. SANKARAN 20 Mad. 143 

behalf of the family. It is difficult to see how this conclusion can be 1897 
a/voided, [142] unless the argument of the defendant based on the provi- JAN. 27 
sions of the Civil Procedure Code were correct. 

The argument seems to be that, only when the special procedure FULL 
prescribed by Section 30 has been adopted, the members of a family not BENCH 

actually parties to the suit are bound by the decision pronounced in it, 

but not otherwise. Now, it must be remembered that Section 30 provides 20 M ' ^ 
only for that class of cases in which, owing to the circumstance that the 
persons interested are too numerous to be all conveniently brought before the *"" 
Court, and therefore the rigorous application of the general rule as to 
parties would work injustice, the rule has, as pointed out by the Lord 
Chancellor in Mczley v. Alston (1) see also Richardson v. Hastings (2), 
'been relaxed in comparatively modern times. It has also to be remem- 
bered that the representative under that section is constituted and 
appointed by the Court in the suit. Bud there are instances where, even 
though the difficulty with reference to the application of the general 
rule has nothing to do with the fact that the persons interested are 
numerous, yet the law does allow, apart from statute, certain persons to 
prosecute or defend suits in their representative capacity, e. g., Hindu 
widows with reference to reversioners ; other persons having an estate, anal- 
ogous to that of a Hindu widow with reference to those entitled to take after 
such qualified owners, and so on. In the cases last mentioned the 
limited owners possess the representative capacity to sue or defend by 
virtue of their position. This, as already shown, is eminently true in the 
case of a karnavan. Consequently he does not require the aid of Section 
30 to be a representative, but has the inherent right to act as such, 
provided, of course, there is in the particular case no conflict between his 
own interest and that of the family. 

Nor does Section 13, the only other provision relied upon, affect the 
validity of the conclusion arrived at. If the present case falls within 
Explanation V, that explanation fully sustains the view taken, since, with 
all deference to the opinion of Innes, J., in Vasudeva v. Narayana (3), I 
think the explanation is certainly applicable to claims by a defendant as 
well as to those by a plaintiff. But if that explanation does not apply, 
the case is one not strictly covered by any other part of the section. And, 
[143] as the section is not exhaustive as to res judicata, I think it does 
not affect the correctness of the view taken here. Therefore, unless 
there is shown in the words of Jessel, M. R., "fraud or collusion or 
" anything of that sort or that the Court was cheated into believing that 
"" the case was fairly fought or fairly represented when in point of faat 
*' it was not" (Commissioners of Sewers of the City <jf London v. Gellatly 
(4)), a decision in a suit, defended by a karnavan in his representative 
capacity, must be held to be binding upon all those represented by him. 

The rule governing the present case being thus clear, arguments 
against it founded on expediency have no force. If it be said that to re- 
cognise the right of a karnavan to represent his juniors in litigation 
would prove detrimental to the welfare of Malabar families, it must be 
admitted it would be equally so in cases in which a karnavan sues as 
when he defends. Yet, in the former case, the objection has not been 
considered good enough to hold that junior members are not bound by a 
decision obtained in the suit by the karnavan. How then can the argument 

(1) 1 Phillips' Reports, 798, 799. (2) L.J. 13 Oh. 142. 

(3) 6 M. 121. (4) L. R. 3 Ch. D. 616* 

99 



20 Mad, 144 INDIAN DECISIONS, NEW SERIES [Yol 

1807 prevail in the latter case? No doubt, in particular instances, ib is 
JAN. 27. possible and not improbable that junior members might find themselves 
unable to establish fraud, collusion or the like on the part of thekarnavan. 
FULL But i have no doubt that the hardship, likely to be so caused, will be 
BENCH, small indeed when compared with that which would result from answer- 
er".-,, ing the question before us in the negative ; since experience shows that, 
2 ?,~| f in the large majority of cases.the attempts made to re-open litigation once 
(F.B.)- concluded after real and genuine contest are made by the same parties, 
7 M.L.J. . j.^ e name o f p er8ona (possibly of those who had been fully cognizant of 
and who had acquiesced in the karnavan's management of the previous 
litigation) who unfortunately, for the successful party, had not been ac- 
tually impleaded, being used for the promotion of such subsequent suits. 
No doubt representative litigation of the kind under notice is attended 
with some degree of difficulty. The difficulty however may, to some ex- 
tent, be met by a judicious exercise of the discretion vested in the Courts 
in the matter of adding parties. But the difficulty cannot afford any justi- 
fication for discarding the principle applicable to such cases. A departure 
from it, in some of the decisions of thisGourtwhich have been fully considered 
[144] by my learned colleague Shephard, J., and which I therefore refrain 
from discussing, has, T am afraid, tended to foster unjust and vexatious 
litigation which can, I think, be stopped to a considerable degree by again 
enforcing the principle accepted and uniformly acted upon up to 1880. 

I concur therefore in answering the question referred in the affirma- 
tive. 

DAVIES, J. I was at first disposed to adopt the view that all mem- 
bers of the tarwad ought to be impleaded either individually when few in 
number, or under the provisions of Section 30 of the Code of Civil Proce- 
dure when numerous, for the simple reason that this course would have 
the effect of preventing any further litigation in connexion with the same- 
subject matter. 

But now having regard to the representative character which the kar- 
navan undoubtedly holds in all other affairs connected with the tarwad, it 
seems to me that if we overlooked that character in our Courts of law we 
should be unjustly derogating from his status. 

Moreover, the only litigation that would be possible upon the judicial 
recognition of his representative character would be confined to actions 
founded in fraud on his part. The inconvenience caused thereby would, 
in my opinion, be far less than what would follow from an inflexible rule 
requiring that in every case in which a tarwad was concerned all its 
members should be made parties, entailing in nine cases out of ten need- 
less trouble and expense. 

I therefore also concur in answering the question in the affirmative. 

This second appeal coming on for final disposal, the Court (SHEPHARD 
and SUBRAMANIA AYYAR, JJ.) delivered the following. 

JUDGMENT (FINAL). 

It is said on the appellants' behalf that there was a prior judgment; 
in their favour, of which they might have availed themselves if they had 
known that the view of the law now taken would be maintained. Bub 
this prior judgment was not pleaded, though it was open to the appellants 
to put it forward. 

On the facts as found by the District Judge, we must hold that he- 
was right in dismissing the suit, and therefore the appeal is dismissed, bub 
without costs. 

100 



YIL] KUMAEASAMI PILLAI V. ORR 20 Mad. 146 

20 M. 143. 1896 

[145] APPELLATE CIVIL. N ?Il 8 ' 

Before Mr. Justice Subramania Ayyar and Mr. Justice Boddam. APPEL- 



LATE 

KUMARASAMI PILLAI (Defendant), Appellant v. ORR AND ANOTHER CIVIL. 
(Plaintiffs), Respondents* [3rd November, 1896.] . ^7~^ g 

Karnams in a permanently settled estate Regulation XXV 0/1802, Sections 8,11 Reg- 
ulation XXIX of 1802, Section 5 Right to dismiss a karnam Delegation of such 
right to lessees of Zamindari Damages accrued by a karnam's neglect of a statutory 
duty, 

The Ipssees of a zamindari ate not entitled to sue for the removal of a karnam 
from office, though their lease contains a provision purporting to authorise 
them to appoint and remove karnams, but if they suSer any loss from the karn- 
am's neglect of his statutory duty, they are entitled to bring an action for 
damages against him. 

APPEAL against the order of W. Dumergue, District Judge of Madura 
in Appeal Suit No. 594 of 1895, setting aside the decree of C. Gopalao Nayar 
Subordinate Judge of Madura (East) in Original Suit No. 22 of 1895 and 
remanding that suit for disposal on the merits. 

The plaintiffs held from the Zamindar of Sivaganga a lease of his 
estate which, inter alia, authorised them to '' proceed in their own names 
to exercise all the powers which would be exercised by the zamindar, in- 
cluding the appointment and removal of village karnams and other 
servants for the management and improvement of the said zamindari." 
The plaintiffs alleged that they had suffered loss by reason of the omis- 
sion of the defendant, who was the karnam of a village in the zamindari, 
to render due accounts and to perform certain other duties, and they sued 
to have him removed from office and for damages. 

The District Munsif held that the suit was not maintainable for the 
reason that the plaintiffs were not the proprietors of the zamindari and 
had not been registered as transferees uuder Kegulation XXV of 1802, 
Section 8. He referred to Cherukomenv. Ismala (1), Rajah Vurmah Valia 
v. Ravi Vurmah Kunhi Kutty (2) [146] Valamarama v. Virappa (3), 
Ramachandrav. Appayya (4), Subramanya v. Somasundara (5), and 
Ayyappav. Venkatakrishnamarazu (6). 

The District Judge held that the suit was maintainable and set aside 
the decree and remanded it to be disposed of on the merits. He distingui- 
shed the cases cited by the Subordinate Judge and supported his view by 
a reference to Syed Ali Saibv. Zamindar of Salur (7), and Vizianagaram 
Maharaja v. Suryanarayana (8). 

The defendant preferred this appeal. 

Mr. R. F. Grant, for appellant. 

Mr. Norton and Mr. Ryan, for respondent. 

JUDGMENT. 

If the plaintiffs have, in fact, suffered any damage from a neglect of 
a, duty imposed by statute on the karnam, they are entitled to bring a 
suit to recover such damage. 

* Appeal against Order, No. 57 of 1896. 

(1) 6 M.H.C.R. 145. (2) 1 M. 235. (3) 5 M. 145. 

(4) 7 M. 128. (5) 15 M. 127. (6) 15 M. 484. 

(7) 3 M.H.C.R. 5. (8) 9 M. 307. 

101 



20 Mad. 147 INDIAN DECISIONS, NEW SERIES [Vol. 

1896 Section 11 of Regulation XXV of 1802 does not restrict or take away 

Nov. 3. this right. As regards that portion of the plaintiffs' action, which relates 

to their claim to remove the karnam from his office, the first question is 

APPEL- w hether the plaintiffs in their right as lessees (independently of the clause- 

LATE in their lease purporting to transfer to them the right to bring such a 

CIVIL, suit) can maintain that portion of their claim. Section 11 clearly gives 

this power to the zamindar or proprietor and to no one else. Inasmuch, 

20 M. 145. therefore, as the plaintiffs' assignment does not make them proprietors or 
zamindars within the meaning of the Eegulation, they cannot sue. 

Section 5 of Regulation XXIX of 1802 cannot be read as conferring 
a general right to bring such an action on any person interested, but must 
be read in conjunction with Section 11 of Regulation XXV already refer- 
red to. 

The next point raised by plaintiffs' counsel was that the zamindar 
had, by a special provision in the plaintiffs' lease, assigned to the plain- 
tiffs the right to bring a suit to remove karnams and therefore the 
plaintiffs were entitled to maintain this part of their claim. 

Having regard to the nature of the power in question, we think it 
was not one which could be transferred. Delegata potest as non potest 
delegari. 

[147] We therefore think that plaintiffs cannot maintain so much 
of their action as relates to the removal of the defendant from his office. 
The order of the District Judge remanding the suit for trial, so far as the 
plaintiffs' right to claim for damages is concerned, is right. It must, 
however, be modified as to the remainder of the claim and the suit to 
this extent be dismissed. 

Each party must bear their own costs of this appeal. 



20 H. 147. 

APPELLATE CIVIL. 
Before Mr. Justice Subramania Ayyar and Mr. Justice Boddam. 



SUBRAMANIA AYYAR (Defendant), Appellant No. 2 v. SlTHA 

LAKSHMI (Plaintiff's Representative), Respondent* 

[12th November, 1896.] 

Transfer of Property Act Act IV of 1882, Section 127 OneroMS gift to an infant- 
Acceptance. 

Land was given by the defendant to the wife of the plaintiff burdened with an 
obligation. She accepted the gift and died in infancy leaving the plaintiff her 
heir. The plaintiff now sued to make good his title to the land against the 
donor : 

Held, that the gift was complete as against the donor and that the plaintiff; 
was entitled to a decree. 

SECOND appeal against the decree of T. Ramaohandra Rau, Sub- 
ordinate Judge of Trichinopoly, in Appeal Suit No. 154 of 1893, reversing 
the decree of G. Narasimhalu Naidu, District Munsif of Kulitalai, in 
Original Suit No. 363 of 1891. 

The plaintiff sued as the heir of his wife who was the daughter of 
defendant No. 2, and died when an infant, to recover certain land which 
had been given to her by her father under a deed of gift which was in the 
following terms : 

* Second Appeal, No. 981 of 1895. 



YIL] 



SUBRAMANIA AYYAB V. SITHA LAKSHMI 20 Mad. 149 



" Deed of gift in respect of Manjakani (dowry), dated 1st February 
" 1889, executed by Subramania Ayyar, son of Rangaier, Brahman, 
" saivite, cultivator, residing at Mutharasanallur, Trichinopoly Taluk, to 
" Venkatasubbammal, wife of Somarasampettah Gopalier, and my eldest 
"daughter, Brahman, saivite and housewife residing at the said Muthara- 
" sanallur, is as follows : 

[148] As I have, with perfect willingness, made a free gift to you 
' ' on this date for Manjakani (dowry), nanjah, survey No. 591, letter 
' ' A, Nanjanthirathu Kattalai, decimal 86, said No. letter B, decimal 
1 ' 32 No. 592, nanjahs classed as punjah, decimal 7 or total acre 1, 
decimal 25, together with all the samuthayams appertaining thereto, 
you will not only yourself enjoy the said lands as long as the sun and 
the moon last, but also, your issue will hold and enjoy them with 
absolute rights. Out of the debt I have now borrowed from Matharu- 
boothamier of Kottaimal Agraharam, on the security of the said land, 
the balance still due, after deducting Es. 200 which I have, on this 
' 'date, asked my brother-in-law Natasaier to pay, after executing in his 
favour documents with certain particulars, is Rs. 255, including 
the principal and interest. This sum of two hundred and fifty-five 
rupees, you will, yourself, pay out of the income of the aforesaid land, 
and you will yourself enjoy the said lands with absolute rights and 
live in happiness. The former enjoyment of the said lands was mine, 
and the present enjoyment is yours. There is no other prior encum- 
brance in respect of the said land. To this effect, I executed a deed 
1 ' of gift in respect of Maojakani (dowry) in favour of Venkatasubb- 
ammal with my consent. The said lauds are worth Rs. 800.' ' 

The land had since been leased by the plaintiff to defendant No. 1 
who did not defend the suit. Defendant No. 2 with whom he was stated 
to be acting in collusion pleaded that the gift was not binding on him for 
the reasons that it was not accepted by the donee, and was burdened 
with an obligation which she being an infant could not elect to under- 
take. 

The District Munsif upheld the first plea and dismissed the suit. 
The Subordinate Judge on appeal reversed his decree. 
Defendant No. 2 preferred this second appeal. 
Kothandarama Ayyar, for appellant. 
Seshagiri Ayyar, for respondent. 

JUDGMENT. 

The Subordinate Judge has found as a fact that the property given 
was delivered to and accepted by the deceased minor, wife of the plaintiff, 
who now sues for the property given. It is contended before us that 
inasmuch as the deed of gift imposed an obligation on the donee and the 
donee died a minor, there is no complete gift which binds the donor. 

[149] We think the gift is complete. Section 127 of the Transfer of 
Property Act only gives the minor the right to repudiate on attaining 
majority, such repudiation became imoossible in the present case. 

The decision of the Subordinate Judge is right. 

The second appeal fails and is dismissed with costs. 



1896 

NOV. 12. 

APPEL- 
LATE 
CIVIL. 

20 H. 147. 



103 



20 Mad. 150 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 20 M, 149 = 7 ML. J. 18. 

NOVJ4. APPELLATE CIVIL. 

APPEL- Before Mr. Justice Shephard and Mr. Justice Davies. 



LATE 

CIVIL. PEDDA SUBBARAYA CHBTTI AND OTHERS (Plaintiffs), Appellants 
v. GANQA RAZULUNGARU AND OTHERS (Defendants), Bespondents* 
20 M. 149= [12th and 24th November, 1896.] 

7 M.L.J. 18. 

Mortgage Covenant to pay interest Interest post diem. 

In a suit on a mortgage, it appeared that the instrument sued on was execut- 
ed to secure a sum of money arrived at by calculating interest on sums pre- 
viously due by the mortgagors, and it was expressed to be for securing tbe pay- 
ment of th^t principal together with interest as it might accrue annually. 
There was alio a provision for compound interest. The principal was payable 
on 14th July 1886, and there was no express stipulation to pay interest after 
that date ; 

Held, that the mortgagees were entitled to interest for the subsequent period. 

[P., 23 M. 534 = 10 M.L.J. 101.] 

APPEAL against the decree of E. J. Sewell, District Judge of North 
Arcot, in Original Suit No. 33 of 1893. 

The plaintiff sued upon a mortgage document, dated 19th December 
1882, to recover principal and interest amounting together to Ks. 10,878- 
10-0. This sum comprised interest computed for the period subsequent 
to 14th July 1886, and it was argued that interest should cease from that 
date. 

The mortgage document omitting formal parts was as follows : 

" On looking into the account up to date in the presence of our 
" gumasta Kamaraju Narayaniah, the amount, including the principal and 
" the interest in respect of the bond executed on the [150] 14th November 
1879 to you and to your brother Chengalroya Chetti, is Rs. 7,106-9-0, 
41 excluding the amount of Rs. 3,553-4-6, contained in the bond executed 
" by us to-day to your brother Chengalroya Chetti, we are indebted 
41 to you, Rs. 3,553-4-6, which is to be given to you Rs. 1,219-6-0 
" being the amount, interest included, for the cloths and other 
" things given by you from the first of Tai in Pramadi year up to this 
41 date and Rs. 25 the cost of the stamp ; in all, Rs. 4,797-10-6. Therefore, 
11 for the payment of the principal and the accrued interest at the rate of 
41 f rupee for Rs. 100 per mensem, we have hypothecated to you also the 
" village of Arungolam No. 193, including the hamlet of Vemulnayudi 
" Khandrika situated in Nemali Division, Chirutani Taluk, Chirutani Sub- 
" District, Carvetinagaram Samstanam, North Arcot District, which is the 
11 minor's ancestral property, our inamti enjoyed by our forefathers and 
" afterwards by ourselves, and which is in our possession and enjoyment ; 
" the tanks, channels and fountains related thereto ; all the profits and right 
" enjoyed by us : this village is hypothecated on 29th June this year 
" Pedda Munusami Naidu (son of Bollini Appasami Naidu) and othei 
41 residing in Velanjeri village, Chirutani Taluk ; it is hypothecated 
" your brother Chengalroya Chetti this day. Hence the particular 
" of arrangements made for the payment of the said debt. From this date 
" forward, we will continue to pay the interest due on the 30th of Panguni 
" of each year. If we fail to pay the interest according to the date fixed, 
41 we will continue to give interest on that interest amount. We will pay 

* Appeal No. 113 of 1895. 
104 



Y1IJ P. SUBBAEAYA CHETTI V. GANGA RAZULUNGARU 20 Mad. 152 

41 the principal amount of rupees by the end of Ani of the Parthiva year ; 1896 
*' and we will take back this bond paying off on the one occasion principal Nov. 24. 
" and the interest that may then become due exclusive of the payments 
" made." APPEL- 

The District Judge referred toMansabAli v. Gulab Chand (1), and LATE 
held that interest was not payable as such after the due date and it could CIVIL. 
not be awarded as damages by reason of the operation of Limitation Act, 
Schedule II, Articles 115 and 116, and he passed a decree in accordance 20 Mg 1 * 9=x 
with this ruling. 7 M.L.J. 18. 

The plaintiff preferred this appeal, 

Mr. Subramaniam, for appellants. 

Sadagopachariar and Seshagiri Ayyar, for respondents. 

[151] The judgment of the High Court on the question of interest 
-was as follows : 

JUDGMENT. 

Two points are raised in this appeal. The first relates to the claim for 
interest accruing after the due date fixed for the payment of the principal 
in the mortgage instrument of the 19th December 1882. The District Judge 
considers that the instrument contains no stipulation, express or implied, 
to pay interest after the 14th July 1886, by which day the mortgagor 
undertakes to pay the principal. H e refers to one of the numerous cases 
dealing with the question of interest payable under a mortgage. It is 
not necessary to discuss those cases, firstly, because the question is enti- 
rely one of construction to be answered with reference to the language of 
the particular instrument, and secondly, because we have a recent ruling 
of the Judicial Committee by which we must be guided in construing that 
instrument (Mathura Das v. Raja Narindar Bahadur (2).) 

In this case, after stating how the sum of Rs. 4,797-10-6 has come 
to be due, the instrument goes on to say that "for the payment of the prin- 
cipal and interest which may accrue at the rate of 1 rupee per cent, per 
mensem we have hypothecated, &c." Then the property is described and 
the instrument proceeds to state how the money shall be paid. The in- 
terest is to be paid on the 30th Panguni of each year, and in case of 
default compound interest. The principal is to be paid by the end of Ani 
of the Parthiva year. 

Now, it is true that there is not in terms a stipulation to pay interest 
after the end of Ani in the year Parthiva, and hence it is argued that the 
parties did not intend such payment to be made. But we have to look 
at other parts of the instrument besides the covenant to pay the princi- 
pal on a fixed date. The amount found to be due and secured as principal 
is arrived at by calculating interest on sums originally due by the 
mortgagors, and the hypothecation is expressed to be for the pay- 
ment of that principal and interest as it may accrue. That seems to 
show that interest was to be paid in the future as well as in the past. Then 
there is the clause providing for compound interest which certainly points 
to a liability for interest accruing after the due date. These provisions 
are more consistent than otherwise with an intention which in itself is 
the most probable one, when, to use the language of [152] the Judicial 
Committee, regard is had to " fche ordinary expectations of persons enter- 
ing into a mortgage transaction." We should only be defeating those ex- 
pectations if we held with the District Judge that the mortgage document 

(1)10 A. 65. (2) 19 A. 39. 

M VII 14 



20 Mad. 152 INDIAN DECISIONS, NEW SERIES [Vol. 

1896 carried no interest after the due date. We are, therefore, of opinion thafi 
Nov. 24. according to the right construction of the instrument the mortgagor incur- 
red the obligation to pay interest on the principal amount remaining 
APPEL un paid on the 14th July 1886. 

LATE * [The other point taken is that which is raised by the sixth issue. 

OlVIL. The District Judge has held that the sale of the mortgaged property 

made at the instance of the plaintiff, must be subject to the 5bh defend- 
20 M. 149= ant's claim. That claim arises in this way. On the date of the plaint- 
7 M.L.J. 18. iff ' 8 mortgage, another mortgage of the same property was executed by 
ths same mortgagor in favour of one Cbengalraya. On this mortgage, 
Chengalraya sued and obtained the ordinary decree, the plaintiffs not 
being made parties to that suit. That decree was satisfied by means of 
money borrowed from the 5th defendant, who thereupon took a fresh 
mortgage dated the 21st August 1893. It is contended that, as the 5th 
defendant's money has gone to pay off Chengalraya's mortgage, he must 
be entitled to the benefit of that mortgage, and that, accordingly, his 
claim must have priority over the plaintiffs. It is more than doubtful 
whether Chengalraya's mortgage ought to be treated as prior to the plaint 
mortgage of even date executed in Virasami's favour ; but, apart from that, 
there is the circumstance that Ghengalraya's mortgage has become merg- 
ed in the decree obtained upon it. The 5th defendant cannot be in a 
better position than he would be if he had taken an assignment of 
Chengalraya's mortgage, and as assignee, he clearly could not rely on the 
mortgage after it had passed into a decree. He might have obtained a 
transfer to himself of the decree ; but this he has not done and a transfer 
is now impossible since satisfaction has been entered up. In Seetharama 
v. Venkatakrishna, 16 M. 94 the fact that there had been a decree on tha 
mortgage seems to have been overlooked, and the point now raised was 
not considered. On the second point also we think the District Judge 
has erred. 

The appeal must, therefore, be allowed and the decree of the Lower 
Court modified in the following respects : 

(1) The portions of it referring to the priority of the 5th defendant's 

mortgage must be expunged ; 

(2) The date for calculating the interest due to plaintiffs on their 

mortgage must be extended from the 14th July 1886, up to 
the date of suit, viz., 30th September 1893 ; 

(3) The date for payment by defendants Nos. 2 and 3 and 1st 

defendant's representative must be altered into the date, six 
months after the date of this decree, and, 

(4) The costs of the 5th defendant made payable by the plaintiffs 

must be disallowed, and the 5th defendant must be directed 
to pay the plaintiff's costs in both Courts to the extent to 
which be is liable on the case set up by him. The defendants 
Nos. 2 and 3 and 1st defendant's representative must further 
pay the plaintiff's costs throughout on the larger sum now 
decreed against them.] 

* The portion in the rectangular brackets, forms a part of the judgment in this 
case though omitted in the I.L.R. ED. 



106 



YIL] SANKARAN V. RAMAN KUTTI 20 Mad. 183 

20 H. 182 = 6 H.L.J. 232. 1896 

APPELLATE CIVIL. Auoj6 

Before Sir Arthur J. H. Collins, Kt., Chief Justice, and APPEL- 

Mr. Justice Benson. LATE 

CIVIL. 

SANKARAN (Respondent), Appellant v. EAMAN KUTTI 20 M. 152 = 

AND OTHERS (Appellants), Respondents* [5th and 25th August, 1896.] g M.L.J. 232, 

Letters Patent, Section 15 Appeal under Letters Patent Civil Procedure Code, Section 
588 Powers of Appellate Court under Section 588. 

A Judge of the High Court when hearing an appeal under Civil Procedure 
Code, Section 588, against an erroneous order of remand, under Section 562 may, 
if he thinks fit, pass a final decree in the suit instead of merely remanding the 
suit to the Lower Appellate Court. No appeal lies against such decree under 
Letters Patent, Section 15. 

[Digs., 26 C. 361 ; F., 20 M. 407 ; R., 15 Ind. Gas. 181 (182) = 15 O.C. 33 ; 21 M.L.J, 
1074 (1075) = 10 M.L.T. 278= (1911) 2 M.W.N. 259.] 

APPEAL under Letters Patent, Section 15, against the judgment of 
Mr. Justice Parker, in appeal against order No. 18 of 1894, setting aside 
the decree of E. K. Krishnan, Subordinate Judge of South Malabar, 
and restoring the decree of T. A. Kamakrishna Ayyar, District Munsif 
of Choughaut, in original suit No. 404 of 1892. 

The facts of this case and the nature of the earlier proceedings appear 
sufficiently for the purposes of this report from the judgment of the 
High Court. 

This appeal under the Letters Patent was preferred by the plaintiff. 

Sankarn Nayar, for appellant. 

Sundara Ayyar, for respondents. 

JUDGMENT. 

[153] Plaintiff and defendants No. 1 and 2 are brothers. Third 
defendant is their father. All four form an undivided family of Tiyans 
following the Makkattayam rule of inheritance. A kanom was granted by 
a land- owner in the name of the first defendant. On redeeming the 
kanom, the landlord paid into Court the amount of the kanom, together 
with compensation for trees and a house on the land redeemed. The 
decree in the suit (original suit No. 29 of 1892) directed that all the money 
should be paid to first defendant, as the kanom was in his name, 'unless 
defendants Nos. 2, 3 and 5* (the present second and third defendants and 
plaintiff) 'sue to establish their right to it.' 

The plaintiff alleged that the kanom and the trees, for which compen- 
sation was paid, were joint family property, but that the house was his 
own sole property, having been built solely with his own funds. He 
sued for a declaration of bis right to recover his one-fourth share of the 
money deposited for the kanom, and as compensation for the trees, and 
for a declaration of his right to the whole of the money deposited as 
compensation for the house. 

The third defendant supported the plaintiff's claim. The first defendant 
claimed the whole of the money as his own on the ground that the kanom 
was not joint family property, but his own acquisition. The second de- 
fendant alleged that all the property was joint family property. The 

* Letters Patent Appeal No. 16 of 1895. 
107 



20 Mad. 154 INDIAN DECISIONS, NEW SERIES [Vol. 

1896 District Munsif found that the suit for a bare declaration was not sustain- 
Auo. 25. able with reference to Section 42 of the Specific Belief Act, and also that 
plaintiff without suing for partition could not sue for a declaration of his 
APPEL- right to a share of the joint family property, nor for a declaration of his sole 
LATE right to the compensation for the house since the latter had become 
ClVIL. merged in the family property. He therefore dismissed the suit. The 
Subordinate Judge reversed this decree and remanded the suit for trial on 
20 M. 182= the merits, holding that the plaintiff could maintain the suit as framed. 
M.L.J. 232. Against this order of remand the first defendant appealed to the High Court 
and the appeal was heard by Mr. Justice Parker sitting alone. He held 
that the passing of the decree in original suit No. 29 of 1892 gave the 
plaintiff no cause of action for a declaratory suit, though it was open to 
plaintiff to sue first defendant for the value of the house, if the latter belong- 
ed to the plaintiff, and also that plaintiff could sue for his share of the 
family property, but not for his share of [154] a particular part of it. He, 
therefore, set aside the order of the Subordinate Judge and restored that of 
the District Munsif. 

Against this order the plaintiff now appeals under Section 15 of the 
Letters Patent. 

A preliminary objection is raised that, as Mr. Justice Parker's order 
was passed under Section 588, Civil Procedure Code, such order is final 
under the last clause of that section, and is not open to appeal. 

We have no doubt but that the objection is valid. Section 588, 
Civil Procedure Code, is by Section 632 of the same Code declared to be 
applicable to the High Court, and the right of appeal given by Section 15 
of the Letters Patent against an order of a single Judge of the High Court 
is subject to the limitations prescribed by the Code of Civil Procedure, 
Achaya v. Eutnavelu (1). 

It is however contended that Section 588 only empowered Mr. Justice 
Parker to determine whether the order of the Subordinate Judge in re- 
manding the suit was right or wrong, but did not give him jurisdiction to go 
further and pass a decree in the suit, as hedid when he restored the District 
Munsif's decree dismissing the suit, and in support of this contention it is 
pointed out that had Mr. Justice Parker merely decided that the Subordinate 
Judge's remand was wrong, and remanded the suit to him for disposal ac- 
cording to law, instead of himself restoring the District Munsif's decree, 
then the plaintiff would have been entitled to a second appeal to a Division 
Bench of two Judges of this Court in the event of the subordinate Judge 
dismissing his appeal : whereas by the procedure adopted by Mr. Justice 
Parker, the plaintiff is obliged to abide finally by the opinion of a single 
Judge of this Court on a point of law instead of being entitled to have 
the point decided by a Bench of at least two Judges. Such a result may 
be to some extent anomalous ; but the existence of an anomaly does not 
justify us in overruling the provisions of the law. That the Court when 
hearing an appeal under Section 588, Civil Procedure Code, against an 
order of remand under Section 562, Civil Procedure Code, may deal with the 
correctness of the Lower Court's decisions on the preliminary point, and 
may, if it sees fit, pass a final decree in the suit, instead of merely remanding 
the suit to the Lower Appellate Court, has been decided by the High Courts 
of Calcutta and [155] Allahabad in Loki Mahto v. Aghoree Ajail Lall (2) 
and Hasan Ali v. Siraj Husain (3), respectively, and this appears to be 
also the view taken by the Full Bench of the Bombay High Court in 

(1) 9 M. 253. (2) 5 C. H4. (3) 16 A. 252. 

108 



VII.] TIRUPATI RAZU v. vissAM RAJU 20 Mad. 156 

Bhau Bala v. Bapaji Bctpuji (1), and by the Full Bench of the Allahabad 1896 
High Court in Badam v. Imrat (2), Spankie, J., dissenting. It has also AUG. 25. 
been so decided by a Bench of this Court in Kothandaramasami Naidu v. 
Krishnasami Naicken (3). We see no sufficient reason for dissenting APPEL- 
from these authorities. LATE 

The result is that the order now appealed against must be regarded CIVIL, 
as having been legally passed under Section 588, Civil Procedure Code. 
Such an order is not open to appeal under the Letters Patent. We must, 2 ^ * ** 2 = 
therefore, dismiss this appeal with costs. 6 M.L.J. 232. 



20 H. 153. 
APPELLATE CIVIL. 

Before Mr. Justice Subramania Ayyar and Mr. Justice Dames. 



TIKUPATI EAZU (Defendant No. 3), Petitioner v. 
VISSAM KAJU AND ANOTHER (Defendants Nos. 1 and 2), 
Respondents* [30th November and 1st December, 1896.] 

Civil Procedure Code Act XIV of 1882. Section 470 Interpleader suit Act IX of 
1889 Provincial Small Cause Courts Act, Schedule II, Articles 11 and 14 Claim 
for compensation awarded under Land Acquisition Act. 

Land having been compulsorily acquired under Land Acquisition Act for the 
purpose of the East Coast Railway, the compensation was fixed at Rs. 468. A 
conflict having arisen as to the right to receive the compensation and the District 
Court having declined to determine it under Land Acquisition Act, Section 15, 
an inter-pleader suit was instituted on behalf of the Secretary of State in the 
Court of the District Munsif . The decision of the District Munsif having been 
confirmed on appeal, the unsuccessful claimant preferred a petition to the High 
Court under Section 622, Civil Procedure Code : 

Held, that the inter-pleader suit was not within the jurisdiction of a Provin- 
cial Small Cause Court and was rightly brought on the ordinary side of the 
District Munsif 's Court and consequently where the petitioner's remedy was by 
way of second appeal the petition for revision was not admissible. 

[156] PETITION under Civil Procedure Code, Section 622, praying 
the High Court to revise the decree of H. E. Farmer, District Judge of 
Vizagapatam, in appeal suit No. 396 of 1894, affirming the decree of Y. 
Janakiramayya, District Munsif of Vizagapatam, in original suit No. 265 
of 1893. 

This was an inter- pleader suit instituted on behalf of the Secretary 
of State under the following circumstances : 

Certain mirasi land was compulsorily acquired for the East Coast 
Railway and a sum of Es. 468-12-0 was fixed as the compensation for it. 
Defendants Nos. 1 and 2 were in possession of the land and claimed it as 
their property, although it was once admittedly the karnam's service inam. 
The third defendant was the working karnam and he claimed to be 
entitled to the land as such and consaquently entitled to the money. The 
matter had been referred by the Collector to the District Court under Act 
X of 1870, Section 15, Clause 5 ; but the Court declined to interfere on the 
ground of want of jurisdiction and neither of the defendants had since 
made good his claim to receive the compensation money. The District 

Civil Revision Petition No. 201 of 1896. 

(1)146.14. (2) 3 A. 675. 

(3) Letters Patent Appeal No. 35 of 1894 unreported. 

109 



20 Mad. 157 



INDIAN DECISIONS, NEW SERIES 



[Vol. 



1896 

DEC, 1. 

APPEL- 
LATE 
CIVIL. 

20 M. 135. 



Munsif decided in favour of defendants Nos. 1 and 2 and his decision was 
confirmed by bhe District Judge. 

Defendant No. 3 preferred this petition. 

Mr. Satya Nadar, for petitioner. 

Pattabhirama Ayyar, for respondents. 

JUDGMENT. 

The Collector having done all that he could do under the Land 
Acquisition Act was not, in our opinion, precluded from bringing this suit 
in an ordinary Civil Court, there being no prohibition by any enactment 
against his doing so. The next question is whether the suit should have 
been brought in a Small Cause Court, assuming that there was one 
having jurisdiction up to Us. 500, which appears not to have been the 
case. Having regard to Article 14 of the Second Schedule of the Pro- 
vincial Small Cause Courts Act, which excludes suits for the recovery of 
compensation paid under the Land Acquisition Act from the Small Cause 
jurisdiction, we think the present, which is a substantially similar suit, 
did not lie in the Small Cause Courb, as it involved, not incidentally but 
necessarily, the determination of a title to land, and would consequently 
fall under Article 11. In this view, a second appaal lay, and a petition 
for revision is not admissible. It is accordingly dismissed with costs. 



20 M. 157. 
[157] APPELLATE CIVIL. 

Before Mr. Justice Subramania Ayyar and Mr. Justice Boddam. 



POTHIANDI MAMMED (Plaintiff), Petitioner v. AVALIL MOIDIN 
(Defendant), Counter-Petitioner.* [13th November, 1896.] 

Transfer of decree Subsequent attachment in execution against transferor. 

A transferred a decree to B who recovered part of the amount due under it and 
was prevented from recovering the rest by an attachment of the decree in execu- 
tion proceedings against A : 

Held, that A was liable to pay compensation to 6. 
CCons., 33 M. 62(63) = 3Ind. Gas. 938 = 6 M.L.T. 273; D., 5 M.L.T. 260.] 

PETITION under Small Cause Courts Act, Section 25, praying the 
High Court to revise the proceedings of S. Subbayyar, Subordinate Judge 
of North Malabar, in small cause suit No. 417 of 1895. 

Suit to recover Es. 100 and interest. The decree in small cause 
suit No. 1,300 of 1890, which was passed in favour of present defendant, 
was assigned by him to the plaintiff. The plaintiff recovered a portion 
of the decree amount, but failed to recover the rest because the decree, of 
which the assignment had not bean completed by the recognition of the 
Court, was attached in execution of a decree against the defendant. The 
plaintiff sued to recover the amount which he had failed to realise. 

The Subordinate Judge was of opinion that the plaintiff's failure to 
recover the rest of the money payable under the decree was the result of 
his own laches in failing to adopt the procedure described by Civil Proce- 
dure Code, Section 232, and that the defendant accordingly was not liable 

Civil Revision Petition No. 851 of 1995. 
110 



m] 



MUTHU AYYAR V. RAMASAMI SASTRIAL 20 Mad. 159 



to pay damages. He distinguished Krishnan v. Sankara Varma (1) and 
dismissed the suit. 

The plaintiff preferred this petition. 

Mr. Krishnan, for petitioner. 

Eyru Nambiar, for counter- petitioner. 

JUDGMENT. 

All that the plaintiff got in law for the money he paid to the defendant 
for the transfer of his decree was an agreement to transfer it, not a com- 
plete transfer until recognised by the Court. The completion of the trans- 
fer in this case was [158] prevented by the attachment of the decree for 
the defendant's debts, and it was the defenlant's duty to do all that was 
necessary to complete the transfer by removing the obstacle, the attach- 
ment. This he did nob do and made it impossible for the transfer to the 
plaintiff to be completed by the recognition of the Court. 

In these circumstances the plaintiff was entitled to succeed in his 
lotion. We must set aside the decree of the Subordinate Judge and decree 
the claim with costs and interest at 6 per cent., thereon from the date of 
plaint till date of payment. 

The petitioner is entitled to his costs in this Court. 



20 M. 158. 

APPELLATE CIVIL. 
Before Mr. Justice Subramania Ayyar and Mr. Justice Davies. 



MUTHU AYYAR (Purchaser), Petitioner v. KAMASAMI 

SASTRIAL AND ANOTHER, Counter -Petitioners.* 

[1st December, 1896.] 

Civil Procedure Code Act XIV of 1882, Section 310-A (a) Application to set aside sale 
Deposit by judgment-debtor of the amount of debt Poundage money, 

A judgment-debtor, whose land had been sold in execution, is entitled to have 
the sale set aside under Civil Procedure Code Section 310-A (a), if he deposits 
5 per cent, of the purchase money including that deducted by the Court for 
poundage and fulfils the requirements of clause (6) even though something more 
on account of the poundage was recoverable from him under the head of costs. 

[R., 23 B. 450; 4 Bur. L. T. 28 = 9 Ind. Gas. 472 (474).] 

* 

PETITION under Civil Procedure Code, Section 622, praying the High 
Court to revise the proceedings of N. Sambasiva Ayyar, District Munsif 
t>f Tiruvadi, on miscellaneous petition No. 840 of 1895. 

The petitioner, who was the judgment-debtor in original suit 
No. 164 of 1893, preferred the above application under Section 310-A (a) 
of the Civil Procedure Code applying that the sale of certain immoveable 
property which had taken place in execution of that decree be set aside, 
3n his depositing the amount specified in the proclamation of sale together 
with 5 per cent, on the purchase money. The purchaser objected saying, 
as was stated in the [159] judgment, that he lost li per cent, as 
poundage of 6| per cent, was deducted from the purchase money he had 
deposited. 

Civil Revision Petition No. 190 of 1896. 
(1) 9 M. 441. 

Ill 



1896 
NOV. 13. 

APPEL- 
LATE 
CIVIL. 



20 Mad. 160 



INDIAN DECISIONS, NEW SERIES 



[Yol. 



1896 
DEC. 1. 

APPEL- 
LATE 
CIVIL. 

20 M. 158. 



The District Munsif held that the requirements of the section bad 
been satisfied and accordingly he set aside the sale. . 
The purchaser preferred this petition. 
S. Subramania Ayyar, for petitioner. 
Counter-petitioners were not represented. 

JUDGMENT. 

Admittedly the judgment-debtor paid the 5 per cent, required under 
clause (a) of Section 310-A of the Code of Civil Procedure, upon the 
whole amount of the purchase money including that deducted by the 
Court for poundage. Under that clause he is not required to do any more. 
Having also fulfilled the requirement of Clause (6) he was entitled to have 
the sale set aside, even though something more on account of the 
poundage was recoverable from him under the head of costs provided for 
in the last clause of the Section 310-A. The petitioner was therefore 
wrong in opposing the setting aside of the sale. His course was to have 
applied to the Court for the recovery of what he was entitled to under 
Sections 315 and 310-A. 

The petition is accordingly dismissed. 



20 M. 139. 
APPELLATE CIVIL. 

Before Sir Arthur J. H. Collins, Kt. t Chief Justice, and 
Mr. Justice Benson. 



VENKATASUBBARAYA CHETTI AND ANOTHER (Counter -petitioners), 

Appellants v. ZAMINDAR OP KARVETINAGAR (Petitioner), 

Respondent* [18th September, 1896.] 

Civil Procedure Code Act XIV of 1882, Sections 291, 311 Material irregularity Sub- 
stantial loss. 

Where a material irregularity is proved to have occurred in the conduct of a 
Court sale, and it is shown that the price realised is much below the true value, 
it may ordinarily be inferred that the low Tprice was a consequence of the [160] 
irregularity even though the manner in which the irregularity produced the low 
price be not definitely made out. 

When a sale is adjourned under Section 291, the provisions of that section 
must be followed with exactitude. 

[Appp., 6 C-W.N. 48 ; R., 31 C. 815 = 8 C.W.N. 686 ; 22 M.'440 = 9 M.L.J. 190; 34 
709 = 9 Bom. L.R. 651 (P.C.) = 6 C.L.J. 11 = 11 C.W.N. 739 = 34 LA. 164~17 
M.L.J. 353; 14 C.L.J. 541 (551) = 13 Ind. Gas. 337; 6 O.C. 61; U.B.B, 
(1907), C.P.C., p. 9.] 

APPEAL against the order of E. J. Sewell, District Judge of North 
Arcot, passed on execution petition No. 48 of 1889. which was an applica- 
tion in original suit No. 3 of 1884. 

Certain land having been brought to sale in execution of the above- 
mentioned decree, the judgment-debtor preferred the above petition under 
Civil Procedure Code, Section 311, praying that the sale be set aside on 
the ground of material irregularity in conducting it, which, as it wa! 
averred, bad caused substantial loss to him. 

The District Judge found that the land had been sold for much below 
its value and he said, 

* Appeal against Order No. 3 of 1896. 
112 



YII.] 



V. CHETTl V. ZAMINDAK OP KARVETINGAR 20 Mad. 161 



APPEL- 
LATE 
CIVIL. 



" If, therefore, any material irregularity in publishing the sale can be 1896 
" proved, the substantial injury to the zamindar cannot be disputed. BBP. 18. 

" It is admitted that petitioner got the proclamation of sale issued in 
" August 1891 for sale in September 1891 ; but, by agreement with 
" petitioner, got the sale postponed five times to take place without any 
" fresh proclamation until it was eventually held on 29th October 1891. 

" The Ameen, who conducted the sale, deposes that all sales are 
" published by beat of drum ; but that, on October 29th, this was not 20 M. 59 
" done as he could not find the monigar to get the publication so 
" ordered. 

" The result was that there was practically no notice at all of the 
" sale. The amount of notice given by the proclamation had been waived 
" (petitioner, no doubt, being a consenting party to this). But, in the 
" absence of such proclamation and the usual notice by tom-tom, there 
" was really no publicity whatever given to the sale. 

" I think this was a material irregularity. In the second place, the 
" counter-petitioner concealed the existence of any prior incumbranoe. 
" The counter-petitioner examined, admits that ho had notice of Kristnama 
" Charlu's mortgage from the Sub- Registrar's certificate which mentioned 
" it. His only explanation is that, as the date of the mortgage was 1873, 
" he concluded that, in 1888, it was barred by limitation, and so he stated 
" in [161] his execution application that the property was to be sold free 
" of incumbrances. 

" But he admits that he had made no inquiries of Krislnama Charlu 
" as to whether there had been any payments or written acknowledgment 
" to keep alive the mortgage. As a matter of fact, the mortgagee had 
" actually sued out a decree. The mortgage, as the certificate showed, 
" was for a very large sum, so that the counter-petitioner could not really 
" have supposed that it had been allowed to lapse. I do not believe his 
" statement that he said the property was free of incumbrances because he 
" believed Kristnama Charlu's mortgage was barred. I believe his object 
"was to keep Kristnama Charlu in ignorance of his attachment and sale. 
'' The fact, that the sale was held free of incumbrances upon a false 
"statement to that effect in the application, is, I think, a material 
" irregularity." 

In the result the District Judge refused to confirm the sale and 
directed a fresh sale to be held affier due notice. 

The decree- holders preferred this appeal. 

Ramackandra Rait Saheb and Kuppusami Ayyar, for appellants. 

Mr. Subramaniam, for respondent. 

JUDGMENT. 

Though such irregularities as have occurred are mainly due to the 
zemindar's repeated applications for adjournment, yet, on considering all 
the facts of the case, we are not prepared to hold that the District Judge 
was wrong in regarding the irregularities, especially the omission to have 
the sale tom-tomad, as material and wo think that where a material irre- 
gularity is proved and it is also proved that the price realized is much 
below the true value, then it may ordinarily be inferred that the low price 
was A consequence of the irregularity, even though the manner in which 
the irregularity produced the low price be not definitely made out. We 
therefore dismiss this appeal but without costs. 



M VII 15 



113 



20 Mad. 162 



INDIAN DECISIONS, NEW SERIES 



[Yol 



1896 

SEP. 18. 

APPEL- 
LATE 
CIVIL. 

20 M. 159. 



We observe that the orders of the District Judge adjourning the sale 
did not comply with the provisions of Section 291, Civil Procedure Code, 
which require that adjournments shall be to a specified day and hour. It 
is of the utmost importance that in these matters the exact provisions 
of the Code should be followed. 



20 M, 162 (P.C.) = 1 C.W.N. 497 = 24 I. A. 73 = 7 Sar. P.C.J. 203. 
[162] PRIVY COUNCIL. 

PRESENT : 

Lords. Watson, Hobhouse and Davey, and Sir R. Couch. 
[On appeal from the High Court at Madras.] 



SRIMANT RAJAH YARLAGADDA MALLIKARJUNA PRASADA 

. NAYUDU BAHADUR GARU, Appellant v. MAKERLA SRIDEVAMMA 

AND OTHERS, Respondents. [18th March, 1897.] 

Collection of debt on succession Certificate of heirship Acts XXVII of 1860 and VII 
0/1889 Right of succeeding trustee to collect. 

In a suit brought by a widow who had succeeded her husband as trustee of 
an endowment for a debt due thereto : 

Held, that she was not suing as being entitled to the effects of her deceased 
husband, or for payment of a debt due to the estate which had been his, but that 
she was suing as representing the endowment in the capacity of a trustee of its 
money. Accordingly, neither Act XXVII of 1860 (collection of debts on succes- 
sion), Section 2, nor Act VII of 1889 (the Succession Certificate Act), Section 4, 
was applicable to her claim, and her not haying obtained a certificate of heirship 
to her husband's estate did not disentitle her to a decree. 

[R,, 28 B. 215 = 5 Bom. L.E, 932.] 

APPEAL from a decree (27th April 1891) of the High Court, affirming 
a decree (20th December 1889) of the District Judge of Kistna. 

The suit out of which this appeal arose was brought on the 27th 
March 1889 by Makerla Sridevamma, first respondent on this appeal, styl- 
ing herself Manager and Dharmakarta of the Annapurna Choultry. She 
was the widow of Makerla Ragunatha Nayudu, son of Venkataswami 
Nayudu. Both the father, who founded, endowed and managed the choul- 
try, and the son, who succeeded him in the management, died in 1879. 
On the death of her husband Sridevamma became manager. 

The first defendant, who was now appellant, was the zemindar who, 
as holding an impartible estate, defended the partition suit relating to 
Devarakota in Mallikarjuna v. Durga (1). 

On the 30th January 1876 he gave the following : Promissory note, 
dated the 30th January 1876, executed by Srimant Rajah Yarlagadda Malli- 
karjuna Prasada Nayudu Bahadur, Zemindar Garu, in favour of Makerla 
Raghunatha Rao Nayudu Garu : 

[163] " As I have this day borrowed from you Rs. 12,000 in cash, 
" out of the funds settled by you and your father for the upkeep of the 
" Annapurna Choultry caused to be built by your father in Bandar for the 
" purpose of paying off the peishkush and other Government dues payable 
" in respect of my estate, I promise to pay you every month only the in- 
" terest thereon at half a rupee per cent, per mensem, but retain the prin- 
" cipal amount with me alone for twelve years from this date, and pay 

(l) 13 M. 406. 
114 



YII.] MALLIKARJUNA V. SRIDEVAMMA 20 Mad. 184 

" you the same as soon as the said twelve years expire, and get back this 1897 
"promissory note. MARCH. 18, 

" Promissory note executed and given to this effect with my consent." 

On the loth January 1877, Venkataswami Nayudu made a will PRIVY 
appointing his son Ragunatha heir to his estate, describing it as having COUNCIL, 
been acquired by himself. In this will he stated that Bs. 12,000 had been ~~ 
invested with the Rajah as an endowment for the choultry. On the 2nd ' 

March 1879, he confirmed this and then died. Ragunatha took the es- !5' J" _ 
tate, and on the 24th September in that year died, leaving, by his will, the ' ' - 
immediate possession of it to Sridevamma, his second wife, whom he p 

directed to adopt a son to him. This was done. on ' 

On the llth December 1884, Makerla Venkataswami Nayudu, a 
minor, sued Sridevamma for a declaration that be had been adopted by 
her to her husband on the 6th September 1880, and demanded possession 
of certain property, one of the items of which was described as " Funds 
" remaining in the hands of the Chellapalli Zemindar, on account of 
" Annapurna Choultry, Rs. 12,000." As to the adoption and for posses- 
sion he obtained a decree on the 15th March 1887 ; but the above item 
was excepted. Sridevamma in the present suit claimed the money due 
on the promissory note of the 30th January 1876 against the appellant 
and the Collector of the district, who had been appointed receiver of the 
Rajah's estate. She alleged that since her husband's death she had been 
managing the choultry and that payments of interest had been made upon 
the note by the first defendant to her husband and to herself. No 
reference was made in the plaint to the adoption. 

The first defendant admitted that he had made the note, but said 
that the amount was a charge on the estate in the hands of the receiver ; 
also, that the right to recaiva payment was in the adopted son, the widow- 
having no certificate of beirship. The other defendants, the younger 
brothers of the first, they having [164] been joined at their own request, 
denied their liability. The receiver was willing to abide by the decision of 
the Court, and took no further part in the proceedings. 

At the hearing in the Court of First Instance were cited Re Bhyrub 
Bharuttee Mohunt (1) and Dukharam Bharti v. Luchmun Bharti (2). The 
decision was that the plaintiff, being in possession of the office of trustee 
of the choultry, might, in that character, collect and give a valid receipt 
for a debt due to that institution. The claim was accordingly decreed. 
The first defendant appealed to the High Court on the ground that no 
certificate had been granted to the plaintiff to collect the debt due to her 
deceased husband, whom the Rajah had promised to pay. Also that the 
adopted son was the heir and representative. 

On the 5th December 1890 the High Court (COLLINS, C.J., and 
SHEPHARD, J.) made the following order : 

" The plaintiff does not, as far as we at present see, appear to be the 
" proper heir of the payee of the note, and the adopted son. who is 
" apparently the proper person to give a discharge, is not on the record. 
" We must adjourn the case for two months in order that the adopted son 
" may be made a party, and a guardian appointed : when that is done we 
" shall be in a position to dispose of the appeal." 

The adopted son having been made a respondent on the appeal, the 
High Court gave the following judgment : 

(1) 21 W.R.340. (2)40, 954. ' 

115 



20 Mad. 166 INDIAN DECISIONS, NEW SERIES [Vol. 

1897 " It now appears that the minor adopted son has been joined as a 

MARCH 18, " party. As far as the plaintiff is concerned the appeal is therefore 

" dismissed with costs." 

PRIVY " As against the third and fourth defendants it is contended that the 

COUNCIL. " first defendant (appellant) ought not to be made to pay their costs as 

" directed by the District Judge. On examining the record we find that 

. *0 M. 1( " the third an cl f our bh defendants became parties on their own motion and 

(P.C.H " th a t b e i n g SO) we think they ought to pay their own costs." 
C.W.N.497 "The decree of the District Judge must be modified accordingly. 

" And the third and fourth defendants must pay tho costs of this appeal 
7 Bar. P.C.J, " go f ar ag jj. k ag re f erence to them." 

From this decree the Rajah now appealed. 

Mr. J. D. Mayne, for the appellant, 

[169] It was clear that no right to claim the money secured by tho 
document of 1876 passed to Eagunatha personally by his father's will or 
to Sridevamma by her husband's will. The beneficial title to the money 
remained vested in the Annapurna Choultry. The right to sue for it 
might have vested in an executor of the will of Venkatasami, the original 
manager and trustee ; but no such executor had been appointed. Then, 
again, the right to sue would have vested in such person as might have 
been appointed trustee under the Religious Endowment Act, 1863. There 
was, however, no evidence on the record showing that the plaintiff was 
appointed by proper authority to be the trustee or manager of this choul- 
try. Suing as the representative of her late husband's estate, the widow 
could not obtain a decree for the sum which she claimed without) having 
obtained a certificate under Act XXVII of 1860. The Act VII of 1889 
made it the duty of the Court to see that a certificate had been obtained 
by the plaintiff. The latter Act came into operation on the 1st May 1889, 
the plaint having been filed on the 27th March in the same year. Thus 
the plaintiff bad not fulfilled a condition precedent to her acquiring a 
right to sue, the getting a certificate of heirship. Her positron had not 
been improved by the adopted son being made a party to the appeal ; for, 
if he had had a title to sue for this debt, his title would have displaced 
the plaintiff's. The decree, however, obtained by him on the 15th March 
1887, had expressly excepted the right to sue for this debt from the dec- 
laration of his title to the rest of his adoptive father's estate. The plaint- 
iff could only claim through her husband, in right of her being his heir 
and representative, and for this purpose a certificate was necessary. 

JUDGMENT. 

The respondents did not appear. Their Lordships' judgment was 
delivered by 

LORD HOBHOUSE : In this case the first defendant, who is the 
principal defendant, and appellant borrowed a sum of Rs. 12,000 out of 
the funds of a charitable endowment called a choultry, and he gave a 
promissory note to tho founder of the endowment, who was then its 
manager. 

The founder died, and he left the bulk of his estate to his son and 
heir, but taking notice that the son and heir should have nothing to do 
with the Ks. 12, 000, which were the endowment of the choultry. No 
doubt his son succeeded him in the management. He died within six 
months of his father, and his heir .was [166] his widow. Then the 
widow succeeded ra the - management, a-nd received interest on the 
Rs. 12,000. She, under a power given her by her husband, adopted a son 

116 



YII.] MALL1KARJUNA V SRIDAVAMMA 20 Mad. 187 

jn the year 1884, but that son was an infant, and the widow remained 1807 
unhil after the institution of this suit in the management of the choultry. MARCH 18, 

The infant brought a suit against his adoptive mother and against his 
guardian for an account of hi=i adoptive father's estate and for possession, PRIVY 
and he got a decree, but in making that decree the Court expressly OOUNOIL. 
excep'ed the funds of the choultry. It seems that up to the commence- ~ 
ment of this suit in the year 1889 the widow had received interest on the ^ ' 
promissory note from the defendant, and either she or her husband ' ' ''" 
received Us. 1, 000 in payment of principal. In 1889 the widow sued toT ' ,, 
recover the sum due upon the note, and she was met by two pleas: * ' ' p ?T 
one was that she could not sue because she had adopted a son, and that **"' ' 
son is the heir of his father and entitled to his father's estate. The 
answer to that plea is that she did not sue in respect of her husband's 
estate, but as trustee and manager of the choultry. 

The second plea was that she had not got such a certificate as is 
required by law. The Act that is relied upon as necessitating the pro- 
duction of a certificate runs in these terms: " No debtor of any deceased 
" person shall he compelled iu any Court to pay his debt to any person 
" claiming to be entitled to the effects of atay deceased person except on 
the production of a certificate (L)." That is the Act XXVII of the year 
1860. Taere is a subsequent Act, which Mr. Mayae says applies to the 
case, Acb VII of 1889, but that uses exactly the same expressions so far 
as regards the person suing : " No Court shall pass a decree against a 
" debtor of a deceased person for payment of his debt without a certifi- 
cate (2)." 

Now the question is whether the widow here is suing as entitled to 
the effects of her deceased husband, or is suing for the payment of the 
debt of her deceased husband. She is doing neither one nor the other, 
she represents the endowment, and on that ground the District Judge 
declared that she was the trustee of this endowment, and that she was 
entitled to receive the debt3, and he gave her a decree. The defendant 
appealed to the High Court, and the High Court took the precaution of 
suspending proceedings [167] until the adopted son, who, if anybody could 
dispute the widow's title to receive the debt, would be the person to 
dispute it, was made a party to the suit. Then in his presence they dis- 
missed the aopeal and affirmed the decree of the District Judge with some 
variation as to costs, as to which there is no question now. 

It seems to their Lordships that that is perfectly right. The High 
Court has taken every precaution to protect tha defendant in his payment 
of the money, and it is absolutely imoossibla that after that decree any- 
body can demand the inouey of him again. 

Their Lordshins will therefore humbly advise Her Majesty that this 
appeal should be dismissed. The respondent does not appear, and there 
will be no order as to costs. 

Appeal dismissed. 

Mr. R. T. Tasker, solicitor for the appellant. 



(1) Act XXVII of 1860, 8ec. 2. (2) The Succession Certificate Act, 1889, Sec. 4. 

117 



20 Mad. 168 INDIAN DECISIONS, NEW SERIES [Vol. 

1896 20 M. 167 = 6 M.L.J. 218. 

Nov. 23. APPELLATE CIVIL. 

APPEL- Before Mr. Justice Shephard and Mr. Justice Davies, 



p THE COURT OP WARDS AND ANOTHER (Defendants Nos. 1 AND 2), 

Appellants, v. VENKATA SURYA MAHIPATI RAMAKRISHNA EAO 
20 M. 167= (Plaintiff), Respondent.* [26th, 27th, 28th and 29th October and 
6 M.L.J. 218. 23rd November, 1896.] 

Hindu Law Impartible estate Power of testamentary disposition Will, construction 
of Misdescription of legatee. 

The holder of an impartible estate may alienate it by will to the same extent 
that he may alienate it by gift inter vivos. 

A testator made a bequest to " A B, my avurasa son," knowing that A B was 
not has avurasa son : 

Held, that the misdescription was immaterial and that A B took the bequest. 

[Affirmed., 22 M. 383 (P.O.) = 1 Bom. L.R. 277 = 3 C.W.N. 415 = 26 LA. 83 = 7 Sar. 
P.C.J. 481 ; R., 20 M. 207 = 7 M.L.J. 143 ; 22 M. 9 ; 27 M. 228.] 

APPEAL against the decree of G. T. Mackenzie, Acting District 
Judge of Godavari, in original suit No. 6 of 1891. 

The suit was brought by the adopted son of the late Rajah of Pittapur 
to recover the Zemindari of Pittapur and other property belonging to the 
late Rajah from the second defendant who [168] claimed to be the 
natural born legitimate son of the late Rajah and from the Court of Wards 
(the first defendant), who, on the death of the late Rajah, had taken 
possession of the property in question on behalf of the second defendant. 

The facts of the case were as follows : 

The Zemindari of Pittapur was granted to the ancestors of the late 
Rajah in 1647 in the days of the Muhammadan kings of Golconda. The 
late Rajah was born in 1844, and in 1854 succeeded his brother in the 
estate. He married his first wife in 1861, but had no issue by her till 
October 1885, when, as the defendants Nos. 1 and 2 alleged, she gave 
birth to the second defendant. On various dates the late Rajah married 
five other wives, but none of them bore any children until after the birth 
of the second defendant, when one of them was said to have given 
birth to a daughter. 

On the 28th of September 1873, the late Rajah adopted the plaintiff. 
On the 1st of October following the late Rajah executed in favour of the 
plaintiff's natural father a document (Exhibit D.C.) in the following 
terms : 

" Whereas we had no issue of any kind and whereas we, on the 28th 
" ultimo, corresponding to Sunday, the 7th of this Sudha, adopted, in 
" aocordance with the Hindu law, your second son named Sri Rajah 
' Ramakrishna Dasa Uachendrulu Varu, who is a gnati of our family and 
" who was born on Saturday the 7th of Kartika Bahula of the year 
" Kalayukti (27th Saturday 1858), and whereas we have given the son so 
" adopted the name of Sri Rajah Venkata Surya Mahipati Ramakrishna 
" Rao Bahadur and constituted him heir to our Zemindari of Pittapur, 
" &c., to all other properties moveable and immoveable, we agree in com- 
" pliance with your request, to your retaining with my adopted son the 
" thirty servants you have been retaining and changing from time to time 
" and not to permit you or any one of your family to see him whenever 

* Appeal No. 33 of 1895. 
118 



YII.] COURT OP WARDS V. RAMAKRISHNA RAO 20 Mad. 170 

" you or they may come to see him, and we have accordingly executed 1898 
" this agreement." Nov. 23. 

In or about 1881, differences and disputes arose between the plaintiff 
and the late Eajah, and the plaintiff in consequence left Pittapur and APPEL- 
continued to live apart from the late Eajah till the latter's death. The LATE 
late Rajah died on the 22nd July 1890. Before his death he executed CIVIL. 
three testamentary documents (Exhibits CXCIX, CCI, CCII) which were 
executed, respectively, [169] on the 16th February 1889, on the 7th 20 M. 167 = 
September 1889, and on the 17th of March 1890. 8 M - L - J - 218 - 

Exhibit OXCIX, so far as material to this report, was in the 
following terms : 

I write this will this 16th day of February 1889, as I am now 
suffering from dropsy which seems to be difficult to cure. 

Though it is not necessary for a Hindu to execute a will to bequeath 

his property to his legitimate (avurasa) son as Hindu law provides his 

rights ; yet to prevent further confusion I write this will to make the 

" public understand that I have determined to bequeath my property to 

my avurasa son according to Hindu law. My avurasa son Kumara 

" Mahipati Venkata Surya Rao should succeed to my property. My 

apopted son Venkata Mahipati Surya Ramakrishna Rao, the second son 

of the Rajah of Venkatagiri, has already been provided by me a money 

" allowance of Rs. 24,000 one year according to their request and have 

" also given him vast moveable property and spent much money for his 

" marriage and other ceremonies by which I fell in debt to the Rajah of 

" Venkatagiri. This debt is to be liquidated according to the instalments 

stated in the bond by the income of the estate and not from the 

" property given to the adopted son nor from his usual money allowance. 

" My adopted son should, as usual, receive his monthly allowance of 

" Rs. 2,000, including annual payment of Rs. 6,000, but my avurasa son 

" will, by any reason or other, be unwilling to give this allowance in cash 

he may allot any portion of my self-acquired proprietary estates to him 

which fetches an equal income of Rs. 24,000 a year, but should not in 

" any circumstance go to disputes with each other, the one to get more 

and the other to lessen it." 

Exhibit CGI was as follows : 

" 1 have hitherto executed a will on 16th February 1889, placed it 
" in a sealed cover (portion torn), and deposited the same in the office 
" of the Registrar. As it has been by intention to give all my moveable 
" and immoveable property to my avurasa son Kumara Mahipati Venkata 
" Surya Rao, as mentioned above, the said will was written in that 
" manner. As it struck me that by the wording of that will it might be 
" construed that I got the will written in such terms because I thought 
" that my whole property would be obtained by my avurasa son according 
" to the Hindu law alone, and in order to make my intentions clear 
" [170] leaving no room for entertaining doubts, I have executed this 
" will to form part of my former will. 

" It is my intention that my avurasa son alone should obtain not 
" only the impartible ancient Pittapur Zemindari estate, but also the 
" following properties which form my self-acquisition. . . . The 
" villages in the Thotapalli estate, the Veeravaram estate in Dandangi 
" Mutah and the Ananthavaram village and other immoveable properties 
" as well as the Palivela estate, which I got in pursuance of the will of 
" my paternal aunt Raja Vellanki Lakahmi Venkaiyamma Row Garu. 

119 



20 Mad. 171 INDIAN DECISIONS, NEW SERIES [Vol. 

1896 " These properties should, therefore, rest in him accordingly. The whole 
Nov. 23, " of my immoveable property including my jewellery, &c., should be 

"obtained by my avurasa son alone." 

APPEL- Exhibit CCIT, so far as it is material for the purposes of this report, 

LATE was in the following terms : 

CIVIL. " It is just under the Hindu law that the avurasa son should succeed 

" to all the properties. It is my intention also that he should so succeed. 
" Some immoveable properties, such as proprietary estates, and most parb 
I.L.J. 218. " Q f fo Q moveao i e properties form my self-acquisition. Although they are 
" not of the impartible nature as the ancient Zemindari of Pittapur, 
" those properties, aa well as my other moveable and immoveable properties 
" of all kinds, should be obtained by my avurasa son Chiranjeevi 
" Eaja Kumara Vonkata Mahipati Surya Rao. 

" It is also my intention that Ohiranjeevi Raja Veakata Surya Mahi- 
" oati Ramakrishna Rao, the second son of the Venkatagiri Raja, whom 
" I had hitherto adopted should be receiving cash payment which he 
" had been receiving hitherto according to the settlement made before 
" at their request. As the settlement formerly made is also to the effect 
" that he should continue to receive such uayment in future also, that 
" should take place accordingly. A good deal of moveable property was 
" already given to the said adopted son, and his marriage, &c., were per- 
" formed at a great cost and trouble ; owing to this, I had to contract 
" a loan from Venkatagiri people. The balance of the debt due to them 
" should be discharged by instalments from the taluk (estate), but nei- 
" ther the property given to the adopted son, nor the money allowance 
" he should be getting, should be made answerable for the said debt. In 
" case my avurasa son is unwilling to continue payment of the money 
" allowance to the [171] adopted son, my avurasa son may give to the 
" adopted son, in lieu of the money allowance, so much of the estate out 
" of the proprietary estates which form my self-acquisition as will fetch 
" a net income equivalent to the money allowance which the adopted son 
" has been receiving. But they both should not enter into any disputes 
"saying that the allowance already fixed for the adopted son is excessive 
" or low." 

On the death of the late Rajah the Collector as Agent of the Court 
of Wards took possession on behalf of the second defendant of the estate 
belonging to the late Rajah. The olaintiff then brought this suit, claiming 
to be entitled to all the property left by the latter. He denied that the 
second defendant was the son of the late Rajah, He further contended 
that, even if the second defendant were tho son of the late Rajah, he was 
entitled by right of primogeniture to succeed exclusively to such of the 
property of the late Rajah as might be found to be impartible, and was 
entitled as eldest surviving member of the late Rajah's family to the 
possession of such of the property as might he found to he partible. 

The second defendant asserted that he was the son of the late Rajah 
and that he, as the natural born son of the lato Rajah, was entitled to 
such of the property as might be found to be impartible to the exclusion 
of the plaintiff, who was only an adopted son, and that in such property 
as might be found to be partible the plaintiff as adopted could have no 
more than one-fourth the share of a natural born son. 

The second defendant also laid claim to the properties of the late 
Rajah under the testamentary documents of the 16fch February 1889, the 
7th September 1889, and the 17th March 1890. He contended that the 
late Rajah had power to dispose of all the properties dealt with by the 

120 



YII.] COURT OF WARDS V. RAMAKRISHNA RAO 20 Mad. 178 

testamentary documents inasmuch a^ these properties were partly self- 
acquired and partly ancestral impartible property. NOV. 28, 

The plaintiff denied the validity of the testamentary documents exe- ~~ 

cuted by the late Rajah on the following grounds : APPEL- 

(1) That the provisions of these documents were based on the LATE 

assumption that the second defendant was the natural born OlVIL. 
son of the late Rajah, whereas as a fact he was not. . .. 18 

(2) That the provisions of tbe^e documents contravened the agree- g M / , 21 " 

ment of 1st October 1873. (Exhibit DO.) 
[172] (3) That the will was wholly void under the Mitakahara 

law and by family custom. 

(4) That inasmuch as no portion of the property was the self- 
acquisition of the late Rajah, the properties were inalienable 
by will. 

The issues specifically referred to in the judgment are as follows: 
(iv) If the secon-1 defendant ha found to bo not in fact the son of 
tha late Rajah, whether he is precluded from claiming under 
the said testamentary disposition. 

(v) Whether the said testamentary disposition contravenes the 

provisions of the instrument of 1st October 1873 executed by 

the testator, and if so, whether such disposition is invalid 

by reason thereof. 

(vi) Whether the properties specified in Schedules 1 and 2 of the 

second defendant's written statement are impartible, 
(viii) Whether the aforesaid testamentary disposition in so far as it 
relates to properties, if any, found to be impartible is invalid 
under either Hindu law or family custom or by reason of the 
tenure on which the suit estate is held. 

The District Judge found that the second defendant was not the son 
of the late Rajah and that certain of the properties of the lata Rajah 
were ancestral impartible property and the rest were the self-acquisition of 
the late Rajah. With regard to the alienability of the properties, he said : 
" it appears to me that the decision of tho Privy Council in Sartaj Kuari 
" v. Deoraj Kuari (1), which runs counter to the whole previous current of 
" Madras decisions, must not be stretched too far. That decision is that 
" the holder of an impartible zemindari may alienate a portion of the 
" estate, unless there is some custom or something in the tenure by which 
" the estate is held, which forbids such alienation. It is a very long stride 
" from a decision which allowed the alienation of a parcel of land or per- 
" mitted a mining lease to a decision which permits a zemindar to be- 
' queath his estate to any boggar he picks up out of the streets. I cannot 
" think that the Privy Council in the decision in Sartaj Kuari v. Deoraj 
" Kuari (l) contemplated [173] any such results of their decision. I am 
" of opinion that as the zemindari was in its origin a military or feudal 
'' estate and that as the grant of a sannad in 1802 did not change the 
" previous tenure, there is certainly something in the tenure of this estate 
" that prevents the holder from bequeathing it en bloc to a stranger." And 
with regard to the validity of the testamentary disposition under which 
the second defendant claimed, he said: " The fourth and fifth issues raise 
" the question whether second defendant, although found in fact to he not 
" the son of the late Rajah, can inherit under those wills. Upon this 
"question Mr. Bashyam Aiyangar pointed out that second defendant, the 



(1) 10 A. 272, 
121 



M VII 16 



20 Mad. 174 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 " legatee, is an innocent person. He is no party to the fraud. Also plaint- 
NOV. 23. " iff's case is that the late Eajah was a party to the fraud. Therefore 
'' the testator was not deceived and knew what he was doing when he 
APPEL- " made this bequest. 

LATE " Upon this point, I think, that there is much force in the contention 

ClVIL. " f Mr Bashyam Aiyangar that second defendant is an innocent person, 
" that the testator knew what he was doing and that the second defend- 
20 M. 187= " ant ought to get at least the self-acquired property of the iate Kajah. 
6 M.L.J. 218. " ;p or gome time I was disposed so to decide the matter. It may be that 
" the Rajah intended second defendant, even if dispossessed of the zemin- 
" dari, to get something as a recompense for the cruel position in which 
" he has been placed. But upon further consideration I am of opinion 
" that the adoption of plaintiff on 28bh September 1873, and the subse- 
" quent agreement of October 1st, 1873, preclude the Rajah from be- 
" queathing his property to a stranger. It is true the agreement of October 
" 1st, 1873, is not a settlement of property, but it is evidence to show that 
"the Rajah of Venkatagiri gave plaintiff in adoption to the Rajah of 
" Pijitapur with an implicit understanding between them that plaintiff 
" should inherit in the event of there being no begotten son. That event 
" has now happened, and I think that this implicit agreement upon which 
" the adoption took place is sufficient to hinder the Rajah of Pittapur 
" from bequeathing even his self-acquired property away from plaintiff." 

In the result he gave a decree in favour of the plaintiff directing the 
first and second defendants to deliver up to him the properties moveable 
and immoveable left by the late Rajah. 

The first and second defendants appealed. 

[174] Bashyam Aiyangar. with him Ramasubba Ayyar, Subba Bow 
and Subramania Ayyar, for appellants. 

The appellant not only claims as the son of the late Rajah, but he 
claims also under the will of the latter : viz., under the three documents 
executed by the late Rajah on the 16th February 1889, on the 7th Sep- 
tember 1889 and on the 17th March 1890. Under these documents the 
appellant would get all that he wants, and if the issues relating to them 
are decided in his favour, the consideration of the other issues becomes 
unnecessary. 

In deciding whether the appellant takes under the will, the first 
question raised is, whether the properties dealt with by it are alienable by 
will. Some of these properties are found by the Judge to be the self- 
acquired properties of the late Rajah. As to these, the question does not 
arise ; they are clearly alienable by will. The question concerns only those 
properties which we assert, and which the Judge finds, to be impartible. 
That they are impartible is shown by overwhelming evidence. Being im- 
partible they are alienable. In Sartaj Kuari v. Deoraj Kuari (1) followed in 
Beresford v. Rama Stibbaty), and Siva Subramania Naicker v. Krishnam- 
mal (3), it was held that the holder of impartible property might dispose of 
it by gift, unless there was anything in the tenure on which it was held 
restraining alienation, or unless there was a custom against alienation. The 
District Judge finds that the zemindari was in its origin a military or 
feudal estate, and that consequently there is " something in the tenure 
of the estate, that prevents the holder from bequeathing it en bloc to 
a stranger." The finding that the estate was in its origin military 
or feudal is not supported by the evidence. But even if the Judge is right 

(1) 10 A. 272. (2) 13 M. 197. (3) 18 M. 287. 

X22 



TO.] COUBT OP WARDS V. RAMAKRISHNA RAO 20 Mad, 1?6 

in fact, that does not render the estate inalienable now, since it is held 1896 
under a sanad. granted under Madras Regulation XXV of 1802. If the Nov. 23. 
tenure imposes a restraint upon alienation, that restraint must be imposed 
for the benefit of the grantor of the tenure, who, in the case of a military or APPEL- 
feudal tenure, would be the Government. But the Regulation, by Section LATE 
8 allows an estate held under a san id to ba alienated, at least as against OlVIL. 

the Government. As to a custom restraining alienation, if the respondent 

relies upon such a custom, ib is for him to prove it. Sartaj Kuari v. 20 Mt 16 j 
Deoraj Kuari (1) Siva Subramania Naicker v. [175] KrishnaminalQ).* *- J - 21 
But he has failed to do so. The impartible properties therefore come 
within the rule laid down by the Privy Council in Sartaj Kuari v. Deoraj 
Kuari(i) and are alienable. But it was attempted to distinguish this case 
on the ground thab it referred only to an alienation inter vivos; and it is said 
that it does not follow that, because an estate is alienable inter vivos, ib is 
alienable by will. Sartaj Kuari v. Deoraj Kuari (1) was however a case of 
gift inter vivos, and it is contended that the power of bequest is co-extensive 
with the power of gift inter vivos. In Jatindra Mohan Tagore v. Ganendra 
Mohan Tagore (3), Willes, J., in delivering the judgment of the Privy 
Council, said: " The law of wills has, however, grown up, so to speak, 
" naturally from a law that furnishes no analogy, but that of gifts ; and 
" it is the duty of a tribunal dealing with a case new in the instance to be 
" governed by the established principles and the analogies which have 
" heretofore prevailed in like cases .... The analogous law in this 
" case is to be found in that applicable to gifts, and even if wills were not 
" universally to be regarded in all respects as gifts to take effect upon 
" death, they are generally so to ba regarded as to the property which they 
" can transfer and the persons to whom it can be transferred." This 
" principle was applied in Vallinayagam Pillai v. Pachche (4) and Baboo 
Beer Pertab Sahee v. Maharajah Rajender Pertab Sahee (5) and Venkata 
Rama Rauv. Venkata Suriya Rau (6). No doubt this impartible property 
is ancestral, but that does not prevent it being disposed of by will, if 
the owner is a sole owner. What prevents ancestral estate or a 
share in ancestral estate being disposed of by will is the existing 
rights of other members of the coparcenary. Villa Butten v. Yamen- 
amma (7), Lakshman Dada Naik v. Ramachandra Dada Naik (8), 
Rathnam v. Sivasubramania (9). Therefore, when, as in this case, 
there are no rights in the property belonging to any other members 
of the co-parcenary, there is no restraint on alienation by will. Under 
the ruling of the Privy Council in Sartaj Kuari v. Deoraj Kuari (1), 
the holder of impartible property is exactly in the position of a sole 
owner of ancestral property ; and [176] his sons having no right 
in the property cannot veto any disposition by will. They may have 
rights to maintenance, but this does not give them a right to object 
to a bequest of the property. A widow has a right to maintenance out 
of ancestral property, but she has not, on that account, a right to veto an 
alienation of it by will. Vallinayagam Pillai v. Pachche (4). 

The District Judge has held that the late Rajah was precluded by 
the document of October 1873 from alienating the estate as against the 
respondent. But this is not so. Rungama v. Atchama (10), Mussumat 
Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhrydl). 

(1) 10 A. 272. (2) 18 M. 287. (3) 9 B.L.R. 377. 

(4) 1 M.H.C.R. 326 (5) 12 M.I.A. 1. (6) 1 M. 281 = P.C. 2M- 333, 

(7) 8 M.H.C.R. 6. (8) 5 B. 48. (9) 16 M. 353. 

(10) 4 M.I.A. 1. (11) 10 M.I.A. 279. 

123 



20 Mad. 177 INDIAN DECISIONS, NEW SERIES [Yol. 

1898 The property being alienable by will and the la^e Rajah not being 

Nov. 28. precluded from alienating ifc by fche documant of the 1st of October 1873, 

the next question raised is whether the appellant, assuming him not to be 

APPEL- the avurasa son of tho late Rajah, is precluded from taking under the 

LATE will. On this noint tho District Judge has not found against the appel- 
OlVIL. lant, and it is only necessary to point; ou.t that the respondent's case is 

that the late Rajah k<iew that the appellant was not his son. 

20 M. 187= The Advocate-General (Hon'ble Mr. Spring Branson), with him Mr. 

6 H.L.J 218. Wedderburn, Rama Rau, Anantkacharlu, Gopalasami Ayyangar and 
Grant, for respondent. 

We can hardly contend that the properties found by the District 
Judge to be impartible are not so. But we say that they are inalienable 
by reason of the tenure on which they are held and by custom. The 
evidence shows that the estate at its origin was held on military tenure. 
And if it was so at its origin, it must be so still. The grant of a sanad 
under Madras Regulation XXV of 1802 does nob alter ths tenure under 
which the estate was originally granted. A sanad granted under that Regu- 
lation fixes the peishcush, but does not alter any of the incidents attaching 
to the estate. Muttayan Chetti v. Sivagiri Zemindar (l). It the estate 
is held on military tenure a custom of inalienability must follow. 

Assuming, however, tha*; the estate is not inalienable by tenure or by 
custom, we contend that the Jate Rajah could not dispose of it by will. 
Sartaj Kuari v. Deoraj Kuari(2) shows that he could [177] have 
disposed of it in his life-time by gift, but it does not therefore follow that 
he could dispose of it by will. No doubt, as was said by the Privy Council 
in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (3), there is an 
analogy between the power of disposition by gitb inter vivas and the power 
of disposition by will. But the power of testamentary disposition by a 
Hindu is an anomaly, and therefore ought not to be pressed too far per 
Holloway, J., in Gooroova Butten v. Narrainsawmy Butten (4), see too the 
judgment of the Privy Council in LaJcshman DadaNaik v. Ramchandra 
DadaNaik (5). The argument of the appellant is that a man may by will 
dispose of whatever he may giva away in his life time. But this is not so. 
This doctrine is questioned by Markby, J., in Kumara Asimi Krishna Deb v. 
Kumara Kumara Krishna Deb(Q) and in the judgment in Tara Chandv. 
Reeb Ram (7), and it is expressly denied by Holloway, J., in Gooroova 
Butten v. Narrainsawmy Butten (4), see too Jarman on Wills (8). As an 
instance where the power of bequest falls short of the power of gift inter 
vivos the case of an alienation by a widow may be referred to Jushada 
Raurv. Juggernaut Tagore(9) &nd.Gurivi Reddi v. Chinnamma (10). The 
question whether a Hindu may disposo of oroperty by will depends upon 
whether he is a joint or separate owner of that property. In the cases 
where an alienation by will his been uoheld, it has bean on the ground 
that the testator wa^ the separate ownar of tha property. In Nag a- 
lutchmee Ummal v.Gopoo Nadaraja Chetty (11) the testator was the 
separate owner of the ancestral property. In Baboo Beer Pertab Sahee v. 
Maharajah Rajender Pertab Sahee (12), the decision was based on the 
ground that the nroperty was the separate self-acquired property of the 
testator. In Vallinayagam Pillai v. Pachche (13), the property was 

(1) 3 M. 370. (2) 10 A. 27'2. (3) 9 B.L.R. 377. 

(4) 9 M.H.C.R. 13. (5) 5 B. 48(62). (G) 2 B.L.R. O.C.J. 11 (41). 

(7) 3 M.H.O.R. 50 (55). (8) Vol. I, p. 43, Fifth edition. 

(9 2 Morley's Digest. 67. (10) 7 M. 93. 

(11) 6 M.I.A. 309. (12) 12 M.I.A. 1. (18) 1 M.H.O.R. 326. 

124 



YII.] COUET OP WARDS V. RAMAKRISHNA RAO 20 Mad. 179 

ancestral, but the testator was tho separate owner of it. Now in this 1896 
case the testator was not the separate owner of the impartible pro- Nov. 23. 
perty ; that property was joint property, for impartiality does not 
render the ownership separate. In Naraganti Achammagaru v. Venkata- APPEL- 
chalapati Nayanivaru (1) it w;is laid down that the owoership of a LATE 
[178] co-parcener in sole possession of an impartible estate is not separ- OlVlI/; 
ate ownership. And this was followed in Subramanya Pandya Chokka 
Talavar v. Siva Subramanya Pillai (2). In Ned Kisto Deb Burmono v. 20 M. 187 = 
Beer Chunder Thakoor (3) it is said that there can be no community 8 " L- J - 2 18. 
of interest in an impartible estate. But this rule does not apply to Madras 
Naraganti Achammagaru v. Venkatachellapati Nayanivaru (1). As to 
impartible property being also joins property, see also Katama Natchiar v. 
The Rajah of Shivagunga (4) Maharani Hiranath Koer v. Baboo Ram 
Narayan Singh (5), Stree Rajah Yanumula Venkayamah v. Stree Raja 
Yanumula Boochia Vankondora (6), Sivagnana Tevar v. Periasami (7), 
Jogendra Bhupati v. Nityanand Man Singh (8). 

Moreover, on the death of the Rajah the estate passed by survivor- 
ship to the respondent. Jogendra Bhupati v. Nityanand Man Singh (8), 
Subramanya Pandya Chokka Talavar v. Siva Subramanya Pillai (2). 
And this right of survivorship defeats any testamentary disposition of the 
Rajah, Vitla Butten v. Icamenanna (9), Jarman on Wills dO); see also 
Almi v. Komu (11). Assuming, however, that the properties were such 
as were alienable by will, the agreement cf October 1st, 1873, precluded 
the Rajah from alienating them as against the respondent. 

But even if fcha Rajah was at liberty to dispose of the properties, the 
question arises whether under the will the aupellaat can take. We contend 
that on a true construction of the will the Rajah intendei the appellant 
to take only in the character of his avurasa son, and therefore as the appel- 
lant is not his avurasa son the bequest fails, Fanindra Deb Baikal v. 
Rajeswar Das (12), Door g a Sundari Dossee v. Surendra Keshav Rai (13), 
Karsandas Natha v. Ladkavahu (14), Nidhoomcni Debya v. Saroda Per- 
shad Hooker jee (15). Whether the Rajah knew the appellant not to be 
his son is immaterial so long as the appellant was not his son, Godfrey v. 
Davis (1Q). 

Bashyam Ayyangar in reply 

[179] On the last question, if the Rajah knew that the appellant 
was not his avurasa son, the misdescription goes for nothing Pratt v. 
Mathew (17), Schloss v. Stiebei (18), Doed Gains v. Rouse (19). To disen- 
title the legatee to take under the will, ho must have fraudulently induced 
the testator to believe that he bore the character which the testator attri- 
buted to him, Rishton v. Cobb (20). In re Pettf>(2l), In re EoMington (22), 
Jivani Bhai \.Jivu Bhai (23). Further, the evidence shows that the 
testator called the appellant his avurasa son and treated him as such : see 
Pratt v. Mathew (17) and Laker v. Hordern (24). 

(1) 4 M. 250. (2) 17 M. 316. (3) 12 M.I. A. 523. 

(4) 9 M.I.A. 539. 543. (5) 9 B.L.R. 274. (6) 13 M.I A. 333. 

(7i 1 M 312= sub. nom. Periasami v. Periasami, 5 I. A. 61. 

(8) 18 C. 151. (9) 8 M.H.C.a. 6. 

(10) Vol. I, p. 48, fifth edition. (11) 12 M. 126. (12) 11 C. 463. 

(13) 12 C. 6S6. (14) 12 B 185. (15) 3 I. A. 2f3. 

(16) 6 Ves. 43. (17) 22 Beav. 328 at p. 334. 

(18) 6 Sim. 1. 119) 5 C.B. 422. (20) 5 My. & C. 145. 

(21) 27 Beiv. 576. (22) L.R. 22 Ch. D. 597. 

(23) 2 M.H C.B. 462. (24) L.R. 1 Ch. D. 644. 

125 



20 Mad. 180 INDIAN DECISIONS, NEW SERIES [Vol. 

1896 The Advocate-General, in replying on the fresh authorities cited, 

Nov. 28. referred to Hill v. Crook (1), Abbu v. Kuppammal (2) ; In re Hall (3). 

APPEL- JUDGMENT. 

LATE This is an appeal against the decision of the District Judge who has 

CIVIL, decreed in favour of the plaintiff's right to succeed to the ancient Zamin- 
dari of Pittapur in the Godavari District. The plaintiff claims as the 
20 M. 167= adopted son of the late Rajah of Pittapur. As such he claims to recover 
6 M.L.J. 218. th e estate and effects of his adoptive father. The appellant alleges him- 
self to be the natural-born son of the late Raja, it being said that his 
birth took place in the month of October 1885 some twelve years after 
the date of the plaintiff's adoption. The adoption of the plaintiff in 1873 
is admitted. The defence is rested on two independent grounds : Firstly, 
it is said that the appellant is entitled to succeed in virtue of his being 
the natural-born and legitimate son of the deceased* Raja by his first wife 
Mangayamma, and secondly, it is said that the late Raja left a will be- 
queathing to the appellant practically his whole property, making some 
provisions for the adopted son and other members of the family. 

The District Judge has found in favour of the plaintiff with regard 
to both these points. He has found that the appellant is not the son of 
the late Raja nor of the Raja's wife. He has also found that, although 
the late Raja did make three wills, all being to the same effect, so far as the 
question in this case goes, those wills are not valid and oparative as against 
the plaintiff. Mr. Bashyam Aiyangar, who argued the case on behalf of the 
[180) appellant, was prepared to impugn both these findings. Bub, as 
he was satisfied with the disposition of property made in the Raja's wills, 
he was content with a decision on the question of their validity if that 
question was decidad in his favor. His position was that, whether his 
client was the son of the late Raja or not, he was entitled to the Raja's 
property as bequeathed under tha wills. We proceed then to consider 
whether these wills of the Raja are valid against the plaintiff. That the 
three wills were duly executed by the late Raja on the 16th February 
1889, 7th September 1889 and 17th March 1890, respectively, is a fact 
found by the District Judge and not disputed. It may be a question 
whether the last of these three wills supersedes the other two. The third 
issue relates to this question, and it is one which may have to be decided 
in some future suit, inasmuch as there is a variance between the gifts 
made in the first two papers and those made in the last. For the purpose 
of the present case it appears to us unnecessary to decide the question, 
inasmuch as there is a complete disposition of the property in favour of 
the appellant as well under the last will as under the first two. The 
plaintiff, tha present respondent, impugns these wills on several grounds 
in order to avoid the application of the principle laid down by the Judicial 
Committee in Sartaj Kuari v. Deoraj Kuari (4). It has been alleged on 
behalf of the respondent chat the zemindari of Pittaour is not an imparti- 
ble zemindari, and further, that, if it be an impartible zemindari, it is a 
zemindari which, according to the custom or in virtue of the tenure upon 
which it is held, is inalienable. The sixth and eighth issues were framed 
with reference to these contentions. With regard to the question of 
impartibility (the sixth issue), the finding of the District Judge is in the 
appellant's favour. He finds that the property comprised in Schedules I 

(1) L.R. 6 H.L. 265. (2) 16 M. 355. 

(3) L.R. 35 Oh. D. 551. (4) 10 A. 272. 

126 



YII.] 



COURT OP WARDS V. RAMAKRISHNA RAO 20 Mad. 182 



and II, that is, the zemindari and the accretions thereto, are impartible. 
We were referred by Mr, Bashyam Aiyangar to numerous documents, prov- 
ing, in our opinion, beyond all doubt that the estate has always been regard- 
ed as impartible. In family arrangements made in 1845 and 1869 (Exhibits 
CCIX and CCCVII) it was so treaced. In the course of the descent 
which is traced back for several generations to the original holder 
(Exhibit CCCXXI) there are several instances in which, on the 
[181] death of the holder of the zemindari, there was a plurality of legal 2 
heirs, and yet only one succeeded to the estate. The zemindari was treat- 6 
ed as admittedly impartible in the litigation to which the present plaintiff 
was a party (Exhibits CGLXXXIV and XII). It is not necessary, how- 
ever, to elaborate this point, because the Advocate-General who appeared 
for the respondent, practically abandoned it. 

Upon the contention raised by the eighth issue that the zemindari is 
by custom or in virtue of its tenure inalienable, the District Judge finds 
that the zemindari was in its origin a military or feudal estate. The only 
evidence in support of this finding to which we were referred consists of 
statements by the late Raja that he placed at the disposal of the Government 
in 1879-1880 some armed men on account of the disturbance in Eumpa. 
There is no evidence as to the circumstances under which this was done. 
It is suggested by the Advocate-General that there may be more evidence 
as to the nature of the tenure in the possession of the Court of Wards, 
and that they ought to have disclosed it to the Court. The answer to this 
is that the burden of proving that the estate was held by military or 
quasi feudal tenure lay upon the plaintiff, and that it was competent to 
his advisers to elicit from the Court of Wards any information with reg- 
ard to the history of the zemindari which might be in their possession. 
Apart from the suggestion that the zemindari was held on military tenure, 
it is not contended that there was any evidence to prove that the zemindari 
was by custom inalienable. On the other hand, Mr. Bashyam Aiyangar 
refers to numerous instances in which grants in perpetuity of portions of 
the zemindari have, from time to time, been made (Exhibits CCLXXIX 
and DQ series). The Exhibits marked CCLXXIX relate to such aliena- 
tions prior to the permanent settlement ; the others are subsequent thereto. 
As, in our opinion, there is no evidence that the estate was ever held on 
military tenure, it is not necessary to consider whether the nature of the 
tenure if it had been military in ibs origin would have bean affected 
by the parmanent settlement of fcha estate under Regulation XXVof 1802. 
For these reisons we have coma to the conclusion that the District 
Judge was wrong in his finding of fact upon tha eighth issue. 

The question now follows whether the estate being without doubt 
impartible and not shown to ba inalienable either by custom [182] or 
otherwise, the principle laid down in the case above cited is applicable. 
It was decided in that case that the property in the paternal or ancestral 
estate acquired by birth under the Mitakshara law is so connected with 
the right to a partition that it does not exist where there is no right to a 
partition. In the absence of co-ownership their Lordships held that there 
was no restraint upon the father's power of alienation. The case has been 
considered more than once by a Division Bench of this Court, and there can 
be no doubt that we are bound to act upon the doctrine explicitly laid down 
by the Judicial Committee (See Beresford v. Ramzsubba (1) and Siva- 
subramania Naicker v. Krishnammzl (2)). There are, it is true, cases 



(1) 13 M. 197. 



(2) 18 M. 287. 



1896 
Nov. 23. 

APPEL- 
LATE 
QlVIL. 

< * * * 6 7 
H.L ' 218. 



127 



20 Mad. 183 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 prior to 1888 in which expressions were used which point to another 
Nov. 23. view of the law : Katama Natchiar v. The Rajah of Shivagunga (1), 
Neelki-sto Deb Burmono v. Beerchunder Thakoor (2), Stree Rajah Yanumula 
APPEL- Venkayamah v. Stree Rajah Yamimuii Boochiu Vankondora (3), Maharani 
LATE Hiranath Kocr v. Baboo Ram Narayan Sing (4), Sivagnana Tevar v. 
CIVIL. Periasami (5). Bub wo must now take it that in those cases as well as 
in the later case of Joyendro Bhupati v. Nityamnd Man Sing (6), a dis- 
20 M. 167= tinctiion is to be mado between a matter of succession by inheritance and 
6 M.L.J. 218. a question of alienability. This distinction is clearly marked by tho 
Judicial Committee itself in Sartaj Kuan's case (7). The decision is a 
clear authority to the effect that the Rajah could legally have alienated 
the whole or any part of tho estate by gift or otherwise during his life 
time. It is contended, however, that what a Hindu can alienate by gift 
inter vivos he cannot always alienate by a testamentary disposition. The 
Advocate- General combated the proposition that a Hindu can alienate by 
will all that he can dispose of by gift inter vivos. There is a strong body of 
authority in support of the proposition that the two powers are co-exten- 
sive, Vallinayagam Pillai v. Pachche (8), Ganendra Mohan Tagore v. 
Upendra Mohan Tagore (9), Jatindra Mohun Tagore \. Ganendra Mohan 
Tagore (10), NagaLutchmee Ummal v. Gopoo Nadaraja Chetty (11), Baboo 
Beer Pertab Sahec v. Maharajah Rajender Pertab Sahec (12). Cases were 
cited [183] in which learned Judgeshavothrowndoubt upon the universality 
of this proposition Kumara Asima Krishna Deb v. Kumara Kumara Krish- 
na Debil'3), Krishnaramani Dasi v. Ananda Krishna Bosc(14), Tara Chand 
v. Reeb Ram (15), Gooroova Batten v. Narrainsawmy Butten (16). The 
weight of authority is, however, strongly in favour of the proposition above 
mentioned. In Baboo Beer Pertab Sahea v. Maharajah Rajender Pertab 
Sahee (12), the Judicial Committee say as follows: " Decided cases top 
" numerous to he now questioned have determined that a testamentary 
"power exists and maybe exorcised at least within the limits which the 
" law prescribes to alienations by gift inter moos." An attempt was made 
to show that there were cases in which a Hindu could not bequeath by 
will what he could givo away int.r vivos t and tho case of a Hindu widow 
disposing of her savings was cited as an instance. It is answered that 
the question of a widow's right to dispose of her property by will depends 
upon the nature of the property whether it is such that she could givo it 
away by gift inter vivos. No case has been cited in which a widow has 
been held incapable of bequeathing by will property which she could other- 
wise legally dispose of. No principle is suggested on which a distinction 
can be rested between the extent of the power of giving by will and of 
giving inter vivos. 

The cases relating to the disposition by will of an undivided share 
of a coparcenary property, really support the proposition that the powers 
of giving and bequeathing are co-extensive. In Vitla Button v. Yame- 
namma (17), it was held that a Hindu could not alienate by will his 
undivided share of coparcenary property, and thus defeat his son's 



(1) 9 M.I.A. 539 (543). (2) 12 M.I. A. 533. (3) 13 M.I. A. 333. 

(4) 9 B.L.R. 274. 

(5) 1 M. 312 = sub. nom. Periasami v. Periasami, 5 I. A. 61. 

(6) 18 C. 151. (7) 10 A. 272. (H> 1 M.H.C.R. 326. 
(9) 4 B.L.R. O.C.J. 103. (10) 9 B L R. 377. (11) 6 M.I.A. 309,' 

(12) 12 M.I.A. 1. (13) 2 B. L. R. 0. C. J. 11. 

ill) 4. B L...R. 0. C. J. 231. (15) 3 M.H O.K. 50. (16) 8 M.H. C. R. 13. 

(17; * M. H. C. R. 6. 

128 



YII.] COURT OP WARDS V. RAMAKRISHNA RAO 20 Mad. 185 

coparcenary right. When that case was decided the view, since over- 1896 
ruled (Baba v. Timma (] ), was entertained that a Hindu, under like Nov. 23. 

circumstances, could make a gift inter vivos of his undivided share 

of family property. Dealing with these decisions the Judicial Com- APPEL- 
mittee in Lakshman Dada Naik v. Ramachandra Dada Naik (2) LATE 
use the following language : " The reasons for making this " distinc- CIVIL. 
" tion between a gift and a devise are, that the coparcener's power of 
"alienation is founded on his right to a partition; that that right dies 20 M. 167 = 
with him ; and, that, the title of his co-sharers by survivorship vesting 6 M.L.J. 218. 
" in them at the [184] moment of his death, there remains nothing upon 
" which the will can operate." In Bombay it should be mentioned, a 
different view as to a coparcener's power of disposition had been taken. 
The High Court there had held that a coparcener could not either 
give or devise his share without the consent of his co-sharers. Referring to 
this the Judicial Committee go on to observe " Their Lordships do not think 
" it necessary to decide between the conflicting authorities of the Bombay 
" and the Madras High Courts in respect of alienations by gift, because they 
" are of opinion that the principles upon which the Madras Court has decided 
" against the power of alienation by will are sound, and sufficient to 
" support that decision." The doctrine here approved, that it is the 
right to a partition which puts a restraint on the coparcener's power of 
alienation, is the very doctrine enunciated in Sartaj Kuari v. Deoraj 
Kuari(B}. The case of Lakshman Dada Naik v. Ramchandra Dada Naik(%) 
decides that, where there is a right to a partition subsisting in one 
coparcener, the power to bequeath his share cannot be exercised by 
another coparcener. In Sartaj Kuari v. Deoraj Kuari (3) the negative 
proposition is asserted that, where the right to a partition is wanting, 
there is no restraint on the power of alienation. Seeing that in their 
judgment in the same case (Sartaj Kuari v. Deoraj Kuari (3)) the Judicial 
Committee cited the Hansapur case (4) in which the disposition was a 
testamentary one, we cannot suppose that they intended to restrict their 
decision to the case of gifts inter vivos. The conclusion at which we 
arrive is that, as the late Raja was capable of disposing of his estate by 
gift to a stranger, notwithstanding the existence of a son, so there is 
nothing to prevent his dealing with it by way of testamentary disposi- 
tion. 

We come now to consider the question raised by the fifth issue. This 
issue appears to have been framed with respect to an allegation made 
in the fifth paragraph of the plaint. Reference is there made to an 
adoption deed, dated the 1st October 1873. In point of fact there is no 
such deed, and it is not alleged in the plaint that, apart from the docu- 
ment bearing date the 1st October 1873, there was any contract between 
the plaintiff's natural father and the lata Raja on the occasion of the plaint- 
iff being given in adop- [18S] tion to the late Raja. The document of 
the 1st October 1873 (Exhibit DE) was executed some few days after 
the ceremony of adoption took place. This document evidences nothing 
more than a concession made by the late Raja with regard to the retinue of 
his adopted son and to the access to him of the members of his natural 
family. It ig true that, by way of recital, it is stated in the document 
that the boy has been adopted and constituted the heir to the zeinindari 
and its appurtenances. These words state nothing more than the legal 

(1) 7 M. 357. (2) 5 B. 48. (3) 10 A. 272. 

(4) Baboo Beer Pertab Sahee v. Maharaja Rajender Pertab Sahee. 12 M.I.A. 1. 

129 
M VII 17 



20 Mad. 186 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 consequences of the plaintiff 's adoption. It cannot be pretended that fchey 
Nov. 23. in any way restrain the adoptive father in the exercise of his powers of 

alienation. It might as well be said that the Raja had precluded himself 

APPEL- from prejudicing the rights of his adopted son by begetting a natural son. 

LATE Language far stronger was used by the adoptive father in the case of 

CIVIL. Rungama v. Atchama (1) and yet it was held that he had not disabled 

himself from disposing of the property without the consent of his adopted 

20 M. 167= 80n- There being no evidence and, as we have said, no allegation even 

6H.L.J. 218, O f anything in the nature of a contract or a settlement, we must hold that 

there was nothing in the provisions of the document of the 1st of October 

1873 to preclude the Raja from disposing of his property as he pleased, 

so long as he did not evade the obligation to maintain the appellant. That 

obligation is recognised in the wills. 

It remains to deal with the contention which is raised under the 
fourth issue. The issue is not happily worded, but we are told that it is 
meant to raise the question whether, by reason of the mere fact that tha 
appellant is not tbe son of the testator, he is precluded from taking 
the estate under the will. For the purposes of this issue we are as- 
suming that the appellant is, as found by the District Judge, not the 
son of the late Raja. It is contended that the Raja's expressed intention 
was to give the estate to his begotten son, and that the gift must fail if, in 
point of fact, the appellant does not answer to that description. In the 
plaint the allegation in respect of this matter is that the Raja, in or about 
October 1885, announced that his wife had been delivered of a son, namely, 
the appellant, and that this assertion on his part was false and fraudulent 
and set up to deprive the plaintiff of his rights as an adopted son. From 
this allegation in the third [186] paragraph of the plaint and the plaint- 
iff's own evidence as also from the opening of the plaintiff's vakil in 
the Court below and from the conduct of the case in that Court, it is 
abundantly clear that the plaintiff's case was that the Raja was him- 
self a party to the conspiracy by which the appellant was introduced into 
the family as his son, he being in fact a stranger. There is nothing to 
indicate that the Raja was under any mistake about the matter, and still 
less that he himself was the victim of the alleged fraud. The Judge 
apparently accepts this view of the case in paragraph 128 of his judgment. 
These being the circumstances, the cases cited to us, in which the 
testator was either under a misapprehension or was deceived, are wholly 
inapplicable. In the class of cases to which Fanindra Deb Baikat v. 
Rajeswar Das (2) belongs, the testator made a gift to a certain 
person under the belief that he filled a certain character, and the 
language of his will showed that his intention was that the person 
named should take the gift only in that character. In such cases it has 
been held that, when the testator turns out to have boon mistaken, tbe 
gift must fail, because the presupposed condition does not exist. It was 
argued that, notwithstanding the fact that the testator, the Raja, was 
under no mistake, the will still showed that his intention was that 
the appellant;, as his begotten son, and only as begotten son, should 
take under it. It is contended that, by his reference to the Hindu law 
and by his constant repetition of the word avurasa son, the Raja evinced 
his clear determination to make his will in harmony with Hindu opinion, 
which might be scandalized if he had given away his property to a 
stranger. Having regard to tha admitted fact that tbe Raia knew 

(1) 4 M.I. A. 1. (2) 11 C, 463. 



YII.] COURT OP WARDS V. RAMAKRISHNA RAO 20 Mad. 188 

that the legitimacy of his putative son was disputed, we are asked to say 1896 
that he intended the appellant to take only in the event of his claim Nov. 23. 
as son being established by a Court of law. A somewhat similar 
argument was used by Sir George Jessel as Counsel for the appellant in APPEL- 
Hill v. Crook (1). There the testator bequeathed certain property on LATE 
trust for his " daughter Mary, the wife of the said John Crook " for her CIVIL, 
life, John Crook in the former part of the will having been described as the 
testator's son-in-law, and after the decease of his said daughter, Mary 20 M. 167 = 
Crook, he directed that his property should remain upon trust for 6 M.L.J. 218. 
the benefit of the children of [187] his said daughter Mary Crook. 
It appeared that John Crook had first married another daughter of the 
testator and that, upon her death, he had gone through a form of marriage 
with the testator's daughter Mary. This daughter Mary was, therefore, 
not the legal wife of John Crook, and her children ware not her legitimate 
children. There was in fact a double misdescription, for prima facie 
according to English law " children" imports legitimate children. The 
children of Mary Crook were reputed and known as her children. So, in 
the present case, we have been referred to evidence showing that the appel- 
lant was introduced to the Raja's friends as his child and that the usual 
ceremonies for a child were performed by the Raja. It was held in Hill 
v. Crook (1) that the children of Mary Crook were as clearly pointed to 
by that description as if they had been mentioned by name. There can be 
still less doubt where, as in the present will, the actual name of the donee 
is also given. All that can be said with regard to this will is that, if the 
appellant is not the son'of the late Raja, there has been a misdescription of 
him in the will. It cannot be said that there is any possible doubt as to the 
identity of the person intended by the testator. We may refer to the case 
of Schloss v. Stiebel (2) cited in the argument, where the testator who was 
betrothed to a lady and intended to marry her in a few days, made a 
codicil in her favour describing her as his wife. Although he died before 
marrying her, it was held that the lady was entitled to the legacy. That 
case, like the present, illustrates the general doctrine that a false descrip- 
tion does not by itself vitiate the legacy. In Kennell v. Abbott (3) 
the Master of the Rolls, citing the passage from the Digest [Book 
XXXV, t. 1., 1. 72, s. 6], says that the meaning of it is " that a false 
" reason given for the legacy is not of itself sufficient to destroy it." If 
there is an adequate description of the person intended to take, the 
erroneous addition of words of description is immaterial. This is the case 
even where the error is unintentional, the true fact being unknown to the 
testator. A fortiori it must be so where the testator, for some reason of 
his own, uses words which he knows to be inapplicable. His description of 
the appellant as his avurasa son, which we are assuming to have been 
intentionally erroneous, we are disposed to attribute to a desire on his 
part to [188] strengthen the position of his intended beneficiary, who, we 
must repeat, had after all been treated by him as his son. The frequency 
of the use of the term ' avurasa, ' is, in our opinion, fully accounted for by 
the need of distinguishing the avurasa from the dattaka or adopted son. Ifc 
may be noticed that in each of the wills the full name of the adopted 
son and of the avurasa son is given only once and in other places the 
descriptions avurasa and dattaka are used in juxta-position. 

On this part of the case, we find that the testator's intention was 
undoubtedly to give the estate to the appellant irrespective of his claim to 

(1) L.R. 6 H. L. 265. (2) 6 Sim. 1. (3) 4 Ves. 802. 

131 



20 Mad. 189 



INDIAN DECISIONS, NEW SERIES 



[Vol. 



1896 tha title of son. No fraud or deception was practised upon the testator. 
' Nov. 23. He was under no misapprehension as to the facts. Ha used language 
which can apply to no one but the appellant, and therefore his gift must 
APPEL- take effect. 

LATE To recapitulate, our findings are (i) that the zamindari of Pittapur 

CIVIL. i g an impartible estate ; (ii) that there is no proof that it is inalienable 

either by custom or by reason of the tenure ; (iii) that the estate 

20 M. 167= thus being alienable inter vivos according to the decision in Sartaj 

6 H L.J. VW.JZuari v. Deoraj Kuari (1) it was equally alienable by will ; (iv) that the 

late raja's will is not void as being in conflict with any contract or 

settlement made by him in the plaintiff's favour ; and (v) that the 

appellant, whether or not he was the son of the testator, is the persona 

designata. 

Having come to these conclusions in favour of the appellant, we 
deem it unnecessary to proceed further with the appeal. The enquiry 
into the matter of the legitimacy of the appellant would entail a mere 
waste of the time of the Court for a great number of days, besides causing 
needless expense feo the parties, for in the resulb their position with regard 
to the property would not, in the view we have taken of the validity of 
the will, be altered by the decision at which we might arrive on the other 
question. 

We must allow the appeal and reverse the decree of the District 
Court and dismiss the suit. 

We have considered the question of costs. We think that, as the 
plaintiff has provoked an enquiry into the legitimacy of the appellant 
which, unless he succeeded in impeaching the Eaja's wills, was vain, he 
ought to pay the ordinary costs of the litigation. By ordinary costs we 
mean the costs incurred under the [189] Court Fees' Act for stamp 
duties, and under the Legal Practitioners' Act for pleader's fees, and the 
printing and translation charges in this Court. Other costs incurred by 
the parties themselves, such as the costs of the Commissions for the 
examination of witnesses and'of printing papers done outside the Court, 
must be borne by the party who incurred them. 



20 M. 189 (F.B.)=7 M.L.J. 167 = 2 Weir 120, 142, 144 & 763. 
APPELLATE CRIMINAL FULL BENCH. 

Before Sir Arthur J. H. Collins, Kt., Chief Justice, Mr. Justice Shephard, 
Mr. Justice Subramania Ayyar and Mr. Justice Benson. 



QUEEN-EMPRESS v. ARUMUGAM AND OTHERS.* 

[17th September and 7th October 1896, and 23rd February and 

30th April, 1897.] 

Occurrence Reports Charge slieets Right of an accused to copies of, before trial 

Criminal Procedure Code, Sections 157, 169, 173 Public documents Indian Evi- 
dence Act, Section 74 Right to inspect and have copies Indian Evidence Act 
Section 76. 

Held, by the Pull Bench (SUBRAMANIA AYYAB, J., dissentiente) . Reports 
made by a Police officer in compliance with Sections 157 and 168 of the Criminal 
Procedure Code are not public documents within the meaning of Section 7i of 

* Criminal Revision Case No. 328 of 1896. 
(1) 10 A. 272. 

132 



QUBEN-EMPBESS V. ARUMUGAM 20 Mad. 191 

the Indian Evidence Act, and consequently an accused person is not entitled, 1897 
before trial, to have copies of such reports. APRIL 30. 

Held, by COLLINS, G.J., and BENSON, J. The same rule applies to reports 

made by a Police officer in compliance with Section 173 of the Criminal Proce- FULL 
dure Code. 

Held, by SHEPHARD and 8UBRAMANIA AYYAR, JJ. Reports made by a Police ^ H> 

officer in compliance with Section 173 of the Criminal Procedure Code, are public _. __ . 
documents within the meaning of Section 74 of the Indian Evidence Act, and Ml 8 
consequently an accused person, being a person interested in such documents, (F.B.) = 
is entitled by virtue of Section 76 of the Indian Evidence Act, to have copies of 7 M.L.J. 167 
such reports before trial. =2 Weir 120 

IP., 31 C. 284 (293) = 8C.W-N. 132; R., 30 M. 460 (467) = 6 Cr.L.J. 346 = 17 M.L.J. 142, 1M ft 
471 = 3 M.L.T. 14.] 753, 

CASE referred for the orders of the High Court under Section 438 
of the Code of Criminal Procedure, by G. T. Mackenzie, Acting Sessions 
Judge of Coimbatore. 

The case was stated as follows : 

" The accused in the case applied for copies of the Village Magistrate's 

"report, complaint, police occurrences and charge [190] sheet, medical 

certificate and statements of complainant, in order that they might know 

" the nature of the case against them and also to enable them to cross- 

4< examine the witnesses for the prosecution. 

" The Magistrate passed the following order : 

Grant copy of complaint, medical certificates and statements only.' 
41 From this it appears that copies of occurrence reports and charge sheets 
41 were refused. 

" The accused then moved the Sessions Court in Criminal Revision 
41 Petition No. 9 of 1896, on which Mr. Desikachariar, High Court Vakil, 
4< was heard. He asked this Court to order the Magistrate to grant these 
41 copies. 

" My attention was drawn to a memorandum which the District 
4< Magistrate of Coimbatore published in the District Gazette of March 7th. 
' The attention of all Magistrates is drawn to the High Court Ruling 
41 in Queen-Empress v. Venkataratnam Pantulu (1), copies of charge sheets 
41 and occurrence reports should not be granted to the accused prior to the 
" completion of the trial of a case.' 

" I held that I have no power to interfere with the magistracy in 
" this matter, and chat if I had the power to interfere, Queen- Empress v. 
" Venkataratnam Pantulu (1) would prevent me. Mr. Desikachariar then 
' asked me to refer the order made under Section 458. 

" My own opinion is that everything which is before the Magistrate 
" or Judge ought to be known to the accused. The special privilege which 
" Section 172 gives to diaries may have a reason inasmuch as diaries may 
41 refer to other cases also. But I read with the utmost astonishment the 
41 remark of the Chief Presidency Magistrate in Queen-Empress v. Venkata- 
41 ratnam Pantulu (1), that charge sheets contain good deal of information 
41 for use of the Magistrate which the defence is not allowed to see. 

" Also I am unable to understand the exact force of the words ' at 
41 the present stage' in the decision of the High Court. The Chief Presi- 
" dency Magistrate refused copies ' before the trial,' so the High Court 
41 may mean that copies must be given when the trial has commenced or 
41 when a charge has been [190 framed. But the District Magistrate of 
41 Coimbatore understands the High Court to mean that copies need not 

(l) 19 M. 14. 
133 



20 Mad. 192 INDIAN DECISIONS, NEW SERIES [YoL 

1897 " be given until the trial is over, by which time it will be too late for 

APRIL 30. " accused to make any use of them. It is to be observed that the Code 

" says nothing about different stages of the proceedings in this connection,. 

FULL " and it seems to me that if an accused is entitled to a copy at last he is 

BENCH. " entitled to it at first. 

" The point is of general importance. There is hardly a case at 
" Sessions in which the defence does not scrutinize the first report from 
" the Village Magistrate, the first occurrence report seat in by the Station- 
7 M.L.J. 167 " house officer, and the charge sheet." 
=2 Weir 120, The p u bli c Prosecutor (Mr. Pmvell), for the Crown. 
142, 144 & Krishnasami Ayyar, for the accused. 

763. This reference was heard before SUBRAMANIA AYYAR and DAVIES, 

JJ., who made the following 

ORDER OF REFERENCE TO THE FULL BENCH. 

The question raised in this case is whether the accused was, at the- 
time he applied for copies for certain police reports including a charge sheet 
submitted to the Magistrate before whom he stood charged, entitled ta 
obtain the copies for defending himself in respect of the offence of which 
he was accused. 

Now there can be no doubt that the papers in question are public 
documents within the meaning of Section 74 of the Indian Evidence Act, 
since they are records of the acts of public officers submitted by them as 
required by law (Sections 157, 168 and 173, Code of Criminal Procedure), 
or in the discharge of their official duty, and it is equally undoubted that, 
under Section 76 of the Evidence Act, the accused would be entitled to- 
the copies, if the documents are such as the accused has a right to ins- 
pect. 

Though there appear to be no express legislative provisions with refer- 
ence to the question under consideration, yet it is perfectly clear that, in 
the eye of the law, every person has a right to inspect public documents, 
subject to certain exceptions, provided he shows he is individually inte- 
rested in them (Taylor on Evidence, 9th Edition, Section 1492, Vol. II, 
page 992). In Mutter v. The Eastern and Midlands Eailway Company (1), 
Lindley, L. J., with the concurrence of the Lords Justices Cotton and 
Bowen, laid down the rule thus : "When the right to inspect and take a 
[192] copy is expressly conferred by statute, the limit of the right depends 
on the true construction of the statute. When the right to inspect and 
take a copy is not expressly conferred, the extent of such right depends on 
the interest which the applicant has in what he wants to copy and on 
what is reasonably necessary for the protection of such interest. The 
common law right to inspect and take copies of public documents is- 
limited by this principle as is shown by the judgment in Rex v. Justices 
of Staffordshire (2)." In the case mentioned by the Lord Justice, Lord 
Denman, Chief Justice, observed that for the persons interested " Every 
" officer appointed by law to keep records ought to deem himself for that 
purpose" (for the production of documents) "a trustee." 

Such being the law on the point and the applicant being unquestion- 
ably interested in documents like the present as the person accused of the 
charge, to the investigation of which they relate, it must be held he is 
entitled to inspect them and, therefore, to copies thereof under the section 
of the Evidence Act referred to above. In support of this view, it may 

(1) L. B., 38 Oh. D. 92, (106). (2) 6 A. & E. 84 (100). 

134 



YII.] QUEEN-EMPRESS V. ARUMUGAM 20 Mad. 193 

also be pointed oat that, as it cannot be denied that the accused might at 1897 
his trial summon the police officer as a witness and call for and use the APRIL 30. 
report in question with reference to the examination of such a witness, it " 
stands to reason that be should be permitted to ascertain their contents crLL 
in order that he may act with an accurate knowledge of all available BENCH, 
information which may prove useful in defending himself. (See Fox v. oo~u~~iag 
Jones (1). The above conclusion, arrived at on general principles, appears ' 

to receive some confirmation from the provisions of Section 172 of the ' 

Criminal Procedure Code which exempts " police diaries " from being ' '. ' 
called for or seen on behalf of the accused ; thus implying that reports, ~ ' 

like those in question or other proceedings of the police, may be inspected ' 
at the instance of a person possessing the requisite interest. 

We should here observe that, apart from general principles, if in any 
case an order has been made on a police occurrence report or charge sheet 
affecting the person accused, such as an order for his arrest or for his re- 
mand to custody, he is ipso facto entitled to a copy of that document under 
the express terms of Section 548 of tbe Code of Criminal Procedure. 

[193] In our view, no weight should be given to the suggestion of the 
Public Prosecutor that to allow the accused access to documents like tbe 
present would enable them to tamper with prosecution witnesses and 
thus hinder the course of justice. On the contrary, it is impossible not to 
feol the force of the observation of Trevelyan, J., that he did not know of 
anything more disastrous to the administration of criminal law than that 
the accused should be debarred from having access to information to which 
he has a right and to which he is not absolutely debarred from having 
access by some express provision of the legislature (Sherusha v. The Queen- 
Empress (2)). 

It was next argued that at all events the accused ought not to be 
furnished with tbe copies until the time of the trial. But it is difficult 
to see how, in the absence of any distinct authority so restricting the 
exercise of the right in question, it can be contended that the accused can 
be refused inspection and copy until the stage of trial is reached. If the 
right exists at all, the party, entitled thereto, must be held to be at liberty 
to claim it at any time he considers fit to do so, since obviously he is the 
best Judge of when the right is to be exercised. Certainly it is but natural 
that accused persons should desire to have and apply for copies of papers, 
in which they are interested, even before the trial commences and the 
judgment of Lord Ellenbrough, C.J., in The King v. Tower (3) shows that 
applications, like the present, are not premature and ought to be complied 
with. 

The recent case of Empress v. Venkataratnam Pantulu (4) relied on 
by the Public Prosecutor, while seeming to recognize the right of the 
accused to obtain copies, would, however, seem to deny the exercise of 
such right at the beginning of a trial. This is not in accordance with the 
view taken by us. We must, therefore, refer for the decision of a Full 
Bench tbe question whether the accused had, from the moment of his 
accusation, a right to inspect and obtain copies of the documents in 
question for the purpose of his defence. 

This case coming on for hearing before the Full Bench, (COLLINS, 
C.J., SHEPHARD, SUBRAMANIA AYYAR and BENSON, JJ.), the Court 
delivered the following 

(1) 7 B. & C. 732 (734). (2) 20 C. 642. 

(3) 4 M. & 8. 162. (4) 19 M. 14. 

135 



20 Mad. 194 INDIAN DECISIONS, NEW SERIES [Vol. 

1897 JUDGMENTS. 

AFRir^SO, [194] COLLINS, C. J. In answering this reference to the Full Bench, 

FULL ^ intend to follow the exact words of the reference. The question is whe- 
ther the accused had, from themoment of his accusation, aright to inspect 
and obtain copies of the documents in question for the purpose of his 
20 M. 189 defence. These documents are certain police reports including a charge 
(P B )= sheet. The reference assumes that the documents are records of the acts 
7 M.L.J. 167 f public officers submitted by them as required by law see Sections 157, 
.. 2 Weir 120, 168 and 173, Code of Criminal Procedure and that they are public 
142, 141 & documents within the meaning of Section 74 of the Indian Evidence Act, 
7g3 < and that any person interested in the subject-matter of a public document 
has a right to inspect it and under Section 76, Evidence Act, has also the 
right to have a copy of such document supplied to him ; but that is really 
the point the Full Bench has to decide. There appears no doubt that a 
person accused is a person interested in the documents referred to in 
Sections 157, 168 and 173 of the Code of Criminal Procedure, if the reports 
relate to the accusation against him ; and if such reports are public docu- 
ments he would be entitled to inspect and have copies of such documents. 
I would remark that the accused person would thus be in a position to 
know before any evidence is given against him all the information the 
police have collected relating to the offence and their reasons for suspect- 
ing the accused. The accused would, if he had the above information, 
have every opportunity of making a successful defence even if he was 
guilty in fact he has a copy of the brief for the prosecution. 

The question to be decided is, are these reports made under Section 
157 the occurrence report and Section 168 the report made by a sub- 
ordinate police officer to the station-house officer public documents, and 
further is the charge sheet drawn up under Section 173, a public docu- 
ment ? 

The definition of a public document is (so far as it relates to the 
question before me) a document forming the acts or records of the ac'is of 
a public officer. It must be conceded that a policeman is a public officer. 

Section 157 enacts that if, from information received or otherwise, an 
officer in charge of a police station has reason to suspect the commission 
of an offence which he is empowered to investigate, he shall forthwith send 
a report of the same to a Magistrate empowered to take cognizance of such 
offence upon a police report Cl95] and shall proceed in person or shall 
depute one of his subordinate officers to proceed to the spot and investi- 
gate the facts 

Now can it be said that this report is a document forming the acts or 
records of the acts of a public officer? I am of opinion that it is not. It 
is the reasons the officer in charge of the police station has for suspecting 
the commission of an offence. 

Section 168 directs that a subordinate police officer who has made 
any investigation shall report the result of such investigation to the officer 
in charge of the police station. I am of opinion that reporting the result 
of an investigation cannot be said to be the act or record of an act of a 
public officer. 

Section 173 directs that, after the investigation under this chapter 
shall be completed, the officer in charge of the police station shall forward 
to a Magistrate ... a report in a prescribed form setting forth the 
names of the parties, the nature of the information and the names of the 
persons who appear to be acquainted with the circumstances of the case 

136 



YII.] QUEEN-EMPRESS V. ARUMUGAM 20 Mad. 196 

and shall also state whether the accused person is in custody or released 1897 
on his bond with or without sureties. This information, usually called APRIL 30. 
the charge sheet, stands in a somewhat different position from the reports 
under Sections 157 and 168, and it is possible to argue that the latter FULL 
portion does relate to the act or record of the act of a public officer, BENCH. 

viz., keeping the accused in custody or releasing him on bail ; but as that 

information would not be of the slightest use to the accused, and as in my 
opinion, the other information does not contain either an act or record of (F - B - ) = 
an act by a public officer, I hold that it is not a public document as w 
defined by Section 74 of the Evidence Aot. =2 Weir 120, 

142 14 
The acts and record of the acts of the public officer, while the inves- '-- 

tigation against the accused is carried on, are contained in the police 
diary, but by Section 172, Criminal Procedure Code, the accused is not 
entitled to call for such diary. I give no opinion whether the accused 
can call for the reports and charge sheet during the progress of the trial, 
but I answer in the negative the question referred to the Full Bench. 

I may add that I have not considered the English Criminal Proce- 
dure in relation to this case. The powers and duties of Magistrates and 
police are so different in India to the powers and duties of the same 
officials in England that I consider any reference to English Criminal 
Procedure unnecessary. 

[196] SHEPHARD, J. Neither in the Criminal Procedure Code nor 
in the Evidence Act is there any provision declaring or limiting the right 
of private persons interested in criminal proceedings to inspect documents 
in the hands of third parties. A right to inspect public documents is, 
however, assumed in Section 76 of the Evidence Act ; and, having regard 
to the authorities cited in the order of reference, I think it may be inferred 
that the Legislature intended to recognize the right generally for all per- 
sons who can show that they have an interest for the protection of 
which it is necessary that liberty to inspect such documents should be 
given. Within that limit the right appears to be recognized according to 
the English authorities. In the present case there can be no question as 
to the interest of the party who claims inspection. It is plain that a 
person charged with an offence is legitimately interested in knowing 
beforehand the particulars of the charge made against him, and the 
names of the witnesses who are going to support it. His interest is 
none the less a legitimate one, because some persons might make im- 
proper use of the information so obtained. If, therefore, the docu- 
ments sought to be inspected are public documents, and if they are 
unprotected by special privilege, it follows that the claim to inspec- 
tion must be allowed. If any of the documents is not a public 
document, the claim must clearly be disallowed. Documents of three 
sorts are mentioned in the order of reference. There is the report 
which the officer in charge of a police station is bound, under the provi- 
sions of Section 1 57 of the Code, to send to the Magistrate. There is the 
report which a Subordinate officer is under Section 168 bound to send 
to the officer in charge of the station, and there is the final report which 
under Section 173 the officer in charge of the station has, on completing 
his investigation, to sand to the Magistrate. Section 74 of the Evidence 
Act defines public documents, and if any of these reports is a public docu- 
ment, it must be because it forms the act or the record of the act of a 
public officer. Now, taking the first of them commonly called the occur- 
rence report and applying the language of the Evidence Act, I cannot see 

137 
M VII 18 



20 Mad. 197 INDIAN DECISIONS, NEW SEBIES [YoL 

1897 how it can possibly be called a public document. In obeying the provi- 

APRIL 30, sions of Section 157 of the Criminal Procedure Code, the police officer, as 

far as regards the Magistrate, does no act except the act of writing and 

FULL despatching a report founded on information received by him. It is clear 

BENCH, that this report does not form an act of the station-house officer within 

~ [197] the meaning of the Section, and it cannot be the record of an act, 

'* because there has been no act on bis part to record. In popular language 

= any report which a subordinate officer is bound to send in to his superior 

167 officer and which is not confidential may be called a public document ; but 

20> the Evidence Act lends no support to this view. 

It is necessary to examine the language of the 74th Section more 

* closely in considering the report which the subordinate police officer is, 
under Section 168 of the Code, directed to send to station-house officer. It 
is a report of the result of the investigation held under the provisions of 
the Chapter XIV of the Code. No doubt there may, in this instance, be said 
to be a record of acts done by a public officer. Nevertheless, I do not think 
the report is a public document within the meaning of Section 74. In 
construing that section, I think it may fairly be supposed that the word 
'acts' in the phrase "documents forming the acts or records of the acts" is 
used in one and the same sense. The act of which the record made is a public- 
document must be similar in kind to the act which takes shape and form in 
a public document. The kind of acts which Section 74 has in view is 
indicated by Section 78 of the same Act. The acts there mentioned are 
all final completed acts as distinguished from acts of a preparatory or 
tentative character. The inquiries which a public officer may make, 
whether under the Criminal Procedure Code or otherwise, may or may 
not result in action. There may be no publicity about them. There is 
a substantial distinction between such measures and the specific act in 
which they may result. It is to the latter only, in my opinion, that 
Section 74 was intended to refer. Unless this line of distinction is drawn,, 
I do not see where the right of discovery is to stop. If the report which 
a subordinate police officer sends to the station-house officer may be 
inspected before the trial, what is there to prevent inspection of the report- 
which any other officer furnishes for the information of the Public Prose- 
cutor ? It is true that the police officer acts in performance of a statutory 
duty, but Section 74 makes no distinction between such acts and other 
official acts. If an investigation amounts to an act of a public officer 
within the meaning of that section, and the report; of it is, in consequence, 
a public document, it practically follows that the accused is at liberty ta 
look into the brief of the counsel for the prosecution. 

[198] The charge sheet which is prepared under Section 173 of the 
Code stands on a different footing. When the charge sheet is sent to the 
Magistrate, the preliminary stage of investigation and preparation is over. 
Upon the receipt of it the Magistrate may, under Section 191, take cog- 
nizance of any offence that has been charged. The transmission of the 
charge sheet with a view to that result, accompanied by a statement as 
to the accused person whether he is forwarded in custody or not, may 
therefore properly be called an act of a public officer, and the charge sheet 
itself may properly be said to form a record of that act. It is only reason- 
able that an accused person should, when once the Magistrate is seized 
of the case, have access to the report stating the names of the parties, the- 
nature of the information and the names of the persons who appear to 
be acquainted with the circumstances of the case. On the other hand, 
there are good and obvious reasons why, in the case of communications* 

138 



YII.] QUEEN-EMPRESS V. ARUMUGAM 20 Mad. 199 

prior to that stage between police officers themselves, or between such 1897 

officers and the Magistracy communications which may or may not APRIL 30\ 
result in a charge and may relate to third parties and extraneous matters, 

discovery should not be allowed. FULL 

The conclusion at which I arrive is that an accused person is entitled BENCH, 

to inspect, and, therefore, to have a copy of the charge sheet before the M~IRQ 

trial, but that he is not entitled to inspect the other documents. Whether _ 
he is entitled to call for them at the trial is a different question with 

7 JUf T f 4 Gif 

which we are not now concerned. It was on that question that the cases ' m -"-~- 10( 
in Sheru Sha v. Queen- Empress (1), Bikao Khan v. Queen- Empress (2) =2 Weir 120, 
turned. 142 ' 1M * 

SUBRAMANIA AlYAR, ,T. The further consideration, which I have 763i 
bestowed on the question referred for decision, has not led me to think 
that the view, expressed in the order of reference, is erroneous. But some 
arguments, not urged before Davies, J., and myself prior to the date of 
the reference, have been advanced since and the most important of them 
call for some notice. 

One of the arguments is that a right, similar to that put forward 
now on behalf of the accused, does not exist in England. But this 
igqores an essential difference which exists between the circumstances of 
the police in England and of the police in this country. There the law does 
not sanction an investigation by the [199] police as is allowed by the 
Code of Criminal Procedure here. This is pointed out by Sir James 
Stephen in the History of Criminal law where he observes : " The second 
" way in which proceedings may begin is by a police investigation. This 
" process (Sections 154-172, Criminal Procedure Code) is unknown in 
" England. It is not altogether unlike part of the French procedure, 
" but it is still more like what would exist in England if the course usually 
" taken in fact by the police were to be taken under a legal sanction, the 
" police being invested by law with special powers to take evidence for their 
" own information and guidance " (Vol. 3, page 332). Owing to this 
difference between the two systems official documents corresponding to 
" charge sheets " and " occurrence report " under our Code are unknown 
to the law in England, and consequently no question as to inspection of 
such document, has or could have arisen there. 

The next argument appears to be that as in England a person accused 
of an offence falling under the description 'felony' is not entitled to a copy 
even of the indictment, it ought not to be held that an accused person in 
this country is entitled to copies of such documents as the charge sheet, 
&c. With reference to this argument, the first observation to be made is 
that the sole point for our determination being whether the documents in 
question are public documents within the meaning of Section 74 of the- 
Evidence Act, one is unable to see any connection between that question 
and the fact that in England persons accused of a particular class of 
offence are disentitled to a copy of the indictment. In the next place, 
supposing the doctrine of English law as to copies of indictment in cases 
of felony is somehow germane to the present discussion, it is clear even in 
England that doctrine is much disapproved of, if it has not already ceased 
to be law (vide Greave's Note (o) at page 463, Russell on Crimes, 6th 
edition). But granting that it is well recognized in English Criminal 
Procedure, can it be defended as a just and sound rule whilst admittedly 
a man accused of a misdemeanour is under the same law treated better ? 

(1)200.642. (2) 160.610. 

139 



20 Mad. 200 INDIAN DECISIONS, NEW SERIES [Vol. 

1897 The characteristics of reasonableness and of good sense, which alone 
APRIL 30. would justify our adopting a rule of English common law, being wanting 
in the particular instance relied on, a reference to it would seem scarcely 
1 DLL calculated to throw true light on the question at issue. 

[200] Another argument was urged with reference to the law as to 
20 n7l89 S rm t of copies of depositions in England. In arguing thus by analogy, 
(F.B )= tne P ecu l'ar nature of the theory which prevailed in England (before salu- 
1 M.L.J. 167 tary cnaD ges were introduced by 6 and 7 Will IV., cap. 114), as to a 
=2 Weir 120 P r i soner 's position with reference to everything done in connection with 
142 141 & ' ^e cnar ge against him prior to the trial, must not be lost sight of. That 
753 theory was that, in enquiring into and committing a person charged with 
an offence, a Magistrate was acting inquisitorially , that bis enquiries should 
be conducted in private and behind the back of the prisoner if that is con- 
sidered necessary and that the prosecutor or his solicitor alone might have 
access to the depositions taken by the Magistrate, but not the party 
accused, who, strangely enough it was thought, should not before the actual 
trial be enabled to know what the evidence to be adduced against him was 
(vide} the procedure adopted by the Magistrate in Thurttell's case (1) 
and the observations of Justice J. A. Parkin the same case). Referring 
to the working of a practice of this extraordinary description, Sir James 
Stephen justly observes : " I do not think any part of tbe old procedure 
" operated more harshly upon prisoners than the summary and secret way 
" in which Justices of tbe peace acting frequently the part of detective 
" offices took their examinations and committed them for trial." (76., 
page 225.) No doubt all this is now happily changed. But that such was the 
law and procedure even in the early part of this century ought to make one 
hesitate to look for light to the English practice under the common law 
in a matter like this. If we turn to the English statute law on the 
point, it cannot be denied that, so far as it goes, it affords reasonable 
facilities to the accused. The substance of it is this : a person under trial 
is entitled, subject to payment of certain fees, to copies of depositions, 
provided be applies for the same before ihe day appointed Tor the commence- 
ment of the Assize or Sessions at which he is to be tried. If, however, he 
is nob diligent in the matter and applies later, he can get them only if the 
Judge considers that the copies may be made and delivered without delay 
and inconvenience to such trial. Nor are persons under trial who have 
not taken the precaution of securing copies of depositions thereby precluded 
from ascertaining before their trial the nature of the evidence [201] 
recorded against them by the Magistrate, for they possess the right of 
inspecting without fee or reward all depositions or copies thereof which 
have been taken against them and returned into the Court before they 
are tried. (3 Bussel on Crimes and Misdemeanours, 6th edition, pages 404 
to 466, and especially note V at page 456.) What is there in these pro- 
visions to suggest anything against the granting of copies of tbe papers in 
question ? 

Turning now to the provisions of the Criminal Procedure Code relat- 
ing to those papers, it is necessary in order to understand their real 
import and nature to see why such provisions came to be enacted. Prior 
to tbe passing of the first Criminal Procedure Code, viz., that of 1861, the 
powers of the police were different from those now exercised by them. 
Complaints in cases of the more serious offences were usually laid before 
them. They were authorized to examine the complainant, to issue process 

(1) 1 Step. H. Criml. Law., 227. 
140 



ITH.] QUEEN-EMPRESS V. ARUMUQAM 20 Mad. 202 

;>f arrest, to summon witnesses, to examine the accused and to 1897 

forward the case to the Magistrate or submit a report of the proceedings APRIL 30. 

iccording as the evidence miy, in their judgment, warrant the one or 

the other course. These large powers were grievously abused for purposes 

of extortion and oppression, and it was a question for the determination BENCH. 

of Her Majesty's Commissioners appointed to consider the reform M~iB9 

of the judicial establishments, procedure and laws in 1856, whether the / FBl _ 

powers should not be greatly abridged. The Commissioners, however, ' '/~ 1fi7 

same to the conclusion that considering the extensive jurisdiction of the w 

Magistrates in this country, the facilities which exist for the escape of ~~ e ** ' 

parties concerned in serious crimes and the necessity for the immediate ' 

adoption in many cases of the most prompt and energetic measures, it was 

requisite to arm the police with some such powers'as they then possessed. 

(See page 181 of the Selections from the Eecords of Government : Papers 

relating to the Eeform of the Police of India, 1861.) The original draft of the 

Criminal Procedure Code, therefore, sought to give effect to the above con- 

jlusion. But when the matter came before the Legislative Council much 

difference of opinion prevailed among the members of the Council in respect 

pf some of the provisions inserted to carry out the view of Her Majesty's 

Commissioners. On the one side, it was contended that to allow the 

police to record statements of parties and witnesses and to place them 

before the Magistrate would be productive of much mischief. On the 

>ther side, it was urged that in the interest, not [202] only of the 

prosecution, but also of the defence, it was necessary that such statements 

should be immediately recorded and laid before the Magistrate at once. 

[See Proceedings of the Legislative Council, Vol. V, pages 515 to 545 and 

370 to 574.) The substance of the existing provisions of the law respecting 

he submission of reports by the police seems to have been devised to avoid 

.he evils apprehended by one set of the members and to secure in a mea- 

lure some of the advantages, to which the other members attached so 

{nuch importance. 

Now, first, the general report directed to be sent is the daily report 
sailed the diary. This the law prescribes should be forwarded to the 
officers of the department itself, in accordance with the principle insisted 
ipon at the reorganization of the police which took place about the same 
ima as the passing of the Criminal Procedure Code, viz., that dual control 
ihould beavoidel and policemen should be directly dependent on, and be res- 
jonsible only to, their own officers (page 250 of the selections already cited.) 
Vnd this diary, which must contain everything material heard or done by 
, policeman in the course of the day with reference to his work, was, for 
ibvious reasons, declared not to be subject to inspection by the parties, 
tfext, special reports bearing upon particular cases coming up for investi- 
[ation were directed to be submitted to the Magistrate. One of the objects, 
^hich the legislature had in view in requiring the submission of these 
eports to the Magistrates, was manifestly to provide a record with 
eferetice to which the action of police officers engaged in making an 
nvestigation may be scrutinized during the later stages of the case. Now, 
vho is more interested in exercising this scrutiny than the accused im- 
>licated in the particular case to which the investigation relates ? It is 
mpossible to believe that the legislature intended that persons, so deeply 
nterested in bringing to light any misconduct in connection with the 
investigation, should not have access to the records in question. If such 
vere really the intention, why, whilst expressly laying down that the 
eneral report or diary cannot be called for by the parties, the legislature 

141 



20 Mad. 203 INDIAN DECISIONS, NEW SERIES [Yol. 

1897 singularly enough refrained from declaring that these special reports also 

APBIL 30. are confidential ? Why did ib not in terms extend the protection accorded 

to the diaries to the other reports prescribed ? It is scarcely necessary 

FULL j; O a dd that to withhold from the accused access to the reports in question 

BENCH, would certainly be to deprive those [203] persons of one reliable means of 

~ ascertaining the development of the case during the investigation and to 

' disable them from exposing, at the preliminary enquiry to trial, the 

' ,~ 1B7 attempts, if any, made by the police or obher persons Connected with the 

_ ' '. ' fl case.to get up false evidence, or other circumstances appearing in the reoorts 

144 & ' an ^ rsvea li n g flaws in the case for the prosecution. 

' As to Section 125 of the Evidence Acb, that only provides against 

a police officer being compelled as a witness to say whence he gob any 
information as to an offence. The secbion has clearly no reference to the 
present case. 

Lastly, that the documents in question fall strictly within the langu- 
age of Section 74 of the Evidence Act seems to my mind to admit of no 
doubt. First, as to the charge sheet, is it not a ' record ' of at least some of 
the investigating officer's acts ? Again, suppose it is not, is it nob unques- 
tionably itself a document forming an ' act ' of his, he being enjoined to 
act in a particular way, that is, submit such a report. The same remark 
applies to the report under Section 157. Nor is it right to suppose there 
is no other " occurrence report " sent by the police to a Magistrate in the 
course of an investigation. For, according to the rules of the department, 
a policeman making a search has to send one in respect of it to the Magis- 
trate (Orders of the Madras : Police Order 140 (h), page 80), and there is 
the inquest report prescribed by Section 174 of the Code. Copies of these 
are not unimportant to accused persons, and it cannot be doubted that 
these reports are records of a public servant's acts within the meaning of 
Section 74. 

For all the above reasons, I would answer the question submitted in 
the affirmative. 

BENSON, J. The question for our decision is, as I understand it, 
whether a person who is named as accused of an offence in a charge sheet 
forwarded by the police to a Magistrate is entitled before his trial to 
inspect and obtain copies of certain reports made by the police in con- 
nection with the case, viz. : (1) the occurrence reporb made under Section 
157, Criminal Procedure Code ; (2) the report made under Section 168, 
Criminal Procedure Code, by a subordinate police officer to the station- 
house officer; and (3) the charge sheet drawn up under Section 173, Cri- 
minal Procedure Code. 

It was, I understand, conceded that a copy of the station-house offi- 
cer's report made under Section 167, Criminal Procedure [204] Code, 
could not be demanded, inasmuch as it is an extract from the police 
diary which is specially protected by Section 172, Criminal Procedure 
Code. 

I am of opinion that the reference must ba answered in the negative. 

It is admitted that the right is nowhere given by any express legisla- 
tive enactment ; bub it is argued that the reporba in question are public- 
documents within the meaning of Saciion 74 of the Indian Evidence Act; 
that every parson interested in the subject matter of a public document 
has an inherent right to inspecb it, and that, under Secbion 76 of the Indian 
Evidence Act, every person entitled to inspect a public document is also 
entitled to obtain a copy of ib. It will be seen that the whole question 
depends on whether the documents in question are public documents 

142 



YII.] QUEEN-EMPRESS V. ABUMUGAM 20 Mad. 205 

within the meaning of Section 74 of the Indian Evidence Act. I do not 1897 
think that they are. The only class of documents specified in that section APRIL 30. 
within which they could fall is " documents forming the acts or 
" records of the acts of public executive officers." The police officers who FULL 
send in these reports are, no doubt, public executive officers, but I do not BENCH, 
think that these reports can, with anypropriety.be regarded either as forming II~QQ 
thoir acts or as the records of their acts, The diary of a police officer which ' 

is kept under Section 172, Criminal Procedure Code.is the record of his acts, ' ' = 
in the popular sense of the word, in making an investigation under the _ 9W . 190 
Criminal Procedure Code. It sets forth his proceedings day by day in ~~ * ' 
making the investigation and inter alia it must record " the time at which ' 
" information reached him, the time at which he began and closed his in- 
"vestigation, the place or places visited by him and a statement of the 
"circumstances ascertained through his investigation," but this diary is by 
Section 172 expressly protected from inspection by the accused and his 
agents. It may, I think, well be doubted whether the word ' acts ' in 
Section 74 is used in its ordinary and popular sense, and not rather in the 
restricted and technical sense in which it is used in Section 78 of the Act, 
but in either case, I think that the reports in question are not, in any sense, 
records of the acts of the police officer. This will be clear if their contents, 
as prescribed by law, are considered. The occurrence report Section 157), 
is a report sent to the Magistrate stating that the officer of police 
suspects, on information or otherwise, that a cognizable offence has been 
[205] committed in his jurisdiction, and if the police officer considers it 
unnecessary to investigate the case, it must state the reasons for such 
conclusion. It is not a record of his acts, but a report of information 
given to him. The report under Section 168 is merely a report by a 
subordinate police officer to the station-house officer of the " result of his 
investigation " into an allege! or suspected cognizable case. It is not 
the record of any act of the investigating officer. The charge sheet is the 
report sent to the Magistrate under Section 173 when an investigation 
has been completed. It must contain " the names of the parties, the 
" nature of the information and the names of the persons who appear to 
*" be acquainted with the circumstances of the case," and must state 
" whether the accused person has been forwarded in custody or has been 
" released " on bail. This report is not dhe record of the acts of the 
police officer. It no doubt reports one act of the police officer, viz., 
whether he forwarded the accused in custody, or has released him on 
bail, but it is not the official record of that act. The record of the act is 
the proceedings in granting or refusing bail, not the report of those pro- 
ceedings to the Magistrate. I conclude, then, that none of the reports in 
question are the acts or the records of the acts of the police officers with- 
in the meaning of Section 74 of the Indian Evidence Act. They are not, 
therefore, public documents, and the accused has no right to inspect them 
or to obtain copies of them. 

So far I have referred to the reports as if they contained only the 
information which they are required by the code to contain. As a fact, 
however, they have been enlarged so as to contain much more than the 
code requires. For example, in both the occurrence report and the charge 
sheet there is a column in which is set forth the name of the person by 
whom the information was given. Section 125 of the Indian Evidence 
Act expressly provides that no Magistrate or police officer shall be obliged 
to state whence he received the information of any offence. In any view, 
therefore, an accused person could have no right to inspect or obtain a 

143 



20 Mad. 206 INDIAN DECISIONS, NEW SERIES [YoL 

1897 copy of that entry. So aho in the occurrence report the names of 

APRIL 30. persons suspected are entered, and in the charge sheet the houses searched 

and other particulars which may not concern the accused person at all 

FULL are stated. It is obvious that he could have no right to obtain copies of 

BENCH, such entries regarding third persons. If, however, the accused person 

T7~ was entitled to obtain a copy of the [206] reports so far as they concerned 

' himself, I do not think that his right could be taken away by the insertion 

' 'j in them of particulars regarding third parties or matters not required by 

W '. ' . law to be mentioned in the reports. The Magistrate might, however, 

~142 144 & ' S ran t an extract f 8 much only as concerned the applicant and was not 

' protected by law from disclosure. 

It is argued that, if an order has been made on an occurrence report 
or charge sheet affecting an accused person, he is, ipso facto, entitled to a 
copy of the document under Section 548, Criminal Procedure Code. This 
will be so only if the Magistrate making the order is at the time 'a 
Criminal Court.' It may, I think, be doubted whether a Magistrate (even 
when be has jurisdiction to try the offence) can be regarded as a 'Court* 
before the trial commences. He is certainly not a 'Court' when enquir- 
ing into offences which he is not empowered to try, e.g., into sessions cases 
(Section 19, illustration (d) and Section 20, Indian Penal Code). In this 
large and important class of cases, therefore, Section 548 has no appli- 
cation. This, however, is not the question before us, and I need not 
pursue it further. 

I am not aware of any statute or practice which enables an accused 
person in England to obtain, before hia trial, copies of reports made by 
the police in the course of their investigations. No doubt the relations 
of the police to the Magistracy in the two countries stand on a different 
footing, but it seems improbable that if the Indian Legislature intended to 
give an accused person access, before his trial, to the police reports 
connected with his case, this would not have been clearly laid down by 
law. 

In my opinion the alleged right is nowhere expressly conferred by law, 
nor can it be deduced from Sections 74 and 76 of the Indian Evidence 
Act. 

I would, therefore, answer the reference in the negative. 



144 



11.] -VENKATARAMANAYAMMA V. APPA RAU BAHADUR 20 Mad. 208 

20 M. 207 = 7 H. L. J. 143. 1897 

[207] APPELLATE CIVIL. FEB - as 

Before Mr. Justice Subramania Ayyar and Mr. Justice Benson. APPEL- 

LATE 

SRI RAJA CHELTKANI VENKATARAMANAYAMMA GARU CIVIL. 
(Plaintiff in O.S. No. 8 and Defendant in O.S. No. 12 of 

1893), Appellant in both v. 20 M. 207- 

APPA RAU BAHADUR GARU AND ANOTHER (Defendants in 7 M L J> 143 ' 

0. S. No. 8 of 1893), Respondent, AND 

APPA RAU BAHADUR GAUU (Plaintiff in O.S. No. 12 

of 1893), Respondent.* [8th, llth, 14th, 15th, 18th, 19th and 

20th January and 25th February, 1897. J 

Hindu law Obstructed inheritance Inheritance passing to daughter's son Survivor- 
ship Presumption of joint property, 

Tbe daughter's sons of a deceased Hindu take the property of their maternal 
graudftther as an inheritance liable to obstruction and consequently take it with- 
out rights of survivcrsoip infer se : 

Where property enjoyed in common by persons oipable of forming a joint 
Hmdu family was iu its origin separate property, there is no presumption that 
such pioperty baa subsi quentiy bec< me joint piopeity. 
Muitayan Chetli v. Sivagiri Zamindar (1) ; Sivagangj. Zaminiar v. Lakshmaaa 

(2) uuu jueU. 

[Affirmed, 25 M. 678 (P.O.) = 4 Bom. L.E. 657 = 7 G.W N. 1 = 29 I. A. 155=12 M.L.J. 
299 = 8 S^r. P.U.J '286; R., i!7 M, 300 (305) = 13 M.L.J. 399 (403).] 

APPEALS against the decrees of G. T. Mackenzie, District Judge of 
Godavari, in oiiginal suits Nos. 8 and 12 of Ib93. 

The faots utctssary lor the purposes of this report appear from the 
judgment, ot the High Court. 

Bhashyam Ayyangar, Pattabhirama Ayyat, Venkatarama Sarma, 
Seshachartar, Aiya and Subramania Ayyar, fur appmlaut in No. 164. 

Mr. Wcddcrburn, Rama Chandra Euu Sahib, Subba Eau, Sundara 
Ayyar, Scshagtri Hau and Kuppusanu Ayyar, for respondeuts. 

The Advocate General (Hou'ble Mr. Spring Branson), Venkatarama 
Sarma and Aiya lor appellant iu No. 165. 

Mr. Weddtrburn, hamachandra Han Saheb, Subba Ban,, Sundara 
Ayyar and Seshagin Eau, for respondent. 

JUDGMENT. 

[208] The permanently -settled estates of Jaggampeta, Dontalooru 
and Rayavaram, the most injportant of the properties in litigation, belonged 
originally to Venkata Rao who died iu July 1869. Ha left surviving him 
bib widow, Vtiikajamma, his daughter, CheLkani Venkaturamanayamma, 
and the latter's eluest son Nilaori. Vei.kayanoma, claiming to be the 
beir, look po8^e8fcioD tf the whcle of his tstnte, mo\eahle and immoveable, 
ana held ihe tame till her dtmite in July 1875. Th^n Vei katarama- 
Dayamma stctttded to the piojerty and died in July 1884, leaving behind 
her her husband Sumi Rao, Niladii, already rtfened to, and her second 
son, Appa Rao, as well as three daughters; the last lour having been bon 
subsequent to the death of Venkata Rao. At the time of tht-ir mother's 
deaih, Appa Rao vvas aged 13 years anH N'la^ri was ge'l 19 \ears. He 



* Appeals Nos. 164 ai.d 165 of 1895. 
(1) 3 M. 370. (2) 9 M. 188. 

145 
M VII -19 



20 Mad. 209 INDIAN DECISIONS, NEW SEBIES [Yol. 

1897 was, therefore, no longer a minor. He was, however, still treated as a 
FEB. 25. minor, and Sami Rao, who had been managing the property ever 

since the death of Venkata Rao, continued to do so on behalf of both 

APPEL- his sons. How long his management lasted does not clearly appear. 

LATE The evidence, however, shows that sometime before 1889 Niladri had 
OlVIL assumed the management, and had been carrying it on, on account of 

himself as well as of Appa Rao. But from 1889, when Appa Rao attained 

20 M. 207 => majority, both the brothers jointly looked after the property and continued 
7 M.L.J. US, to do so until September 1892, when Niladri died without; mala issue, 
leaving a widow Venkataramanayamma, and two daughters. The widow 
alleges that Niladri on bis death-bed executed a will (Exhibit K), but 
this is now denied bvAopa Ra.o. Sami Rao died on 23th Novembar 1892. 
Until the death of Sami Rao, the widow and Appa Rio were on amic- 
able terms, and the former's claim to a moiety of the whole property was 
admitted by the latter and both remained in joint possession of the 
estate. But in consequence of disputes having arisen, she was ousted 
from possession of the property soon after Sami Rao's death. Thereupon 
the two suits, from which these appeals are brought, were instituted. 

In one of these, original suit No. 12 of 1893 (appeal suit No. 165 
of 1895), Appa Rao sued to set aside the alleged will (Exhibit K) of his 
brother, Niladri, and in the other, original suit No. 8 of 1893 (appeal 
Suit No. 164 of 1895), the widow sued for possession of the whole of 
Niladri's property. The District Judga decided against the widow in 
both suits, and [209] against both decrees she now anneals, Appa Rao 
being the first respondent. In original suit No. 8 of 1893 the aopellant 
(Venkataramanayamma), based her case unoa tha will of Venkata Rao 
(Exhibit A), dated the 6th September 1866, which was, soon after its 
execution, deposited under a sealed cover in the District Registrar's 
office, and which has ever since remained there, and upon Exhibit K 
the alleged will of Niladri, dated the 2nd September 1892. In her plaint 
she also prayed, in the alternative, that if her claim to the whole estate 
should be held to be unsustainable, such share as she might be found 
entitled to, should be decreed to her. 

The principal defence of the first respondent as to Exhibit A was that 
it was revoked ; as to Exhibit K that it was not genuine or valid. It will 
be convenient to defer the discussion of masters connected with Exhibit K 
until appeal suit No. 165 (original suit No. 12 of 1893) is taken up for 
consideration. 

The first question, therefore, for determination is whether Exhibit A 
was revoked. The Hindu Wills' Act does not apply to the case, and no 
special mode of revocation being prescribed, revocation, like any other 
question of fact, may be proved by apt evidence, though no doubt mere 
oral evidence in a matter like this should be received with great caution. 
What amounts to revocation in common law was clearly pointed out in 
Doe dem. Reed against Harris (l) cited for the first respondent. There 
Lord Denman, 0. J., in the course of his judgment observed, "some doubt 
" has been entertained whether any declaration could be sufficient without 
"the word ' revoke' but, uoon full consideration, we think it impossible so 
" to limit the testator's power of revocation, and that any equivalent word 
" or words and expressions would be sufficient for that purpose. 

" But, further, we are now required to consider whether, without any 
41 language at all, a testator may revoke a will by the conduct he exhibits. 

(1) 8 A. & E. 11. 
H6 



YII.] VBNKATARAMANAYAMMA V. APPA RAU BAHADUR 20 Mad. 211 

" And this appears to be tantamount to an enquiry whether conduct can 1897 

" give a positive declaration of intent. If it can, there can be no more FEB< 25> 

" necessity for words than for the use of a particular expression. Now, A ~ 

" nothing is easier than to imagine such gestures and proceedings, con- EL " 

" nected with the will, as must fully convince every rational mind LATE 

"that [210] the testator intended to revoke his will, and thought be had OlVIL. 

" done so by the means he took for that purpose. But if he who has 

" power to revoke by declaring a present resolution then to do so does in 2 ^ 

" fact make that resolution manifest, it seems clear that the act of revoca- **** 1 

" tion is complete in every essential part." 

Such being the rule on the point, does the evidence here establish 
the first respondent's contention that, though Exhibit A has all along 
remained in the Registrar's office, yet it was in reality revoked ? The 
evidence in support of it consists chiefly of the testimony of the seventh 
and the eighth witnesses called for the first respondent and certain circum- 
stances connected with the enjoyment and devolution of the bulk of the 
property referred to in the will. Exhibit XXXIII, copy of the vakalat 
spoken to by the said seventh witness, the reception of which in evidence 
was rightly objected to on behalf of the appellant, both in the Lower Court 
and here, on the ground that the original was not accounted for as required 
by law, must be excluded from consideration. 

Now as to the evidence of the two witness relied on ; Gourayya, the 
seventh witness, is a pleader whom Venkata Rao had employed to trans- 
act his legal business from March 1866, that is, for some six months 
previously to the execution of the will. The material portion of his 
evidence may be given in his own words : "I heard that Venkata Rao 
" executed a will. He spoke to me about a will. He told me he had 
" cancelled the will and the pattas, and he said that he would empower me 
" to get back the will from the Registrar's office. He said that he had taken 
" back the pattas. He said that he would give me a vakalat. He got that 
" vakalat registered. I did not get back the will from the Registrar's office. 
" I was not able at once to go to the Registrar's office as I fell ill. The 
" vakalat was executed at Jaggampeta and I took it to Peddapur. Nila- 
" chalam asked me to return the vakalat as he heard that I was not well. 
" He said that they would send somebody else. Nilachalam was the son 
" of the kept woman of the Rajah and was looking after the estate under 
" Venkata Rao. He was a confidential servant of Venkata Rao. I 
" returned the vakalat to him. Nilachalam is dead." Virayya, the 
eight witness and maternal uncle of Nilachalam referred to by the seventh 
witness, stated that he was a servant under Venkata Rao and that he 
(the witness) was present when Nilachalam informed Venkata Rao that 
he had brought the will, that thereupon Venkata [211] Rao said "Tear it," 
and that Nilachalam tore the paper which he led Venkata Rao to believe 
was the will. Turning now to the weight due to the testimony of these 
witnesses, Gourayya appears to be unconnected with either of the parties 
in the litigation. He is apparently independent and his cross-examina- 
tion suggests no grounds for impugning his evidence, which is confirmed 
strongly by the fact that a vakalat to get back the will from the Registrar's 
office was executed by Venkata Rao on the 21st November 1867, presented 
for the registration on the 24th idem and subsequently duly registered 
(Exhibits XL and XLa). The conversation, which the witness says 
took place between him and Venkata Rao, is therefore likely to have taken 
place. But the eighth witness's story is in itself so extraordinary 
that it cannot be depended upon in the absence of corroboration, and 

147 



20 Mad. 212 INDIAN DECISIONS, NEW SERIES [Vol. 

1897 this is altogether wanting. Two matters are, indeed, relied on as 
PEB. 25. corroboration. The first is that some of the papers connected with the 
cancellation of grants of land referred to in the will, one to Venkata 
APPEL- Bao's sister and another to his illegitimate sons, made ahout the time 
LATE of the execution of the will, had been fraudulently abstracted from 
CIVIL ^ ne records of the Collector sometime before 1871 (Exhibit XXX IX). 
The other is the fact tl at Venkayamma in that year complained (Exhibit 
20 M 207= XXXV11J) that such clandestine removal of the papers had taken place 
7 H.L.J. 143. at the instigation of Nilachalam and Venkata Rao's sister. We do not, 
however, think that these matters can be accepted as affording any 
material corroboration of the story. That story, if true, implies that 
Nilachalam perpetrated a gross fraud on his father with whom he was on 
confidential terms. What motive Nilachalam had for so deceiving Ven- 
kata Eao is not shown. The suggestion is that he acted in the way 
alleged in the hope of being able to rely on the will after the death of 
Veukata Rao in support of some claim he (Nilachalam) intended to make 
to the property, the grant whereof was recited in the will but; the right 
to which he had relinquished as was evidenced by the missing papers. 
The suggestion is a mere surmise and is too far fetched to be safely acted 
upon. On the other hand, it is argued on hehalf of the apuellant that it 
was Co the interest of Nilachalam that the will should have ben destroyed; 
since in that event, it might have been open to him as an illegitimate soa 
to claim by inheritance a share of Venkata Rao's estate along with the 
widow or with the daughter or with the Jatter's son. Tne argument has 
[2)2j little force since it has not been shown that the connection between 
Nilacnalam's mother and Venkata Rao had been of such a character as to 
give Nilachalam the status of an illegitimate son entit.led to inherit under 
the ilu.du Law. Nor has it; been shown that Nilachalara thought he had 
a ngbc to set up such a claim. The evidence of the eighth witness being, 
in our dpinion, incredible and uncorroborated, must he rejecte i, and the 
fact that Exnibit A was not taken back from the Registrar's office and des- 
troyed, must be treated as unexplained. 

That fact, however, is not conclusive against the alleged revocation, 
and we must now see how far evidence connected with the enjoyment and 
devolution of the property proves the revocation. In the will reference 
is maue to grants of property already made to certain relations and 
dependents of Venkata Rao ; the rest ot his es'ate being left to his wife 
Venkayamma, and after her to his daughter Venkataramnnaxamma 
and to bis grandson Niladri. Of the grants inter vivos, the most import- 
ant are those made respectively to the testator's sister, to his illegit'mite 
sous including Nilachalam, and to the testator's daughter Venkuarama- 
na\amma. Tne sister got a village with a nett rental of about Rs. 4,000, 
the sous another with a rental of about Rs, 2000 and the daughter t.wo 
villages wiih a rental of about RH 6.000 per annum (Exhibi's XXXV, 
XXXiV and XXXVI). It appears from the statements in the will and in 
Venkata Rao's grant (Exhibit XXXV) to his sister that what realK prompt- 
ed him to make the grants and to ex-cute the will was his serious illness 
in Ib66. However by October 1867, Venkata Rao had fully recovered 
and he then changed his mind about the grants ai d persuHdei the gran- 
tees to relinquish their rights under the grants (Exhibits XXXIVa and 
XXXVIII). This was in October 1867. The very next month Venknta 
Kao employed Gourayya to withdraw the will, exeutd a vaktlat to him 
for the puipose and even took the precaution of registering the vakaltr,. 
Conquering that the three grants and the will came into existence almost 

148 



Y1L] 



VENKATARAMMANYAMA W. APPA EAU BAHADUR 20 Mad. 214 



simultaneously, viz., between the 6fch and 14th September, and that the 
cancellation of the former wts shortly afnerwirds followed by steps to 
take bv;k the will from the Registrar's office, the inference, it is argued, 
is that Venkita Rio wishel to get the will back because it also had been 
.cancelled. Now, though the facts on which the above argument rests are 
true yet the inference drawn therefrom [213] is far from being conclu- 
eive. Nevertheless it would seem to be entitled to some weight; when 
taken with the light thrown upon the matter by the conduct of Venkiy- 
amma, Venkatarmanayamma, and Niladri, and by the views which they 
took of the ti'.les under which they held the zemindari during the twenty- 
three years, which elapsed between the death of Venkata Rao and that 
of NiKdri. 

Wtiat then were the views taken by them ? Three days after her 

husband's death Venkayamma wrofce to the Collector of Gorlavari a let- 

ter which runs thus : "Mv husband Sri Raja Rao Venkata Rao Bahadur 

" Garu having been unwell, owing to the illness he had, died on the 22ad 

"of this month; I have a daughter called Chelikani Venkataramana- 

" yamma, a grandson (by-daughter) called Chelikani Venkatasurya Nila- 

" dri Rao of the age of four years and a grand-daughter (by daughter) 

' callel Venkayamma aged one year. / am the heir to the whole of my 

" husband's property according to law. I shall from this day forward 

manage the affairs. I therefore request you will be good enough to 

cause Jaggamoeta, Dontalooru and Rayavaram mitfeas which are stand- 

'"ing in my husband's name to be entered in my name and grant me a 

" dhimat (a written authority for collecting revenue) ..... " 

Under the orders of the Board of Revenue, the estates were registered 
in the name of Venkiyamma who was described in column 9 of the 
register Exhibit IV bearing the heading " mode of transfer by sale, gift 
or otherwise," as having taken "by inheritance." Afner having held the 
property for about; six years, Venkayatnma became ill and wrote to the 
Sub-C Elector of G )rlavari on the 14th July 1875. "I am not therefore 
J< confident; that I w^uld live and consequently write to you in regard to 
"the whole of my property. I have got a daughter by name Sri Rija 
J< Che'ikani Venkataramanayamma. The said Venkataramanavamma is 
" the chief heir to my zemindari consisting of Jaggampeta, Dontalooru 
" and Rayavaram estates and to all other moveable and immoveable proper- 
41 tie*. I therefore request that the right to the zemindari consisting of 
" the said estates may be registered in her name ...... " On 

the 17oh Hem Venkitaramanayamrna. herself communicated to the same 
officer her mother's death and after observing " I am the reversionary 
" heir to all the estates forming the moveable and immoveable property 
41 of my mother" concluded with a prayer for the registry being 
transferred to her name as heir (Exhibit V). [211] Lastly on the 27oh 
June I88t Venkataramanayamma, wrote to the Collector of the Dis- 
trict informing him that she had fallen ill, that she did nit expect to re- 
cover frorn that illness and that she hai givan to her two daughters soma 
" property ani observed after my death my two sons are the chief heirs to 
" my ostates an! to the whole of my mwetbleand immoveable prooerty" 
(Exhibit I). T.iis view was endorsel, in equ illy distinct ternn, bv Nila- 
dri him-ie'.f in bis letter to the Colleator, dated tha 8th July 1884, intimi- 
ting his mother's death and asking the estates to be registerel in the 
name* of himself and the first respondent which was accordingly dona. 
Not only was no reliance placed on the will on these three important 
occasions, but it is not shown that it was relied on or even referred to 



1897 

FEB. 25, 

APPEL- 

LATE 

CIVIL. 

M - 207s 
".L.J. ** 



149 



20 Mad. 215 INDIAN DECISIONS, NEW SERIES [Yol. 

1897 on any other occasion until, at all events, a month before Niladri's 
FEB. 25. death in 1892. Such conduct on the part of the three successive hold- 
ers of the estate tells strongly against the case of the appellant, who has 
APPEL- consequently attempted to explain it away by suggesting that Venkay- 
LATE amma, Venkataramanayamma and Niladri were all ignorant of the will 
CIVIL. an ^ f i^s provisions. This suggestion is hardly consistent with the 
plaint which, while it asserts that Nildari was unaware of the 
20 M. 207= arrangement made by Venkata Eao, refrains from saying that such 
7 M,L.J. 143 ignorance was shared by Venkayamma and Venkataramanayamma ; nor 
is there any evidence whatever on behalf of the appellant to prove 
the alleged ignorance. The probabilities are all the other way. It 
is difficult to see why Venkata Eao should have wished co keep the will 
a secret from his wife and his daughter who were living on affec- 
tionate terms with him at the time he made the will in their favour. 
On the contrary, if, as was said in one part of the argument on behalf of 
the appellant, one of Venkata Kao's objects in making the will was to 
prevent his illegitimate sons laying any claim by inheritance to a share of 
the zemindaries along with his widow, his daughter, and his grandson by 
the daughter, surely he would have taken care to let these latter know what 
he had done to secure their rights against the possible claims of the illegi- 
timate sons. Again, there was no secrecy whatever attending the execution 
of the will. It was written by Jagga Eaja, one of Venkata Eao's 
gumstahs, and was attested by the Karnam and the Village Munsif of the 
place. Moreover, about twelve months after the will was deposited in the 
Eegistrar's office, the vakalat for its withdrawal was publicly [215] execu- 
ted and registered, Vakil Gourayya having, as stated by him, paid a visit to 
the zemindar in connection with that vakalat and the then Sub- Magistrate, 
in his capacity as a registration officer, having attended at the zemindar's 
residence to accept the presentation of the vakalat for registration 
Exhibit XLa). That, notwithstanding all these circumstances, Venkay- 
amma, Venkataramanayamma as well as the latter's husband Sami Eao 
who was residing with them all the time as a member of the family, some- 
how did not come to bear of the will in Venkata Eao's life time is hard to 
believe. It is harder still to suppose that even after Venkata Eao's death, 
no information reached his successors at any time before August 1892, 
and the more so as Jagga Eaja, the writer of the will, was alive all the 
time. Then it is also suggested that the ladies probably thought the will 
amounted to nothing more than a mere statement of the rights 
they possessed under the Hindu law and so did not think it worth 
while or necessary to refer to, and rely upon, the will. This conjecture also 
for it is nothing more is a very unlikely one, for even if the ladies had 
supposed that the will amounted to nothing more tiaan a declaration of 
their rights under the Hindu law, they would still almost certainly have 
alluded to it at all events as confirmatory evidence of their claim under 
the Hindu law. Another suggestion is that Venkataramanayamma did 
not wish Niladri alone to take the property to the exclusion of the first 
respondent and the omission to refer to the will was due to this cause. 
This ingenious argument, however, cannot account for Venkayamma's con- 
duct in 1869, as the first respondent was not born till two or three years 
later. It is scarcely necessary to add that so far as Niladri was concerned, 
his admission that he and the first respondent were co-heirs cannot be ex- 
plained except upon the hypothesis that he was absolutely unaware of the 
provision of the will in bis own favour. But in support of such hypothesis 
nothing is to be found in the evidence, whereas it is clear, upon the 

150 



YII.] VBNKATARAMANAYAMMA V. APPA RAU BAHADUR 20 Mad. 217 

testimony of plaintiff's own fourth witness, Jalandanki Venkayya, that 1897 
Niladri was aware of the will and of its provisions. In these circumstances FEB. 25. 
the conclusion that the will was never after November 1867 treated as a 
subsisting testamentary paper seems irresistible. And how strong was the APPEL- 
conviction in the minds of the members of tbe family that the instrument LATE 
was not a subsisting one may be gathered from the suggestive ambiguity to CIVIL, 
which the persons, who drew up the plaint[216]in this case, found it neces- 
sary to have recourse in alleging Niladri's exclusive right to tbe property. 20 * 2 ^ 
For, though several authenticated copies of the will had been obtained from ' ".L.J. * 
the Registrar's office by the appellant's agent a month or two before the 
plaint was filed, yet Exhibit A is not referred to in the plaint, nor is it even 
alleged that " tbe arrangements " under which Niladri got the estate were 
made by any will of Venkata Rao. When this is contrasted with the explicit 
statement in the plaint as to Exhibit K referred to therein by date and as 
the " will " of the Niladri, it is pretty plain that the appellant's advisers 
were then unwilling to tie her down to the case that the arrangement, 
which was set up as having constituted Niladri the sole heir, was the one 
made under the will in question. This remarkable unwillingness on their 
part even at that late hour, considering that there was no doubt either as 
to the genuineness or the validity of the instrument, can be attributed 
only to the grave distrust felt by those advisers as to tbe possibility of treat- 
ing Exhibit A as a disposition still in force. 

Such are the chief considerations which favour the first respondent's 
contention. Against it, no doubt there is the fact that the document 
was not actually taken back from tbe Registrar's office. Why Venkata 
Eao failed to get it back (as we have seen he intended to do) has nob been 
explained, but this fact ought not to be pressed too strongly against the 
first respondent, since owing to the lapse of time almost all the persons 
who would have been in a position to throw light on the matter were 
dead at the time of trial. In these circumstances Gourayya's evidence, 
coupled with tbe course of conduct referred to above, is entitled to great 
weight and the finding of the District Judge that the will was revoked 
must be held to be correct. On this finding it is unnecessary to go into 
the questions which would arise if the will were still in force. 

Now Venkata Rao having died intestate it follows that, on Venkata- 
ramanayamnoa's death, the inheritance passed to Niladri and to the first 
respondent as his daughter's sons, and the question then arises whether 
at the time they succeeded to the estate, they took the property with the 
right of survivorship under tbe law, or sei^aiately without any such right. 

Having regard to the well-known Mitakshara doctrine of right by birth 
giving rise to that form of joint pioperty designated as[217] " unobstructed 
berit&ge," as opposed to " obstructed heritage," it is difficult to see 
how the prtstnt question can be answered except in the negative. 
Accorditg to that doctrine only tbe man's son, son's son, and son's son's 
son acquue aright by birth and thereby a community of interest in the 
property of the father, grandfather or great grandfather. Such com- 
munity of interest, however, does not entitle any of the co-parceners to 
predicate, before a partition is effected, what the extent of his share in 
the joint property is, since the share is liable to diminution by the succes- 
sive births ot other co-owners. But that very circumstance renders it 
just and ri^ht that when any member of such a co-parcenary dies, his 
undefined interest should not vest in his own heirs, but should lapse to 
his survivors and go to augment their rights in the undivided family 

151 



20 Mad. 218 INDIAN DECISIONS, NEW SERIES [Vol. 



1897 estate. Hnoe the rule of surv'.vorshio raio'oised uaiar the 

FEB. 25. system. When however, uod)r the sanaa lav, prop}r".y pisgn by pira 

- inheritance or obstructed heritage, it ve^t? oi'y ia him who is the heir in 

APPBL- existence at thetimi the inheritance opans (Nirasimki v. Veerabhalr^i) 

LA.TE an( ^ ^ tlnre happaa to be two or mire co-heirs bin shve of each is not 

p _ liable to var aMoa by the sjib <equenb birth of a person of tha same c^ass, bat 

_ ' is fixal and daQnite. Go'nequin'vly in such a case bin reison for bhe ru'e 

20 M. 207= of suvivorship do nob exis*; ail bhe rule itsalf is totally inaoolicibla. Tiis 

7 M.L.J. 143. conclusion d^avn fron p-im'ob n will sapoortel by aubhoriby also. In 

Gopalasami v. Ckinn-afamify Turner, G.J., and Brandt, J., expre^s^d a 

stroag iucliia'uon a^iiast; the ap )licihilitv of th^ doctrine of qu' - v ! vo < ^Hip 

to a case like bhi p-a^anb. Ail in Jesola, Kierv. Shio Parshai Singh (3), 

Pe.h^rano O.J. ftod Banerjaa, J., aftsra critical examination of the chief paa- 

sagas rjlatin* to bhe qie^iioa in the M ibakshara and other wo -ks, and afber 

referring to tha leading d^cisioni that throve light on bhe sabjecb. hell that 

the principle of suryivorshio under the Mtbikshara la-v is lim ! tai(l) to pro- 

perty which is f-.akan as uaohsbracted herisagi (including properby thereby 

acquire!) and (2) bo the joint orooerbyof re-uiifcai co-oaroener^ : bu 1 ; does 

not extend to property which is inherited by two brothers a=i heirs of their 

mother's fabhar and whioh dias nob fall undar eibhar of those descriptions. 

This considered decision wis referred to with [218] aoproval in tha 

analogous casa of Szmimdkv Pillii v. Thanjathanni (4) whe^e Sheohard 

and Bast, JJ., hell thab whan a grouo of heirs took the estate of a deceased 

divided member a f ter his mother, the rule of suryiyorshio did not aooly. 

Tne ratio decidendi of this decision and of the Cilcir.ta ruling which in 

effect it folio wal is identical, viz., that survtyorshio does nob exisb in any 

casa in which properby passes as obstructed heritage. The heriba^e in the 

present case, being that of daughter's sons, is an obstructed heritage, and 

is, therefore, on the above principle, not subject to the incident of 

survivorship. 

On the part of the first respondent, however, certain passages of the 
Sarasvati Vilasa, particularly oarigraphs 632, 646, and 654, (Foulkes's 
translation, pages 125, 128, 129), were relied on. The doctrine propound- 
ed in those passages ia stated, in the very commencement of the disquisi- 
tion, to be bhe teaching of Lakshmirihara. Dr. Jolly considers that, as it 
is not clear whether the author of the Sarasvati Vilasa meant to make 
the teaching his own, it does nob possess more than a historical interest. 
(Hindu Law, page 202.) The doctrine, in question, in the woHs of the 
same learned writer, is that " property devolving on a daughter who has a 
11 son, assumes the nature of unobstructed property and is passed on by 
" the daughter's son to his own son, in case he was alive at bhe time of 
" the devolution of the estate." (Ib.) According to this view, a daughter's 
son, in existence at his mother's succession, takes a vested right the mo- 
ment the property devolves on his mother. But it is well settled that the 
right of such an heir, to inherit his grand-father's estate, is contingent on 
his surviving his mother and her sisters, if any. Moreover the assertion 
that, in the case supposed, the inheritance assumes the nature of un- 
obstructed heritage, does not aopear to ba sunoorted by any of the other 
treatises of the Mitakshara school, since none of them recognizes any excep- 
tion to the fundamental theory that from the widow downwards the pro- 
perty devolves as obstructed heritage. This is necessarily implied in most 
of those treatises. In one of them at least, viz., the Vyavahara Mayukha 

(1) 17 M. 287. (2) 7 M. 453. (3) 17 0. 33. (4) 19 M. 70. 

152 



YII.] VENKATABAMANAYAMMA V. APPA BAU BAHADUR 20 Mad. 220 

the author begins the discussion regardingthe descent of a sonless separat- 
ed man's property with words which have be^n translated, " order of FEB - a6 - 
succession to obstructed heritage" (Mandlik, page 76) woHs which, in . 
the absence of subsequent [219] qualification, must ba taken to include 
under " obstructed heritage" even the case spoken of by Lik^hmidhara. LATE 
It is clear, therefore, that Lakshmidhara's teaching cannot, as pointed out OlVIL. 
by Mr. Mayne, be now accepted as law. (Hindu Law, fifth edition, note 
g to Section 519.) 2 * 2 Q1 = 

Mtittayynn Chetti v. Sivfigiri Zemindar (I) and Sivrganga Zemindar v. *" 
LakshmanaCZ] were also referred to on behalf of the first respondent. But 
they clearly do not touch the present question. There, it was held thV. 
as between a man and his son the former's power of disposition over 
property, inherited by him from his maternal grandfather, is restricted as 
it is in the case of unobstructed property belonging to tha man and his 
son. Whether this conclusion can ba maintained after the decision of 
the Judicial Committee in Sartaj Kaari v. Deoraj Kuan (3) is open to 
doubt. Now the ratio decidendi of that case, in the concise words of 
Sheohard and Davies, JJ., in the recent Pittapur case (4), is this 
" Wnere the right to a partition is wanting there is no restraint on the 
power of alienation." See also Sivasubramania Nayakar v. Krishnam- 
mal (5). Such being the rule laid down by the Privv Counc'l and it being 
unquestionable, as is admitted by the learned Judges, who denied the 
cases in Muttayyan Chetti v. Sivagiri Zemindar (1) and Sivaganga 
Zemindar v. Lakshmana (2) that a partition of property inherited from a 
maternal grandfather cannot be claimed by a son of the man who thus 
inherited it, it would seem to follow that the view, takan in those two 
cases to the effect that, though a son cannot ask for a share of such pro- 
perty, he can nevertheless impeach his father's alienation thereof, is no 
longer sustainable. But supoosing ib to ba otherwise, tho<?e cases are 
quite distinguishable from this. In them the question related to a roan's 
power to restrain alienation of immoveable property coming to his father 
as obstructed heritage And in support of the view adopted there, Mitnk- 
shara, Chapter I, Section 27, mav, oerhaps, still he relied uoon as an autho- 
ritative text, upon the exact weight due to which, no direct pronounce- 
ment has yet been made by their Lordships of the Judicial Committee. Tn 
the present case, however, the question is not between a father and his 
[220] son seeking to restrain his father's alienation, but between the 
representative of a sonless decease! co-owner and the surviving co-owner 
claiming by survivorship the share of that deceased co-owner in property 
in which the co owners took no right by birth, and therefore neither the 
survivor nor the representative of the deceased ought to be affected by any 
of tae peculiar consequences flowing from such right. 

The finding upon this question of law must, therefore, be against the 
first respondent. 

The next question to be considered is whether, though the brothers 
took originally as tenants in common, the first respondent is entitled to 
Niladri's moiety by survivorship in consequence of the mode in which 
the property was dealt with by them between 1884 and 1892. Tt was 
urged on behalf of the first respondent that, in cases 1'ka the present, 
unless the contrary ia shown, it should, as a matter of law, he t-.ak-n that 

(1) 3 M. 370. (2) 9 M. 188. (3) 10 A. 272. 

(4) (The Court of Wards v. Venka^a Surya Mahipati Ramakrishna. Rao), 20 M. 
167. 

(5) 18 M. 237 (289). 

153 
M VII 20 



20 Mad. 221 INDIAN DECISIONS, NEW SERIES [Yol. 

1897 the rule of survivorship prevails. We do not find any ground for this 
FBB. 25. contention. No doubt, when two persons capable of forming a joint 
family under the Mitakshara, hold some property in common and the 
APPEL- requisite legal foundation has been laid for the conclusion that that proper - 
LATB ty is undivided family property, then the presumption of law in respect of 
CIVIL a ^ other property in the hands of any of the members of the family is that 
the same is joint, and if a member of such a coparcenary alleges that any 
20 M. 207= particular property is, in facb, not part of the joint estate but his own 
7 M.L, J. 143, separate property, he has to rebut the presumption and prove his allega- 
tion. But if that is done, and if an interest, in the particular property, is 
claimed by some other member on the ground that though originally 
separate it subsequently became joint property, the onus of establishing 
the claim is undoubtedly on the member who advances it. 

Now, here inasmuch as according to the finding already arrived at, 
Venkata Rao's estate, with its accretions, devolved on Niladri and the 
first respondent as mere tenants in common, it is for the first respondent 
to show that, subsequent to such devolution, Niladri's share ceased to 
be his separate property and that the shares of the two were merged 
into a common whole with the incident of survivorship attaching to 
it. In other words the first respondent has to make out that he and 
Niladri had, by mutual consent, express or implied, altered radically 
the character of their title to the estate by substituting for the several 
ownership [221] of each in his respective moiety (with absolute power 
to alienate and with right to transmit by inheritance to his own heir), a 
joint ownership, with a restricted power of transfer and a right on the 
part of the survivor to take the whole in the event of the other dying 
sonless. Does the evidence prove that any arrangement of the kind took 
place ? If the first respondent were able to satisfy the Court, that, as 
alleged in his written statement, he and Niladri held other property 
which was joint and that they incorporated therewith the property now 
in dispute, the contention under consideration must succeed. But he has 
clearly failed to show any such incorporation. It is conceded that Niladri 
and the first respondent derived no property at all from any ancestor in 
their paternal line save Sami Eao, their father. It is conceded also that 
when Sami Rao left his father's house many years ago and went to reside 
with Venkata Rao, Sami Rao possessed no ancestral or other funds, and 
it is admitted that his subsequent acquisitions consisted only of certain 
jewels (said to be worth Rs. 10, 000 or 15,000) which were presented to him 
by his father-in-law, his mother-in-law and his wife. But it is stated by 
the first respondent himself and two other witnesses, on his behalf, one his 
servant and the other his relation, that a couple of months after Venkata- 
ramanayamma's death Sami Rao, having himself fallen ill, handed over to 
Niladri the key of the box containing the former's jewels with the object 
of transferring the ownership in them to both the sons. This entirely 
uncorroborated story that a man, who had then two sons and a daughter 
living the sons being in affluent circumstances whilst the daughter was 
not well provided for took it into his head to give away to his sons alone 
the whole of the comparatively lithle property he had, in order that that 
little might form a common stock with which the extensive separate pro- 
perty in question was to become incorporated, is one which, on the face of 
it, bears evident marks of invention for the purposes of this litigation, 
and is, therefore, altogether unworthy of serious consideration. Moreover, 
even if Sami Rao had really parted with the jewels, as alleged, how would 
that advance the first respondent's case ? For nothing was done by the 

154 



VENKATARAMANAYAMMA V. APPA RAU BAHADUR 20 Mad. 223 

brothers with reference to the jewels, and it is difficult to understand 1897 
how the mere fact of joint possession thereof by them lends the FEB. 25. 
slightest support to the theory of incorporation. Nor does the first 
respondent's contention stand on a better footing with reference to APPEL- 
the other circumstances relied on in proof [222] of the alleged LATE 
incorporation, viz., (i) joint residence and messing together, (ii) investment CIVIL. 
of the annual surplus income in trade for the benefit of both the brothers, 
or in property acquired in their joint names, and (iii) Niladri's expenses 20 M. 207 = 
being in excess of those of the first respondent. In drawing inferences 7 M.L.J. 143. 
from circumstances like the above, it must be borne in mind that facts 
not distinctly inconsistent with the presumption of the continuance of 
the original tenancy in common cannot afford any support to the first 
respondent's contention. (Compare Robinson v. Preston (1).) To sup- 
port it the circumstances relied on should be unequivocal, and should 
point unmistakably to an intention to effect a mutual transfer of the kind 
suggested. BUD those referred to above do not point to any such conclu- 
sion. The only fair inference to be drawn from them, taking them all 
together, is that the brothers did not feel any necessity for dividing either 
the corpus or the income, and found it convenient for the time being to 
live together and manage their property in common. To hold that 
because the brothers merely refrained from dividing what in law was 
separate their conduct here amounted to nothing more therefore they 
intended to effect a complete change in their relative rights would be 
unreasonable and unwarranted. Let us now look at each circumstance 
separately. So far as residence and food go, matters continued exactly as 
they had been prior to 1884, when the brothers owned no property derived 
from their father or mother. As to joint investment the interest possess- 
ed by the brothers in the business carried on with the aid of their surplus 
incomes, as well as in property acquired thereby, is prima facie of the 
same character as that possessed by them in the incomes so invested (see 
Robinson v. Preston (1) ), and there is absolutely nothing to show that in 
the present case their interest was otherwise. No doubt the brothers did 
occasionally borrow money on their joint promissory notes. But surely 
tenants in common may do so for the purposes of their common estate. 
Why, then, should it be assumed that such acts were done by the brothers 
as members of a joint Hindu family, the very point to be proved, and 
not as tenants in common as they were shown to have been at starting ? 
Again, the argument founded on inequality in the expenses of the 
brothers is entitled to little or no weight, since it entirely dis- [223] 
regards the ordinary latitude likely to be allowed between brothers out of 
natural affection and good feeling a consideration which ought not to be 
lost sight of in dealing with an argument like that in question (Laid 
Muddun Gopal Lai v. Mussumat Khikhinda Koer (2)). Lastly, as to the 
documents referred to in the argument with reference to this part of the 
case, it is to be observed that they really only bear upon one or other of 
the circumstances just dealt with, and therefore require no further notice. 
For these reasons, differing from the District Judge, we must hold that 
the second ground, taken for the first respondent's contention in regard to 
survivorship, also fails, and, consequently, Niladri's moiety passed to the 
appellant as bis widow and heir. 

There remains a minor point in appeal suit No. 164 raised by the 
appallant, viz., that certain inam lands included in the plaint property, 

(1) 4 K. & J. 505. (2) 18 I.A. 9. 

155 



20 Mad. 223 INDIAN DECISIONS, NEW SERIES [Yol. 

1897 but found by the District Judge to belong to the second respondent, 
FEB. 25. were really purchased with money which belonged to Niladri and the 

first respondent, and were, therefore, properly included in the present 
APPEL- 



LATE The second respondent admits in his evidence that he did receive 

CIVIL. from the brothers in November 1891 when, he was in their employ as a 

clerk, Bs. 4,000, which sum was entered in their accounts as sent to 

20 M. 207= him for the purchase of inam lands. Ha also admits that ha bought ab 

7 M.L.J. 143. a Courfc-sale held in that very monfch the lands in dispute for less than 

Rs. 2,000. H-a moreover concedes that he has not repaid any portion of 

the Rs. 4,000 sent to him as recite I in the accounts. Nor is it his case 

that the sum was a gift or a loan co him. In these circumstances his 

interested evidence that the lands were acquired wish his own funds cannot 

be depended upon and there is no other evidence to prove the plea. The 

property must, therefore, be held to have bean acquired by him with the 

money and for the benefit of his then employers Niiadri and the first 

respondent. 

We must now determine whether the alleged will of Niladri, Exhibit 
K, is genuine or not. This is the only question in appeal suit No. 165. 
The District Judge was of opinion that it is not, and with that conclusion 
we concur. [Their Lordships then discussed the evidence relating to 
Exhibit K and proceeded :] 

* [Oa the part of the 1st respondent some evidence was given to 
show that several hours before the time whan Exhibit K is said to have 
been executed, Niladri had become quite unconscious. But the witnesses 
were few, and mostly interested and it doss not appear to be safe, to act 
upon their evidence. The question depends, therefora, upon the intrinsic 
evidence of the will itself, the probabilities of the c*se, and the credit; to 
be attached to the testimony adduced on behalf of the appellant. Tna 
substance of that testimony is this. At about 3 P. M. on the 2ni Sep- 
tember 1892, Niladri was taken ill of cholera. Toe attack was a sharp 
one. After tha appearance of the disease the patient was confiiel to bed 
where he suffered from the evacuation and vomitting which accompany 
the disease. He gradually bacima worse ani a consilerable time bafore 
tha allege 1 execution of the will the following symptoms had aooeared. 
Tha whole of his body was cold and covered withclammv perspiration. Ha 
was suffering from thirst and spasm? and cramos not only in tha legs bit 
in the hands also. His eyes ware sunken and his voice had be^orna feebla. 
There was suppression of urina also. At about 10 P.M. he expressed a 
wish to leave a will. Jaldanki Vankiyya, tha 4th witness, who was cl is e by 
listened Co what he said. Nilalri's instructions were tha*; his diughters 
should each get immoveable property yielding R*. 2301 per anauna, 
that the apjallant should adopt a son ani that nhe aopallint anl the 
son to ba alopued should take half the estate. Vankanna, Pantu'u, the 
appellant's llth witness, a Seaond Grade Pleader, who happened also 
to be present, thereupon dictate! to Sabbarayudu, the appalUnt's 14th. 
witness, Exhibit K. This took about half an hour. Taa papar was 
then read out to Niladri who approved of it. took it in his haads, put 
it on his pillow and signed it, ani out of the crow! of 30 or 40 people 
present at the tinaatha nine parsons whose signatures apoaar in the docu- 
ment attested it than and there and the docamait was im naliately sent to 

* N B. Hare commences that portion of the judgment which has been omitted in 
the I.L.R. ED. 

156 



11.] VENKATARAMANAYAMMA V. APPA RAU BAHADUR 20 Mad. 223 

the appellant who was in her own apartment. About 12 P.M., Niladri's 1897 
condition became hopeless. His voice became indistinct, the spasms ceased FEB. 25. 
and at 2 A.M. of the 3rd, the Hospital Assistant thought the man was 
dying, though he did not actually expire till twelve hours later. APPEL- 

Now all the attesting witnesses as well as one, Bdlakrishna Murti, LATE 
said to be the family doctor, and Venkata Doss, appellant's brother, speak CIVIL, 
to the execution and the 1st respondent himself some time after Niladri's 
death treated the will as genuine. We are not however prepared to accept. 20 M 207 = 
the evidence of the appellaut's witnesses as truo. The District Judge'' M.L.J. 143. 
says of the attesting witnesses generally that their evidence left an 
unfavourable impression on his mind. Jaldanki Venkayya and Venkanna 
Panculu, the Secjnd Grade Pleader, are the two m )S r i important witnesses, 
bub their ere Ubility is impeached by the appellant herse f who called them, 
the insinuation baing that though they were compelled to adhere to the 
account wnich they had given before the Sub-Registrar as to the execu- 
tion, they were nevertheless hostile to the appellant, and had been 
won over by the 1st respondent. A similar insinuation was made 
agaiust Sarabayya, another attesting witness and a Karnam of the 
village. No great reliance can, therefore, ba placed on the evidence of 
these witnesses. Tne remaining witnesses, excepting perhaps the Hospi- 
tal Assistant, are men of no position. Tne whole of the oral evidence of 
the appellaut's witnesses in support of the will is rendered susoicious by 
their consistent deter oai nation to deny the existence of any draft of the 
will. A draft however (Exhibit 25) was found. It is proved that it is 
in the hand of the writer of Exhibit K, and indeed, in this Court, it is 
admitted that it is in fact a draft. Now in this draft the land left for the 
support of the three daughters is said to produce an annual sum of 
Rs. 4,500 being at the rate of R-i. 1,500 for eaoh daughter, whereas in the 
will uself the figure is Rs. 6,000 beinq at the rate Rs. 2,000 for eaoh 
daughter, and the oral evidence is that Nilalri never m-sntio'iei Rs. 1.500 
at all hut desired that the provision for each daughter should ba Rs. 2,000. 
Jaladauki Venkayya who said he listened to the alleged instructions of 
Niladri, Veukinna Pantulu who got these instructions reduced to writing, 
and Subbarayudu who wrote Exhibit XXV and Exhibit K. all failed to 
furuisu any satisfactory explanation for the discrepancy. The two former 
preteudtd that they did riot remember anything about a draft, and 
Subbdrayudu, who as the writer of Exhibit XXV could hardly make the 
same plea falsely stated that Exhibit XXV was not a draft at all 
but a copy subsequently prepared. These attempts to keep back 
the truth about a material matter show that the oral evidence 
is not trustworthy, but the chief difficulty in supoosing that the account 
given by the witnesses is true arises from Niladri's physical condition at 
the time when he is s-aid to have signed Exhibit K. Now, between the 6rst 
appearance of the disease at about 3 P.M., and the time (10 P.M.) when 
the wnl is said to have been executed, more than seven hours had elapsed. 
From the first the patient was steadily sinking and long b-fore the time 
of the alleged execution, "Niladri had become so enfeebled" as to be 
literally unable to move from his bed even for necessary purposes. Further, 
an bour before he is said to have given expression to his wishes about the 
will, when the Hospital Assistant arrived, most, if not all, of the symutoms, 
spukeu to by Surgeon-Major Maraden, the expeit witmss, distinct indica- 
tions of a total failure of vital powers were observed in Niladri. 

The Hospital At-sistant's evidence shows that he was suffering from 
cramps and twitching not only of the legs, but also of the hands, and the 

157 



20 Mad. 223 INDIAN DECISIONS, NEW SERIES [ Yol . 

1897 latter were cold and clammy. It is impossible to believe that a man in 

FEB. 25. this condition writing prostrate in bad and with the paper placed on a 

pillow made what purports to ba Niladri's signature in Exhibit K. The 

APPEL- signature is a long, firm, bold and flowing signature. It bears a 

LATE tolerable resemblance to Niladri's ordinary signature, but on close 

CIVIL examination reveals some characteristic differences, the most prominent of 

which is noticed by the District Judge. It is also to be observed that 

20 M. 207= though the will is attested, as the District Judge says " with a superabund- 
17 M.L.J 143. ance of caution by no less than nine witnesses " none of his relations 
signed it. His father, his brother, his wife's brother, and his sister's 
husband were either in the house or not far away at the time, yet not 
one of them has attested ifc, and the explanations offered for this omission 
are not, in our opinion, satisfactory. 

We, therefore, agree with the District Judge in holding that the 
document is not genuine. 

Such being our conclusion, it is perhaps unnecessary to speculate as 
to how and why the will was concocted : but the subject requires some 
notice in order to understand how it was that the 1st respondent came to 
act upon this spurious document for some time as if it were a true one. 

Here we are left without any direct evidences, but the circumstances 
of the family and the probabilities of the case lead us to the conclusion 
that in all probability the will was concocted by Sami Rao, with the 
assistance of Venkanna Pantulu, the 2nd Grade Pleader , with a view 
to prevent litigation in the family and to secure the devolution of the pro- 
perty in the way that had apparently been contemplated by the family for 
many years, and the will was accepted by 1st respondent in the belief 
that it was genuine, until after Sami Rao's death, on the 28th November, 
the real facts began to be spoken of and came to the knowledge of the 1st 
respondent who speedily filed his suit on the 13th December 1892. The 
evidence shows that shortly before his death Niladri procured a copy of 
the will of 1866 and consulted the 2nd Grade Pleader, Venkanna Pantulu, 
as to the rights under it, and the latter expressed an opinion that it gave 
the whole property to Niladri. Sami Rao must have known that their 
attempt to act upon the will of 1866 would have led to litigation since 
Appa Rao would not ba likely to easily give up the position he had long 
enjoyed with respect to the family property. 

Sami Rao would also have been anxious to secure the long 
admitted rights of Appa Rao. When, Niladri was suddenly attacked 
with cholera and was likely to die, the time was favourable for 
attempting to secure Appa Rao's position and to prevent future litigation 
by concocting a will in the terms of Exhibit K. Venkanna Pantulu and 
Jaladanki Venkayya the sheristadar of the estate would be the natural 
persons from whom to seek assistance. If their co-operation were secured 
the signatures of any number of persons could easily be procured on a 
representation that the will was prepared at the request of, and was 
signed by, the testator even though the witnesses had not really seen him 
sign the will. This would be done the more easily when it was known 
that the will was such as Niladri might probably have left. Once the 
witnesses had signed their names they would be afraid to admit that 
they had not really seen Niladri sign, and would thus become witnesses 
to the genuineness of the will. These suggestions are supported by the fact 
that there was no attempt to make a will until Venkanna Pantulu 
arrived, late at night, from his village, some four or five miles away and 
by the fact that none of the relations signed the will. Even Sami Rao 

153 



1TIL] VENKATARAMANAYAMMA V. APPA RAU BAHADUR 20 Mad. 224 

refrained from doing so, in order that less attention might be drawn to 1897 
him, and that he might not be suspected of any concern in getting it up. FEB. 35. 
The admitted circumstance that Exhibit K was written at Venkanna ~~ 
Pantulu's dictation goes far to shew that he was its true author. APPEL- 

Venkanna Panfculu's statement is that he heard casually about 8 P.M. LATE 
that Niladri was ill with cholera and went over to enquire for him. It is OlVIL. 
hardly likely that ho would have gone so considerable a distance so late 
at night merely for this purpose, but his presence and protracted stay at 2 ^ " ^* 
the house is explained if wa understand thtb Sami Rio urgently required^ M.L.J, 148, 
his advice and assistance. 

It was possible to get up the will without much fear of either the 
appellant or the 1st respondent at once coming to learn the truth ; for 
they were both absent from the place where Niladri was lying 511 the 
appellant being confined to her apartment in the zenana and the 1st res- 
pondent having been kept away on the ground that it was dangerous for 
him to visit a man suffering from cholera. 

Sami Eao's subsequent conduct is also consistent with the conclusion 
that the will was his handiwork. For, his presence when the 1st respond- 
ent and the appellant on the 5th September made statements before the 
Tahsildar referring to Exhibit K and asking that effect should be given to 
it, as well as his accompanying the 1st respondent when a few days later 
the latter called on the Collector in connection with the registry of the 
appellant and himself, showed that Sami Rao was active in getting the 
appellant and the 1st respondent to proceed as if the spurious document 
were genuine so that they might both be committed to it as soon as possible. 
Had Sami Rao lived, it is possible his influence might have insured that 
the origin of the will should have been kept a secret. As it was, his death 
was speedily followed by the 1st respondent denouncing the will and filing 
his suit to set it aside.] * 

[224] To sum up then: We find that the will of 1866 was 
revoked, that there was no right of survivorship between Niladri and Appa 
Rao, that on Niladri's death the appellant as his widow succeeded to hia 
property and that the will of 1892 is not genuine. The result of these 
findings is that in appeal suit 164 there will be a decree for partition and 
delivery to the appellant of a moiety of the disputed properties including 
the inam lands in the hands of the second resoondent with proportionate 
mesne profits from 1st December 1892 until delivery of possession or three 
years from date of decree, the amount thereof to be ascertained in execu- 
tion. Provided, however, that the following items in Schedule Cl shall be 
excluded : Nos. 3, 17, 22, 23, 38, 75, 77, 81 and 87 ; and provided also 
that Nos. 37, 51, 97, 98, 103 and 121 in the schedule to the Commis- 
sioner's report be included. Item No. 7 in plaint schedule Cl should 
be described as ' a box ' only, and item No. 79 in the same Schedule 
should be described as containing only two pearls. In appeal suit 
No. 165 there will be a declaration that Exhibit K is not genuine. In other 
respects both the suits must be dismissed, the parties will pay and receive 
proportionate costs in each case in the Lower Court as well as in this 
Court. The decrees of the Court below will be modified accordingly. 



Here ends that portion of the judgment which has baan omitted in the I.L.R. ED. 

159 



20 Mad. 225 



INDIAN DECISIONS, NEW SEEIES 



[Yol. 



1897 

FEB. 23. 

APPEL- 
LATE 
CIVIL. 

20 H. 221. 



20 H. 224. 

APPELLATE CIVIL. 
Before Mr. Justice Shephard and Mr. Justice Davies. 



MUTHIA CHETTI (Respondent) , Appellant v. ORB 

(Appellant), Respondent.* 
[26th November, 1895 and 23rd February, 1897.] 

Execution Receiver Moneys collected by receiver in execution of decree misappropriated 
by htm Discharge of judgment-debtor. 

In exejution of a decree a re :eivar was appointed to cilleot certain rents due 
to the ju igrnent debtor. S >me of the judg aent-debtor'd tenants paid the rents 
due by them into the hands of the receiver, but the receiver did not pay the 
money into Court : 

[223] Hellper Shtphard, J., that the payment by the tenants to the receiver 
dia no. pro tin odischtr^e the juig nant-ddbt >r from liability under the desree. 

-ff. Id per Da/o es, J., that payment by the tenants to the receiver pro tanto dis- 
chargeu the judgment-debtor iroiu liability under the decree. 

APPEAL under Section 15 of the Letters Patent against the order 
of MUTTUSAMI AYYAR, J., in appeal against appellate order No. 63 of 
1892(1). 

The respondents were the holders of a decree passed in original suit 
No. 415 of 1884 OQ tbe fiie of the District Munsif of Sivaganga against 
the appellant and others. A cerUi-i portion of the amount due on the 
decree was collected at various times. OQ 31st August 1889, on the 
application ot the respondents a receiver was appointed to collect the 
meivaram payable to the appellant by the tenants of the village of Kam- 
banur for la?li 1299. The evidence showed that the receiver had collected 
a sum ot Rd. 845-2 7. BUG he did not pay this money into Court and 
absconded. The respondents then in April 1891 pub in another application 
for the execution of the decree praying for the arrest and imprisonment 
of the judgment-debtor and the attachment and sale of his moveab e 
properties. In this application the r^spjndems did not give the appelUnt 
credit for the sum of Rs. 845-2-7 collected by the receiver. The aupeilant 
opposed the is*ue of execution on the ground that the decree debt bad 
bean satit-fijd by the sum collected by the receiver. 

Tue Munsif and on appeal the District Judge allowed the appellant's 
contention. 

On appeal to the High Court MuTTUSAMi AYYAR, J., reversed the 
order ot the District Munsif and the Distiiot Judge. 

The anpellant now appealed under Section 15 of the Letters Patent. 

Mr. John&ione, lor appellant. 

Mr. Ryan, for respondent. 

SHEPHARD, J. Tbe point raised by th ; s appeal is one on which 
authority is naturally scanty, because it could hardly arise if ordinary 
care weie taken. It seems that, in execution of a decree obtained by the 
respondent, a receiver WHS appointed to superintend the harvest and 
collect the m^lvaram payable to the apueliann. Ic [226] is not ex- 
plained wny such an expensive and cumbrous way of executing an ordinary 
decree was adopted. The receiver thus appointed apparently wa<* not 
required to give, and, anynow, did not give the security which the 503rd 

Letters Patent Appeal, No. 21 of 1895. 
(1) 17 M. 501. 

160 



YII.] 



MUTHIA CHBTTI V. ORE 



20 Mad. 227 



section of the Code requires. He collected certain moneys on account 
of melvaram, but instead of paying them into Court, misappropriated them 
and absconded. A fresh application having been made for execution, the 
appellant met it by claiming credit for the moneys so collected, but not 
paid into Court. Tbe question is whether the appellant, the judgment- 
debtor, or the respondent, the decree-holder, must bear the loss occasioned 
by the defalcation of the receiver. Mr. Justice Muttusaini Ayyar reversing 
the order of the Courts below has decided the question in favour of the de- 
creee-holder, and I have arrived at the same conclusion. Such authority, as 
there is, is in favour of it, although it must be admitted that, the circum- 
stances of Lord Massareene's (l) case were quite different from those of the 
present case. The case is one which cannot be decided upon any theory of 
agency. A receiver appointed to collect moneys is not an agent of either 
party ; he is an officer of the Court deputed to collect and hold the moneys 
collected by him in accordance with the orders of the Court. The party 
at whose instance a receiver is appointed has no greater or less control 
over his acts than the other party to the litigation. It is by the Court 
only that he can be dismissed as well as appointed. The argument on 
behalf of the appellant was to the effect that, as he or the tenants indebt- 
ed to him were bound to pay the melvaram to the receiver, so a payment 
by them must pro tanto operate as a complete discharge. Unless such 
discharge and satisfaction of the decree was effected by the payment, the 
appeal must clearly fail. What then is there in the provisions of the 
Code to justify us in holding that a judgment-creditor must be deemed to 
be satisfied by the mere fact of a receiver getting in moneys due to the 
judgment- debtor ? The ordinary right of a judgment-creditor is to 
have the amount of his debt paid into his own hands. As to that propo- 
sition, I apprehend there can be no doubt ; see Soobul Ghundet Law v. 
Russick Lall Hitter (2). The money may be paid out of Court immediately 
to the judgment-creditor or it may be paid into Court and taken out by him. 
Then only is he bound to certify to the Court under [227] Section 258 
the fact of payment. There is a special provision in the 336th section of 
the Code entitling the debtor to personal release on his paying the money 
to an officer of bhe Court, and there is a similar provision in the 341st 
section for the case of a debtor in jail paying the money to the officer in 
charge of the jail. But in the latter section it is expressly declared that 
a discharge under it does not operate as a discharge of the debtor from his 
debt. It is a personal discharge only. These provisions, which were 
relied upon by the appellant's counsel, so far from supporting his argu- 
ment, rather indicate that, as a general rule, the receipt of money by an 
officer of the Court is not by itself a good discharge. Payment into Court 
by the judgment-debtor stands on a different footing. It is expressly 
recognized by the 257th section, and a debtor, who, on his debt being 
attached under the 268th section pays the money into Court, is discharged 
as effectually as if he had paid it to his creditor. In the present case we 
are not concerned with any question as to the discharge of a third 
person, nor with the case of a payment made by the judgment-debtor. 
The money which came to the receiver's hands waa collected by him from 
persons who were indebted to the judgment-debtor. There was no pay- 
ment by the judgment-debtor either out of Court to the judgment- creditor 
or into Court. The mosb that the judgment- debtor can say is that his 
tenants have paid to the receiver moneys due to him and obtained thereby 



1897 

FEB. 23. 

APPEL- 
LATE 
CIVIL. 

20 M. 224. 



(1) Hutchinsen v. Massareene, 2 Ba. & Be. 49. 

161 
M VH 21 



(2) 15 C. 202. 



20 Mad. 228 



INDIAN DECISIONS, NEW SERIES 



[Yol. 



APPEL- 
LATE 
OIVIL. 



1897 a good discharge. The Code does not provide that such a payment shall be 
FEB. 23, deemed equivalent to a payment by the judgment-debtor to the judgment- 
creditor personally. A provision to that effect would be inconsistent with 
the scheme of the Code and the position of a receiver for a receiver who 
has collected moneys due to'the judgment-debtor does not hold them for 
the judgment-creditor. He holds them for the Court in order that the 
Court may decide regarding them. (See In re Dickinson (1).) Even if the 
20 M. 224. moneys had been paid into Court it would not necessarily follow that the 
judgment-creditor would have been satisfied. 

There is an apparent hardship in holding that a judgment- debtor 
whose tenants have made payments to a receiver may be called upon a 
second time to pay money in satisfaction of the decree. The answer to that 
is that, if he thought the receiver was [228] not a person to be trusted, 
be ought to have insisted on the Court's taking proper security. It is 
begging the question to say that it was not his business, but that of the 
judgment-creditor to see that security was given. 

When once it is admitted that the receiver is not the agent of either 
party and that the decree- holder, until full satisfaction of the decree has 
been obtained, is entitled to go on executing his decree, the only question 
is whether the decree has in fact been satisfied. Is the judgment-debtor 
in a position to call upon the judgment-creditor to show cause under the 
provisions of the 258th section ? In my opinion the question must be 
answered in the negative and therefore the appeal should be dismissed. 

DAV1ES, J. A receiver was appointed by the Court under Section 
503, Code of Civil Procedure, at the instance of a judgment-creditor 
holding a money decree to execute his decree by taking possession of and 
selling crops, or rather the melvaram share thereof, belonging to the judg- 
ment-debtor. The receiver acted accordingly, but instead of remitting the 
sale-proceeds amounting to Ks. 845 odd to the Court, he embezzled the 
amount and absconded. As no security had been taken from the receiver 
as it ought to have been, the money is lost and is irrecoverable. The 
judgment-creditor has now applied to the Court to again recover the 
decree amount from the judgment-debtor without giving him credit for the 
amount already collected by the receiver. The question, therefore, is 
whether the judgment-debtor is liable to pay that amount over again owing 
to the defalcation of the receiver, or whether the loss must be borne by 
the judgment-creditor. 

The District Munsif and the District Judge held that the judgment- 
creditor must be the sufferer on the ground that the property which was 
available for the satisfaction of the decree-debt had been taken from the 
control of the owner, the judgment-debtor, at the instance of the judgment- 
creditor who had applied for the appointment of the receiver, and had not 
seen that due security was given by him, whereas the judgment-debtor 
was in no way to blame. 

The learned Judge of this Court has held to the contrary, ruling that 
the loss occasioned by the receiver's default must, in accordance with 
English precedents, fall upon the estate, and as the estate in this case 
was the estate of the judgment-debtor, it was the [229] judgment-debtor 
who must bear the loss. The rule is no doubt equitable enough where- 
the parties have all got an interest in the estate, because the loss is shared 
by them all, but here the case is quite different. 

In this Court, it is urged on the one hand that the receiver should be 

(1) L.R. 22 Q.B.D. 187. 
162 



YIL] 



MUTHIA CHETTI V. ORR 



20 Mad. 230 



treated as the agent of the judgment-creditor, as it was on his motion 
the receiver was appointed, and as it was the judgment-creditor's fault 
that due security was not taken, he should bear the loss. On the other 
hand it is argued that the decree-debt has not been satisfied and that the 
judgment-debtor's liability to pay it lasts until the judgment-creditor is 
actually paid the money due. 

The solution of the difficulty appears to me to lie in the determination 
of the question as to when a judgment-debtor is to be considered discharg- 
ed of the decree-debt, and the correct answer is, in my opinion, when he 
has paid the money into Court, or out of Court to the decree-holder, or 
otherwise as the Court directs. Section 257 of the Civil Procedure Code is 
my authority for the proposition. It directs that " all money payable 
under a decree shall be paid " in one of the three modes stated above, and 
although there is no express declaration that such payment operates as 
a discharge of the decree-debt, it seems obvious that when the judgment- 
debtor has paid the money payable by him in the manner in which the 
law directs him to pay it, he can do no more, and is henceforth absolv- 
ed from further liability, or in other words, has discharged his debt. It 
will be conceded that a payment direct to the decree-holder the judg- 
ment-creditor himself subject of course to the certificate required by 
Section 258 to be given to the Court is a valid discharge, and we find 
classed with such valid discharge, two other alternative modes of discharge, 
entirely free from any condition or proviso such as payment out of the 
Court to the decree- holder is subject to. The three modes of payment 
being classed together as alternative courses, they must be taken to be of 
equal efficacy, and when one course is shown to have the effect of a dis- 
charge, it follows that the others have the same effect. I take it therefore 
that there is a distinct implication from the directions in the section itself, 
that a payment into Court, or otherwise as the Court directs, of the 
money " payable under a decree " is an absolute discharge of the judgment- 
debtor as it is unconditional, just as a payment to the decree-holder 
[230] becomes a complete discharge on compliance with a subsequent 
condition. It must be remembered that the Court holds money so paid 
into it to the credit of the decree-holder, and there are various provisions of 
law indicating that a payment into Court by a debtor is tantamount to a 
payment to the party entitled to receive it. I may instance the case of a 
garnishee which seems directly in point. The payment of the amount of his 
debt into Court " shall discharge him as effectually as payment to the party 
"entitled to receive the same " as declared in Section 268 of the Code of Civil 
Procedure. Then there are the cases of payment of a deposit into Court 
(a) by a defendant under Section 376 of the Code of Civil Procedure which 
is regarded under the following section as held by the Court on plaintiff's 
account to whom it shall be payable, and (6) by a mortgagor under Section 
83 of the Transfer of Property Act which is held " to the account of the 
" mortgagee." Decrees for foreclosure and redemption drawn up under Sec- 
tions 86 and 92 of this Act also provide for payment into Court as being 
equivalent to payment to the plaintiff or the defendant as the case may be. 
Supposing that in any of these cases the money paid in were to be mis- 
appropriated by a servant of the Court or of the Bank or treasury where 
the money was kept, it surely could not be contended that the depositor, 
or the person who had made the payment under the decree, was bound 
to make good the loss by paying twice over. It would indeed be a case of 
" bis vexari " if the Court should issue process to recover an amount 
already paid to it. This convinces me that payments made into or by 

163 



1897 

FEB. 23. 

APPEL- 
LATE 
CIVIL. 

20 M. 224. 



20 Mad. 231 INDIAN DECISIONS, NEW SERIES [YoL 

1897 order of Court under plain directions of the law are gdod and valid dis- 
FEB. 23. charges of the debts on account of which the Court itself undertakes to 
receive them, and that any loss accruing thereafter cannot be charged 
APPBL- t o tne person making the payment, and if anybody is to be held re- 
LATE sponsible, it must be the officers of the Court or their master the Govern- 
ClVIL. ment. If payments into Court or payments made as ordered by the 
Court are valid discharges, as in my opinion they are, the further ques- 
20 M. 221, tion arises in this case whether the receipt by the receiver of the money 
which he had realized by sale of the judgment-debtor's property 
amounted to a payment under direction of the Court, for it is not pre- 
tended the money ever reached the Court, so as to be deemed as having 
been paid into it. Now I presume that payments made to bailiffs execut- 
ing a warrant of arrest or a warrant of attachment [231] and authorized 
to receive them, would be considered cases falling under Clause (c) of the 
Section 257 as payments made " otherwise as the Court directs." These 
processes against the person or the property of the judgment-debtor are 
issued under the authority of Section 254 of the Code, and the forms are 
to be found in the fourth schedule Nos. 136 and 154. Each form provides 
for payment being made by the judgment-debtor to the process server of 
the amount of the decree and costs of execution, in which case the warrant 
ceases to have effect, the judgment-debtor being released from custody 
in the one case or his property in the other, these directions being more 
expressly given in Sections 336 and 275 of the Code itself. This latter 
section is instructive as showing that payment into Court is a satisfaction 
of the decree so far as the judgment-debtor is concerned, as may be 
gathered from the wording, " if the amount decreed with costs, &c., be paid 
" into Court, or if satisfaction of the decree be otherwise made through the 
" Court." But this is by the way. From the references made it cannot 
be doubted that a payment to an officer of the Court under direction of 
the Court is as effectual as a payment made directly into Court. The 
case of a receiver seems precisely on the same footing. He 13 an officer 
of the Court equally with a bailiff or a process server, and he collects the 
money due under the decree also by direction of the Court, and payment 
to him is therefore as good and valid as to the Court itself, falling as it 
does under Clause (c) of Section 257. In this view I come to the conclu- 
sion that the judgment-debtor, appellant in this case, has discharged the 
decree-debt in execution to the extent of the Rs. 845 and odd of money 
collected by the receiver, and that execution can proceed only for the 
balance due if any. I would therefore reverse the decision under appeal 
and restore that of the District Munsif with appellant's costs throughout 
to be paid by the respondent. 

It appears that the appointment of the receiver was made by the 
Munsif without the express authorization of the District Court, which is 
required by Section 505 of the Code, but as the appointment has been 
treated throughout as a valid one, its validity cannot well be questioned at 
this late stage of the case ; at any rate it is a matter to which the principle 
of " quod fieri non debetfactum valet " may most appropriately be applied. 
In consequence of the difference of opinion between their Lordships, 
the case was referred to the Full Bench consisting of [232] COLLINS, C.J., 
SHEPHARD and DAVIES, JJ., who delivered the following 

JUDGMENT. 

The appellant not being represented and not appearing, we dismiss the 
appeal with costs. Under the provisions of Section 575, Civil Procedure 

164 



YII.] 



SUBRAMANIAN CHETTI y. RAKKU SERVAI 20 Mad. 233 



Code, the order of this Court, dated 24th January 1894, in Orr v. Muthia 
Chetti (1) prevails, and the order of the District Court of Madura, dated 
56th August 1892, passed on C.M.A. No. 8 of 1892, is reversed with 
costs. 



20 M. 232 7 ML J. 100. 

APPELLATE CIVIL. 
Before Mr. Justice Davies and Mr. Justice Boddam. 



SUBRAMANIAN CHETTI AND OTHERS (Plaintiffs), Appellants v. 

EAKKU SERVAI AND OTHERS (Defendants), Respondents.* 

[7th January, 1897.] 

.Succession Certificate Act Act VII of 1339, Section 4 Debt dtie to Hindu family 
jointly. 

In a suit by the members of a joint Hindu family for a debt due on a document 
which is executed in favour of a deceased member of the family, but on the face 
of which it does not appear that the debt is a joint debt, the plaintiffs need not 
produce a certificate under the Succession Certificate Ace, if they can prove that 
the debt was due to the family jointly : 

Venkataramanna v. Venkayya (2) explained. 

Qucere : whether a plaintiff, in a suit to recover money by the sale of property 
mortgaged, need produce a certificate under the Succession Certificate Act. 

[F., 22 M. 380; R., 4 L.B.R. 99.] 

SECOND appeal against the decree of P. Narayanasami Ayyar, 
Subordinate Judge of Madura (West), in appeal suit No. 763 of 1894, 
reversing the decree of S. Bamasami Ayyangar in original suit No. 158 
of 1894. 

The suit was brought on a mortgage executed by the first defendant, 
the managing member of a joint Hindu family consisting of himself and 
defendants Nos. 2 to 5. The mortgage was executed on the 15th of 
November 1870 and provided that the mortgagee should enjoy the property 
for four years, after which [233] time the mortgagee might redeem on 
payment of the mortgage money. The mortgage was executed in 
favour of Nachiappa, the father of plaintiffs Nos. 1 and 2, and on his 
death (some time before 1881) the mortgage-debt passed by survivorship 
to his sons and his brother Subramanian Chetti. Subsequently Subra- 
manian Chetti assigned his share to plaintiff No. 3. The plaintiffs 
were for some time in possession of the land when, as they alleged, 
they were ousted by the defendants. They now sued to recover the 
amount due under the mortgage-deed by the sale of the property mort- 
gaged. The District Munsif decreed for them. On appeal the Subordi- 
nate Judge reversed the decree of the District Munsif on the ground that 
the plaintiffs had not produced a certificate under the Succession Certifi- 
cate Act. He said, " there is nothing in Exhibit A to show that the debt 
was a joint debt, due to the father and sons. In Venkataramanna 
41 v. Venkayya (2) the Madras High Court have held that a Hindu is not 
" entitled to sue on a bond executed in favour of his undivided father, 
*' deceased, without the production of a certificate under Act VII of 1889, 
" unless it appears on the face of the bond that the iebt claimed was due 

* Second Appeal No. 1130 of 1895. 
(1) 17 M. 501. (2) 14 M; 377. 



APPEL- 
LATE 
CIVIL. 

20 H. 224. 



20 Mad. 234 INDIAN DECISIONS, NEW SERIES [Yol. 

1897 " to the joint family consisting of the father and the son. The District 

JAN. 7. " Munsif dwells on this point in paragraph 6 of his judgment. The 

" defendants have taken an issue on the question, and there is no 

APPBL- " admission. Under Section 4 of Act VII of 1889, no Court can pass a 

LATE " decree unless a certificate is produced. The arguments of the District 

CIVIL. " Munsif are not supported by law. In the recent Full Bench case of 

' " Fateh Chand v. Muhammad Bakhsh (1), it has been held by the Allaha- 

20 M. 232= " bad High Court that production of certificate of succession is a condition 

7 M.L.J. 100. " precedent to decree in a suit for sale onmortgage, dissenting from the 

" ruling of the Calcutta High Court in Kanchan Modi v. Baij Nath Singh(2). 

" Therefore, following the rulings of the Madras and Allahabad High 

" Courts, the suit ought to have been dismissed." 

The plaintiffs appealed on the following grounds : 

(1) That the Subordinate Judge is wrong in holding that a succession 
certificate was necessary. 

(2) The debt being due to an undivided family and the suit being 
one for sale of mortgaged property, the Act does not apply. 

[234] (3) Even if succession certificate was necessary the Subordi- 
nate Judge should have merely given time to the plaintiffs for producing 
it and not dismissed the suit. 

Krishnasami Ayyar, for appellants. 

Sivasami Ayyar, for respondents. 

JUDGMENT. 

As the Munsif found that the debt was a joint debt and that finding 
was not disputed in appeal, we must decide, following Venkataramanna 
v. Venkayya (3), that no succession certificate was necessary. The 
strict interpretation put on that case by the Subordinate Judge, viz., 
that it is only when the fact of the debt being a joint one appears on 
the face of the document that a certificate is not necessary, has not been 
adopted by this Court itself which has recognized other proof of the debt 
being joint beyond what appears on the face of the document. 

It has further been urged that this being a suit on a mortgage for sale 
of the mortgaged property, the Succession Certificate Act does not apply, 
and the case of Baij Nath Das v. Shamanand Das (4) has been relied on 
in support of the contention. That case, however, is in conflict with the 
Full Bench case of Fateh Chand v. Muhammad Bakhsh (1). We are 
not called upon to decide the matter now, as we find for another reason 
that no certificate was required. The second appeal must, therefore, be 
allowed, and we reverse the decree of the Lower Appellate Court and 
restore that of the District Munsif. The appellants' costs in this and 
the Lower Appellate Court must be paid by the respondents. The time 
for payment of the mortgage money is extended to three months from 
this date. 



(1) 16 A. 269. (2) 19 C. 336. (3) 14 M. 377. (4) 22 C. 143. 

166 



YII.] QUEEN-EMPRESS V. KATTAYAN 20 Mad. 236 

20 M. 233= 1 Weir 697 = 2 Weir 40. 1897 

APPELLATE CEIMINAL. JULY 15. 

[238] Before Sir Arthur J. H. Collins, KL, Chief Justice and APPEL- 

Mr. Justice Shephard. LATE 

CRIMINAL. 
QUEEN-EMPRESS v. KATTAYAN AND OTHERS.* [15th July, 1897.] 20 M 235 = 

Warrants issued under Act XIII of 1859 Execution outside jursidiction Criminal Pro- 1 Weir 697 = 
cedure Code, Section, 83. 2 Weir 40. 

Section 83 of the Criminal Procedure Cole applies to warrants issued under 
Section 1 of Act XIII of 1859, and consequently such warrants may be executed 
outside tho local jurisdiction of the Magistrates issuing them. 

[P., 20 A. 124 = A.W N. (1897), 220 : R., 6 Bom. L.R. 255 (257) = 33 B. 22.] 

CASE referred for the orders of the High Court under Section 438 of 
the Code of Criminal Procedure by J. K. Batten, Acting District Magistrate 
of Trichinopoly. 

The case was stated as follows : 

" The second-class Stationary Magistrate of Kulittalai in this district 
" has received three warrants issued, apparently under Section 1 of Act 
" XIII of 1859, by the second-class Magistrate of Coonoor for tho arrest 
" of three persons resident in this district. 

" As the Government of India is advised that there is reasonable 

room for doubt whether the provisions of the Code of Criminal Procedure 

" (1882) regarding warrants apply to warrants issued under Section 1 of 

'' Act XIII of 1859. and whether a warrant under that Act can be executed 

at all outside the jurisdiction of the Court which issues it, I have the 

' honour to request an authoritative ruling on the point." 

The Public Prosecutor (Mr. Powell), for tho Crown : 

I am instructed to put before the Court the arguments for and 
against the legality of executing warrants issued under Section 1 of Act 
XIII of 1859 outside the jurisdiction of the Court issuing them. Whether 
such a procedure is legal or not depends upon [236] whether Section 83 of 
the Criminal Procedure Code applies to these warrants, for there is no 
other provision by which they could be executed outside the jurisdiction. 

First as to the considerations which would seem to show that the 
procedure in question is illegal, and that Section 83 of the Criminal 
Procedure Code does not aoply to these warrants : Sections 75 and 93 of 
the Code would seem to limit the provisions of Chapter VI, in which 
Section 83 occurs, to warrants issued under the Code. Now warrants 
issued under the Code, as opposed to warrants not issued under the Code, 
must mean warrants for the arrest of persons triable under the Code. 
But the workman for whose arrest a warrant is issued under the Act is 
not triable under the Code. Only those persons are triable under the 
Code who are charged with having committed an offence (see Section 5 
of the Code), I.e., with having done some act which renders them liable 
to punishment [Section 4, Clause (p)]. Now the workman for whose 
arrest a warrant is issued under Act XIII of 1859 has done nothing 
punishable ; he only becomes liable to punishment when he has failed to 
obey the Magistrate's order directing him to repay the advance or 
perform the work. It would, therefore, appear that when the warrant 

* Criminal Revision Case No. 29 of 1897. 

[N.B. The same ruling was given in 20 M. 457, infra. ED.] 

167 



20 Mad. 237 INDIAN DECISIONS, NEW SERIES [Yol. 

1897 issues he is not triable under the Code and that consequently the warrant 
JULY 15. is not issued under the Code. 

Next as to the considerations which show that Section 83 of the 
APPEL- Criminal Procedure Code is applicable to warrants issued under Act 
LATE XIII of 1859 : The reasoning which I have put before the Court assumes 
CRIMINAL, ^hat the fraudulent breach of a contract is not an offence within the 
meaning of the Code, because it is not the mere breach of contract which 
20 M. 238= j 8 punishable, but the failure to obey the order of the Magistrate. But 
l.Welr 697=- the preamble to Act XIII of 1859 would show that it was intended to 
2 Weir 40. punish fraudulent breaches of contract ; for it declares that "the remedy 
by suit in the Civil Courts for the recovery of damages is wholly insuffi- 
cient, and it is just and proper that persons guilty of such fraudulent 
breaches of contract should be subject to punishment ; " and the Act 
prescribes the modes of bringing such fraudulent breaches of contract to 
punishment. 

Moreover before the Procedure Code of 1882 was passed, it seems 
clear that warrants issued under Act XIII of 1859 could be executed out- 
side the jurisdiction. At the time when that Act was passed, Acts VII 
of 1854 and XVII of 1856 were in force; [237] and under Section 5 (1) 
of the former Act and Section 1 (2) of the latter Act, warrants issued 
under Act XIII of 1859 could have been executed outside the jurisdic- 
tion. Before these Acts were repealed, the Criminal Procedure Code, Act 
XXV of 1861, came into force. Under Section 84 of that Code, warrants 
could be issued outside the jurisdiction of the Magistrate issuing them. 
The provisions of that Code were, by Section 21, applicable to all offences, 

(1) Section 5 of Act VII of 1854 was as follows : 

The warrant of any Magistrate or Justice of the Peace having jurisdiction in any 
part of the territories under the Government of the East India Company for the arrest 
of any person charged with having committed any offence, whether such warrant be 
issued under the provisions of this Act or not, may be executed within the jurisdiction 
of any other Magistrate or Justice of the Peace having jurisdiction in any part of the 
said territories, whether in the same presidency or not, upon having a written authority 
under the band and seal of the Magistrate or Justice of the Peace within whose juris- 
diction it may be executed, previously endorsed thereon, and which endorsement may 
be to the following effect : 

To the Nazir [nr other officer as the case may bo] of the Zillah of 

" This warrant may be executed in the Zillah or District of 

[describing the Zillah or District of the indorsing Magistrate or Justice of the Peace] 
by any of the officers to whom the same is directed or by 

" [describing by his name of office the officer to whom 

a similar warrant, issued by the indorsing Magistrate of Justice of the Peace, would be 
directed.] 

(21 The preamble to Act XVII of 1856 and Section 1 thereof were as follows : 
Whereas by Act VII of 1854, certain provisions were made for the execution, in any 
part of the territories under the Government of the East India Company, of warrants of 
arrest issued by competent officers in any other parts thereof, and whereas it is expedient 
that similar means should be provided for the execution as aforesaid of all other criminal 
process issued as aforesaid, it is enacted a<* follows : 

Any criminal process whatever including summonses, subpoenas, and search war- 
rants, as well as warrants of arrest, issued by any Magistrate having jurisdiction in any 
part of the territories under the Government of the East India Company, may be 
executed within the jurisdiction of any other Magistrate having jurisdiction in any part 
of the said territories, whether in the same Presidency or not, upon having a written 
authority under the hand and seal of the Magistrate within whose jurisdiction it is to be 
executed previously endorsed thereon. Provided that no summons or subpoena shall be 
issued by a Magistrate to compel the attendance of a defendant or witness from any 
place beyond the local limits of his jurisdiction, unless special ground shall be proved to 
the satisfaction of the Magistrate in support of the application, which grounds shall be 
recorded before the summons or subpoena is issued. 



YIL] QUEEN-EMPRESS V. KATTAYAN 20 Mad. 239 

whether under the Penal Code, or under any special or local law, triable 1897 
by Criminal Courts. Now the word offence was not denned in that Code JULY 15. 
and consequently was not restricted to punishable acts. The effect of ~ 
this was to make Section 84 of the Code applicable to warrants issued APPEL- 
under Act XIII of 1859, [238] because the word offence would cover LATE 
fraudulent breaches of contract. The same reasoning applies to the Code CRIMINAL, 
of 1872, in which the corresponding sections were Section 8 and Section 
167, and in which the word offence was not denned. 

Again by Sections 7 and 8 of the Code of 1872, all criminal trials, = 

and by Section 6 all enquiries by Magistrates were to be held according 
to the provisions of the Code. It cannot be denied that even in its first 
stage a case under Act XIII of 1859 is either a criminal trial or an en- 
quiry. The only reported case that can be found with reference to this 
is Pollard v. Mothial (1), where the question was whether a case under 
Act XIII of 1859 could be tried summarily. The point deserving of 
notice in this case was that all the Courts dealing with it accepted the 
fact that the Criminal Procedure Code governed Act XIII of 1859. The 
Procedure Code Act X of 1882 for the first time defined the word 'offence' 
(as an act or omission made punishable by any law). It is unreasonable 
to suppose that the Legislature by this mire definition intended to take 
away from Magistrates issuing process under Act XIII of 1859, the right 
so essential for its working and so long existent of having process execut- 
ed in another jurisdiction. Had this been the intention, it would have 
been clearly expressed. 

If the new Code does not apply to Act XIII of 1859, there is no pro- 
vision of law and no procedure prescribed governing the proceedings before 
a Magistrate under that Act. How is the Magistrate to secure the 
attendance of witnesses and what process is to ba adopted to compel pro- 
duction of documents ? 

If process cannot be executed beyond the jurisdiction of the Sub- 
Magistrate, e.g., if the Sub- Magistrate of Coonoor cannot issue any 
summons or warrant beyond a radius of 5 or 6 miles, and can neither 
summon a defaulting cooly from Ootacamund, nor issue a bailable warrant 
for him in Mettupalaiyam, Act XIII as a safeguard of the planting inter- 
est is absolutely valueless. 

ORDER. 

We are clearly of opinion that Section 83 of the Criminal Procedure 
Code is applicable to warrants issued under the provisions of the Act XIII 
of 1859. There are no words in that section limiting the operation of it 
to warrants issued under the Code. The reference to warrants issued 
under the Code made in Sections 75 and 93 cannot, we think, be taken 
to have the effect [239] suggested. It cannot be supposed that, if 
when the Code of 1861 and 1872 were in force, the sections in them corres- 
ponding to Section 83 of the present Code were applicable to warrants is- 
sued under Act XIII of 1859, that state of the law was intended to be 
altered in the Code of 1882. To hold that none of the provisions of Chap- 
ter VI of the Code apply to such warrants would lead to tho conclusion 
that there is no provision made for the issuing or executing of them. It 
is not necessary to say whether, under the Act of 1859, breach of contract 
is constituted an offence. The language of the Act appears to us to indi- 
cate that such was the intention of the Legislature, but at any rate the 



M VII 22 



(1) 4 M. 234. 
169 



20 Mad. 240 INDIAN DECISIONS, NEW SERIES [Yol. 

1897 Act authorizes the Magistrates, on a complaint being made, to issue a 
JULY 15, warrant, and the only question is whether the provisions of the Criminal 
Procedure Code apply to that warrant. We think -that the provision in 
APPEL- question"doos apply. 

LATE 

CRIMINAL- 

20 M. 239= 6 M L.J. 266. 

I'welr ml APPELLATE CIVIL, 

2 Weir 40. Before Sir Arthur J. H. Collins, Kt., Chief Justice, and 

Mr. Justice Benson. 

In Second Appeal No. 792 of 1895 : 

PURIAVENKAN UDAYA TfiVAR (Defendant), Appellant v. 
SUBRAMANIAN CHKTTI (Plaintiff), Respondent.* 

In Second Appeal No. 1440 of 1895 : 

SUBRAMANIAN CHETTI (Plaintiff), Appellant v. 
PERIAVENKAN UDAYA TEVAR (Defendant) Respondent* 
[5th, 7th, and 13th October, 1896.] 

Limitation Act, Section 13 Acknowledgment Deposition signed by the debtor. 

To satisfy the requirements of Section 19 of the Limitation Act an acknowledg- 
ment of a debt must amount to an acknowledgment) that the debt is due at 
the time when the acknowledgment is made. 

A record made by a Judge of the evidence given by a debtor as a witness at 
the trial of a suit and signed by the debtor is a writing signed by the debtor 
within the meaning of Section 19 of the Limitation Act. 

[R., 22 M. 32 (38) = 8M.L.J. 219 (224) ; lOInd. Gas. 142 = 151 P.L.R. 1911 = 194 P. 
W.R. 1911.] 

[240] SECOND appeals against the decree of C. Gopalan Nayar, 
Subordinate Judge of Madura (East), modifying the decree of S. Eama- 
sami Ayyangar, District Munsif of Sivaganga, in original suit No. 178 of 
1894. 

The plaintiff sued to recover from the defendant the sum of 
Es. 963-3-11, together with interest thereon amounting to Rs. 419, which 
he alleged to be due under an agreement made in the year 1887. 

The defendant is the present Zamindar of Sakkandi, and prior to 
1887 his deceased brother was the Zamindar. Prior to the agreement now 
sued on, the defendant and his brother mortgaged to the plaintiff and his 
brother half of the village of Sakkandi. The plaintiff and the defendant's 
brother subsequently prevailed on several ryots of the village to execute 
in favour of the plaintiff muchilikasoin which the occupancy rights in the 
village were recognized as belonging to the ryots who executed the muchi- 
likas. The occupancy rights in the village were, however, claimed by one 
Kylasam Chetti, and in 1887 the late Zamindar (the defendant's brother), 
agreed to indemnify the plaintiff against the costs of any suit that Kylasam 
Chetti might bring in respect of his occupancy rights. Kylasam Chetti 
brought a suit (original suit No. 1 of 1888 on the fie of the Sub-Court) 
against the plaintiff and the ryots asserting his occupancy rights in that 
village and obtained a decree. Kylasam Chetti took out execution for his 
costs. One warrant was issued for Es. 620 against the ryots ; this sum 

* Second Appeals Nos. 792 and 1440 of 1895. 
170 



11.] P. UDAYA TEVAR V. SUBRAMANIAN CHETTI 20 Mad. 242 

the defendant paid having borrowed the money for that purpose from one 1896 

Annamalai Chetti. Another warrant for Es. 963-3-11 was issued against OCT. 13 

the plaintiff. On the 8th November 1890, plaintiff paid the sum of ~ 

Es. 963-3-11, which he now sued to recover with interest. The suit was APPEL- 

instituted on the 21st June 1894 ; and the plaintiff relied on an acknow- LATE 

lodgment contained in a deposition given by the plaintiff in original suit OlVIL. 
No. 451 of 1891 on the 7th April 1892 as giving a fresh starting point to 

the period of limitation. 20 M - 239= 

R M L J 266 

The deposition was in the following terms: 

" I know of the attachment process having been brought in original 
" suit No. 1 of 1888. When the process was brought I executed a promis- 
" sory note for Es. 1,000 to Annamalai Cbetti for the amount the ryots had 
" to pay. The process against the ryots was for Es. 600 and odd. It was 
" for Es. 1,600 and odd. [241] The promissory note I executed for Es. 
" 1,000 was on account of the process of attachment and arrest brought 
" against the ryots in original suit No. 1 of 1888. It ia not true that 
" Es. 300 and odd out of this amount was due to Annamalai Chetti on prior 
" dealings. This promissory note is with Annamalai Chetti. A process was 
" brought against the plaintiff for Es. 600 and odd and be paid this 
" amount as he was one of the defendants. Two processes were brought 
" then. One against the ryots for Es. 1,000, and the other against the 
" plaintiff for Es. 600 and odd. 

" Q. The Zamindar had agreed to pay all the costs. Why did you 
" execute a promissory note for Es. 1,000 only, and why did the plaintiff 
" pay the balance of Es. 620 and odd ? 

" A. A warrant had been brought against him for this amount and so 
"he paid. He paid as be was one of the defendants (the first defendant). 
|| This amount of Es. 600 and odd also I was bound to pay under the 
|| original understanding, but the plaintiff paid it, as a warrant was brought 
" for his arrest. 1 ' 

The defendant pleaded that he was not a party to the agreement ; that 
the agreement was not supported by consideration ; and that it was illegal. 

Both the Lower Courts found that the agreement was supported by 
consideration, and that the defendant was a party to it. The District 
Munsif, however, held the consideration, for the agreement was illegal and 
dismissed the suit. 

On appeal the Subordinate Judge reversed the decree of the Munsif. 
As to the acknowledgment contained in defendant's deposition, he said : 

Defendant's acknowledgment of liability in Exhibit B on account of 
^ money paid by plaintiff under the warrant of arrest only covers 600 or 
|| 620 and odd rupees and not Es. 963-3-11. Probably it is due to some 
|| mistake or misapprehension, but I cannot go behind the document. To 
the extent of the claim admitted, this is a good acknowledgment within 
|| the meaning of Section 19 of the Limitation Act and in modification of 
|| the Munsif's decree I shall direct defendant's payment to plaintiff of 
" Es. 620 with interest at 6 per cent, from date of suit." 

Both plaintiff and defendant appealed. 

Sundara Ayyar and Krishnasami Ayyar, for appellant. 

Narayana Ban, for respondent in second appeal No. 792. 

Narayana Rau, for appellant. 

[242] Sundara, Ayyar and Krishnasami Ayyar, for respondent in 
second appeal No. 1440. 

171 



20 Mad. 243 INDIAN DECISIONS, NEW SERIES [Vol. 

1896 JUDGMENT. 

3. -^ e are c } ear i y O f opinion that there was nothing illegal or opposed 

APPEL- ^ Public policy in the contract between the parties, so as to render 
the plaintiff's suit unsustainable. With regard to the alleged bar by 
limitation, the appellant urges two pleas, viz. t (1) that an acknowledgment 
OlVIL. j n a deposition made by a debtor is not sufficient to satisfy the require- 
20 M~239= men ^ 8 f Section 19 of the Limitation Act, inasmuch as a witness is bound 
6ML J 286 to answer the questions put to him, and any acknowledgment cannot, 
'therefore, be regarded as voluntary ; and (2) that, in fact, the terms of the 
acknowledgment in Exhibit B, relied on by the Lower Appellate Court are 
insufficient. 

The first point was ably discussed in the case of Venkata v. Partha- 
sardhi (1). The two learned Judges in that case took opposite views, 
but we have no hesitation in expressing our concurrence with the view 
adopted by Muttusamy Ayyar, J., viz., that a deposition given and signed 
by a witness in a suit is as much a writing contemplated by Section 19 as 
is a letter addressed by him to a third party. There is nothing in the lan- 
guage of the section or in the policy on which it is founded to justify us in 
restricting its scope by excluding statements made in depositions or other 
proceedings before a Court of Justice. The form of the writing is imma- 
terial. All that is necessary is that the acknowledgment should be in 
writing and should be signed by the party, or by his agent duly authorized 
in that behalf. The object was merely to exclude oral acknowledgments. 
It is true that a deposition is made on compulsion, and its form is often, 
in fact, generally, determined mainly by the frame of the questions put to 
the witness. In construing, however, the sufficiency of any alleged ad- 
mission in a deposition, this fact should be carefully borne in mind, and 
this brings us to the second point urged upon us, viz., that the 
words used by the defendant in Exhibit B are not such an acknowledg- 
ment as the Aot requires This contention, we think, is well founded. The 
words used are "This amount of Us. 600 and odd also I was bound to pay 
" under the original understanding.but the plaintiff paid it, as a warrant was 
"brought for his arrest." These words admit that a liability existed at the 
time [243] of the original understanding that is some three years before the 
acknowledgment was made, but they do not admit any liability as 
existing at the time that the statement was made. It is true that they 
do not deny such liability, but that is not sufficient. It is possible that, 
had the witness been given the opportunity, he might have stated that the 
debt had been satisfied subsequent to the original understanding, but it was 
not necessary for him then to have stated this. It was his duty to answer 
the questions put to him, and the statement cannot be construed as 
implying any admission beyond what is on a reasonable construction 
contained in the words themselves. To satisfy the requirements of the 
section, the words must be such as to show that there was an existing 
jural relationship, as debtor and creditor, between the parties at the time 
when the admission was made, or at some time within the period of 
limitation prescribed by law, according to the nature of the suit. In the 
present case, there is no such admission. The admission merely is that 
in 1888 the defendant was bound to pay the sum. That admission might 
be in ulo now without conflicting with the defendant's plea that the 
recovery of the debt is now barred. 

(1) 16 M. 220. 
172 



YII.] PALANI KONAN V. MASAKONAN 20 Mad. 244 

On this finding we must set aside the decree of the Lower Appellate 1896 
Court, and dismiss plaintiff's suit with costs throughout. This involves OCT. 13. 

the dismissal of second appeal, No. 1440 of 1895, with costs. 

APPEL- 
LATE 

20M - M3 ' CIVIL. 

APPELLATE CIVIL. 

20 M. 239 = 

Before Sir Arthur J. H. Collins, Kt., Chief Justice, and 6 n t L.j. 286 

Mr. Justice Benson. 



PALANI KONAN (Plaintiff), Appellant v. MASAKONAN 

AND OTHERS (Defendants) Respondents* 

[17th October, 1896.] ~ 

Hindu Law Suit by a purchaser from a co-parcener Decree for share of co-parcener in 
specific property. 

In a suit to recover possession of property purchased by the plaintiff, if it is 
found that the property is not the separate property of the plaintiff's vendor, but 
[244] belongs to the joint family of which plaintiff's vendor is a member, the 
plaintiff is nob entitled to a decree for his vendor's share in that property and 
the suit must be dismissed. 

[R., 24 B. 128(134) = ! Bom. L.R. 620(626) ; 23 M. 608 (611) = 10 M.L.J. 141 (143) ; 
25 M. 690 (716) (F.B.) ; 34 M. 269 (271) = 7 Ind. Gas. 559 = 20 M.L.J. 743 = 8 
M.L.T. 269 = (1910) M.W.N. 380 ; 15 C.P.L.B. 156 (159) ; 23 M.L.J. 64 (76) = 
11 M.L.T. 393 = 14 Ind. Gas. 524 (531) ; 32 P.R. 1908 = 151 P.L.R. 1903 = 75 
P.W.R. 1903 ; 1 8.L.R. 133 (136), 2 S.L.R. 43 (47).] 

SECOND appeal against the decree of T. Weir, District Judge of 
Coimbatore, in appeal suit No. 183 of 1893, reversing the decree of 
T. T. Eangachariar, District Munsif of Coimbatore, in original suit 
No. 353 of 1891. 

Plaintiff sued to recover possession of certain land from defendants 
Nos. 1 to 4, by whom he alleged he had been dispossessed. He claimed 
to be the owner of the land by purchase from Karupayyi, the mother and 
guardian of the minor sons of lyavu Chetty. The property in question 
had previously been purchased by lyavu Chetty in this own name. 

The defendants Nos. 1 to 4 denied the alleged dispossession, and set 
up title in Nachi Chetty, the brother of lyavu Chetty. Nachi Chetty 
was thereupon made fifth defendant and contended that the land did not 
belong exclusively to lyavu Chetty. 

The Munsif found that the land was thes eparate property of lyavu 
Chetty, and gave plaintiff a decree. On appeal the District Judge found 
that the property was the joint family property of lyavu Chetty and 
Nachi Chetty and reversed the decree of the Munsif. 

The plaintiff appealed on the following ground amongst others : 

" The plaintiff is, at any rate, entitled to the moiety belonging to 
"lyavu and his sons, and the learned Judge ought nob to have dismissed 
" the suit altogether." 

Desikachariar, for appellant. 

Kasturi Rangayyanqar, for respondents. 

JUDGMENT. 

The only ground urged upon us in this second appeal is that, even on 
the finding oif the District Judge that lyava Chetty and Nachi Chetty 

* Second Appeal No. 762 of 1895. 
173 



20 Mad. 245 INDIAN DECISIONS, NEW SERIES [Vol. 

1896 were undivided, and that the property sold to plaintiff was their joint 
OCT. 17. family property, still the District Judge ought not to have dismissed the 
suit in toto, but should have given plaintiff a decree for one-half of the pro- 
APPEL- party, as being the share of lyavu Chetby therein. We cannot admit this 
LATE contention. The case of Venkatarama v. Meera Labai (1) is a clear autho- 
ClVIL. rity for holding that the puchaser of an undivided [245] share of one mem- 
ber of a Hindu family in specific family property cannot sue for partition 
20 M. 243, o f fchaj; p 0r fci on alone, and obtain delivery thereof by metes and bounds. 
Still less can he do so in a case like the present where he sues on an 
allegation that the property is the self-acquisition of the vendor, and it 
is proved that it is joint family property. The course, which the plaintiff 
should take is pointed out in the case to which we have referred. He 
can recover nothing in this suit. 

The decree of the District Judge was, therefore, right. We confirm it 
and dismiss this second appeal with costs. 



20 M. 245 = 7 H.L.J. 222. 
APPELLATE CIVIL. 

Before Sir Arthur J. H. Collins, Kt., Chief Justice, and 
Mr. Justice Benson. 



PEEUMAL AYYAN (Plaintiff) Appellant v. ALAGIRISAMI 
BHAGAVATHAR AND OTHERS (Defendants). Respondents* 
[14th October and 12th November, 1896.J 

Limitation Article 132, Limitation Act Hypothecation bond for payment on certain 
date On default in payment of interest whole amount payable on demand Mean- 
ing of "payable on demand." 

When a hypothecation bond provided for the repayment of the principal sum 
on a certain date with interest in the meantime payable monthly, and further 
provided that, on default in p*ymet of interest, the principal and interest should 
become payable on demand : 

Held, that the period of limitation prescribed by Article 132 of the Limitation 
Act, began to run from the date of the default. Hanmantram Sadhuram Pity v. 
Bowles (2) and Ball v. Stowell (3) distinguished. 

CR., 22 M. 20 (22) ; 30 M. 426 (P.C.) = 4 A.L.J. 625 = 9 Bom.L.R. 1104 = 6 C.L.J. 379 
= 11 C.W.N. 1005 (P.O.) = 34 I. A. 186 = 17 M-L.J. 444; 10 M.L.T. 258 (259) ; 
16 O.C. 45 (47).] 

SECOND appeal against the decree of J. W. F. Dumergue, District 
Judge of Madura, in appeal suit No. 829 of 1894, reversing the decree of 
K. Krishnama Chariar, District Munsif of Madura, in original suit No. 
307 of 1894. 

This was a suit brought on a registered bond to recover, by the sale of 
certain property thereby hypothecated, the sum of [246] Rs. 724-7-9, being 
the balance of principal and interest due on the bond. 

The bond was executed on the 9th of February 1882 by the first 
defendant in favour of the plaintiff. Its terms are set out in the judg- 
ment. It provided for the payment of the principal in two years and for 
the payment of interest in the meantime monthly. On default in the pay- 
ment of interest the principal with interest at an enchanced rate became 



Second Appeal No. 850 of 1895. 
(1) 13 M. 275. (2) 8 B. 561. (3) 2 A. 322. 

174 



YII.] PERUMAL AYYAN V. ALAQIEISAMI BHAGAVATHAE 20 Mad. 247 

payable on demand. Default in payment of interest was made in March 1896 
1882, and, except for a payment of Rs. 150 on the 18th October 1885, Nov. 12. 
the defendant had not paid anything on account of the bond. The 
plaintiff never made any demand for payment; but instituted this suit APPEL- 
on the 18th June 1894. The defendants pleaded, amongst other things, LATE 
that the suit was barred by limitation. The District Munsif held that CIVIL. 
Article 132 of the Limitation Act was applicable a finding that was not 
disputed in appeal. He also held that the cause of action arose on the 20 M. 243 = 
9th February 1884 the expiry of the two years prescribed by the bond ' M.L * 222. 
for repayment ; and in the result passed a decree ordering the payment of 
the sum claimed with interest, and in default directing the sale of the 
hypothecated property. 

On appeal the District Judge reversed the decree of the District 
Munsif. He held that the money became payable when the first default 
was made in payment of interest, that is, in March 1882. He further held 
that the payment of Rs. 150 on the 18th October 1885 did not operate 
under Section 20 of the Limitation Act to give a fresh starting point for the 
period of limitation since the money was not paid as interest, and that, if 
it was regarded as part payment of principal, the fact of payment did not 
appear in the handwriting of the first defendant. 

Tbe plaintiff appealed. 

Bhashyam Ayyangar,Pattabhirama Ayyar &nd Gopalasami Ayyangar, 
for appellant. 

Sivasami Ayyar, Madahava Ban and Natesa Ayyar, for respondents. 

JUDGMENT. 

The only question argued before us is that of limitation. The decision 
on that question depends upon the construction to be placed on the terms 
of the bond as to the time when the money became due and payable. The 
bond runs as follows : 

[24?1 " As I have received Rs. 300 (three hundred) in respect of both 
" items in accordance with the said particulars, I shall pay you every 
" month Ks. 3, being the interest on the said amount at 1 per cent, per 
" mensem and (shall pay) the principal Es. 300 in two years' time and 
" receive back this, the three deeds and the former debt-bond. If, in the 
" meantime, the hypothecated chits fall to my lot, I shall receive the sums 
" due thereon, and pay them endorsing payment herein below. If there be 
" default in making payments as aforesaid, in subscribing to the said chits, 
"or in paying the interest every month, I shall pay in full the principal 
" with interest at 1 2 per cent, on demand by the holder out of my said 
" hypothecated properties and other properties. I shall pay the commia- 
" sion due for taking the first collections." 

This bond was executed on the 9th February 1882. If, therefore, 
the interest had been regularly paid, the principal would not have become 
due until the 9th February 1884, and the suit having been instituted with- 
in twelve years from that date, viz. , in June 1894, would not have been 
barred by limitation. It is, however, admitted that no payment at all was 
made until October 1885, and the Lower Appellate Court has found that 
the payment then made was not made on account of interest, but on the 
general account, and that this payment did not, therefore, give rise to a 
new tempus a quo so as to save the bar by limitation. 

The Lower Appellate Court held that the money became due on the 
first default in payment of interest, viz., in March 1882, and that, as 

175 



20 Mad. 248 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 the suit was not brought within twelve years from that date, it was 
Nov. 12. barred. 

It is admitted that there is nothing to show that any demand for 

APPEL- payment was raids by the plaintiff before the 9th February 1884, and it 

LATE is argued by the appellant before us that, in the absence of such demand, 

CIVIL. fc ne m ney did not become due until the 9th February 1884, and that the 

suit was, therefore, improperly dismissed as time-barred. 

20 M 245= \Ve do not think that this contention can be sustained. It is con- 

7H.L.J. 222. ceded that, if the bond ran simply "I shall pay the principal with interest 
on demand," no demand would have been necessary to make the money 
due, and that time would have run from the date of the bond, 
Hempammal v. Hanuman (l) and Rameshtvar [248] Mandal v. Earn Chand 
Roy (2). The fact that there is a previous covenant to pay the money 
within a certain date does not, we think, alter the meaning or effect of the 
words in the later clause making the money payable on demand. The words 
' on demand ' must, we think, be regarded as a technical expression equiva- 
lent ' to immediately' or' forthwith.' That, we think, was the intention of 
the parties. The defendant having failed to pay the interest according to 
the stipulation in the first part of the bond, the money became payable 
forthwith, and no actual demand was necessary to complete the plaintiff's 
cause of action. 

The appellant's vakil has referred to Ranmantram Sadhuram Pity v. 
Bowles (3) and Ball v. Stowell (4), but neither of them is on all fours with 
the present case. In the former, the words were ' if so required," and the 
High Court held that there was a deliberate omission by the plaintiff to 
realize the condition on which the amount should become payable. In 
other words, it held that the intention of the parties was that the money 
should not be payable unless and until the plaintiff required the defendant 
to pay it. In the second case, it was found that the money was to 
become due only on default in payment of both premia and interest, and 
there was no proof that there was default in payment of the premia. 

In the present case, we are of opinion that the plaintiff's right to sue 
accrued on first defendant's first failure to pay the stipulated interest, that 
is, in March 1882. The Lower Appellate Court has found as a fact, that 
the payment made by first defendant in October 1885 was not made on 
account of interest. That is a finding of fact which we cannot question 
in second appeal. Time, therefore, ran against plaintiff from March 1882, 
and his suit, not having been brought within twelve years from that date, 
was barred by limitation and was rightly dismissed. 

We, therefore, confirm the decree of the Lower Appellate Court and 
dismiss this second appeal with costs. 



(1) 2 M.H.C.R. 472. (2) IOC. 1033 (1034). 

(3) 8 B. 661. (4) 2 A. 322. 

176 



YII.] A. R. SANAYI ASWA RAU V. KRISHNAMURTHI 20 Mad. 250 

20 M. 219 = 7 M.L J. 94. 1896 

[249] APPELLATE CIVIL. DEC ' 4t 

Before Mr. Justice Subramania Ayyar and Mr. Justice Davies. APPEL- 

LATE 

APPA EAU SANAYI ASWA EAU (Plaintiff), Appellant v. KRISHNA- CIVIL. 
MURTHI (Defendant), Respondent* [4th December, 1896.] 

20 M, 4*9 =a 

Limitation Act Act XV of 1977, Section 5 Suit under Section 77 of Registration Act 7 M.L.J. 94. 
Act III of 1877 Applicability of Limitation Act, Sections Filing of suit on 
re-opening of Court. 

When the period of limitation, prescribed by Section 77 of the Indian Registra- 
tion Act, 1877, for suits brought under that section, expires on a day when the 
Court is closed, Section 5 of the Indian Limitation Act, 1877, does not apply, 
and the suit, if instituted on the day that the Court re-opens is barred. 

[R., 22 M. 179 = 8 M.L.J. 265.] 

APPEAL against the decree of N. Saminada Ayyar, Subordinate Judge 
of Ellore, in original suit No. 6 of 1895. 

The facts of the case were as follows : 

The plaintiff, a Zemindar, obtained from the mother and guardian of 
the minor defendant (his tenant) a muchalka, which he sought to have 
registered by the Sub-Eegistrar of Gudivada. The mother and guardian 
of the defendant denied execution, and the Sub-Eegistrar declined to 
register the document. Thereupon the plaintiff appealed to the Eegistrar 
of Kistna, who rejected the appeal. The order of the Eegistrar was 
passed on the 6th December 1894, and the thirty days allowed by Section 
77 of the Indian Eegistration Act, 1877, for the institution of a suit in 
the Civil Court for a decree, directing the document to be registered, expired 
on 5th January 1895. On that day the Court was closed, it then being 
the Christmas holidays. On the 8th January 1895, the Court re-opened 
and on the same day plaintiff filed this suit, praying for a decree ordering 
the Sub-Eegistrar of Gudivada to register the muchalka. The Subordinate 
Judge, relying on Veeramma v. Abbiah (1), dismissed the suit on the 
ground that it was barred by limitation. 

The plaintiff appealed. 

Bhashyam Ayyangar and Gopalasamt Ayyangar, for appellant. 

Sivasami Ayyar, for respondent. 

JUDGMENT. 

[250] Though the precise point for decision in the Full Bench Case 
(Veeramma v. Abbiah (1)) related to the applicability of Section 7 of the 
Limitation Act alone to suits brought under Section 77 of the Eegistration 
Act, yet having regard to the reasoning, as a whole, adopted by the learned 
Judges in arriving at their conclusion that Section 7 . did not apply, we 
think we cannot bub hold, on the strength of that decision, that Section 5 
also is inapplicable to such suits. 

Arguments, however, have been urged before us, which appear to 
have considerable force in favour of the applicability of Section 5, but we 
think the question is concluded by the Full Bench decision, and conse- 
quently that we are not at liberty to discuss it. 

The appeal fails and is dismissed with costs. 

* Appeal No. 188 of 1895. 
(1) 18 M. 99. 

177 
M VII 23 



20 Mad. 251 



INDIAN DECISIONS, NEW SERIES 



[Yol. 



1897 
JAN. 25. 

APPEL- 
LATE 
CIVIL. 

20 M. 250. 



20 M. 250. 

APPELLATE CIVIL. 
Before Mr. Justice Davies and Mr. Justice Boddam. 



NALLAPPA EEDDI (Plaintiff), Appellant, v. EAMALINGACHI KEDDI 
AND OTHERS (Defendants), Respondents.* [25th January, 1897.] 

Registration Indian Registration Act, 1877, Section 50 Loss oj sale-deed. 

When a deed of sale of immoveable property for more than Rs. 100 is lost 
within the time allowed for the registration of the same, the purchaser may 
bring a suit against the vendor to compel the execution and registration of a 
fresh deed ; 

and if, after the execution of the lost sale deed, the vendor has resold the 
property by a registered deed and delivered possession thereof to another who has 
notice of the sale to the plaintiff, the latter is entitled, as against the subse- 
quent purchaser, to a decree for the possession of the property. 

[Rel., 12 C.L.J. 464 = 8 Ind. Gas. 794 (795) ; R , 2 Ind. Gas. 244 (246) = 5 N.L.R. 70 
(74) ; D., 1 L.B.R. 293 (296).] 

SECOND appeal against the decree of C. Venkoba Chariar, Acting 
District Judge of Trichinopoly, in appeal suit No. 162 of 1891, modifying 
the decree of M. A. Tirumala Chariar, District Munsif of Kulitalai, in 
original suit No. 313 of 1890. 

On the 10th of December 1889 the first defendant executed in favour 
of the plaintiff a sale-deed of certain land for Es. 800, and [251] received 
from the plaintiff Es. 280, part of the purchase-money, the balance being 
payable, as the plaintiff alleged, at the time of registration. The deed was 
never registered. But on the 22nd December it was, with some other 
things, stolen from the plaintiff's house, and the plaintiff had not succeed- 
ed in recovering it. In January 1890 the first defendant sold the land 
in question to defendants Nos. 2 and 3. The sale-deed to these defendants 
was registered, and under it they had been put in possession of the land. 
The plaintiff now sued to compel the first defendant to execute and 
register a fresh sale-deed and for possession of the land, or, in the 
alternative, for the return of the part purchase-money paid and for 
damages. 

The District Munsif passed a decree directing the first defendant, on 
the plaintiff paying into Court the balance of the purchase-money, to exe- 
cute and register a fresh sale-deed, and directing all the defendants to 
deliver up possession of the land to the plaintiff. On appeal the District 
Judge, in reversing the decree of the District Munsif, said : 

" The District Munsif is, I think, clearly wrong in treating the suit as 
" if it was one for specific performance of a contract of sale. Here the 
" sale-deed was executed and delivered, but the title alone had to be perfect- 
" ed by registration of the dead. This was not done. The matter did not 
" stop with a mere agreement to sell, which would in that case be a mere 
" personal right enabling plaintiff to obtain a conveyance. There is no 
" allegation in the plaint that there was any contract that a fresh deed of 
" sale was proposed to be. executed and registered. Section 27, Specific 
" Eelief Act, has, I think, no application to this case, and the decree 
" directing the first defendant to execute a fresh deed of sale and to have 
" it registered, is, in my opinion, clearly unsustainable on the facts disclos- 
" ed in the case. I think, also, that the decision in I.L.E., 14 Madras, 

* Second Appeal No. 1283 of 1895. 
178 



VII.] 



NALLAPPA EEDDI V. RAMALINGACHI REDDI 20 Mad. 2S3 



4< page 55, does not govern this case. I consider that the decision reported 
41 in 16 Madras, page 341, shows the principles which govern cases of this 
41 kind, and under the dictum therein ruled, the plaintiff has, I conceive, no 
"right to obtain a second conveyance. 

"The District Munsif has also awarded possession to plaintiff, and in 
41 this, I think, he is clearly wrong. The second and third defendants have 
*' been in possession under a perfectly valid title. Their deed of sale 
" I is registered and they have possession. [252] Plaintiff's sale-deed 
" was unregistered, and therefore Exhibit I prevailed over it under Sec- 
" tion 50, Registration Act. The second and third defendants paid first 
41 defendant Rs. 1,000 before the Sub-Registrar, and this fact ia 
41 endorsed on Exhibit I. There is nothing to show that this was a 
44 sham payment. The defendants' first witness wrote it and he speaks 
41 to its execution. There is nothing in the evidence or in the circum- 
41 stances of the case to lead to any suspicion in the matter. Plaintiff 
41 himself says that the first defendant asked him to take back his 
" Es. 280, and permit him to sell the lands to second and third defendants 
" for Rs. 1,000, as they made him a better offer than plaintiff. I, 
''therefore, find the fourth issue for defendants Nos. 2 and 3. The 
41 question of notice of a previous contract of sale does not arise in 
"this case." 

The District JuJge, however, granted the plaintiff a decree for 
Es. 348, which sum was made up of the part purchase-money paid by 
the plaintiff with interest, interest on the balance which plaintiff had kept 
ready for payment on registration, and the value of the stamp paper on 
which the sale-deed had been engrossed. 

Plaintiff appealed. 

Seshagiri Ayyar, for appellant. 

Pattabhirama Ayyar, for respondents. 

ORDERS. 

The plaintiff's sale-deed having been lost, he was entitled to claim 
that the first defendant should execute a fresh deed of sale and register 
it, and assuming, as found by the Munsif that second and third defendants 
had notice of the sale to the plaintiff, he was further entitled to 
possession. 

The cases applicable to this are Nynakka Routhen v. Vavana 
Mahomed Naina Routhen (1) and Nagappa v. Devu (2). In Venkatsami 
v. Kristayya (3) relied on by the District Judge, the sale-deed had not 
been lost, and so there could be no claim for specific performance. The 
District Judge's decision on this point is therefore wrong, and he is 
requested to find, on the evidence on record upon the issue, whether 
defendants Nos. 2 and 3 had notice of the sale to the plaintiff ; in which 
case the Munsif's decree will have to be restored, and that of the District 
Judge reversed. The District Judge is requested to submit his findings 
within one month from the date of the receipt of this order. [253] 
Seven days will be allowed for filing objections after the finding has been 
posted up in this Court. 



1897 

JAN. 25. 

APPEL- 
LATE 
CIVIL. 

20 M 250. 



<1)5M.H.C.R. 123. 



(2) 14 M. 55. 
179 



(3) 16 M. 341. 



20 Mad. 254 INDIAN DECISIONS, NEW SERIES [YoL 

1896 20 M. 233. 

__ APPELLATE CIVIL. 

APPEL- Before Sir Arthur J. H. Collins, Kt., Chief Justice, and Mr. Justice 

Benson. 



OlVIL. 

KALIAPPA GOUNDEN (Plaintiff), Appellant v. VENKATACHALLA 
20 M. 253. THE VAN AND OTHERS (Defendants), Respondents* 

[14th October, 1896.] 

Madras Act II of 1864, Section 38 Sale for arrears of revenue Confirmation of sale- 
after cancellation. 

When a Collector has passed an order under Section 38 cf Madras Act II of 
1864, setting aside a sale for arrears of revenue, be cannot subsequently confirm 
the sale. 

SECOND appeal against the decree of T. Weir, District Judge of 
Coimbatore, in appeal suit No. 211 of 1893, reversing the decree of T. T. 
Eangachariar, District Munsif of Coimbatore, in original suit No. 154 
of 1892. 

This was a suit to recover certain land with mesne profits. The land 
originally belonged to the first defendant, and for arrears of revenue due 
by him was sold by the Collector on the 20th March 1883 and purchased 
by the plaintiff. 

On the 2nd November 1883 the Collector passed an order setting 
aside the sale. But on the 29bh August 1884 he passed the following 
order : 

" Bead arzi No. 515 of this year which you submitted, stating that 
" you had (already) under our order given certain information in detail 
"regarding the cancellation of the sale of the fields, Nos. 110 and 111 in 
" the village of Senjeri. 

" The abovementioned order has been cancelled, and the sale of the 
" said lands is confirmed in the name of Sanjeri Kaliappa Gounden who 
" purchased the said lands." 

And on the 8th November 1884 the Collector issued a sale certificate- 
in the name of the plaintiff. 

[254] The District Munsif gave the plaintiff a decree, but on appeal 
the District Judge reversed the decree of the District Munsif. 

Plaintiff appealed. 

Bamachandra Rau Sahib and Kasturi Bangayyangar, for appellant. 

Desikachariar, for respondents. 

JUDGMENT. 

There is no provision in Act II of 1864 which enables a Collector to 
revive a sale which he has once cancelled. In the present case the Head 
Assistant Collector cancelled the sale on the 2nd November 1883. He 
bad no power to revive the sale nearly a year afterwards as he purports 
to have done. The issue of the certificate was, therefore, ineffectual to 
create any title in the plaintiff. 

We dismiss this second appeal with costs. 



* Second Appeal No. 844 of 1895, 
180 



VII.] 



ARUMUGAM PILLAI V. ABUNACHALLAM PILLAI 20 Mad. 255 



20 M. 254. 
APPELLATE CIVIL. 

Before Mr. Justice Shephard and Mr. Justice Davies. 



ARUMUGAM PILLAI (Defendant), Appellant v. ARUNACHALLAM 
PILLAI (Plaintiff), Respondent* [5th January, 1897.] 

Registration of wills after death of testator Inquiry by registering officer into disability 
cf testator Indian Registraton Act, Sections 35. 40, 41. 

The procedure prescribed by Section 35 of the Indian Registration Act is not 
applicable to the registration of wills which, under Section 40 of that Act, are 
presented for registration after the death of the testator by persons claiming 
under them. 

SECOND appeal against the decree of E. J. Sewell, Acting District 
Judge of Tanjore, in appeal suit No. 211 of 1894, confirming the decree 
of C. Venkobachariar, Subordinate Judge of Tanjore, in original suit 
No. 30 of 1893. 

The plaintiff, the maternal uncle of one Manikam Pillai, deceased, 
applied to have a document purporting to be the will of Manikam Pillai 
registered. The Sub-Registrar refused registration, and on appeal the Regis- 
trar confirmed the decision of the Sub-Registrar. Thereupon the plaintiff 
filed this suit under [255] Section 77 of the Indian Registration Act, 
making the divided paternal uncle of Manikam Pillai the defendant in 
the suit. 

The defendant contended that the will was not genuine, that Mani- 
kam was a minor on the alleged date of its execution, and therefore not 
competent to make the will, and that moreover he was unconscious and 
not in a fit state of mind to execute any testamentary disposition. 

The following were the issues framed in this suit forjdecision :. 

Whether or not the deceased Manikam Pillai was a major at the 
time of the execution of the alleged will. 

Whether the will is genuine and was duly executed by the deceased 
Manikam Pillai. 

Whether or not suit is barred by limitation. 

Whether the plaintiff is entitled to have the will registered. 

On all these issues the Subordinate Judge found for the plaintiff and 
directed the registration of the document. 

On appeal the District Judge found on the second issue that the will 
was duly executed by Manikam Pillai. On the first issue, as to whether 
the testator was a minor at the time of the execution of the will, the District 
Judge said : '* I consider, therefore, that a Registering officer is not 
"permitted by the Registration Act to refuse registry of a will when 
presented by any person other than the testator, on the ground of the 
41 minority of the deceased testator when he executed the will," and did 
not allow the appellant to argue whether in fact Manikarn Pillai was a 
minor at the time when the will was executed. 

The question of limitation under the third issue was raised upon the 
following facts : 

The District Registrar's order of refusal was made on 3rd November 
1892. The plaintiff filed his suit before the Tiruvadi District Munsif on 



1897 
JAN. 5. 

APPEL- 
LATE 
CIVIL. 

20 H. 254. 



* Second Appeal No. 1067 of ,1895. 
181 



20 Mad. 256 INDIAN DECISIONS, NEW SERIES [YoL 

1897 2nd December within thirty days of the order. The District Munsif came 
JAN. 5. after some months to the conclusion that the suit was not within his 
~~ pecuniary jurisdiction and returned it to he filed in the Subordinate 

APPEL- Judge's Court. That ordor is dated 21st July 1893. The suit was filed 
LATE before the Subordinate Judge on the same day. With regard to this the 
CIVIL. District Judge said : I consider therefore that the suit was instituted when 
" the plaint was presented to the District Munsif of Tiruvadi on 2nd 
H. 254. " December 1892, and, therefore, is not barred by limitation." In the 
result he confirmed the decree of the Subordinate Judge. 
[256] Defendant appealed. 
Sivasami Ayyar, for appellant. 
Pattabhirama Ayyar, for respondent. 

JUDGMENT. 

The bar of limitation could not avail if the plaint was originally 
presented in the proper Court, and we consider that it was so presented 
in that the Munsif had jurisdiction. On this ground, but not on the 
grounds given by the Judge, we hold that the suit was not time-barred. 

With regard to the question whether the alleged minority of the 
testator was a valid reason for the Registrar refusing registration, we 
agree in the conclusion arrived at by the Judge. A clear distinction is 
made in Section 41 of the Registration Act between the case of the will 
presented by the testator himself, and that of a will presented by any 
other person entitled to do so. In the former case the rules laid down 
in Section 35 are made applicable, but in the latter case special rules are 
given. In these special rules no provision is made for an enquiry as to 
the testator's minority or sanity, for which enquiry provision is made in 
the rules in Section 35. It would not be reasonable to hold that the 
special rules (a), (b) and (c) of Section 41 are merely supplemental to 
the rules in Section 35, because at least in one instance the same rule in 
substance appears in both sections. The second appeal, therefore, fails 
and is dismissed with costs. 



20 H. 236 f P. C.i = 24 I.A. 118 = 7 Sar. P.C.J. 188. 
PRIVY COUNCIL. 

PRESENT : 

Lords Watson, Hobhouse and Davey and Sir Richard Couch. 
[On appeal from the High Court at Madras.] 



SRI RAJA VIRAVARA THODHRAMAL RAJYA LAKHSHMI DEVI 

GARU (Defendant) v. SRI RAJA VIRAVARA THODHRAMAL 

SURYA NARAYANA DHATRAZU BAHADUR GARU (Plaintiff). 

[4th and 5th March and 7th April, 1897.] 

Hindu law Impartiality not establislied Possession of one member of joint family at * 
time What constitutes partition. 

A xemindari granted by the Government in 1803 to a Hindu descended in 
bis family, possession being held by one member at a time. The estate, bow- 
ever, [237] was not impartible. But whether it was, or was not, impartible wa 
adjudged immaterial to the question raised on this appeal. 

182 



YII.] LAKHSHMI DEVI V. DHATRAZU 20 Mad. 257 

The last zemindar having died without issue in 1888, his widow was in pos- 1897 

session when this suit was brought by a male collateral descended from a great- A PBIIj r 
grandfather common to him and to the last zemindar. The plaintiff claimed to 
establish his right as member of an undivided family holding joint property 

against the widow who alleged that her husband had been sole proprietor. In "RIVY 

proof of this she relied on certain arrangements as having constituted partition, COUNCIL. 

viz,, that in 1816, two brothers, then heirs, agreed that the elder should hold 

possession, and that the younger should accept a village, appropriated to him for 20 H. 256 



maintenance in satisfaction of his claim to inherit ; again, that in 1866, the 



(P.O.): 



fourth zemindar compromised a suit brought against him by his sister for her 
inheritance, on payment of a stipend to her, having already, on the claim of his 2 * ** *' 
brother, granted to him two villages of the estate ; and, by the compromise, this 7 Sar. P.O.J. 
was made conditional on the sister's claim being settled : again, that in 1871, 185, 
the fourth zemindar having died pending a suit brought against him to establish 
the fact of an adoption by him, an arrangement was made for the maintenance of 
his daughter, and two widows, who survived him, the previous grant for main- 
tenance of his brother holding good, the adoption being admitted, and the suit 
compromised: 

Held, that there was nothing in the above which was inconsistent with the 
zemindari remaining part of the common family property ; and that the course 
the inheritance had not been altered : 

Held, also, that the claimant was not precluded by the family compromise 
of 1871, or in any way, from maintaining the suit ; and that it was not barred by 
limitation. 

[R.,9Ind. Gas. 849 (855) = (1911) 1 M.W..N. 2S1 ; 15 Ind. Gas. 17 (21) = 23 M.L.J. 
168 = 12 M.L.T. 293 ; 15 Ind. Gas. 412 (4161 = 23 M.L J. 79 = 12 M.L.T. 245 
(250) = (1912) M.W.N. 790 (796) ; 10 O.C. 367 (373) ; 11 O.C. 381 (388); Cong., 22 
M. 538(548); D., 31 C. 111 = 7 C.W.N. 688.] 

APPEAL from a decree (2nd March 1893) of the High Court, which 
affirmed a decree (19th December 1890) of the District Judge of Vizaga- 
patam. 

The plaintiff, now respondent, was Surya Narayana, great-grandson of 
the third zemindar of the Belgam Zemindari. The first defendant, now 
first appellant, Sri Kaja Lakhshmi Devi Garu, was widow of the last 
zemindar, who died in 1888, and who was also great-grandson of the third 
zemindar. A second defendant, who did not appear on this appeal, was 
the plaintiff's younger brother Sundara Narayana Dhatrazu. The Collector 
of Vizagapatam, Agent to the Court of Wards, and guardian of the first 
defendant, had been made a defendant, by order of 10th September 1889. 

The zemindari had been granted by the Government on the 21st 
October 1803, by a sanad i milkeut istimrar, or deed of uermanent pro- 
perty, following Kegulation XXV of 1802. 



183 



20 Mad. 258 



INDIAN DECISIONS, NEW SERIES 



[Yol. 



1897 

APRIL 7. 

PRIVY 
COUNCIL. 

20 If . 256 

(P.C.) = 

34 I. A. 118 = 

7 Bar. P.C.J. 

185. 



[258] The following table shows the succession to the zemindar! : 



Soma Sundara Narayana, 

Lessee of Belgam in 1796 ; 

First Istimrar Zemindar, 1803, 

died December 1814. 

I 



1 

Dhananjaya, 
Second Zemindar, 
died without male 
issue November 
1849. 


Visvam 
Third Ze 
died Jul 


bhara, 
minrtiir, 
y 1865. 


1 


hana, 

r 1885. 


1 

Narayana Rama- Janard 
chandra, Fourth died Ma; 
Zemindar, died 
March 1871. 

1 
Rajya Lakahmi Devi. 


1 
Sivan Narayana, Chandra 
adopted by Nara- died Mar 
yana Ramachandra, 
Fifth Zemindar, 
died March 1882. 
1 


1 
sekhara, Bahavan Narayana, 
oh 1868. died November 1884. 

Narayana Ramachandra 
died unmarried January 
1889. 


1. II 

Dhananjaya, Visvambhara, Surya Nara- Sundara 

Sixth said to be yana, Narayaua, 
Zemindar, adopted into Plaintiff. Second 
M. Rajya another Defendant. 
Lakhshmi family. 
Devi, First 
Defendant, died 
without issue 
October 1888. 



The main question on this appeal was whether the zemindari was the 
joint family property in the hands of the sixth zemindari the widow's 
husband ; or had ceased to be joint family property by reason of certain 
acts, which were alleged by the defence to have had the effect of partition, 
and to have altered the course of descent, so that the zemindari had 
become the separate property of her husband, the last owner. If that 
was the result of those acts, the widow would have become entitled to her 
widow's estate in the zemindari. The facts appear in their Lordships' 
judgment. The following were the principal transactions alleged to have 
had the effect of partition : 

In February 1816, Visvambhara, second son of the first zemindar, 
executed two deeds of receipt and acquittance (Pharikati) (the particulars 
of which are set forth in the judgment on this appeal) on receiving a grant 
of a village, part of the Belgam Zemindari from his elder brother Dhanan- 
jaya. In 1866, [259] Ramachandra the fourth zemindar, granted to bis 
only brother, Janardhana, two villages of the zemindari as Taoji, or gift 
for maintenance. Against this Ramachandra, a suit was brought by 
Sivan Narayana, alleging himself to have been adopted by Eamachandra, 
who did not admit the adoption, and who died in 1871, while the suit was 
pending. Janardhana, the natural father of Sivan Narayana, and Rama- 
chandra's two widows with his daughter, who survived him, were made 

184 



YII.J LAKHSHMI DEVI V. DHATRAZU 20 Mad. 260 

parties to the suit, which was then compromised by razinamas, dated the 1897 
6bh September 1871. In those documents reference was made to the APRIL 7. 
previous grant of Taoji to Janardhana, and a family agreement was made 
that Sivan Narayana should succeed as adooted son of Kamachandra, 
Janardhana, continuing to hold his two villages ; and provision being COUNCIL, 
made for the women of the senior branch. ii~2BB 

The plaint (25th April 1889) alleged that the zamindari, recently /p C \_ 
granted, was partible among the heirs of the grantee, and that the plaintiff ' JI~ 
and his brother Sundara Narayan were entitled to the estate in equal ' ' T* 
shares, the defendant widow being only entitled to maintenance. The ' a ' ' 
prayer was that one-half might be allotted to the plaintiff in severalty, 
excluding the villages granted in 1866, with one-half of the moveables, and 
with mesne profits. 

The Court of Wards filed the widow's written statement ; in effect 
raising questions, the subject of the issues, whether the zamindari was 
partible or impartible, whether there had been partition, whether the estate 
had been acquired by the last owner himself, whether the plaintiff was 
estopped, by the acts of those through whom he claimed, from maintaining 
this suit, and whether it was barred by limitation. 

The District Judge decreed in favour of the plaintiff that he was 
entitled to one-half of the property laft by the lafce zamindar including'the 
Zamindari of Belgam. In his judgment the zamindari was partible. The 
family was not ancient : the grant in 1796 was merely of a life estate. 
The grant in 1803 was not made in any manner which carried with it an 
implication that it was to be impartible. The duration of the family was 
not sufficient to give rise to a custom over-riding the ordinary law ; and 
the mode in which the parties had dealt with each other was consistent with 
the estate being that of an ordinary undivided family under Mitakshara 
law, even though that family might have entertained the mistaken belief 
that the estate descended to a single heir. 

[260] The District Judge held that the property was not the ' self- 
acquisition ' of any one who came after the common ancestor, Visvam- 
bhara. It had always gone in the direct line of primogeniture, and there 
never had been any loss of the estate which could be followed by the 
acquirement of any one of the successive zamindars. 

Also, he found that there had never been any partition. There had 
not been in the transactions of different years, which had been alleged on 
behalf of the widow to amount to partition, any intention whatever to 
affect the undivided status of the family. He held, moreover, that there 
was no estoppel, in consequence of the execution of the razinamas of 
September 1871, to bar the plaintiff's maintaining this suit. The agree- 
ment of that year recognised the adoption of Sivan Narayana, and his 
right to take the place of his adoptive father, while provisions for the 
maintenance of the females of the senior branch and the males of the 
junior branch, were, at the same time, settled. Nothing was arranged as 
to the order of succession on the extinction of the senior branch, if it 
should occur, nor was any arrangement made for that succession in a 
manner contrary to the ordinary rules of inheritance of the Hindu law. 
This latter would have been invalid, and would not have been binding on 
the plaintiff, nor would it have affected his right to claim, as a member 
of a joint family, his share of the undivided estate. 

As to limitation, the District Judge held that no question could 
arise under Article 127 of Act XV of 1877. The plaintiff's branch, though 
existing, had not been shown to have had any right of possession until 

185 
M VII 24 



20 Mad. 261 INDIAN DECISIONS, NEW SERIES [Yol. 

1897 the property vested in 1888 on the death of the late zamindar in his 
APRIL 7. collateral relations as his heirs. Till then, there was no exclusion of the 
plaintiff's branch, and not till then was there any possession held by 
PRIVY another adversely to his branch. 

COUNCIL. The above necessarily cut away the ground that the widow could 

20 M 25g hold the zamindari against the plaintiff and his brother. The case put by 

(P C ) = ^ n9 defendant's counsel was that the zamindari itself had not been divided, 

21 1 A 118= being impartible, but that the members of the family having become 

7 Sar P C J divided as to living and as to property and having agreed to a decree of 

185 separation in 1871, their status had become that of divided members of 

the family, and that this status must govern the right of succession to 

the zamindari, even if the latter was undivided. . 

[261] This argument the Judge considered to fail, even if the facts 
were as alleged, on the ground that property, which was designedly 
excluded from a partition, remained joint, and was governed by the rule 
of succession which excluded a widow while undivided males were in 
existence. 

Against this decision the Collector, as guardian of the widow, 
defendant, appealed to the High Court, which dismissed the appeal. 

The High Court (PARKER and SHEPHARD, JJ.) considered, as to the 
alleged impartibility, that there had been no indication of an intention to 
impress that character on the estate granted in 1803. On the contrary 
there was clear indication of an intention the other way. The grant was 
to an individual not connected with the family of the original zamindar, 
and was not made as a restoration of an original estate. It was true 
that, as often as there had been a devolution of the estate, the eldest son, 
or in absence of a son, the brother, of the last holder, had assumed the 
position of zamindar. The estate had, no doubt, been treated by the 
family as if it had been impartible, and as if all that the junior branch 
could claim was a right of suitable maintenance. This state of things 
had continued for about seventy yeais. In the opinion of the Judges, in 
the case of a family of comparatively modern origin, evidence of conduct 
extending over such a short period was wholly inadequate to prove a 
special custom. The alleged usage would not be from ancient times. 
They referred to Amrithnath Chowdhry v. Goureenath Chowdhry (1) and 
JRamalakshmi Ammal v. Sivanantha Perumal Sethurayar (2). They 
considered it a matter beyond dispute that the zamindari was not 
impartible and that there was no such special cuutom, though the mem- 
bers of the family had agreed in treating it as impartible. 

That being so, only two defences were raised, viz., renunciation under 
the compromise of 1871 and limitation. As to the first, the Judges held 
that no question beyond that of the present enjoyment of the zamindari 
had been raised by the parties, and that Janardhana had had shown no 
intention to separate himself and his descendants from the right of succeed- 
ing to the zamindari. As [262] to the second point, the bar by limita- 
tion, the Court considered that there never had been, till 1888, any 
holding possession adversely to the right which was claimed in this suit, 
that right being to succeed in default of direct male heirs of Bamachandra. 
Thus no question of limitation could arise. 

The defendant widow having appealed from the High Court's decree* 
affirming the decree of the first Court. 

(1) 13 M. I. A. 642. (2) 11 M. I. A. 570. 

186 



YII.] LAKHSHMI DEVI V. DHATRAZU 20 Mad. 263 

Mr. A. Cohen, Q. C., and Mr. J.H.A. Branson, for the appellant argued 1897 
that the judgments in the Courts below had not given due weight to the APRIL 7. 

transactions of 1816, of 186566, and of 187172. The result of those 

family arrangements had been a partition, effective to render Dhananjaya, PRIVY 
the sixth zarnindar, the inheritor of a separate zamindari ; and in this his COUNCIL, 
widow had obtained her widow's estate for life. Whilst the family had M"* 
acted in the belief that the family estate was impartible and must remain ^ ' 
in the bands of the zamindar for the time being, their arrangements had * ' *'~ 
been such that the senior branch, on the one side, had given, and the ' ' ~ 
junior branch, on the other side, had accepted, satisfaction for the separate ' 

possession of the zamindari being permanently made over to the senior 
branch. This had constituted partition. The evidence had shown that 
Ramachandra and Janardhana having lived separate, had separated from 
each other in estate at the time of Sivan Narayana's suit of 1870 71. 
The plaintiff was estopped by the acquittance and discharge given. The 
compromise should be regarded. Moreover, this claim had originally been 
based, as shown by the plaint, on the case that the Zamindari of Belgam 
was an ordinary partible estate. But both the Courts below had found 
that, although it was not impartible, it had been dealt with by the family 
as if it had been impartible. The compromise had been made on this 
footing. There had been a renunciation by the junior branch, and 
an acquisition by Ramacbandra which might be considered to give 
the property the character of acquired estate. Reference was made, as 
to what constituted partition, bo Appovierv. Rama Suhba Aiyanti), Sri 
Raja Jaganadha v. Sri Raja Pedda Pukir (2), Rai Raghunathi Bali v. 
Rai Maharaj Bali (3), Periasami v. Periasami (4), Malikarjuna Prasada 
[263] Naidu v. Durga Prasada Naidu(5), Thakur Darriao Singh v. Thakur 
Darri Singh (6), Bhaiya Ardawan Singh v. Udey Pratab Singh (7). Re- 
liance was placed on limitation. It was argued that Article 127, Schedule 
II of the Limitation Act XV of 1877, applied on the alleged exclusion of 
those through whom the plaintiff claimed for more than twelve years 
before his demand. Reference was made to Ramachandra Narayan Singh 
v. Narain Mahadev (8). 

Mr. /. D. Mayne, for the respondent contended that there had been 
no evidence given of partition of the zamindari. As regarded the present 
claim of a coparcener in a joint family estate against the widow of the last 
possessor, it was not essential to have determined whether the estate was 
partible or impartible. The evidence had, however, shown it to be par- 
tible. The estate had, never been partitioned, and the right of the 
present claimant had never been extinguished. There had been no renun- 
ciation of right, precluding the claim now made, nor any break in the un- 
divided rights of the family coparceners. Thus there was no reason for 
considering the estate to be the separate estate of the last possessor, nor any 
reason for considering it to have been his 'self -acquired property.' Neither 
by estoppel nor by limitation was this suit barred. He referred to the 
judgment in Appovier v. Rama Subbu Aiyan(l), Sri Raja Jaganadha v. 
Sri Raja Pedda Pukir (2), and Bhaiya Ardawan Singh v. Udey Pratab 
Singh (7). 

Mr. J. H. A. Branson replied. 

(I) 11 M.I.A. 75. (2) 4 M. 371. (3) 12 I.A. 112 = 11 C. 777. 

(4* 5 I.A. 61 = Sivagnana Tevar v. Periasami, 1 M. 312. 

(5) 17 M.362, (6) 1 I.A. 1. (7) 23 I.A. 64 = 230. 838. 

(8) 11 B. 216. 

187 



20 Mad. 264 INDIAN DECISIONS, NEW SERIES [Vol. 

1897 JUDGMENT. 

APRIL 7. 

Afterwards on 7th April, their Lordships' judgment was delivered by 

PRIVY LORD DAVEY : This is an appeal against a decree of the High Court of 

COUNCIL. Madras affirming a previous [decree of the District Court of Vizagapatam. 

~~- The appellant, who was defendant in the action, is the widow of the late 

20 M. 255 Zamindar of Belgam who died on the 29th October 1888 without leaving 

. 1 anv issue and intestate. She claims to be entitled to a widow's estate in 

.A. 118= j. Qe en ti r e zamindari. The respondent (plaintiff in the action) claims to be 

r. r.C.J, entitled in possession to one moiety of the zamindari on the ground that 

3< the zamindari was part of the joint property of his and the late zamindar's 

family and [264] he alleges that the zamindari being partible in title his 

brother Surandara Narayana. (who was made a defendant in the action, 

but is not a party to this appeal) is entitled to possession of the other 

moiety. On the other hand the widow and appellant contends that the 

zamindari was impartible in title and that owing to certain family 

arrangements, it had become the separate property of her late husband. 

The Zamindari of Belgam was originally created by a sunnud, dated 
21st October 1803, granted by the Government to Somasundara Narayana 
(the first zemindar). The sunnud ioself has been lost, but the contents 
of it sufficiently appear from the kabuliat or counterpart executed by 
the zamindar and dated 28th April 1804 which was put in evidence. It 
appears from this document to have been in a form which is stated to 
have been usual in grants by the Madras Government of that period. Ifc 
conferred on the zamindar liberty to transfer by sale gift or otherwise his 
proprietary right in the whole or any part of the zamindari and granted 
the estate to him his heirs, successors and assigns at the permanent asses- 
ment therein named. It would seem from the arrangements made in the 
family that the zamindari was regarded as impartible. But whether that be 
so or not it has been now decided in the case of Venkata v.Narayya (l) on 
the construction of a sunnud of similar form and granted about the same 
date that the zamindari thereby created was not impartible or descendible 
otherwise than according to the ordinary Hindu law. It must be taken there- 
fore that the Zamindari of Belgam was not impartible whatever the parties 
may have thought and the misapprehension of the parties could not make it 
so or alter the legal course of descent. It will however be found that as bet- 
ween the appellant and the respondent the question whether the zamindari 
is partible or not is of no importance. Even if impartible it may still be part 
of the common family property and descendible as such in which case the 
widow's estate of the appellant would be excluded. The real question 
therefore is whether it has ceased to be part of the joint property of the 
family of the first zamindar or (in other words) whether there has been an 
effectual partition so as to alter the course of descent. 

Somasundara Narayana, the grantee and first zamindar, died in the 
year 1814, leaving two sons Dhananjaya No. 1 and Visvam-[265] bhara 
No. 1. Dhananjaya was allowed by his brother to succeed to the estate 
and beeame second zamindar. Two documents, dated the 16th and the 
18th Febuary 1816, were executed on this occasion and were the first 
transaction relied on by the appellant in proof of the separation of estate 
or partition which she alleged had taken place. The first document was 
a ' pharikat sunnud ' given by Visvambhara in the following terms : 

(1) 7 I. A. 38. 
188 



YII.] LAKHSHMI DEVI V. DHATRAZTT 20 Mad. 266 

" As we have both equally divided and taken all the cash, jewels and 1897' 

" other (property) in the palace to which both of us are entitled, I bind APRIL 7. 

" myself not to claim (anything) from you at any time. I shall reside in 

" the village of Addapusila which you were pleased to give me for my PRIVY 

" maintenance and act according to your wishes." COUNCIL. 

Bv the second document (also called a ' pharikat sunnud ') Visvam- ~~" 
, , , , 20 M. 236 

bhara stated : IPC- 

" I or my heirs shall not at any time make any claims against you or , j 
" your heirs in respect of property moveable or immoveable, or in respect 8 

" of (any) transaction. As our father put you in possession of the P.C.J 

" Belgam Zamindari, I or my heirs shall not make any claim against you I8a> 
" or your heirs in respect of the said zamindari." 

Their Lordships do not find any sufficient evidence in the arrange- 
ment made bv these documents of an intention to take the estate out of 
the category of joint or common family property so as to make it 
descendible otherwise than according to the rules of law applicable to 
such property. The arrangement was quite consistent with the continu- 
ance of that legal character of the property. The elder brother was to 
enjoy the possession of the family estate, and the younger brother accepted 
the appropriated village for maintenance in satisfaction of such rights as 
conceived he was entitled to. In the opinion of their Lordships it was 
nothing more in substance than an arrangement for the mode of enjoy- 
ment of the family property which did not alter the course of descent. 

The second zamindar died in 1849, leaving two widows and one 
daughter Eatna Mani Amma but no son. At this time the estate was in 
the hands of a mortgagee and remained so during Visvambhara's life. 
He died in 1865, leaving two sons Ramachandra and Janardhana. A 
suit was commenced by Ratna Mani Amma (her father's widow being 
then dead) to recover the zamindari from Ramachandra. This suit ended 
in a compromise by [266] which the plaintiff withdrew her claim to the 
estate on condition of Ramacbandra paying her Rs. 500 a year. Rama- 
chandra had, already by a kararnama, dated 13th October 1866, on the 
application of his brother Janardhana and with a view to enable him and 
his family to live decently, granted to him as towji the villages of 
Addapusila and Vuddavolu conditional on Ratna Mani'ssuit being settled 
in the manner mentioned. Ramacbandra seems to have recovered 
possession of the estate from the mortgagees and succeeded as fourth 
zamiodar. This transaction does not tend to support the case of the 
present appellant. 

Ramachandra having no male issue adopted Sivan Narayana, the 
eldest son of Janardhana, but afterwards attempted to repudiate the 
adootion. In 1870 a suit was commenced by Sivan Narayana against 
Ramachandra to establish the adoption and praying for a decree establi- 
shing his title to the zamindari after the defendant's death. During the 
pendency of the suit Ramachandra died without male issue, but leaving 
one daughter and thereupon the suit was revived against Janardhana 
and Ramachandra's two widows and his daughter. Their Lordships 
observe that these persons were the only persons then interested in- 
contesting the adoption of Sivan Narayana and they must assume that 
they were made defendants to the suit for the purpose of establishing the 
adoption against them. The suit was compromised as regards Janardhana 
and one of the widows (named as second defendant) on the terms con- 
tained in a razinama, dated 6th September 1871, and as regards the other 
widow on behalf of herself and her infant daughter in another razinama 

189 



20 Mad. 267 INDIAN DECISIONS, NEW SERIES [Yol. 

1897 of the 16th September 1871. These are the documents which are chiefly 
APRIL 7. relied on by the present appellant in support of her case. 

By this compromise Janardhana agreed that the plaintiff was the 

PRIVY adopted son of his elder brother, that the right to the zamindari should pass 

COUNCIL, to the plaintiff and that Janardhana should be enjoying or continue to 

-j-- enjoy '.for the words are translated both ways) the villages of Vuddavolu 

20 H. 5 i an( j Addapusila attached to the zamindari which had been in his possession 

' ' '" and enjoyment in accordance with the kararnama executed in his favour 

by his late elder brother, and he also agreed to the provision to be made 

Bar. P.GJ. j or R amacnan( j ra ' 8 widows and daughter. The other defendants agreed 

81 fco the plaintiff being the adopted son of the second defendant and her 

late husband and to the right of the zamindari being the plaintiff's. 

[267] Provisions were made for the two widows during their lives out of 

lands attached to the zamindari. It was arranged that Eamachandra's 

daughter should be married to Sivan Narayana's son, or in default 

provision should be made for her out of lands of the zamindari and 

there were other provisions for the benefit of the widows. 

The terms of the compromise seem to have been carried out and 
Sivan Narayana as adopted son of Eamachandra succeeded to the 
zamindari. He died in March 1882 and was succeeded by his son 
Dhananjaya (2) who died on the 29bh October 1888 intestate, leaving the 
appellant his only widow and no issue. 

The respondent is one of the two sons of Chandrasekhara (deceased) 
the second son of Janardhana, and he and his brother are his only two 
surviving grandsons. It is alleged and seems to have been admitted in 
the case that Visvambhara (2), a brother of the late Zamindar Dhanan- 
jaya (2), had been adopted into another family and was excluded from any 
share in the property of his natural father's family, and the proceedings in 
the suit were conducted on that assumption. Their Lordships will only 
point out that if any mistake has been made with respect to this fact, 
nothing that is decided in this suit will affect his interest (if any) in the 
zamindari. Visvambhara applied to be made a party to the suit, but hia 
petition was refused on other grounds, and no evidence was gone into as 
to his adoption into another family. 

The present suit was commenced by the respondent on the 25th 
April 1889 against the appellant, the respondent's brother, and the Court 
of Wards as guardian of the appellant. The plaint ignores the adoption of 
Sivan Narayana and proceeds on the assumption that he succeeded to the 
estate with the permission of his natural father Janardhana and his 
natural brothers and managed the estate on behalf of himself and the 
other members of the family. It alleges that the estate is partible and is 
owned and enjoyed by the family of the plaintiff. The prayer is that, ex- 
cluding the villages of Vuddavolu and Addapusila, the zamindari be divided 
so as to give the respondent his half share, and the same recovered from 
the appellant. The defence was in substance (1) that the zamindari is 
impartible, (2) that the respondent was estopped by the family compromise 
of 1871 from maintaining the suit, and (3) that the suit is barred by the 
Law of Limitations. The validity of the adoption of Sivan Narayana is 
not now in dispute. 

[268] On the first point their Lordships have already expressed 
their opinion and have pointed out that as between the appellant and 
respondent the question is immaterial. It only arises as between the 
respondent and his brother who is not a party to this appeal. The 
District Court decreed the respondent possession of half of that part of 

190 



YIL] MAHADEVI V. NEELAMANI 20 Mad. 269 

the zamindari which is within the local jurisdiction of the Court, and 1897 
that was all that the plaint asked for. APRIL. 7. 

On the second point their Lordships agree with the Courts below ~~ 
that the course of descent of the zamindari was not altered by the com- PRIVY 
promise of 1871, and that the widow is not entitled to succeed to a widow's COUNCIL. 
estate as heir of the late zamindar. The only question raised in the oo if~256 
litigation of 1870 was as to the fact of Sivan Narayana's adoption by /pr\_, 
Ramacbandra, and it does not appear that any other contention was raised 1 ' 'ill 
by Janardhana when he was made a party to the suit or was in the _ ' p C j 
contemplation of the parties. They may (as has been suggested) have *< 
been under the erroneous impression that the zamindari was impartible, 
but there was nothing in the compromise inconsistent with the zamindari 
(even if impartible) remaining part of the common family property. The 
two villages were originally granted by Ramacbandra to Janardhana as 
towji only and in order to provide a decent maintenance for him and his 
family, and in 1871 it was agreed that Janardhana should continue to 
enjoy the villages in accordance with Ramachandra's grant. It is said 
that Janardhana and his family have dealt with these villages in a manner 
inconsistent with their holding them for their maintenance only. Their 
Lordships express no opinion on the point, but even if they have exceeded 
their rights that will not alter the effect of what was done by the agree- 
ment of 1871. It is impossible to treat that agreement as a deed of 
partition by which the zamindari was converted into the separate or 
acquired property of Sivan Narayana. 

Their Lordships also agree with the Courts below that the suit is not 
barred by the Law of Limitations. As between the appellant and the 
respondent the suit is not one for partition. The claim of the latter is 
not to hold jointly with the appellant, but to succeed adversely to her as 
one of the right heirs on the death of the last zamindar. There has been 
no denial of the title of Janardhana and his family or exclusion of them 
from the estate. On the contrary the possession has been under and in 
accordance with the agreement of 1871 by which a provision was made 
for the junior branch. 

[269] Their Lordships will therefore humbly advise Her Majesty 
that this appeal should be dismissed. The appellant will pay to the 
respondent his costs of the appeal. 



20 M. 269. 

APPELLATE CIVIL. 
Before Mr, Justice Subramania Ayyar and Mr. Justice Davies. 



MAHADEVI AND ANOTHER (Defendants Nos. 1 and 2) 
Appellants v. NEELAMANI (Plaintiff) Respondent* 
[19th November, 1896.] 

Hindu Law Po-Brahman Alienation by widow for re ligious purposes 'Res judioata' 
Decision on title in proceedings under Land Acquisition Act, 1870. 

When a Po-Brahman receives a salary for the performance of his duties, a 
gift to him by the widow of the parson whose exequial rites he has been appoint- 
ed to perform to reward him for having performed any of those ezaquial rites is 
not a gift binding on the reversiooera. 

Appeal No. 148 of 1895. 
191 



20 Mad. 270 



INDIAN DECISIONS, NEW SERIES 



[YoK 



1896 

Nov. 19. 

APPEL- 
LATE 
OIVIL. 

20 M. 269. 



ID proceedings under the Land Acquisition Act, 1870, to apportion the com- 
pensation payable, a decision by the Judge on a question of title does not operate 
as res judicata between the parties to those proceedings. 

[F.,32 A. 484 = 7 A.L.J. 425 = 6 Ind. Gas. 127; R., 34 C. 446 = 11 C.W.N. 525; 13C-L, 
J. 547 = 15 C. W.N. 1021 (1024) = 10 Ind, Gas. 434 (436) ; D.. 29 M. 173.] 

APPEAL against the decree of J. P. Fiddian, District Judge of Ganjam, 
in original suit No. 9 of 1894. 

The plaintiff brought this suit to recover possession of a village with 
mesne profits. The village in question had formed part of the estate of 
the late zemindar of half of Tekkali taluk and had been given to the plaint- 
iff by the late zemindar's widow. The first and second defendants were 
the daughters of the zamindar and, having, on the death of his widow, 
succeeded to his estate, had obtained possession of the village in question, 
which till then had been in possession of the plaintiff. The other defend- 
ants were the ryots of the village. 

The circumstances under which the gift had been made were as fol- 
lows : In accordance with a custom prevailing among the Oriya zamin- 
dars, the late zamindar had appointed the plaintiff Po-Brahman (son 
Brahman) to perform his exequial rites. After [270] the death of the 
zemindar without male issue his widow succeeded to his estate, and 
requested the plaintiff to offer the pinda to the zamindar at Gaya. This 
the plaintiff did, and some seven or eight years after he had done so, the 
widow on the 10th August 1874 executed in his favour the deed of gift in 
question. The motive for the gift was stated in the deed to be the fact 
that the plaintiff, having been appointed Po-Brahman by the late zamin- 
dar, had, in accordance with the custom prevailing in the late zamindar's 
family. " performed just like a son pindathanam and other ceremonies at 
Sri Gaya" in order that the late zamindar might attain salvation. The 
plaintiff, however, did not allega that he had performed any ceremonies at 
Gaya except the pindathanam. 

The deed was attested by the first and second defendants, but under 
circumstances which their Lordships held did not create an estoppel. 

The first and second defendants pleaded that the gift did not bind 
them. Their contention on this point as set out in their written state- 
ment was as follows : 

" The plaintiff was appointed (not adopted) to the office of Po-Brah- 
" man by the late Sri Gopinadha Davi Garu, and ha performed the duties 
" thereof in consideration of receiving the perquisites attached thereto. 

" The offering of pinda is not outside the duties of the said office, nor 
" is it an indispensable ceremony. It is rather a spiritual luxury than a 
" spiritual necessity. The plaintiff made the pilgrimage to Gaya and other 
" holy places at the expense of the late Sri Radika Patta Mahadevi Garu 
41 as much on his own as on her account and took advantage of the occa- 
" sion to perform the said pindathanam and received the usual dues for it. 

" There wag no agreement that be should be given a village in con- 
" sideration of making the said pindathanam. It is not in any case such 
" an act as deserved to be remunerated by a free and absolute gift of a 
" valuable village like the plaint village, which is one of the best villages 
" in the defendants' Khandam of the Tekkali taluk, and which yields an 
" income of over Bs. 1,000 per annum, and which is worth more than 
14 Es. ( 20,000. 

" The alienation is not, therefore, for a family necessity and is not 
" such as, when made by a widow with limited powers, would bind the 
11 reversioners." 

192 



YII ] MAHADEVI V. NEELAMANI 20 Mad. 272 

[271} At the trial the first and second defendants adduced evidence 1896 
to the effect that it was usual to give a Po-Brahman a salary and certain Nov. 19. 

mamools and perquisites, and that the plaintiff as Po- Brahman had received 

Rs. 2 per mensem and 2 graces of paddy per annum. APPHL- 

The plaintiff also relied on a decision of the District Judge in LATB 
proceedings under the Land Acquisition Act X of 1870. In 1891 about QlVIL 

14 acres of land ia the village in question were compulsodly acquired for 

the East Coast Railway. The Collector inquired into the matter under 20 M. 269, 

Section 11 of the Act, and under Section 15 of the Act referred the case 

to the District Judge " to determine the amount of compensation to be 

" paid to the person interested." Tbe District Judge in giving judgment 

said : " Before fixing the amount it is necessary to decide who is entitled 

"to it, in order that the owner may adduce evidence as to its value." 

And he framed the following issue : 

" How far the deed of gift; (Exhibit A) by the Mahadevi (second 
" claimant) to the first claimant is valid as against the reversioners 
" (daughters), claimants 3, 4, and 5. 

He then found that the gift was valid and that the plaintiff was 
entiled to the comoensation, the amount of which he then proceeded to 
determine. The only parties who appeared before the Judge in these 
proceedings were the plaintiff in the present suit, who claimed the whole 
of the compensation to be awarded; the widow of the late zemindar who 
admitted the validity of the deed under which plaintiff claimed and request- 
ed that the compensation should be paid to the plaintiff; and the eldest 
sister of the first and second defendants, who denied the validity of the 
gift and contended that the compensation should ba paid to the widow on 
behalf of the estate. Though the first and second defendants did not 
appear at these proceedings, the following notice was, prior to the proceed- 
ings, served on the agent of the first defendant : 

" The fourth claimant Muktamala Patta Mahadevi of Tekkali is 
hereby informed that the 1st day of February 1893 has been fixed as 
" the date of hearing for the purpose of settling the disputes in respect of 
" the amount of compensation fixed by the officer making reference in the 
"matter of 14 acres 25 cents of wet and dry lands in Vallabharoyipadu 
" village, which belong to you and which were taken possession of by Govern - 
" ment for the East Coast Railway. You should, therefore, appear on the 
" said date either in person or by a Vakil with the evidence and documents 
" [272] you possess and represent to the Court the amount of compen- 
" sation you claim for the right you possess in respect of the said land and 
" other points relating thereto. " 

In the present suit, the District Judge found that the alienation had 
not been made for such a purpose as to bind the reversioners, i.e., it 
was not made to secure the offering of the pindam, and it was only made 
as a reward for services past ; and as to the question of res judicata, he 
found that the first and second defendants had due notice of the enquiry 
into their title and must be held to be bound by the decision in the 
proceedings under the Land Acquisition Act of 1870. 

First and second defendants appealed. 

Pattabhirama Ayyar, for appellants. 

Bhashyam Ayyangar and Seshachariar, for respondent. 

JUDGMENT. 

We agree with the Judge that there was no such necessity for 
the gift by the widow as would be binding on the reversioners. As the 

19.3 
M VII 25 



20 Mad. 273 INDIAN DECISIONS, NEW SERIES [Yol 

1896 plaintiff was already in receipt of a regular income as Po-Brahman, and 

Nov. 19. the ceremonies performed by him at Gaya were performed in the same 

~ ~~ capacity, and many years before the gift, there was no justification for 

API EL- k e g ran t WD i cn was purely voluntary. 

The next finding of the Judge is that the question of title in regard 
ClYIL. to the plaint property is res judicata by reason of the decision under 
M M 269 Section 39 of the Land Acquisition Act of 1870. Assuming that the ap- 
pellants were made parties to the proceedings under that section, though 
the question is doubtful owing to the faulty character of the notice 
(Exhibit III) served on the first appellant, we do not think that the find- 
ing in the Land Acquisition case in favour of the validity of the plaint 
gift operates as res judicata in this case, inasmuch as the litigation under 
that Act is a special form of proceeding confined to the determination of 
the amount of compensation due and the persons to whom it should be 
paid. Such a proceeding cannot be treated as a ' suit ' within the mean- 
ing of Section 13 of the Code of Civil Procedure, so as to render a decision 
come to therein binding when the same question arises in what is strictly a 
suit. Further, for the reasons stated by Pontifex, J., in Nobodeep Chunder 
Chowdhry v. Brojendra Lall Roy (1), we should not bejustifiedin holding, 
[273] on even general grounds, that an adjudication under the Land 
Acquisition Act should be held to ba conclusive in disputes connected with 
property other than that to which the enquiry under that Act related. 

As to the estoppel which the Judge has also found in plaintiff's favour, 
we must again differ from him. We find, on the statements of the appel- 
lants which have not been contradicted, that they put their signatures to 
the deed as attesting witnesses under pressure. There is no evidence to 
show that they were aware of the exact terms of the document or that, 
in attesting the document, they were doing anything likely to affect their 
reversionary rights. There is absolutely nothing to indicate that they were 
willing or intended to part with those rights. Considering that they were 
purdanashin and young women at the time and that the plaintiff was the 
confidential manager of the affairs of their mother, under whose protection 
they were living, it lay on the plaintiff to prove that they acted with full 
knowledge and with independent advice, but the plaintiff has not even 
attempted to prove this. In these circumstances, we could not have held 
the appellants bound by the deed of gift, even had they been the executing 
parties. In no view can their mere attestation of the document amount 
to an estoppel in a case such as this, where there has been no alteration 
of plaintiff's position in consequence of their act. 

We are, therefore, of opinion that the plaintiff has failed to establish 
the validity of the gift upon which he sues. 

We must accordingly, reverse the decree of the Lower Court and 
dismiss the plaintiff's suit with costs throughout. 

[REPORTER'S NOTE. Though the case olRam Chunder Singh v. Madho Kuma- 
ri (2) does not appear to have been relied on in the argument for the respondents, it was 
considered by their Lordships before delivering judgment. The distinction between 
that case and the present, it is suggested, is that, in the present case, the decision which 
was held to be res judicata was made on a reference by the Collector under Section 15 
of Act X of 1870, and was. therefore, made in a proceeding under the Act. In the for- 
mer case, however, the Judge who gave the decision that was held to be res judcata 
does not appear to have been proceeding under the Act : for both from the report in the 
Lower Court (3) and from the report in the Privy Council (see at p. 492) it is gathered 

(1) 7 C 406. (2) 12 C. 484. (3) 9 C. 411 (412), 

194 



YII.] 



ALANGARAN CHETTI U. LAKSHMANAN CHETTI 20 Mad. 275 



that the Judge was proceeding not on a reference from the Collector under Section 15 
of the Act nor on a reference under Section 38 of the Act (which are the only ways 
in which the question of apportionment and a question of title as incident thereto can 
come before a Judge under the Act), but in a suit instituted by the plaintiff independently 
of the Act.] 



20 M. 274 = 7 M.L.J. 87. 
[274] APPELLATE CIVIL. 
Before Mr. Justice Subramania Ayyar and Mr. Justice Davies. 



ALANGARAN CHETTI AND ANOTHER (Defendants Nos. 1 and 2), 

Appellants v. LAKSHMANAN CHETTI AND OTHERS (Plaintiff and 

Defendants Nos. 3 and 4), Respondents.* 

[7th December, 1896.] 

Mortgage Transfer of Property Act, Section 101 Renewal of mortgage Priority over 
subsequent incumbrance. 

Where a mortgagee, subsequently to the execution of the mortgage deed, takes 
another mortgage in renewal of the former deed, he has priority over incum- 
brances subsequent to the first deed. 

{Not appr,, 7 A L J. 984=7 Ind. Cis. 468 (469) ; R., 12 C.P.L.R. 70.] 

APPEAL against the decree of P. Narayanasami Ayyar, Subordinate 
Judge of Madura (West), in original suit No. 10 of 1893. 

The plaintiff sued on a simple mortgage deed (Exhibit A), executed in 
favour of one Narayana Chetfci and the first defendant by the third defend- 
ant. The deed was dated 16bh October 1879, and after reciting that 
certain monies were due on a prior mortgage dead (Exhibit E, dated 28th 
March 1871), executed by the third defendant in favour of the deceased 
undivided brother of Narayanan Chefeti and in favour of the first defendant, 
provided for the payment of the monies due under the former deed with 
interest, and to secure the payment mortgaged certain immoveable proper- 
ties of the third defendant. 

After the execution of the deed of the 28th March 1871, but before 
the execution of the deed now sued on, the first defendant on different 
dates made further advances to the third defendant and obtained from the 
latter two simple mortgage deeds, whereby the third defendant mortgaged 
the same properties that he mortgaged under the deeds of 28th March 
1871 and of 16th October 1879. Upon these deeds the first defendant 
brought a suit against the third and obtained a decree for the sale of the 
mortgaged properties. At the sale, the properties were bought in by the 
first defendant. 

[275] The plaintiff now sued to recover the amount due by the deed 
of the 16th October 1879 by the sale of the properties thereby mortgaged. 

The only defence necessary to be mentioned for the purposes of this 
report was the defence of the first defendant to the effect that the mort- 
gage sued on was subsequent to the mortgage-deeds on which he had sued 
and obtained a decree. 

The Subordinate Judge decreed in favour of plaintiff. 

Defendant No. 1 appealed. 

Sundara Ayyar, for appellants. 

Subramanya Ayyar, for respondent No. 1, plaintiff. 



1896 

NOV. 19. 

APPEIi- 

LATE 

CIVIL. 

20 V. 269. 



Appeal No. 172 of 1895. 
195 



20 Mad. 276 



INDIAN DECISIONS, NEW SERIES 



[Yol. 



1896 

DEC. 7. 

APPEL- 
LATE 
CIVIL. 

20 H. 274 = 

7M.L.J.87. 



JUDGMENT. 

The only point urged is the question of priority raised in the third 
issue. It is contended that the principle laid down by the Privy Council 
in Gokoldas Gopaldas v. Purammal Premsukhdas (1) is applicable only to 
the case of a purchaser of the equity of redemption. There is no ground 
for limiting the principle to that case only. It is true that that is the 
only case provided for by Section 101 of the Transfer of Property Act. but 
that is a if not the very extreme case where otherwise an extinguish- 
ment of the charge would ordinarily be presumed. This Court has, in 
several instances, applied the principle to cases like the present. Rupabai 
v. Audimulam (2), Seetharama v. Venkatakrishna (3), and see also judg- 
ment in appeal No. 113 of 1895. 

The Subordinate Judge was, therefore, right in holding that, by the 
mere execution of A, the security under E in respect of the plaint debt 
was not given up. 

The appeal accordingly fails and is dismissed with costs. 

20 H. 275. 

APPELLATE CIVIL. 
Before Mr. Justice Subramania Ayyar and Mr. Justice Benson. 



MAN A VIKRAMA (Plaintiff), Appellant v. KAMA PATTER 
(Defendant), Respondent* [26th~March and 14th April, 1897.] 

Contract Usage imported as term of a contract Practice on a particular estate, 

In order that the practice on a particular estate may be imported as a term of 
the contract into a contract in respect of land in that estate, it must be [276] 
shown that the practice was known Co the person whom it is sought to bind by 
it, and that he assented to its being a term of the contract : and when the person 
sought to be bound by the practice is an assignee for value of rights under that 
contract, it must also be shown that be and all prior assignees (if any) for value 
knew that the practice was a term of the original contract. 

D . 31 C. 561 ; 21 M.L.J. 1098 (1099) = 10 M.L.T. 378 = 12Ind. Gas. 585.] 

SKOOND APPEAL against the decree of J. A. Davies, District Judge of 
South Malabar, in appeal suit No. 844 of 1894, confirming the decree of 
V. Rama Sastri, District Munsif of Temelprom, in original suit No. 245 
.of 1893. 

The facts necessary for the purposes of this report appear sufficiently 
from the judgment of the High Court. 

Bhashyam Ayyangar, Sankaran Nayar and Govinda Menon, for 
appellant. 

Sundara Ayyar and Subramania Ayyar, for respondent. 

JUDGMENT. 

The appellant, the Zamorin of Calicut, sued for Es. 541-2-6, said 
to be the amount of renewal fees due by the respondent, in respect of cer- 
tain lands held by him under a permanent grant known as anubhavom, 
made long ago by a predecessor of the appellant to a predecessor in title 
of the respondent, who is an assignee for value. The original grant was 
made many years ago, but it was renewed or confirmed by Exhibit I in 
1873. Exhibit I stipulates for the yearly rent and the amount of a certain 



Second Appeal No. 1878 of 1895. 
(1) 10 C. 1035- (2) 11 M. 345 (34,6). 

196 



(3) 16 M 94. 



YII.] MANA VIKRAMA V. RAMA PATTER 20 Mad. 278 

fee which the grantee was to pay, but contains no reference to any re- 1897 
newal fee payable to the grantor. APRIL 14. 

The appellant's claim was based on an express agreement by the ~~ 
respondent as well as upon custom. The Lower Courts held that the APPED- 
agreement was not proved, and that no binding custom was made out. LATE' 

It was contended by the learned Advocate-General on behalf of the CIVIL', 
appellant that the District Judge was in error in applying to the case the rule jif~~o7B 
that a party setting up a custom, having the force of law, should prove the ' 
antiquity, uniformity and certainty of the custom, inasmuch as what was 
set up here was not a custom of the district but the special custom pre- 
vailing in bis own estate with reference to lands held under anubhavorft 
tenure. 

But in the plaint the custom was referred to as the "custom of the 
country." The Lower Courc cannoG, therefore, ba said to have erred" in 
dealing with ic as a general custom. This consideration is sufficient to 
justify the dismissal of the appeal. 

It is, however, desirable to point out that even upon the ground on 
which the claim was sought to be based before us, the appellant [277] 
could noc succeed. For, assuming for argument's sake that the evidence 
in the case is, as suggested on behalf of the appellant, sufficient to prove a 
well-established practice, according to which persons holding under the 
Zamoriu Itnds on anubhauom tenure make periodical payments similar to 
that hera claimed, it is clear that such practice cannot affect the respond- 
ent's right under the assignment. Now a practice of the kind in question, 
is not in law a ' usage,' with reference to which the Courts are at liberty tip 
import into a contract incidents not excluded by the terms of such contract, , 
even though a party to the contract was not actually cognisant of the 
usage. " To constitute a usage," as was observed in Adams v. Otierback (l) 
by the Supreme Court of the United States when referring to a contention 
similar to that in the present case and which was founded on the -practice 
of a particular bank, " it must apply to a place rather than to a particular 
' bank ; it must be the rule of all the banks of the place or it cannot 
" consistently be called a usage. If every bank could establish its own 
" usage, the confusion and uncertainty would greatly exceed any local con- 
venience resulting from the arrangement." In order, therefore, to render 
the practice, even though invariable of particular persons, as in the present 
instance, relevant, as the same Court pointed out in a later case, "mere 
knowledge of such a usage would not be sufficient but in must appear that 
the custom actually constituted a part of the contract." {Bliven v. The 
Neio England Screiu Company (2)). In the case just cited, a screw com- 
pany being the sole manufacturers of wooden screws were unable to supply 
the demands of all their customers as fast as needed. The company 
adopted the system of apportioning their articles as fact as produced among' 
their customers, having regard to the date of their orders.' It- was held; 
that, the practice being well known to the plaintiffs who had ordered such 
goods, proof of the practice and of the company following it ia complying 
with plaintiff's orders was admissible as a defence in a suit for failing 
to deliver in time. The same principle was recognized -in Scott v 
Irving (3). There evidence was given of a practice prevailing at Lloyd's 
in London of setting-off in account between the broker employed by the 
assured to recover the loss and the underwriters the amount of premium 
due by the broker to the underwriters [278] against the kws- and : thai 

(1) 15 Howard 545. (21 23 Howard 431. (3) I B. & Ad. 612. 

197 



20 Mad. 279 



INDIAN DECISIONS, NEW SERIES 



273. 



such set-off and adjustment were treated as payment to the assured. It 
was held that the assured was not bound by the practice. Lord Tenter- 
"den observed, " Such a usage however can be binding only on those who* 
" are acquainted with it and have consented to be bound by it. There may 
" possibly be cases proved where an assured being cognizant of such usage 
"may be supposed to have assented to it and therefore may be bound. >r 
Womersay v. Dally (1) is perhaps even more analogous to the present 
case. There the plaintiff had been a tenant of a farm belonging to an 
extensive estate, the property of a family named Thornhill, and the 
defendants had purchased certain parts of the estate including portions 
of the farm. It was proposed to offer evidence of a usage on tbe Tborn- 
hill Estate that in all lettings it should be understood that the tenants 
should keep one-third of their farms arable and two- thirds in grass and 
pay 5 an acre on leaving, for any excess beyond tha proportion of ara- 
ble over grass. Martin, B., refused to admit tbe evidence, it not appearing 
that the plaintiff was not cognizant of the usage. On :i motion for a 
new trial, it was contended that the evidence was admissible on the same 
principle as that on which the evidence of the " custom of the country'' 
is admitted. But Pollock, C.B., replied to the contention : " No. The 
" law takes cognizance of the divisionsSof the country into counties or 
" p vrishes which are legal and public divisions ; but not into properties or 
" estates which are purely private in their nature. Estates may be very 
" small and if large are 9nly accidentally so. It would be impossible to 
" draw any legal distinction between an ' estate ' of 100 acres and 
" 100.000 and there would be DO legal presumption of notoriety arising 
" from the fact of usage as to terms of letting a particular estate. Non 
"Constat that the party becoming a tenant for the first time would hear 
"of it." And eventually the whole Court held that the evidence was 
clearly inadmissible, since it was as to the practice of a particular person 
on letting bis farms a practice not proved to have been known to the 
tenant. 

No doubt the present case is distinguishable from those above cited, 
for while in them the person, who was ought to be bound by the practice, 
was a party who originally entered into the contract, here he is an assig- 
nee for value. But that distinction makes the [279] appellant's position 
only more onerous. For it is clear that the party relying on the practice 
should show before an assignee for value is held affected by the practice, 
not only that it originally entered into' and formed a part of the contract, 
but also that the assignee, and if there have been more assignments for 
value than one, every prior assignee was, before he took the assignment, 
aware of that fact. To hold otherwise would, it is obvious, often result 
in injustice to assignees for value, who are certainly liable to be misled 
as to the nature and extent of their obligations under grants or contracts 
assigned to them, the written instruments evidencing which (like Exhibit 
I in the. present case) contain no reference to the practice relied on and 
the incidents f-aid to be annexed thereby. Such being the rule applicable 
to the appellant's case, as presented in this Court, we must hold that the 
appeal fails, since ,it is not even alleged by the appellant that the 
respondent had knowledge that the practice formed part of the contract. 
It is therefore unnecessary to enter into the other questions as to tha 
existence of the practice and as to its forming part of the contract. 

The second appeal is dismissed with costs. 

(1) 26 L.J. Ezoh. 220. 
198 



YII.] S. V. P. CHINNA TAMBIAR V. SUNDARAM AYYAR 20 Mad. 281 



20 M. 279. 

APPELLATE CIVIL. 

Before Mr. Justice Subramania Ayyar and Mr. Justice Benson. 



1897 



SANGILI VEERA PANDIA CHINNA TAMBIAR AND ANOTHER 

(Plaintiffs), Appellants v. SUNDARAM AYYAR AND OTHERS 

(Defendants Nos. 1 to 3), Respondents* [5th, 6th and 9th July, 1897.] 

Madras Forest Act, Sections 10 and 11 Claim to uninterrupted flow of natural stream 
Jurisdiction of Forest Settlement Officer. 

A Forest Settlement Officer appointed under Sjctioa 4 of the Madras Forest 
Act, 18S2. h is, under Sections 10 and 1 1 of that Act, jurisdiction to decide a claim 
by a riparian owner to the uninterrupted flow oi the water of a natural stream. 

[R., 17 M.L J. 557.] 

APPEAL against the decree of S. Gopalachariar, Subordinate Judge 
of Tinoevelly, in original suit No. 40 of 1893. 

[280 J The plaintiff, the Zemindar of Sivagiri, brought this suit to 
establish his right to the uninterrupted flow of a natural stream called 
Katiar or Pedukulam. This stream flowed through Government land 
for some distance, and then, after flowing through the plaintiff's zemindari, 
emp ied itself in a tank in one of plaintiff's villages. 

The plaintiff complained that at a ceiiain point in the course of the 
stream the defendants had recently cut a new channel which had the 
effect of diverting some of the water to a tank situated on Government 
land ; and he claimed that he was entitled to an uninterrupted flow of the 
stream. The defendants denied the plaintiff's right to an exclusive use of 
the wa f er and asserted that at the spot where the plaintiff alleged the 
cutting of a new channel a stream had, since the time of the ayacut, 
branched off to feed the tank on Government land. 

The defendants also relied on a decision of the Forest Settlement 
Officer as constituting a bar to the present suit uoder Madras Act V of 
1882. In 1886 a preliminary notification was issued under Section 4 of 
that; Act, declaring that it was proposed to constitute a reserve forest. A 
part of the river in question, including the point; at which the plaintiff al- 
leged that a new channel had been cut, lay within the boundaries of the 
forest proposed to be reserved. In response to an invitation under Section 
6 f the Act by the Forest Settlement Officer, plaintiff presented a claim 
through his ageut. The nature of the claim was stated in Exhibit XI : 

"Claimant's agent states that the claim relative to the feeders of 
" Pedukulam is that the stream sweeping the base of Moonji Malai on either 
' side should be allowed to ba repaired by the claimant, that the repairs he 
" refers to are the removal of stones, sand, trees and rubbish, and that 
" Kottayur Karnam Padagalingam Pillai, Muthusami Muppan and Sundara 
" Teven should be examined on bis behalf." 

" The District Forest Officer admits the claimant's right to the water 
that flows naturally by the two natural streams into his tank without 
" prejudice to the water thit flows naturally into other channels that 
"branch from the tvvo natural streams in question. 

" The claim to the natural flow of water into the tank is admitted by 
" the District Forest Officer. Claimant has produced evidence to show 
" that the streams feed no other irrigation work [281] than the claimant's 



APPEL- 
LATE 
CIVIL. 

10 M. 271. 



* Appeal No. 191 of 1895. 
199 



20 Mad. 282 INDIAN DECISIONS, NEW SERIES [Yol. 

Pedukulam tank. This is disproved by evidence offered by the District 
JwiiT 9. ^ Forest Officer, from which it appears that there are branches from the 
" natural streams feeding other tanks belonging to Government. 

" However that may be, the claimant's right t,o the water that flows 
LATE ' naturally into his tank without prejudice to what may naturally 
OlVIL. fl w into other channels is valid. To this extent, therefore, the claimant's 

" right is admitted and recorded under Section 11 of the Forest Act." 
30 M. 279. The Subordinate Judge dismissed plaintiff's suit. 

Plaintiff appealed. 

Ramakrishna Ayyar and Seshachariar, for appellant. 
The Government Pleaier (Mr. Powell), for respondent No. 3. 
Pattabhirama Ayyar, for respondent No. 1. 
Sivarama Ayyar, for respondents Nos. 1 and 2. 

JUDGMENT. 

The question in this appeal relates to the rights of the parties to the 
use of the natural stream called Kattar or Pedukulam. 

The stream rises in, and flows through, Government lands, before it 
empties itself into the Pedukulam tank, which is situated wiobin the 
zemindari of the plaintiff. 

The defendants Nos. 1 and 2 are persons who hold land under 
Government, which land is now partly irrigated by a channel taken off 
from the said stream within the limits of the Government land above 
the zemindari. 

The third defendant is the Secretary of State for India in Council. 

Plaintiff sues to establish his exclusive right to the waters of the 
stream and for an injunction to restrain r.he defendants from in any way 
interfering with that exclusive right. 

This claim to exclusive right to the water was put forward before the 
Forest Settlement Officer in 1886, and was by him disallowed after due 
enquiry under Act V of 1882 (The Madras Forest. Act). 

The plaintiff did not appeal against that decision, and it therefore 
became final. 

The Subordinate Judge, therefore, held that the plaintiff was preclud- 
ed from re-agitating the question in this suit. 

The plaintiff, as appellant before us, contends that the Subordinate 
Judge was in error, on the ground that the Forest [282] Settlement 
Officer had no jurisdiction to give an adjudication on the question. 
The appellants argument is that the exclusive right which be now 
claims over the water is not one of those rights which are specified in 
Section 10 or 11 of the Act, and in regard to which alone the Forest Settle- 
ment Officer bad jurisdiction. We cannot accept this contention. As a 
mere riparian proprietor the plaintiff could only have a right to the lawful 
use of the water flowing through his land subject to the similar rights of 
other riparian proprietors, but his claim to the exclusive use of the water 
shows that he claimed more than the rights of riparian proprietor. Now a 
claim to use the water of a natural stream in a manner not justified by 
natural right is undoubtedly a claim to an easement. (Gale on Easements, 
p. 20, 6th Edition.) 

In other words, the right claimed by the plaintiff was, in the language 
of Lord Watson in Dalton v. Angus (l), " a right of property in the owner 
"of the dominant tenement not a full or absolute right bufc a limited right 

(DL.R. 6 App. Cs. 740(830), 
200 



VII.] 



RA6AVENDRA EAU V. JAYABAM RAU 



20 Mad. 283 



1897 

JULY 9. 

APPEL- 
LATE 
CIVIL. 



" or interest, in land which belongs to another whose plenum dominium 
" is diminished to the extent to which his estate is affected by the 
" easement." 

It seems, therefore, clear that the right claimed by the plaintiff was 
A right in respect of water flowing in a defined channel on Government 
land, that is of a water-course, and, therefore, within the jurisdiction of the 
Forest Settlement Officer under Section 11. 

It is contended by the appellant that the rights of way, pasture and 20 M. 279. 
forest produce referred to in Clauses (a), (c) and (d) of the section are 
rights to be exercised on the land itself, aud that, by analogy, the right to 
a water-course referred to in Clause (b'i must be of a similar restricted 
kind. There is, in our opinion, no ground for such a limitation, but 
even if it were otherwise, the right which the plaintiff claims was such as 
falls within the 'words "a right in or over any land" in the first line of 
the section, and was, therefore, a right in respect of which the Forest 
Settlement Officer had jurisdiction to adjudicate under Section 10. 

In a word, the right claimed was one on which the Forest Settle- 
ment Officer had a right to adjudicate either under Section 10 or Section 
11, and in either case, the appellant's objection that he'bad no jurisdic- 
tion fails. The result is that ou this ground [283] alone the decree of the 
Subordinate Judge dismissing the suit must be upheld. 

It was, however, urged that even if the plaintiff had not an exclusive 
right to the water of the stream, he had a right as a lower riparian 
proprietor to obtain an injunction to restrain the defendants from using the 
channel inasmuch as such user was in excess of the third defendant's right 
as a higher riparian proprietor. In regard to this we observe that neither 
in the plaint, nor when framing issues, did the plaintiff rely on his rights 
.as a riparian proprietor, or raise any issue as to whether the defendant 
had used the water in a manner not justified by their riparian rights, 
and th question has not been tried. Considering bow long the matter 
has been in dispute we do not think we should be justified in allowing the 
plaintiff to raise at this stage a fresh issue of fact which he might and 
ought to have raised in the Lower Court. 

We must, therefore, dismiss the appeal with costs. 



20 M. 283 = 7 M.L.J. 134. 
APPELLATE CIVIL. 
Before Mr. Justice Subramania- Ayyar and Mr. Justice Benson. 



EAGAVENDRA RAU AND ANOTHER (Defendants) Appellants v. JAYA- 
tRAM EAU (Plaintiff}, Respondent* [10th. lltb, and 30th March, 1897.] 

Hindu Law Marriage Prohibited degrees. 

A marriage between a Hindu and the daughter of his wife's sister is valid. 
jF., 27 A. 417 = 2 A.L.J 36=A.W.N. (1905) 20; 32 B. 619 = 10 Bom. L.R. 948.] 

APPEAL against the decree of E.J. Sewell, District Judge of North 
Arcot, in original suit No. 41 of 1893. 

Suit for oartition by the adoptei son of one Narasinga Eau against 
undivided nephew of the latter. 
The facts of this case sufficiently appear from the judgment. 



M VII 26 



' Appeal No. Ill of 1 96. 
201 



20 Mad. 284 INDIAN DECISIONS, NEW SERIES [Yol 

1897 Sankaran Nayar and Narayana Ban, for appellants. 

MARCH 30. Bhashyam Ayyangar, Pattabhirama Ayyar and Shadagopachariar, for 

respondent. 
APPEL- 
LATB JUDGMENT. 

CIVIL. That the late Narasinga Eau's widow Seshammal did in fact adopt 

the respondent as the son of her husband was [284] practically admitted 
20 M. 283= on behalf of the appellants, the first of whom is Narasinga Eau's undivid- 
7 M.L.J. 131. e( j nephew and the second that appellant's son, a minior. It was, however, 
contended on their behalf that Narasinga Eau did not authorise Sesh- 
ammal to make the adoption and even if it is found that he did so autho- 
rise her, the adoption is invalid in consequence of the relationship which 
existed between Narasinga Eau and the natural mother of the respondent. 

Now as to the authority, we are satisfied that the evidence on the 
point adduced on behalf'of the respondent fully establishes that a few days 
before his death, Narasinga Eau gave Seshammal power to take the res- 
pondent in adoption. The testimony of the witnesses who speak to this 
point is highly probable. It is clear, that, for several years before Nara- 
singa Eau died, both he and Sesbammal had been on unfriendly terms 
with the first appellant. It appears also that since the time the male 
child which Seshammal bore to Narasinga Eau died about the year 1888, 
the latter had been desirous of adopting a son. Narasinga Eau's letter Ex- 
hibit Q, the genuineness of which there is no reason to doubt, furnishes 
cogent evidence of Narasinga Eau's anxiety to secure a boy for adoption. 
And another strong circumstance in favour of the view that Narasinga 
Eau had empowered his wife to adopt is the first appellant's omission to 
impeach the authority when, not long after Narasinga Eau's death, it was 
set up in an enquiry before the Tahsildar with reference to the mutation 
of names in the registry relating to the lands in litigation. Though the 
first appellant's attention was pointedly drawn to the contents of Exhibit 
B, a deposition given by the natural father of the respondent, before the 
Tahsildar wherein it was distinctly asserted that Narasinga Eau had 
authorised Seshammal to adopt a son ; the first appellant took no excep- 
tion to that assertion, though if the evidence now adduced on his behalf 
were true, he must have known that the claim that Narasinga Eau had 
given such authority was totally uufoundeii. 

We, therefore, concur with the Judge's finding that the authority set 
up is true. 

Next as to the validity of the adoption so far as we were able to follow 
the appellants' vakils' arguments on the point, the chief contention was 
this 

The respondent's natural mother, being Seshammal's sister's daugh- 
ter, could not, under the Hindu Law, have been lawfully [285] married 
to Narasinga Eau, and therefore the respondent could not have been 
validly adopted as his son. It being the settled law of this Court, except 
where there is evidence of special usage to the contrary, that the natural 
mother of the boy to be adopted, shouM be a person, who, in her maiden 
state, might lawfully have been married to the man for whom the adop- 
tion is to be made, the question for determination is whether a Hindu is, 
by law, precluded, as the appellants contend, from marrying his wife's 
sister's daughter. In support of this contention we were not referred to 
any text either in the smrithis or in the leading commentaries. The only 
text, to which our attention was drawn on behalf of the appellants, 
is to be found in Aswalayana's ' Grihya Parisishta ' which runs thus: 

202 



YIL] RAGAVENDBA RAU V. JAYAKAM RAU 20 Mad. 286 

" Viruddha Sambanda is that sambandhi (relation) which is viruddha 1897 
" (contrary or improper) owing to the relationship (existing) between the MARCH 30. 
" bride and the bridegroom (before their marriage) being similar to that ~ 
" of a father or mother. As for instance the daughter of a wife's sister (and) APPEL- 
" che sister of che paternal unole's wife." (Maudlik's ' Hindu Law', p. 484.) LATK 
A glance at the numerous rules, laid down by the ancient Hindu legislators OiviL. 

with reference to the selection of a bride, is enough to show that they are, 

with very few exceptions, mere rules of caution aud advice. Now does the ^ " 2j 
passage, relied on by the appellant, belong to this class of hortatory texts, 7 ** t8 *- 
or cioes it lay down a rule of law rendering a marriage contrary to it 
unlawful? That it belongs to the former class is evident from the fact 
that none of the well-known authoritative commentaries prohibit the 
marriage of a wife's sister's daughter a fact which by itself is sufficient to 
render it to the duty of the Courts to decline to accept the text in ques- 
tion as laying down an imperative rule. Nor is authority wanting to sup- 
port this view. In Kulluka Bhatta's remarks ou Manu III, 6 to 11, 
referring to the numerous minor objections to be avoided in selecting a 
bride, the commentator in terms points out that a violation of none of the 
rules contained in them affects the legality of the union. (Gurudass Ban- 
nerjee's ' Marriage and Stridhanam,' p. 56.) But in his comments on verse 
5 of the same chapter, which deals with the really forbidden marriages 
between Sagotras ami Sapindas, he observes thus : " In the matier of 
" marriage, as it has been ordained in this text, ' He who inadvertently 
" marries a girl sprung from the same original stock with himself (Sagotra) 
" aud so forth must support her as a mother ' and as it has been said 
" [286] (by certain legislators) that if girls of the same gotra and so forth 
"be taken in marriage they must be deserted and that penance must be 
" performed if a marriage be contracted with a girl of the same gotra, con- 
" sequently together with those, the girls related as mother's sapindas do 
" not also become wives." (' Vyavastha Cbandrika,' Vol. II. p. 475.) 
These observations clearly lead to the inference that marriages are to be 
held to be unlawful only in cases, as to which desertion of the girl and 
the observance of penance for atoning the offence committed in entering 
into the prohibited alliance are laid down by accepted authorities. But 
it is not pretended that any authority prescribes that if a man marries 
his wife's sister's daughter he must abandon her and perform penance. Fur- 
ther, nearly all the recent important text writers, who have considered 
the matter, are agreed that a marriage between a man and his wife's 
niece is valid. 

Dr. Gurudass Bannerjee in his work on ' Marriage and Stridhanam' 
already cited, states that the law " does not prohibit " marriage with the 
wife's sister or even with her niece or her aunt" (p. 69). Syama Charan 
Sircar in the note to Vyavastha, 712 of the 'Vyavastha Chandrika,' where- 
in he states the substance of the authorities as to void marriages excludes 
from that category unions such as those described by him in Vyavastha, 
698, inclusive of that between a man and his wife's sister's daughter (Vol. 
II, pp. 475 and 463), Mr. Mandlik in his edition of 'Vyavahara Mayuka 
and Yajnavalkya' observes: " As regards Viruddha Sambandha they are 
" permitted as a matter of course." (Appendix, p. 415.) Golap Chunder 
Sircar in his work on 'The Hindu Law of Adoption' expresses himself thus : 
(j But be it specially noticed that no marriage is invalid on the ground of 
^ relationship being incongruous. In addition to the two instances men- 
( tioned in 'Grihya Parisishta' of Aswalayana there are other passages 
prohibiting on the self-same ground the marriage by a man of hi 

203 



20 Mad. 287 INDIAN DECISIONS, NEW SERIES [Yol. 

1897 "step mother's sister, her brother's daughter and his children's daughter 

MARCH 30. " as well as the preceptor's daughter ; but however improper such 

<( marriages may be, they are nevertheless valid. Such marriages 

APPEL- "are generally contracted by high class Brahmans of Bengal who 

LATE are compelled by the restrictions imposed by Kulinism to choose 

CIVIL. " their wives from a certain limited number of families" (p. 319). 

" Lastly Jogendra Nath Bhattacharya expresses substantially the 

20 M. 283= ''same view in his Commentaries on Hindu Law. He writes " A text 

7 M.L.J. 134. " [287] of Baudhayana and a passage from 'Grihya Parisishta' are cited in 

" the Nirnaya Sindhu which excludes the following : 

" (l) Stepmother's sister and sister's daughter. 

" (2) Paternal uncle's wife's sister. . 

" (3) Paternal uncle's wife's sister's daughter. 

" (4) Wife's sister's daughter. 

" The texts which exclude these or neither cited nor commented upon 
" by Raghunandhana. In practice no hesitation is felt in this part of 
"India in marrying paternal uncle's wife's sister. Marriage with step 
" mother's sister takes place sometimes in Bengal. Instances of marriages 
" with wife's sister's daughter are also not altogether unknown in Bengal, 
" though Hindu sentiment is very strong against these marriages." 
(2nd edition, p. 95.) 

With reference to this concluding observation of Mr. Bhattacharya 
regarding the sentiments of the people as to the propriety of such marriages, 
it may perhaps be pointed out that there is little to indicate that these 
marriages are disapproved of by the members of any Section of the com- 
munity in this part of India. Be this however as ic may, the unimpeach- 
able evidence, adduced on behalf of the respondent, shows beyond the 
shadow of a doubt that marriages between a man and his wife's sister's 
daughter are common among the various sections of the Brahmin com- 
munity and are regarded by all as perfectly valid. It is necessary to refer 
to this evidence briefly. The specific instances of marriages spoken to by 
the witnesses took place in various parts of the Presidency widely separa- 
ted from each other, viz., the following eight districts: Nellore, Madras, 
North Arcot, South Arcot, Tanjore, Trichinopoly, Coimbatore and Madura. 
The Honourable Mr. N. Subba Rao belonging to the Madhwa sect, a 
Vakil of this Court, stated that his own mother's sister was married to 
a person who had previously married that lady's maternal aunt. The 
witness also stated that bis paternal grandfather, after the first wife's 
death, married that wife's sister's daughter and that the marriages, 
spoken to by him, took place long ago. These cases probably belong to the 
Nellore district Mr. V. C. Desikachariar, an Ayyangar and a practitioner 
of this Court, residing in Madras, stated that his mother-in-law, who is 
his father-in-law's second wife, is the daughter of her husband's first wife's 
sister. The witness added that the late Mr. V. Sadagopacharlu, who was a 
very distinguished Vakil of this Court, had married the sister of his (Sadogo- 
pacharlu's) [288] paternal uncle's wife and thistook place long ago. Krishna- 
swami Ayyar, a Smartba Brahmin of Chittoor in North Arcot, deposed 
that bis father married about twenty-five years ago, as his second wife, the 
witness's aunt who was the sister of the witness's mother. Ramachandra 
Ayyar, a Smartha Brahman of Chidambaram in South Arcot, stated that 
his fourth and present wife is the daughter of his deceased third wife's 
sister and that the marriage took place in 1888. Ramakrishna Diksha- 
tbar, another Smartha Brahmin also from South Arcot, said his second 
wife is his first wife's sister's daughter and that he was married thirteen 

204 



YII.] RAQAVENDRA RAU V. JAYARAM RAU 20 Mad. 289 

years ago. Mr. Govinda Kao, who is of the Madhwa sect and who 1897 

is employed as Cirkil under the Collector of Tanjore, stated that he is MARCH 3(X 

married to his deceased wife's sister's daughter. P. Srinivasachariar, 

an Ayyangar, also belonging to the same district, stated that he had APPEL- 

married the sister of Dewan Bahadur Srinivasa Raghava Ayyangar, the LATE 

present Dewan of Baroda, and that when she died, he, the witness, CIVIL. 

married her sister's daughter. Mr. Srinivasa Rao, a Madhwa gentleman 

now in Bangalore, gave evidence to the effect that on the death of his 20 M. 283 = 

first wife, the late Raja Sir T. Madhava .Rao's daughter, the witness 7 M<L - J - 18 *- 

married her sister's daughter. Dewan Bahadur Raghoonatha R*o stated 

that, in addition to two instances already referred to, viz., those of Goviuda 

Rao of Tanjore and Srinivasa Rao of Bangalore who are both related to 

him, he knew many cases of a man marrying the niece of his wife. 

Ratnachariar, who is a Madhwa too, spoke to having been present at 

seven or eight such marriages either in the Tricbinopoly, Coimbatore or 

Madura district, and added that about 18 cr 19 years ago he himself 

married his deceased wife's sister's daughter. Krishna Rao, the District 

Munsif of Kulittalai, stated that a sister of his and a daughter of another 

of his sisters were successively married to the same man in Coimbatore. 

Nearly all the witnesses affirmed positively that no exception whatever 

was at any time taken to any of the marriages spoken to by them. 

On the part of the appellants nothing has been really urged to rebut 
the irresistible inference arising from such widespread usage as that 
established by the evidence just noticed, in favour of the validity of the 
marriages which the text of Aswalayana condemns on the ground of 
incongruous relationship. 

We have, therefore, no hesitation in holding that the said text is not 
mandatory and that the appellant's contention founded thereon is entirely 
unsustainable. 

[289] We think we are not precluded from arriving at this conclusion 
by the reference made to the above text in Minakshi v. Ramanatha (1). 
It would seem that on the strength of the statement in jhe Dattaka 
Mimamsa that a marriage between the persons mentioned in the text in 
question was a prohibited connection, it was assumed by the Court that 
the text was mandatory. But whether the text was mandatory or merely 
hortatory was not a matter for determination in that suit, and therefore 
the Court's observations cannot be treated as a binding decision on the 
point. 

The only other objection taken to the legality of the adoption rested 
on the fact that the adoptive mother Seshammal is the cousin of the 
natural father of the respondent. But this contention also is untenable ; 
since it has been ruled in this Court that the adoption of a son of even a 
wife' s brother is good (Sriramulu v. Ramayya (2)). It is scarcely neces- 
sary to say that it is immaterial in such a case whether the adoption is 
made by a man himself or by his widow after his death ; for the adoption 
is for him. 

We must, therefore, confirm the decree of the District Judge and 
dismiss the appeal with costs. 



(1) 11 M. 49. (2) 3 M. 15. 

205 



20 Mad. 290 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 20 M. 289 = 7 M.L.J. 30 

PBC- 10. APPELLATE CIVIL. 

APPBL- Before Sir Arthur J. H. Collins, Kt., Chief Justice, 

LATE and Mr. Justice Benson. 

CIVIL. 

VELU GOUNDAN (Plaintiff), Appellant v. KUMAEAVELU GOUNDAN 
80 M. 289= AND OTHERS (Defendants), Respondents* 

7 M.L.J. 30. VELU GOUNDAN (Plaintiff), Petitioner v. KUMARAVELU 

GOUNDAN (Defendant), Respondent* [27th November and 
10th December, 1896. J 

Suit for partition of family property Valuation of , for purposes of jurisdiction Suits 
Valuation Act, 1887 Court Fees Act, 1870, Section 7, Clause (iv) b. 

In a suit by a member of a joint Hindu family praying for a partition of the 
family property and for the delivery to the plaintiff of his share, the value of the 
[290] suit for the purposes of jurisdiction is the amount at which the plaintiff 
values his share. 

[Appr , 32 C. 734 = 9 C.W.tt 690 ; R., 15 C.P.L.R 81 (84) ; 15 C.P.L.R. 120 (1221 ; 
8Ind. Gas. 512 = 21 M.L.J. 21 (29) =9 M.L.T. 3; 13 Ind. Gas. 903=11 M.L.T. 
155 = (1912) M.W.N. 199 (201) ; D., 6 G.L.J. 651 = 12 G.W.N. 37.] 

APPEAL against the order of C. Gopalan Nayar, Subordinate Judge of 
Madura (East), directing the return of the plaint presented by appellant 
for presentation to the proper Court, and petition under Section 622 of the 
Coda of Civil Procedure praying the High Court to revise the order of 
W. Dumergue, District Judge of Madura, in civil miscellaneous appeal 
No. 37 of 1895, confirming the order of J. S. Gnanyar Nadar, District 
Munsif of Manamadura, in original suit No. 220 of 1895. 

Plaintiff brought this suit originally in the Court of the District Mun- 
sif for partition alleging that the property to be divided was the property 
of a joint Hindu family consisting of himself, his father, his step-mother and 
the son of his step-mother. The following were the prayers of the plaint : 

" To divide and deliver to the plaintiff one-third share in the A 
" scheduled properties 1 to 29 by casting chits with strict regard to the 
nature and fertility of the lands ; 

" To make the defendants give to plaintiff one-third share in the B 
" scheduled property 1 to 21 or pay the value thereof ; 

' To order the defendants to pay plaintiff the loss for fasli 1304 and 
" costs of the suit together with further loss and to give decree with other 
" reliefs as the Court may deem fit to grant considering the nature and 
" circumstances of the case." 

In the plaint the plaintiff valued his share of the property at 
Rs. 1,996-4-0. 

The District Munsif held that he had no jurisdiction, because that 
was determined by the value of the whole family property, which exceeded 
Rs. 4,000, and not by the value of the share claimed. In support of this 
position, the District Munsif quoted the rulings in Vydinatha v. Subra- 
manya (l), Khansa Bibi v. Syed Abba (2), Ramayya v. Subbarayudu (3), 
Krishnasami v. Kanakasabai (4). 

The plaint was thereupon presented to the Sudordinate Court of 
Madura fEaat), and the Subordinate Judge also returned the plaint for 
presentation to the proper Court on the ground that " Section 8 of the 
Suits Valuation Act, read with Clause [291] (iv) b of Section 7 of the 

* Appeal against Order No. 98 of 1886 and Civil Revision Petition No. 74 of 1896. 
(1) 8 M. 235- (2) 11 M. 140. (3) 13 M. 25. (4) 14 M. 183. 

206 



TTII.] VBLU GOUNDAN V. KUMARAVELU GOUNDAN 20 Mad. 292 

"*' Court Fees Act, would make the value of the suit both for Court-fees 1896 
" and jurisdiction to be the value of the plaintiff's share, which, he says, DEC. 10. 
" is Rs. 1,996-4-0," and that the suit was, therefore, within the District 
Munsif's jurisdiction. APPEL- 

The plaintiff then appealed to the District Judge against the District LATE 
Muosif's order alone. The District Judge held that the order of the District CIVIL. 
Munsif was correct and dismissed the appeal. The plaintiff now filed a 
petition under Section 622 of the Civil Procedure Code, praying for the 20 M. 289 = 
revision of order of the District Court, and filed an appeal against the ^ ".L.J. 3t, 
order of the Subordinate Judge. 

Sivasami Ayyar, for appellant. 

Respondents were not represented. 

JUDGMENT. 

Plaintiff, a member of an undivided Hindu family, sued for partition 
and delivery to him of his one-third share of the joint family property. 

The value of the share claimed was below Rs. 2,500, but the value 
of the whole property exceeds Rs. 4,000. 

The District Munsif, following the ruling in Vydinatha v. Subra- 
manya (1), declined jurisdiction and returned the plaint for presentation to 
the proper Court. His action was upheld on appeal to the District Judge. 
The plaintiff meantime presented his plaint to the Subordinate Judge, 
who also declined jurisdiction and returned the plaint to be presented 
to the proper Court. The Subordinate Judge held that, under Section 7, 
Clause (iv) b of the Court Fees Act, the suit should be valued for pur- 
poses of court-fees at the relief sought in the plaint, viz., at the value of 
the share claimed, which was less than Rs. 2,500; and that, under Section 8 
of the Suits Valuation Act (VII of 1887) the valuation for purposes of 
of jurisdiction should follow and be the same as that for court-fees, and 
that, therefore, the suit was within the jurisdiction of the District Munsif. 

The view of the Subordinate Judge is, in our opinion, correct, and in 
accordance with the law as laid down in the Suits Valuation Act, which 
it seems to us expressly altered the law as laid down in Vydinatha v. 
Subramanya (1). 

Some doubt was sought to be thrown on this view by the fact that in 
three cases Khansa Bibi v. Syed Abba (2), Bamayya v. [292] Subbara- 
yudu (3) Krishnasami v. Kanakasabai (4) all decided after the passing of the 
Suits valuation Act the decision in Vydinatha v. Subramanya (1) was 
treated as still containing the law applicable to the question. 

In those cases, however, no reference was made to Section 8 of the 
Suits Valuation Act, nor did they directly declare that the ruling in 
Vydinatha v. Subramanya (1) still governs cases within its scope. 

Moreover, in the recent case of Chakrapani Asari v. Narasinga 
Ran (5) this Court expressly approved the view that " when the suit relates 
" to co- parcenary property, unless it is one for general partition among all 
" the shareholders, the specific and definite share claimed must be held 
to be the subject-matter of the suit as stated in this Suits Valuation Act 
" and Act III of 1873 (The Madras Civil Courts Act), and the value of 
' the same should determine the Court's jurisdiction, and not that set on 
' the whole property, which will, of course, be the value of a suit in 
'which a general partition of all the shares may be prayed for." We think 

(1) 8 M. 235. (2) 11 M. 140. 3) 13 M. 26. 

(4) 14 M. 183. (5) 19 M. 56. 

207 



20 Mad. 293 INDIAN DECISIONS, NEW SERIES [Yol. 

186 that these words correctly set forth the law as it now stands. The 
Duo. 10. present suit, therefore, being for a share of the co-parcenary, and not in- 
volving a general partition, and the share b^ing less than Rs. 2,500 in value, 
APPBL- is within the jurisdiction of the District Munsif. We, therefore, confirm 
LATE the order of the Subordinate Judge and dismiss this appeal, and in 
CIVIL, exercise of our revisional jurisdiction, we set aside the orders of the District 
Judge and of the District Munsif, and direct the District Munsif to receive 
SO M. 289= the plaint and deal with it according to law. Costs throughout will be 
7 * L.J. 30. provided for in the decree of the District Munsif. 



20 M. 293. 

[293] APPELLATE CIVIL. 
Before Mr. Justice Subramania Ayyar and Mr, Justice Davies. 



KAMARAZU AND ANOTHER (Defendants Nos. 1 and 2), 

Appellants v. VENKATARATNAM (Plaintiff), Respondent* 

[10th December, 1896.] 

Will by a Hindu Construction of Gift to daughter Daughters' estate. 

A Hindu by will bequeathed to his daughters is separate property to be enjoy' 
cd by them 'as they pleased ' ; 

Held, that the daughters took an absolute estate. 

APPEAL against the decree of G. T. Mackenzie, District Judge of 
Godavari, in original suit No. 12 of 1894. 

The plaintiff brought this suit to declare that he was entitled to* 
certain monies in the hands of the defendants after the death of the 
widow and daughter of one Mallaya. 

The monies in question were the proceeds of certain jewels which 
had been given by Mallaya's widow and daughter to the defendants 
for charitable purposes. 

The plaintiff claimed to be entitled to the monies as the reversioner 
to the estate of Mallaya, by whom he had been adopted, and with whom 
he had subsequently effected a partition. 

The defendants contended that the jewels were the stridhanam of 
Mallaya's widow and daughter, but on this point no decision was given 
either in appeal or in the lower Court, it being assumed by the Courts that 
the jewels had been inherited under the will of Mallaya. The will of 
Mallaya, after reciting amongst other things that provision had been made 
for the maintenance of his eldest daughter-in-law, proceeded : 

" Out of the rent of the bazaar godown, the expenses relating to the 
" repairs, &o., of the said godown and also the maintenance allowance which 
" I have been paying every year to my eldest daughter-in-law, Nadipilly 
" Ademmah, is deducted, and the balance of rent is divided and taken in 
" equal shares by myself and my adopted son I taking one half, and 
" he the other half in accordance with the deed of partition entered 
" into between myself and my adooted son. It is hereby arranged [294] 
" that my three daughters mentioned above, should, after my death, receive 
" the amount relating to the half share I have been receiving. In the 
" matter of the house in which (I am) residing, my adopted son Venkata- 
" ratnam should enjoy one half and my daughters the other half as 



* Appeal No. 181 of 1895. 
208 



YII] 



KAMARAZU V. VENKATARATNAM 



20 Mad 295 



" mentioned in the Pharikhat, after the death of myself and my wife. My 
11 three daughters, viz., the said Kankatala Bangaramrna, Korangi Eattam- 
" ma an 1 Divara Biuanamma, should, from t,he dabe of my d ath, take 
"possession of the who'e of my moveible and immoveabla property the 
" whole of the m >veable properDy relating to the Snrotf trade carried on 
" by me and referred to above, as also all the transactions, accounts, &c., 
"relating thereto and also tlie said immoveable property and enjoy the 
" same happily as they please. The afoiesaid peoule, tl.ab is to s-ay, my 
"daughters id-law and my adopted son, have no ngnb whatever to cause 
"any obstruction in re^peat of my property. E'/en if they cause any, 
"they shall nob ba valH. My daughters afore->ai'l should properly attend 
" to the wants of myself and my wife till our death. My three daughters 
" aforesa d should, after my death, take possession of Pharikhat and other 
"documents which are with im, as also the aforesaid prop-*rt.y, and raan- 
" age the same as they please. I cause i this will to be writ.t^n while I am 
" Btt a*ly in mind an<l of my own free will. This should take effect from 
" the date of tny death." 

Of the bhree daughters, two had died before the gift of the jewels in 
question. 

Tne District Judge said : " The will which is now admitted by both 
" parties leaves bhe father's properby to his wife and daughter to be enjoyed 
" as the.y please. Notwithstanding bhese words, I hold thut this will 
" bestow nothing more than the usual widow's and daughters' life-interest. 
" If the prooerty in question were land, they couid not alienate ib. Ddfend- 
" ants, however, coutend that this is moveable properby at the disposal of 
" these ladies. I cannot accept this contention. It is not alleged that 
"this Es. 4,000 was iakon from the income of the estate. As the greater 
" parb of ib was jewels, ib seems bo have been parb of the corpus of the 
" estate. I am of opinion that not even the charitable object of the 
" alienation justifies the alienation, and that plain iff is entitle! to the 
"declaration which he solicits." And in the result gave a decree for 
plaintiff. 

Defendant appealed. 

[295J Subba Rao and Gopalasami Ayyangar, for appellants. 

Mr. Smith, for respondent. 

JUDGMENT. 

The term* of the will read in the light of the deed of partition referred 
to therein clearly indicate that the intention of the testator was to confer 
on his daughters an aosjiute, and not a limitel, t-siate, in so far as bhe 
moveabie pro^err.y which was at his absolute disposal was concerned. 
There is nothing in the instrument or in the surrounding circumstances, 
which could lead one to ihmk that the intention was to limib the gift to a 
daughter's estate, or, in other woids, simply for their lives. Tne daughters 
thus having taken an absolu'e estate, thealienar.ian sought to be imp-ached 
was within their righis. We mu>.t, therefore, overrule the view taken by 
the District Judge, and in reversal of his d^rea wj dismiss the suit with 
costs throughout. This involves the dismissal of the memorandum of 
objections also. 



1896 
DEC. 10. 

APPEL- 
LATE 
CIVIL. 

20 H. 293. 



MVII iT 



209 



20 Mad. 296 INDIAN DECISIONS, NEW SERIES [Vol. 

1896 20 M. 295. 

Nov. a?. APPELLATE CIVIL. 

APPEL- Before Sir Arthur J. H. Collins, Kt., Chief Justice, and 

Mr. Justice Benson. 



THILLAI CHETTI (Defendant No. 1), Appellant v. RAMA- 
20 M. 295, NATHA AYTAN AND OTHERS (Plaintiffs), Respondents* 

[24th and 27th November, 1896.] 

Mortgage to a co-owner Suit to redeem Right of one or more co-owners to redeem in 
absence of partition. 

When several owners of undivided shares in immoveable property mortgage 
their share with possession to another undivided sharer, a smaller number 
than the whole body of co-mortgagors cannot sue to redeem the mortgage 
until there has been a partition of the property mortgaged among the several 
co-owners. Mamu v. Kuttu (1) followed ; Naro Hari Bhave v. Vithalbhat (2) 
distinguished. 

[N.F., 2 P.R. 1904 = 48 P.L.R. 1904.; R., 11 Ind. Cas. 100 = 62 P.R. 1911 = 197 P.L.R. 
1911; Com., 17 Ind. Cas. 837 (839)=23 M.L.J. 576 (580) = 12 M.L.T. 484 = 
(1912) M.W.N. 1168 (1170) ; D., 15 Ind. Cas. 605 (606) =23 M.L.J. 475.] 

SECOND appeal against the decree of W. Dumergue, District Judge 
of Madura, in appeal suit No. 803 of 1894, confirming the decree of 
S. Authinarayana Ayyar, District Munsif of Mana Madura, in original 
suit No. 58 of 1894. 

[296] The plaintiff and defendants were the undivided co-sharers of a 
Dharmasanam village. The predecessors in title of the plaintiff and of 
defendants 2 to 44 had mortgaged with possession their shares to the 
predecessors in title of the first defendant on the 20bh August 1840. 
The plaintiff now sued to redeem the mortgage and deposited in Court the 
full amount of the mortgage, and he also prayed for a decree directing the 
first defendant to deliver up possession of the land to the plaintiff on behalf 
of all the sharers. 

The firsb defendant contended that the plaint lands appertained 
to 120 pangu samuthayam. Out of the said 120 pangus, 28-8-6 pangus 
belonged to him, If and odd pangus to the plaintiff, and the rest to 
the other defendants. That the pkintiff, who owned only a few pangus, 
had no right to redeem the mortgage of the plaint lands for the village 
samuthayam from the first defendant who owned more pangus That 
the other pangalis had nob given the plaintiff permission to redeem the 
mortgage, and that though it should be found that the plaintiff had a 
right to redeem the mortgage, the plaintiff had no right to pay the share 
due for the first defendant's pangu, and to demand possession from the 
first defendant so far as the first defendant's share of the pangu was 
concerned. 

Of the remaining 43 defendants, four supported the plaintiff's claim 
and 30 applied to be made plaintiffs, seven did not enter an appearance, 
and the remaining two entered an appearance, but did not contest the suit 
at the hearing. 

The Munsif passed a decree that, "on receipt of the mortgage money 
" deposited in Court (Rs. 75-4-0), first defendant do put plaintiffs in 
" possession of the mortgaged properby with all title-deeds in his possession 
"relating to the mortgaged prooerty described in the plaint." 

Second Appeal, No. 1008 of 1895. 
(1) 6 M. 61. (2) 10 B. 648. 



11.] 



THILLAI CHETTI V. RAMANATHA AYYAN 20 Mad. 298 



The first defendant appealed to the District Judge who dismissed the 
Appeal, saying " with regard to the appeal it is contended that, under 
" Section 60, Clause 4 of the Transfer of Property Act, the plaintiffs were 
" entitled to sue for redemption of their shares only and not of the whole 
" property. As the first defendant has not acquired the share of a mort- 
" gagor, the agrument is clearly opposed to the law." 

The first defendant appealed to the High Court on the following 
grounds : 

[297] " The decrees of the Courts below are against the provisions 
" of Section 60, Transfer of Property Act. 

" The Courts below erred in law in drawing .a difference between a 
" co- mortgagee and a co-owner. 

" The Courts below failed to notice that the first defendant owned 
" 28 shares out of the total number of 120 shares and he could not, there- 
11 fore, be ousted from possession. 

" The first defendant's ownership is distinctly raised in the second 
"paragraph of his written statement and plaintiffs have not denied it. 

" Even if the said right were disputed, the Courts below ought to 
" have ascertained the extent of the shares belonging to the first defend- 
" ant. 

" The plaint has not been properly framed, and the Courts below 
" ought to have dismissed the plaintiff's suit." 

Mahadeva Ayyar, for appellant. 

Natesa Ayyar, for respondents. 

JUDGMENT. 

In this case the plaintiffs and defendants are the owners in 
shares of a certain village. 

In 1840 the owners of the village mortgaged it to the first defendant's 
ancestor for Bs. 75-4-0. The plaintiffs sued to redeem the mortgage. 
The first defendant claimed to own the largest share of the village and 
objected to plaintiff's right to redeem the mortgage without the consent 
of the co-mortgagors. He specially objected to the plaintiff's right to 
redeem his (first defendant's) share of the mortgage. The District 
Munsif found that it could not be satisfactorily decided in the present 
suit to what share the first defendant was entitled, and on the strength 
of Naro Hari Bhave v. Vithalbhat (1) decided that plaintiffs had a right 
to redeem the mortgage. He, therefore, decreed that, on payment of the 
mortgage money into Court, the first defendant should put the plaintiffs 
into possession of the mortgaged property with its title-deeds. In appeal 
before the District Court it was argued that, under Clause 4 of Section 60 
of the Transfer of Property Act, the plaintiffs were entitled to redeem 
their own shares only, but not to redeem the whole property. The 
District Judge, however, held the argument to be invalid, " as the first 
" defendant had not acquired the share of the mortgagor," and dismissed 
the aopeal. 

[298] Against this decree the first defendant now urges this second 
appeal, and we think his plea is well founded. The decree is manifestly 
wrong and unjust since it requires the first defendant, who is not only the 
mortgagee, but also one of the chief owners of the property, to give up his 
possession of the property, including his own share, to the plaintiffs on 
payment of the mortgage money. No provision is made for securing to 

(1) 10 B. 648. 
211 



1898 

Nov. 27. 

APPEL- 
LATE 
CIVIL. 

20 H. 299. 



20 Mad. 299 



INDIAN DECISIONS, .NEW SERIES 



[Vol. 



1896 the first defendant or the other sharers of the village possession of their 

Nov. 27. shares on their paying the plaintiffs their shares of the mortgage 

money, nor could any such provision be made in the present suit since 

APPEL- their respective shares have not been asceitained and could not be con- 

LATE veniently ascertained in the suit. Thus the result of the decree would be 

OlVIL. * compel the first defendant and other co-owners and co-mortgagors to 

bring suits for the ascertainment of their shares and for the recovery of 

20 M. 295. the same from the plaintiffs on payment of their contribution towards 

the mortgage money. This is the very evil which was pointed out 

and guarded against bv the learned Judges who decided the case 

of Mamu v. Kuttu (1). There the fifth defendant was the purchaser of a 

share of the equity of redemption and was also the mortgagee in possession, 

and it was held that " to allow plaintiff to redeem the whole would enable 

" him to get possession oi the property to the exclusion of fifth defendant. 

" Now, as fifih defendant is already in possession as assignee of the 

" mortgagee and has also a share in the right to redeem, he cannot be 

" required to surrender possession of the whole against his consent until 

" plaintiff has, by a proper suit for partit'on, ascertained definitely to what 

" shares in the property he and fifuh defendant are, respectively, entitled. 

"We cannot, therefore, allow a decree for redemption of the whole. 

" A decree for redemption of a portion is equally impossible, for that 

" would be to convert the suit into a suit for partition, which, without 

" the consent of all the parties, could not be permitted." 

That case is exactly on all fours with the present case and indicates 
the proper course for the plaintiffs to take if they desire to redeem 
the mortgage on their shares of the property. It is only nces-iry, in 
conclusion, to point out thit 'he case N<iro Hari Bh<ive v. Vithalbhat (2) 
relied on by the District [299] Munsif proceeded on entirely different 
grounds. In that case the plaintiffs had a clear right to redeem the 
whole property at the time when they brought their suit,, and the Court 
refused to allow that right to be defeated by the act'on of the defendants 
in purchasing a share in the equity of redemption post htem motam, hut in- 
timated that, if the defendants had acquired the share before suit, it would 
have been necessary to consider whether the ruling in Mamu v. Kuttu (1) 
should not have be^n followed The District Judge also in the present 
case appears to have been under some misapprehension. He apparently 
thought that it was neoessiry for the first defendant to show that he had 
a- quired the share of a mortgagor subsequent to the date of the mortgage. 
But that is not so. It is the possession of thetwololl interest as moit- 
ga^ee and mortgngor (prior to the plaintiffs' suit) that is of importance. 
First defendant had such twofold interest from the date of the ruortg<ge f 
and the rule laid down by this Court in the case already quoted is clearly 
applicable. 

We must;, therefore, reverse the decrees of the Courts below and 
dismiss the plaintiffs' suit with costs throughout. 



(1)6M. 61. 



JO B. 648. 



212 



VII.] VENKATANARASIMHA NAIDU V. D. KOTAYYA 20 Mad. 300 

20 M. 299 = 7 M.L.J. 231. 1897 

APPELLATE CIVIL. AuojO. 

Before Mr. Justice Subramania Ayyar and Mr. Justice Benson. APPEL- 
LATE 

VENKATANARASIMHA NAIDU (Plaintiff), Appellant v. CIVIL. 
DANDAMUDI KOTAYYA (Defendant), Respondent* 

[22nd July and 20th August, 1897.] 20 M. 299- 

7 M.L.J. 281. 

Landlord and tenant Zemindar and raiyat Relation between. 

A raiyat cultivating land in a permanently-settled estate is prima facie not a 
mere tenant from year to year, but the owner of the kudivaram right in the 
land he cultivates. 

Pol., 13 M.L.T. 450 (457) = (1913) M.W.N 431 ; R.. 21 M. 116 (121) (P.B.) ; 21 M. 
433 F.B.) ; 23 M. 318; 26 M. 25 1 (255) = 12 M L J. 449; 27 M. 401 (405) ; 28 
M. 444 (450) = 15 M.L.J 29; 30 M. 155 = 17 M.L.J. 64 = 2 M.L.T. 25; 17 Ind. 
CAS. 481 (483) ; 13 M.L.J. 81 (82).] 

SECOND appeal against the decree of G. T. Mackenzie, Acting 
District Judge of Godavari, in appeal suit No. 253 of 1895, modifying 
the decree of 8. Pereira, Acting District Munsif of Ellore, in original 
Buit No. 100 of 1892. 

The plaintiff was the Zemindar of Vallur, a permanently se f .tlpd 
estate, and the defendant cultivated land in that zamindary. [300] 
On the 4th March 1891 the plaintiff served on the defendant a notice 
to quit. The defendant did not quit the land, and in 1892 the plaintiff 
brought this suit to eject him. The District Munsif passed a decree 
in favour of the plaintiff. Oa appeal the District Judge, holding that 
the plaintiff had failed to Drove that the defendant's tenancy had commen- 
ced since the date of the Permanent Settlement, reversed the decree of the 
District Munsif. Plaintiff appealed. 

Pattabhirama Ayyar, for appellant. 

Ramachandra Rau Saheb, for respondent. 

JUDGMENT. 

In this case the plaintiff, the holder of a permanently- settled estate, 
eeeks, among other things, to ejact the defendant from certain lands. Ad- 
mittedly, the lands are situated within the plaintiff 's estate and are subject 
to an annual assessment payable by the defendant to the plaint'ff. 

The decision of the case depends solely upon these facts, no other facts 
having been satisfactorily established by the evidence. 

In this state of the case the lower appellate Court dismissed the suit 
in so far as the prayer for possession was concerned. On behalf of the 
plaintiff it was contended that the dismissal was erroneous, and that the 
.error was caused by the lower appellate Court having wrongly thrown the 
onus of proof on the plaintiff. The argument in support of the contention 
was that upon the admitted faats. the finding mast bs that the defendant 
was a tenant from year to year ; and as due notice to quit had been given, 
the tenancy had been determined before the date of the action and the de- 
fendant ought to have been ejected. 

Section 106 of the Transfer of Property Act, to which reference was 
made on behalf of the plaintiff, does not apply to the case. If, however, 
there were a similarity between the relation of landlord and tenant in Eng- 
land and that subsisting here between the plaintiff and the defendant, the 

Second Appeal, No. 766 of 1896. 
213 



20 Mad. 301 INDIAN DECISIONS, NEW SERIES [Yol r 

1897 English rule embodied in that section, that a general occupation is an 

AUG. 20. occupation from year to year would go for to support the contention for 

tho plaintiff. But there is a very material difference between the relation 

APPEL- o f landlord and tenant in England and that of a zemindar and a ryot or 

LATB cultivating proprietor, or, to speak more accurately, the person in whom, 

OlVIL. with reference to Government or its assignees, the right to occupy the 

soil for purposes of cultivation is to be taken as vested. 

20 M. 29 == [301] Now a tenant, of course, derives his right from the landlord ; 

' and in the case of a person thus acquiring his title, the rule referred to ia 
unquestionably a most equitable rule. For the theory as to the relation of 
landlord and tenant in England led to the view that, in the absence of 
proof to the contrary, every tenancy was to be taken to be a tenancy at will. 
In fact, such was the rule until the Judges altered it and laid down that 
general tenancies should be presumed to be, not tenancies at will, but 
tenancies from year to year ; as was explained in Doe v. Porter (1), where 
Lord Kenyon pointed out that a tenancy from year to year succeeded to 
the old tenancy at will, which was attended with many inconveniences, 
and, in order to obviate them, the Courts very early raised an implied 
contract for a year and added that a tenant could not be removed at 
the end of the year unless he had received six months' previous notice, 
see Doe d. Martin v. Watts (2). But sound and reasonable as this rule 
would be, it applied to cases in which the right of a defendant ia 
possession is derived in a manner similar to that of a tenant in England, 
it cannot, on principle, be extended to cases in which the defendant's 
right is not so derived. Now, there is absolutely no ground for laying 
down that the rights of ryots in zemindaries invariably or even generally 
had their origin in express or implied grants made by the zemindar. The 
view that, in the large majority of instances, it originated otherwise 
is the one most in accord with the history of agricultural land- holding in 
this country. For, in the first place, sovereigns, ancient or modern, did 
not here set up more than a right to a share of the produce raised by 
raiyats in lands cultivated by them, however much that share varied at 
different times. And, in the language of the Board of Revenue which long 
after the Permanent Settlement Regulations were passed, investigated and 
reported upon the nature of the rights of ryots in the various parts 
of the Presidency, " whether rendered in service, in mocey or in 
"kind and whether paid to rajas, jagirdars, zemindars, poligars, 
" mutadars, shrotriemdars, inamdars or to Government officers, such 
" as tahsildars, amildars, amins or thannadars, the payments which 
have always been made are universally deemed the due of Govern- 
" ment." (See the Proceedings of the Board of Revenue, dated 5th Janu- 
ary 1818, quoted in the note at page 223 of Dewan Bahadur Srinivasa 
[302] Raghava Ayyangar'a ' Progress in the Madras Presidency;' See also 
paragraphs 75 to 78 of the exhaustive observations of the Board as to the 
relative rights of zamindars and raiyats in the Board's Proceedings of the 
2nd December 1864 appended to the second report of the Select Committee 
on the Rent Recovery Bill, 1864, V. Madras Revenue Register at Page 
153.) Therefore to treat such a payment by cultivators to zemindars aa 
' rent ' in the strict sense of the term and to imply therefrom the relation 
of landlord and tenant so as to let in the presumption of law that a tenancy 
in general is one from year bo year, would be to introduce a mischievous 
fiction destructive of the rights of great numbers of the cultivating 

(1) 8 T.B. 13. \2) 7 T.R. 83. 

214 



YII.] VENKATANARASIMHA NAIDU V. D. KOTAYYA 20 Mad. 303 

classes in this province who have held possession of their lands for 1897 
generations and generations. In support of the view that there is no lua. 20. 
substantial analogy between an English tenant and an Indian ryot it 
is enough to cite the high authority of Sir Thomas Munro. Writing APPEL- 
in 1824, he observes : " the raiyat is certainly not like the landlord of LATB 
England, but neither is he like the English tenant " (Arbuthnot's ' Selec- OlVIL. 
tions from the Minutes of Sir T. Munro, 1 Vol. I, Page 234.) And why is 
this so ? It is for the simple reason that the rights of raiyats came 20 M. 299 = 
into existence mostly, not under any letting by the Government of ' M.L.J. 251. 
the day or its assignees, the zamindars, &c., but independently of them. 
According to the best Native authorities, such rights were generally acquir- 
ed by cultivators entering upon land, improving it, and making in produc- 
tive. As observed by Turner, C.J., and Muttusami Ayyar, J., in Siva 
Subramanya v. The Secretary of State for India(I), " Menu and other 
" Hindu writers have rested private property on occupation as owner." 
And in Secretary of State v. Vira Rayan (2) the same learned Judges 
pointed out " according to what may be termed the Hindu common law, a 
" right to the possession of land is acquired by the first person who makes 
" a beneficial use of the soil." Hence the well-known division in these 
parts of the great interests in land under two main heads of the melvaram 
interest and the kudivaram, interest. Hence also the view that the holder 
of the kudivaram right, far from being a tenant of the holder of the mel- 
varam right, is a co owner with him. Sir T. Munro puts this very clearly. 
He says : " A raiyat divides with Government all the rights of the land. 
" Wnatever is not reserved by Government belongs to him. [303] He is 
" not a tenant at will or for a term of years. He is not removable, 
" because another offers more" (Arbuthoot's ' Selections from the Minutes 
of Sir T. Munro, 1 Vol. I, page, 234 ; see also Ibid, page 253). No doubt, 
tbe view ot the majority of the Judges (Morgan, C.J., and Holloway, J., 
Innes, J., dissenting) in Fakir Muhammad v. Tirumala Chanar(3) was 
different. But in Secretary of State for India v. Nunja(4), Turner, C.J., 
and Muttusami Ayyar, J., stated tha& they saw strong reason to doubt 
whether the view of the majority in that case was right, 

It thus seems unquestionable that prima facie a zamindar and a raiyat 
are holders of the metvaram and kudivaram rights, respectively. When, there- 
fore, the former sues to eject the latter, it is difficult to see why tbe defend- 
ant in such a case should be treated otherwise than defendants in posses- 
sion are generally treated, by being called upon, in the first instance, to 
prove that they have a right to continue in possession. One can see no 
other reason for making such a difference than that certain legislative enact- 
ments, especially those passed at the beginningof the century, refer to raiyats 
as tenants and to the payments made by them as rents. But considering 
that those enactments were intended for particular purposes and consider- 
ing that Kegulation IV of 1822 expressly declares that the actual rights of 
any of the land-holding classes were not intended to be affected by the 
earlier regulations, tbe phraseology of those enactments should not be 
taken to operate to the prejudice of persons between whom and zamindars 
tbe prima facie relation is only that between the holder of the kitdi- 
varam right and the holder of tbe melvaram right in a given piece 
of land as shown above. Consequently it is obvious that, in a suit like tbe 
present, the zamindar should start tbe case by evidence of his title to eject. 
In other words, he has to prove that the kudivaram right in the disputed 

(1) 9 M. 285. (2) 9 M. 175. (3) 1 M, 205. (4) 5 M. 163. 

215 



20 Mad. 304 INDIAN DECISIONS, NEW SERIES [Vol. 

1897 land had been vested in him or his predecessors and that the land subse- 
Auo. 20. quently pissed to the defendant or sorm person through whom he Claims 
under circumstances whioh give th^ plaintiff a right to ej^ct. Tin ia 
APPEL- clear from Srimvasa Chetty v. Nanjunda Chettyd). See also Appa RT.U 
LATE v. Subbanna(%) an<l Venk<it.acharlu v.Kmdappa(3}. In the first mentioned 
CIVIL. case Muttusami Aiyar andTirran*, JJ., sa ; d : " Bat [334] Viranaui's (the 
' then defendant's) tenancy has ba'in found to be that of an ordinary pat- 
20 M. 299 " tadar, and we apprehend that such a tenancy, when there is no evi- 
7 M.L.J, 251. " dence of a contract as to its origin an! duration, or that; the kndiviram 
" right vested in the mitttadar (the then plaintiff) at any time, entitles 
" the tenant to the right of oocuoanoy for thi purpose of cultivation da- 
" terminable on the conditions prescribed by (Mtdras) Act VIII of 1865. " 
The contention that the raiyat was merely a tenant from ye*r to year was 
distinctly raised in the above case, but was virtually, if not expressly, over- 
ruled. We must likewise deolinetoaccept the similar contention urged here 
on behalf of the plaintiff. It may, perhans, be asked what is the nature of 
the holding of persons in the position of the defendant in the lands they 
hold, if they are not tenants from year to year. There can be no hesi- 
tation in replying to this question that in essence there is no difference 
between a raiyat holding lands in a zamindiry village and one holding 
lands in a Government village (Arbuthnut's 'Selections from the Minutes 
Sir T. Munro,' Vol. I, p. 254), and like the latter raiyat the former raiyafr 
in the absence of proof of contract or of special or local usage to the con- 
trary, is entitled to occupy his Ian Is so long as he pays what is due, and 
if be should commit any default in this or other respect, until he is 
evicted by the processes provided by law. 

The decree of the Lower Appellate Court ia right ; the second appeal 
fails and is dismissed with costs. 

Tne memorandum of objections is also dismissed with costs. 



20 M. 305. 

[305] APPELLATE CIVIL. 
Before Mr. Justice Sitbrarmnia Ayyar and Mr. Justice Benson. 



KRISHNA MENON (Plaintiff), Appellant v. KESAVAN AND OTHERS 

(Defendants), Respondents* [15th, 16th, 17dh, 18th March 

and 29th April, 1897.] 

Limitation Act Act XV of 1377, Section 28. Schedule II, Article 10 Civil Procedure 
Code Act XIV of \^Q I, Section. 214 -Right of pre-emption asserted by one in 
possession under an otti mortgage in Malabar. 

Land in Malabar was in the possession of the defendants and was held by 
them as otti mortgagees under instruments, executed in August 1873 and Janu- 
ary 1876. The plaintiff baving purohasei the jeom right under instruments 
executed and registered in May and June 1877, now sued in 1893 for redemp- 
tion : 

Held, that the defendants' right of pre-emotion was not extinguished under 
Limitation Act, Section 28, and thtt they wer* not precluded from asserting it 
by Article 10 owing to the lap <e of time, and thtt Civil Procedure Code. Sea- 
tion 214, was inapplicable to the casa, beciuse the persons asserting a right of 
pre-emption were in possession. 

Appeal No. 33 of 1696. 
(1) 4 M. 174. (2) 13 M. 60. (3) 15 M. 95. 



VII.] 



KRISHNA MBNON V. KESAVAN 



20 Mad. 306 



[R., 24 M. 449 (457); 29 M. 336 (341) = I M.L-T. 153; 30 M. 389 (392) _ 17 M.L.J. 329 
(33-2i = 2 M.L.T. 354 ; 6 OWN. 611 (610' ; 17 lad. Cas 337 (338) = 33 M.L.J. 
607 (608J = 12 M.L.T. 535 = (i9l'J) M.W.N. 1217 (1219).] 

APPEAL against the decree of B. K. Krishnan, Subordinate Judge 
of Palghat, in original suit No. 31 of 1893. 

Suit brought; to redeem an otti mortgage. The facba of the case 
were as follows : 

"The 45 parcels of land in suit belonged to the Naduvakat tarwad 
" (the members of which have since been made parties to the suit as 
" defendants Nos. 36 to 63). Nos. 1 to 21 were passed by N^duvakat 
Kunjunni Nair to the first defendant on a panayom of Es. 7,000 under 
" a deed, dated 16th August 1873, and Nos. 22 to 45 under a similar 
" deed, dated 26r,h January 1876. The defendants Nos. 2 to 11 are mem- 
" bers of the first defendant's illom. Under two deeds, dated 14th May 
" 1877 and 10th June 1877, the plaintiff purchased jenm title to the plaint 
"lands excepting Nos. L9 and 21 from the Naduvakat tarwad." 

The mortgagees asserted their right of pre-emption, and on this ground* 
among others, resisted the plaintiff's suit to redeem. 

The Subordinate Judge dismissed the suit. 

Plaintiff appealed. 

The Acting Advocate-General (Hon. V. Bhashyam Ayyangar), 
Sankaran Nayar and Raman Menon, for appellant. 

[306] Sundara Ayyar, for respondents Nos. 4 and 6. 

OEDBE. 

The plaintiff, as the purchaser of the jenm right in a number of plots 
of land including those in suit under Exhibit B, dated 14th May, and 
Exhibit C, dated 10th June 1877, sues to redeem from the defendants 
those held by them on mortgage under Exhibits I and II. dated 6th 
August 1873 and 26oh January 1876, respectively. In the Court below 
the parties were at issue, as to whether the mortgages were such as, 
according to the usage of Malabar, carried with them the right of 
pre-emption. But that is no longer disputed. 

The principal question for determination is whether the defendants 
are precluded from assorting their right of pre-emption for all or any of 
the reasons urged on behalf of the plaintiff. 

First, Exhibits A and III, executed on the 10th June 1877 by the 
plaintitf and the first defendant, are relied on on behalf of the plaintiff as 
disentitling the defendants from insisting upon the right in question. 
Exhibit III is only a counterpart of Exhibit A. After reciting the above- 
mentioned mortgages to the defendants and the purchase of the jenm 
right by the plaintiff, the documents merely state that on the one part the 
first defendant agreed to receive in January- February 1878 from the 
plaintiff Es. 17,000 due to him and the value of improvements at certain 
specified rates and to surrender the mortgaged property, and on the other 
part the plaintiff agreed to pay the mortgage amount and the value of 
improvements when the first defendant surrenders the lands. The 
plaintiff's case is that there were disoutes between himself on the one side 
and the first defendant and his deceased younger brother Thunpan 
Namhudri on the other in resoect of the actual amount due under Exhibits 
I and II, as also about the period for which the defendants were 
entitled to hold the lands and that Exhibits A and III were executed in 
settlement of those disputes. 



1897 

APRIL, 29. 

APPEL- 
LATE 
CIVIL. 

20 M. 80S, 



M VII 28 



217 



20 Mad. 307 



INDIAN DECISIONS, NEW SERIES 



[Yol. 



LATE 
OlVIL. 



1897 The defendants' case is as follows : No disputes existed, and no 

APRIL 29. settlement was made as alleged for the plaintiff. But the plaintiff had 
- entered into an agreement with his vendors to advance funds for carrying 
on certain litigation connected with the alienation of their family property 
made by their Karnavan, the consideration being that the plaintiff was 
* receive a share of the property. The sale-deeds B and C were executed 
in pursuance of the said arrangement. The plaintiff anticipated difficulties 
20 II. 805. in getting the [307] tenants in possession of the lands purchased to recog- 
nize the sales. On the day Exhibits A and III were executed, the plaintiff 
informed the first defendant that if the latter (he being the holder of a consi- 
derable portion of the lands) signed a document like those in question, that 
would facilitate the plaintiff getting other tenants to recognize the plaintiff's 
purchase. The plaintiff distinctly assured the defendant that nothing would 
be done under the documents to the prejudice of the defendants' rights to 
the lands held by them, and the defendants' family would not be deprived 
of the possession thereof especially as they were situated right in front of 
their family house and therefore of special value to them. Ealying upon 
such representation the first defendant signed the documents in question. 
The story told by the fpur witnesses, who support the version put for- 
ward on behalf of the plaintiff, is that, on the morning of the 10th June 
1877, the first defendant, and his deceased brother Thuppan, of their own 
accord, met the plaintiff who was then staying in one Malliseri Nambudri's 
bouse and that the plaintiff, who had bean till then contending that no 
more than Rs. 8,000 were due to the defendants, was induced by the 
plaintiff's second witness to agres to pay the whole amount and Exhibits 
A and III were executed then and there. The Sub-Judge did not believe 
these witnesses. None of them is independent and the story itself in 
some ma'erial details is not very probable. In agreeing with the Sub- 
Judge's view that the evidence is not reliable, it is sufficient to advert to ar 
fewjcircumstances which throw discredit upon the testimony. Now, a very 
material part of the story told by the plaintiff's witnesses is that Exhibit 
was executed in the same place and about the same time as Exhibits A 
and III. This is put forward obviously for the purpose of making the 
alleged settlement of disputes between the plaintiff and the defendant look 
a little probable inasmuch as in Exhibit C, not only the validity but the 
reality also, of the debt of Rs. 10,000 due to the defendant under Exhibit 
II is denied. But notwithstanding that the documents bear the same date, 
viz., 10th June 1877, it is certain that Exhibit C was not executed as 
alleged by the witnesses who support the plaintiff. This is directly Droved 
by another of his witnesses, viz., Nilukutti, an executant of Exhibit C. For 
she says it was executed not in Malliseri Nambudri's house but in Nadu- 
vakat house, the residence of the vendors. Next some of the provisions 
in Exhibit C itself point to the same conclusion. For, as already stated, 
the mortgage forRs. 10,000, Exhibit II, [308] was questioned in Exhibit 
C ; yet the evidence of the witnesses supporting the plaintiff implies that 
all disputes between the parties had been settled before Exhibit C was 
executed. What necessity was there, then, for inserting in Exhibit C an 
elaborate protest against the debt which the plaintiff had, according to his 
witnesses, just then agreed to treat as perfectly good and valid ? The 
clear inference is that Exhibit C had come into existence before Exhibits A 
and III, which were antedated as stated by the defendant, and that the 
present story that all were executed about the same time in the Malliseri 
house is false. Again in consenting, as the witnesses say, to pay so large 
a sum as Rs. 10,000 over and above what he supposed to have been really 

218 



YII.] 



KRISHNA MENON V. KESAVAN 



20 Mad. 309 



due, the plaintiff would surely have insisted upon an explicit statement being 
made in A and III, that the right of pre-emption possessed by the defendant 
was waived. Not only is that not the case but strangely enough the witness- 
es do not even say that the slightest allusion to the subject was made during 
the negotiations for the settlement of the disputes or at the settlement. 

Lastly, though the first defendant was the senior member in his 
family, the evidence abundantly shows that the actual manager was the 
deceased Thuppan. It is said that this man was present at the execution 
of Exhibits A and III. Why then was his attestation at least not secured ? 
It is impossible to believe that so shrewd a man as the plaintiff would have 
failed to secure such evidence of Thuppan 's assent, if Thuppan was really 
there. These few circumstances are enough to show that the witnesses 
supporting the plaintiff's case are not truthful. Turning to the evidence 
in support of the defence, the first defendant was examined as the first 
witness in the suit on behalf of the plaintiff himself, and distinctly sup- 
ported the defence. The plaintiff bad thus the fullest opportunity to 
contradict the defendant's statements, but he abstained from going into 
the box. There is, therefore, no gocd reason to question the uncontradicted 
evidence of the defendant supported as it is by that of his sixth witness, 
who also is an apparently trustworthy witness, and considering the posi- 
tion of the parties at the time the defendants' account is not improbable. 
The first defendant was then comparatively young about 25 or 26 years of 
age and, as his deposition shows, inexperienced in business. The plaintiff 
however occupied the important position of a Sub-Judge (though he was 
not then employed as such) in the very district where the defendant was 
a resinent. The representations and assurances given by a person of the 
[309] plaintiff's circumstances in life to one in the first defendant's 
position would not have then appeared necessarily fraudulent. The 
informal character of Exhibits A and III, each of which is self-styled a 
' Memorandum,' coupled with the fact that no schedule of property was 
originally attached to the documents, would have made the plaintiff's 
statement that he did not intend to get the documents registered wear 
an appearance of truth, and naturally would have led the defendant to 
believe that the documents were meant to be used only for the purpose of 
facilitating plaintiff's dealing with the other tenants. We must therefore 
find upon this point in favour of the defendants and hold that they are 
not precluded by Exhibits A and III from setting up their right of pre- 
emption. The second contention was that the defendants having failed 
to sue to enforce their right within the year prescribed by Article 10 
of the Limitation Act, the right was extinguished under Section 28 of 
that enactment and could not therefore be set up as a defence in the suit. 
This contention is unsustainable. Now the defendants as ' otti ' mort- 
gagees have since the dates of the mortgages admittedly held possession 
of the lands to which the right of pre-emption attaches. If the de- 
fendants had as plaintiffs to enforce their right of pre-emption, it was 
absolutely unnecessary for them to pray for any possession. All they 
could have claimed was a decree directing that, on payment of the 
proper price, the right to redeem which the jenmis had and of which the 
plaintiff bad become the assignee, be transferred to them. 

But a mere right to redeem is not capable of possession within 
the meaning of Section 28. That section contemplates suits, which 
a person who is kept out of property, admitting of physical possession, 
could have brought for such possession. It is true that the language 
employed in some of the decided cases in describing the nature of 

219 



1897 

APRIL 29. 

APPEL- 
LATE 
CIVIL. 

20 M. 305. 



20 Mad. 310 



INDIAN DECISIONS, NEW SERIES 



[Yol. 



1897 
APRIL 29, 

APPEL- 
LATE 
CIVIL. 

20 M. 303. 



the right to redeem is not quite uniform. For examole in Ghathu v. 
Akii (1) it was stated to be a right of action only, while the leading case of 
Casburne v. Scarfe (2) lays down perhaps more correctly that the right 
was not a mere right of action, but an estate in the land. Nevertheless 
in a case like this, where the mortgage in a measure partakes of 
the nature of a lease, even an English lawyer would, in accurate 
modern technical language, only say the mortgagor was seized of the 
right to redeem while the mortgigea wai in possession, of [310] the 
land. Compare ' Pollock and Wright on Possession,' p<*ge 47, whera 
it is pointed out that where a tenant occupies a close under a lease for 
years, the tenant has possession of the close, so that not only a 
stranger but the free holder himself may be guilty of a trespass 
against him, but the free-holler is still seized of the free hold. It is thus 
cletr, apart from authority, that the right in question is not capable of 
possession within the meaning of Section 28, and that the extinctive 
prescription referred to therein is inapplicable in the present instance. 
And Ghathu v. Aku (I) already cited and Kanharankutti v. Uthotti (3) 
are clear authorities on the point. In the former case, it was held that 
where the equity of redemption of a certain estate became on the death 
of the mortgagor the property of two divided branches of a Malabar 
tarwad, and the rents and profits of the land paid by the mortgagee were 
enjoyed hy the representative of one branch forfifteen years to the exclusion 
of the other branoh, such enjoyment was not adverse possession within 
the meaning of Section 28. In the second case cited above, Handley and 
Weir, JJ., dealt with a contention similar to the present thus : ' But 
Section 28 only applies to suits for possession of property, third defend- 
" ant has no need to bring anv suit for possession of the property in 
"question. He has already obtained a decree for such possession. The 
" only suit he would have to bring to assert his right of pre-emption 
would be a puit to set aside the sale to the plaintiff ani the first and 
second defendants and to compel them to convey the property to him 
" on his paying the price they had paid, and even if such a suit is 
"barred, the right is not extinguished by Section 28." 

Section 214 oi the Civil Procedure Code was strongly relied on on 
behalf of the plaintiff. But that section contemplates cases where the 
party seeking to enforce a right of pre-emption is out of possession, and 
consequently it is inapplicable to instances like the present in which 
parties setting up such a right are already in possession. And it is to be 
borne in mind that the form of the decree to be given in the latter class 
of cases is not what is mentioned in Section 214 relied on, but that 
adopted in Ukku v. Kutti (4). 

Tne third contention wa< that, even if the right was not extinguished 
under Section 28, yet, as it became barred unlor [311] Arthla 10 
on the expiry of a year from r.h* registration of Exhibits B and C, the 
right cannot bi urged by way of difenoe. This contention is manifestly 
untenable. For, if, notwithstanding that an otti mortgagee's right to sue 
to enforce his right of pre-emption has become barrel, that right of pre- 
emotion, owing to the inipplicahility of Section 23 to the case, is still 
unexting lished, it is difficult to see on what principle suoh right is to ba 
held to bi unavailable by way of d^fenc3. Tnat there is nothing in the 
Limitation Act to supoort the present contention of the aopallait is fully 
and cl^a-'ly p>inted out by the learnel Chief Justice ani Sieohard, J., io. 



(1) 7 M. 26. (2) 2 W. & T.L.O. 1035. (3) 13 M. 490. 

220 



(4) 15 M. 401. 



YIL] 



KRISHNA MENON V. KESAVAN 



20 Mad. 312 



Orrv. Sundra Pandia (l). In the Privy Council case in Janki Kunwar 
v.Ajit Singh (2) and the other similar cases cited for the plaintiff the 
parties affected by the law of limitation were out of possession, and these 
authorities are, therefore, not in point here. 

The fourth and last contention was that the defendants should beheld 
to have waivtd their right by long delay and inaction. But this contention 
is not supported by the facts of the case. Exhibit 53 shows that, so far 
back as 1878, the defendants openly rtptdia'ed the plaintiff's right under 
his purchase; aid this circumstance is toi ally inconsistent with any inten- 
tion on the part of the defendants to give up their right in favour of the 
plaintiff. As to Exhibit A.T., the karar, which was executed in 1891 
between the me mbers of the fit st defendant's family and which was relied 
on as supporting the above contention, it is clearly against it. For the 
document distinctly provides that any claim that might be preferred 
in respect of the redemption of the lards in question should be resisted, and 
cettainly one grcund upon which such resistance could have been based 
was their ri{.ht of pre-emption. 

Lastly under Exhibit II, some rent was payable though the amount 
was very small. But the defendants never paid any of this rent to the 
plaintiff. These circumstances apart, how could the defendants be 
held to have waived their right by mere inaction ar d delay, they beir>g in 
possession and the price payable in respect of the lands in question nob 
bavir g heen ascertained and fixed at any time? It is scarcely i ecessary to 
say that t.he ascertainment of the price is an essential prelinjinaiy to the 
defendant being put to their elf ctior see Cheiia Kiishnan v. Vikhmi (3). 
[3 1 2] Now, in the first place, it is admitted that, before the plaintiff con- 
cluded the sules he relies on, neither he nor his vendors called upon the 
defendants to exercise their option to buy. In the next place, the plaint- 
iff purchased ur der Exhibits B and C, not only the lacds under mortgage 
to the defendants but othus also for two lump sums. It is not all g d 
that any agieement was entered irtc between the plaintiff and his vendors 
as to how much cf those lump sums was to be takn as the proi.ortionae 
price fc.r the lauds in question, and subsequent to his purchases the plaintiff 
d d not make any jroiosal to the defencai ts as to the proportionate price 
or require them to m> ke an offer on the point. Nor was any step tnken 
for cl taming an adjudication by the Court of the amount which the 
defendants would have to pay if they decided to buy. In these circum- 
stances the ce'enrants were not bound to move in the matter unless 
called upon to do so by some act of the plaintiff; subsequent to his pur- 
chase and in the absence of any such act, they were entitled to await the 
demand for surrender of the property, and then assert their right of pre- 
emption. Consequently no presumution of waiver could be raised on the 
ground of delay and inaction in this case. 

Fur the above reasons, we must hoH that the defendants are entitled 
to rely on their light of pre-empt,ion. But before a uropor decree can be 
pissed, it is necessary to determine what the proportionate price payable 
by the defendants Nos. 1 to 11 is. We therefore call upon the Sub-JuHge 
to suhmit a finding on the point within twomorths after the recess. Fresh 
evidence may I e taker) on either side. Tne Sub-Ju Ige should also submit 
a finding on the eighth issue on the evidence on record. Seven days will 
be allowed for filing objections after the findings have been posted up in 
this Couit. 



1897 

APRIL 29, 

APPEL- 
LATE 
CIVIL. 

20 M. 308. 



17 M. 255. 



15 C. 59. 

'221 



20 Mad. 313 INDIAN DECISIONS, NEW SERIES [Vol. 

1897 20 M. 313. 

^^l 24 ' [313] APPELLATE CIVIL. 

APPEL- Before Mr. Justice Shephard and Mr. Justice Davies. 



LATE 



CIVIL. THIRUKUMARESAN CHETTI AND ANOTHER (Plaintiffs), 

Appellants v. SUBBARAYA CHETTI AND OTHERS (Defendants,, 

M, 313. Respondents.* [25th August and 3rd September, 1895, and 

24th February, 1897.] 

Civil Procedure Code Ad XIV of 1882, Section 215 Decree for account of dissolved 
partnership Taking of accounts. 

In a suit for an account of a dissolved partnership a decree should be passed 
under Civil Procedure Code, Section 215, in accordance with Form No. 132 in 
Schedule IV ; and it should direct an account to be taken of the dealings and 
transactions between the parties and of the credits, property and effects due and 
belonging to the late partnership, and it should direct the appointment of a re- 
ceiver of the outstanding debts and effects. 

Observations on the procedure to be adopted and the burden of proof on the 
taking of the account. 

[R., 25 M. 244 (297) (F.B.) ; 23 P.B. 1903 = 77 P.L.R. 1903 ; D., 3 A.L.J. 233 = A. W. 
N. (1906) 111]. 

APPEAL against the decree of V. Srinivasacharlu, Subordinate Judge 
of Kumbakonam, in original suit No. 56 of 1890. 

The following statement of facts is taken from the judgment of 
Subordinate Judge : 

The parties to this suit were partners in trade of a native firm of 
merchants, who owned and kept three shops, one here at Kum- 
bakonam and the other two at Udayarpalaiyam, for purchasing and selling 
cloths and twist ; that kept at Kumbakonam was under the management 
of the plaintiffs' father and son and the second defendant, while the other 
defendants managed those kept at Udavaroalaiyam. The partnership 
was first formed on the 30th September 1877 between the first plaintiff and 
the defendants Nos. 1 and 3 only under certain terms and conditions, and 
the second plaintiff and defendants Nos. 2 and 4 were subsequently taken 
into the partnership. There were settlements of account amongst the 
partners on more than one occasion, and the last was made on the 
llth January 1889 ; and differences having arisen amongst them at 
the time, it was resolved that they should abide by the decision of one 
Chockalioga Chetti and others, and that the accounts of the firm should 
be kept locked up in the bazaar at Kumbakonam, and that pending their 
decision, the business of their shops were also stopped. 

[314] The defendants answered that there was a complete and final 
settlement of accounts amongst the oarfcners on the 30th November 1888, 
answering to 17th Kartigai of Sarvadhari, and that the plaintiffs, who 
owed first defendant under that settlement Rs. 567-7- 2f and ororaised 
to pay the amount soon, also retired from the partnership after this 
settlement ; and they had, therefore, no right to sue for an account or 
ask for a share of the profits in the subsequent business carried on by 
themselves. 

On the 7th Ocbober 1891, when the suit was brought on for 
examination of witnesses after one or two postponements of the hearing, 
the first defendant was placed in the box and examined by the defendants 

* Appeal No. 67 of 1894. 
222 



THIRUKUMABESAN CHETTI V. SUBBABAYA CHETTI 20 Mad. 315 



themselves. After his examination was partially made, on the following 
day both parties expressed a desire to settle their disputes out of Court 
and wanted a day's time for consideration ; it was granted, and on the 
9bh of October they made up their differences as regards the shares to be 
allotted to each partner and the first defendant also agreed to withdraw 
his suit No. 5 of J891, and consented to a fresh and proper settlement of 
accounts being made starting from the settlement made amongst them- 
selves in the year Parthiva (1885) and ending with the 27th Margali of 
Sarvadhari (9th January 1889). They also agreed that the plaintiffs 
should have nothing to do with the new business carried on by themselves 
after this last date. 

The parties first tried to avoid the expenses of a commission and pro- 
mised to look into their accounts themselves and submit to Court abstract 
accounts of their assets and liabilities. Bat as it was found that even after 
three weeks nothing could be done by them, the Court dee4-ied on the 30th 
October 1891 upon appointing a pleader of the High Court as a Commis- 
sioner for the conduct of this investigation, and directed the parties to 
appear before him with their accounts and assist him in all possible man- 
ner. This investigation was not finished till shortly before the 4th January 
1892, when his report accompanied by explanatory statements ware 
received. 

The Subordinate Judge passed the following decree : 
" The Court doth order and decree that defendants Nos. 1 to 3 as also 
" defendants No3. 5 to 7 as the heirs of fourth defendant, deceased, do 
" pay plaintiffs Rs. 2,647-9-11 with interest thereon at six per cent, per 
annum from 26th Margali of Sarvadhari (9th January 1889) up to the 
date of plaint i.e., 7th November 1890, [315] amounting to Rs. 299-2-0 
and also subsequently up to the date of realization with proportionate 
costs ; that the outstandings not realized, as per schedule annexed here- 
to including the sum owed by the first plaintiff's son-in-law, when real- 
ized, bedistributed, amongst the partners as follow : for plaintiffs If, for 
defendants Nos. 1 and 22, for third defendant 1, and for the fourth defend- 
ant's heirs, the defendants Nos. 5 to 7, f-, and plaintiffs be given l^out 
of 5i shares ; that they be either sold in auction amongst the plaintiffs 
and defendants themselves and the assets ascertained, or a receiver 
appointed and directed to realize the same, as may seem desirable at the 
time of the execution of the decree, ani that the defendants do bear their 
costs including the full costs of the first commission and a moiety of the 
second." 

Plaintiffs appealed. 

R. Subramania Ayyar, for appellants. 

Mahadeva Ayyar, for respondents. 

JUDGMENT (PRELIMINARY). 

This is a suit brought by two of the partners of a firm against the 
remainder for an account of the partnership business. The partnership 
was dissolve i before the date of the suit. Although, in the 6rst instance, 
certain issues were raised, thoae issues were not tried, and, in the result, 
nothing remained exceot to take an account. Uader these circumstances, 
the proper course for the Judge to have adopted w^is to pass a decree 
under the 215'.h Section of the Code of Civil Procedure, in accordance with 
the form given in the schedule. The decree should have directed an 
account to be taken of all dealings and transactions between the partners, 
between the dates agreed upon by them, viz., the date of the settlement 

223 



1897 

FEB. 24. 

APPEL- 
LATE 
CIVIL. 

20 M. 318. 



20 Mad. 316 



INDIAN DECISIONS, NEW SERIES 



[Yol. 



1897 in Parthiva and the 27th Margali (9th January 1889), and also an account 
FEB. 24. of the credits, properly and effects due and belonging to the prinesship; 
and further it should have directed the appointment of a receiver of tne 
APPEL- outstanding debts and effects (see Daniell's ' Chancery Practice,' Chapter 
LATE xxi, Section 10, and Ram Chunder Shaha v. Manick Chunder Banikya (1)). 
ClVIL. Some of the directions, which are given in the actual decree, while find- 
ing a proper place in a preliminan decree, are most inappropriate in a final 
20 M. 313. decree. The preliminary decree being drawn up, the next step was for the 
Court either to take the account itself or to appoint a Commissioner. A 
Commissioner was appointed and the usual directions were given him. 
[316] The course taken by the Commissioner, as far as can be gathered 
from his report, was not, however, the convenient and proper one. Having 
found that the business at Udayaroalaiyam was conducted entirely by 
the defendants, he ought to have c*l ed upon them to render an account, 
and not merely to give up their books for examination. When this wag 
done, the plaintiffs would have beea in a posiiion to make their charges 
which, of course, opportunity should have been given to the defendants 
to meeo. In all the steps taken, the statements made by either party 
ought to be supported either by affidavit or by evidence duly taken. In- 
stead of pursuing this course, ttie Commissioner, after some examina- 
tion of the defendants' books, seems to have called upon the plaintiffs 
to make charges against the defendants, an I then proceeded to con- 
sider whether those charges were subsiantiated. By this procedure, the 
plaintiffs must have been seriously prejudiced, for the bu den was 
oast upon them ; whereas the b irdan of discharging themselves ought 
to have been cast on the defendants. For instance, with regard to the 
debts said to ba due to the firm, which form one of the subjects of 
appeal, tnera does not seem to be any acuount verified by the deien lanta 
showing what amount remained uncollected. The Commissioner gives no 
particulars (u. 48, para. 22 of the book of documents). The Subordinate 
Judge dealing with the matter in paragraph 73 of this judgment ob-serves 
that, the p'aintiffs have no proof of the defendants having collected mote 
than Rs. !27, 757-2-6. He does not say that the dt-fendams swear they 
had not collected the balance of R-. 5,505-2-1, still le->s that they explained 
why they had not done so, although, i i the circumstances of the c.ise, they 
oug'it to have been called upon tor sucn explanation. The defendants' 
Vakil was unable to refer us to any ev de >^ on the point. It wa-* apt ar- 
ently in consequence of the unsystematic m >de of inquiry adopted bv the 
Commissioner that the Judge had to refer the accounts to another Com- 
missioner, as explained by him in paragraph 53. The point on which this 
reference WHS made is the most important point raised in the appeal. It 
relates to ihe sum of Rs. 12.515-13-6, representing the value of twist pent 
from Kumbakonam to the Udayarpalaiyam shop. The accounts of the 
latter shop were, it is admitted, kept entirely by the defendants, under 
whose control the business was. 

This matter again the Subordinate Judge deals with, as if a charge 
of misappropriation bad to be proved by the plaintiffs ; [317] whereas 
it was for tne defendants to explain what ha 1 become of the tw st. Tne 
plaintiffs took exuep ion in Maruh to the manner in which the Commis- 
sioner had, in his report of January 1892, dealt with the matter, conse- 
quently another Commission was issued. Tne second Commissioner doe* 
not pretend to have disposed of the ma'tnr finally, for hi says "the 

(1) 7 C. 428. 
224 



YIL] THI EUKUMARESAN CHETTI V. SUBBARAYA CHBTTI 20 Mad. 318 

" better way would have been to take an account of all receipts of twists 
" from Kumbakonam as given in the Palliam accounts and to take a 
"similar account of all debits of twists to the Palliam shop, as stated in 
" the Kumbakonam accounts and then to compare one with the other." 
This course was not adopted, and what is more important the defendants 
have, as far as we can learn, never vouchsafed any explanation. The 
explanation given by the Subordinate Judge in the 59th paragraph of his 
judgment may be well founded ; but, as it stands, it is no more than a 
suggestion based on no evidence to which we are referred. 

As regards the next item the Es. 1,000 mentioned in paragraph 67 
of the judgment we see no reason to differ from the Subordinate Judge. 
Nor do we see any reason to differ as to the finding in the next paragraph 
to which objection was taken on behalf of the respondents. 

With regard to the sum of Ks. 139-7-6 (paragraphs 41 and 42), it 
seems to us that the question is whether the plaintiffs or the defendants 
were in a position fco recover the money. It is said that the decree is in 
the name or under the control of the defendants and that they never put 
the plaintiffs in a position to recover the money. If this is so, the plain- 
tiffs ought not to be debited with it. There must be an inquiry on that 
head. 

The last question relates to interest. The Subordinate Judge has 
dealt with this question in a rough and ready way. Since, however, it is 
found that the rate contracted for was generally 12 per cent, per annum, 
it was for the defendants to prove that a lessor rate had been paid. Here 
again we find the inconvenience of having no account rendered by the de- 
fendants and supported by their affirmation. There must be a proper 
inquiry with regard to this claim. 

It is somewhat difficult to say what should be done with the decree 
framed by the Subordinate Judge, which cannot be allowed to stand as a 
final decree. It appears to us best to treat it as a preliminary decree and 
to have a final decree drawn UD, when the inquiries yet to be made have 
been completed and the out- [318] standings have been collected by the 
receiver. We must direct the Subordinate Judge to return findings on 
the following questions : 

1. Whether the defendants have duly accounted for the twist sent 
from Kumbikonam to Udayarpalaiyam, and, if not, what sum should be 
debited against them in respect thereof ? 

2. Whether the sum of Rs. 5,505-2-1 was, in fact, collected by the 
defendants, or could, with reasonable diligence on their part, have been 
collected by them ? 

3. Whether the plaintiffs were put in a position to recover the sum 
of Rs. 139-7-6? 

4. Whether in respect of any and what debts collected by the defend- 
ants, any and what remission of interest was properly made by them and 
what fair sum (if any) should be debited against them accordingly ? 

Frash evidence may be adduced on either side. 

Tha findings are to be submitted within six weeks from the date of the 
receipt of this order, and seven days will be allowed for filing objections, 
after the findings have baen posted up in this Court. 

This appeal coming on again for hearing after the return of the find- 
ings upon the issues, referred by this Court for trial, the Court made the 
ollowing : 



1897 

FEB. 21. 

APPEL- 
LATE 
CIVIL. 

20 M. 313. 



M VII 29 



225 



20 Mad. 319 



INDIAN DECISIONS, NEW SERIES 



[Yol. 



1897 

FEB. 24. 

APPEL- 
LATE 
CIVIL. 

20 H. 313. 



ORDER. 

Objections are taken to the findings on all the issues. As to the 
second, third and fourth issues, we are nob prepared to disagree with 
the Subordinate Judge. The finding ou the second issue, we must, how- 
ever, observe, is not so clear as might be desired. It was for the defend- 
ants to explain why they did not collect the outatandings which were 
recoverable at the date of the dissolution. The Subordinate Judge does 
not say distinctly that he accepts the explanation given, but we must 
take it that he meant to do so. As to the first issue, the finding is un- 
satisfactory. The question still in doubt is as to what quantity of twist 
the defendants received at Udayarpalaiyam from Kumbakonam. The 
defendants admit that their own books are incomplete as to these receipts, 
being complete only as to the sales effected by them and the receipts from 
other places. 

The quantity seat from Kumbakonam must be within the know- 
ledge of the plaintiffs and as they are not satisfied with the defendants' 
account, they must themselves state from such materials as are available 
what quantities of twist were supplied from Kumbakonam from the 17th 
July 1885 till the 9bh January 1889. 

[319] Having done this, plaintiffs must go on to show what is the 
difference, if any, to be accounted for by the defendants. 

The account must be filed in this Court within two months. Two 
weeks allowed to the defendants to take objection. Parties to have access 
to the books. 

This appeal coming on for hearing after the submission of the ac- 
counts, &3., the Court delivered the following : 

JUDGMENT (FINAL). 

Nothing in the shape of an intelligible account is put before us. The 
plaintiffs, therefore, not having taken advantage of the opportunity given 
them, we must accept the finding so far as regards the matter of the first 
issue. The decree must be modified in accordance with the finding of the 
Subordinate Judge in paragraph 29. Subject to this, the appeal is dismiss- 
ed with costs. 



20 M. 319 = 7 M.L.J. 257. 

APPELLATE CIVIL. 

Before Mr. Justice Shephard and Mr. Justice Davies. 



VENKATRAMAYYA AND OTHERS (Defendants), Appellants v. 
KRISHNAYYA (Plaintiff), Respondent.* 
[6th and 25th August, 1897.] 

Court Fees Act Act VII of 1870, Sections 6, 23 -Civil Procedure Code Act XIV of 
1882, Section 51 Presentation of plaint improperly stamped. 

A suit is not instituted, within the nmnins; of tho explanation to Section 4 of 
the Limitation Aot by the presentation of a document purporting to be a plaint, 
if that document, while not undervaluing the claim, is written on paper that does 
not bear the proper Court fee. 

[Diss., 32 M. 305 (311) = I lad CUs. 507 = 6 M.L.T. 129 (132) ; 74 P. R. 1903; R. 189 
P.L-R. 1900 ; D ., 270. 8U (820) ; 22 M. 494 (501) = 9 M.L.J. 37 (43) 24 M 
331 (331).] 

* Second Appeal No. 1360 of 1896. 

226 



TTII.] VEKATRAMAYYA V. KRISHNAYYA 20 Mad. 321 

SECOND appeal against the decree of F. H. Hamnett, District 1897 
Judge of Kistna, in appeal suit No. 279 of 1894, reversing the decree of AUG. 25, 
N. Somayajulu Sastri, District Munsif of Gudivada, in original suit 
No. 114 of 1893. APPBL - 

Suit to recover Rs. 205-7-3, the principal and interest due on a LATE 
registered mortgage bond. The cause of action accrued on the 29th CIVIL. 

March 1881, and the plaint was filed on the 29th March 1893. The 

proper Court fee was Rs. 15-12-0, but the plaint was stamped with a 2 **' ^ = 
stamp of As. 12. On the 30th March the plaint was returned to be 7 '* 

represented with the proper stamp [320] within seven days and was re- 
presented within the time allowed. No explanation appears to have been 
given at any stage of the suit why the plaint was stamped with only a 
12-anna stamp. 

One of the issues raised in the suit was " whether the suit is barred, 
" the plaint not having been properly stamped on 29th March 1893." 

The District Munsif held that the suit was barred and dismissed the 
plaintiff's claim, but the District Judge on appeal reversed the Munsif's 
decree and gave a decree for a portion of the plaintiff's claim. 

The defendants appealed. 

Sriramulu Sastri, for appellants. 

Venkatarama Sarma, for respondent. 

JUDGMENT. 

SHEPHARD, J. The question is whether the plaint, having been 
presented with an insufficient Court-fee stamp on the last day allowed by 
the law of limitation, viz., the 29bh March 1893, and subsequently within 
the time fixed by the Court presented again with a proper stamp, can be 
said to have been duly presented within the time limited by the Act of 
Limitation. According to the 4th Section of that Act, a suit is instituted 
when the plaint is presented to the proper officer, and unless the suit is so 
instituted within the period prescribed by the schedule, it must be dismiss- 
ed. This suit, therefore, ought to have been dismissed, if, in point of law, 
there was no plaint presented on the 29th March 1893. The document 
presented as a plaint satisfied the requirements of the Civil Procedure Code, 
but it did not satisfy the requirements of the Court Fees Act, inasmuch as 
the stamp affixed was 12 annas when it ought to have been Rs. 15-12-0. 
That being the case, it was a document which, in view of the provisions of 
Section 6 of the Court Fees Act, could not lawfully have been filed by the 
Court to which it was presented. Moreover, it was a document which, 
according to the 28th Section of the same Act, possessed no validity. The 
Act not only imposes a restriction or disability on the Court with reference 
to an inadequately stamped document. It also, by declaring the 
invalidity of such document, makes the proper stamping of a document 
purporting to ba a plaint an essential condition of the existence of 
a valid plaint. In other words, a plaint inadequately stamped is, in 
point of law, no plaint at all. I can find nothing in Section 54 of the 
Civil Procedure Code to conflict with this view of the law. We are not 
concerned with the case of improper valuation, the case contemplated in 
[321] Clause (a) of Section 54 of the Civil Procedure Code and Sections 
9 and 10 of the Court Fees Act. Nor are we concerned with the case of 
mistake or inadvertence on the part of the Court the case to which the 
proviso to Section 28 of the latter Act is applicable. The case before us 
is the one provided for in Clause (6) of Section 54 of the Civil Procedure 
Code. The object of that clause is to give the party who has presented 

227 



20 Mad. 322 INDIAN DECISIONS, NEW SERIES [Vol. 

1897 a defectively stamped plaint an opportunity of supplying the defect. 
AUG. 25. Instead of rejecting the plaint the Court must fix a time for the supply 
of the requisite stamp paper. But for this saving provision, a fresh 
APPEL- plaint would have been indispensable, as it is, if the requisite 
LATE stamp paper is not supplied within the time fixed. It appears to 
ClVIL. me kln&b this provision of the law is in no manner inconsistent with 
the construction which I place upon the Court Fees Act. Because 
20 M. 319= the law makes that provision in favour of the party whose plaint 
7 M-L.J, 257. j s defective in the matter of stamp, I cannot see why it should be said 
that the law empowers the Court to enlarge the period allowed by the 
Limitation Act, or gives retrospective validity to a document which, at the 
time when it was first presented, was invalid. Seeing that the Legislature 
had before them the proviso to the 28th Section of the Court Fees 
Act, which declares in favour of retrospective validity in the case therein 
provided for, it is not to be supposed that, in framing Section 54 of 
the Code, they intended that principle to be extended to cases not within 
the proviso. A still stronger argument of a similar character is furnished 
by Section 582 A of the Civil Procedure Code. That section which became 
law on the 29bh July 1892 refers, like the second paragraph of Section 5 of 
the Limitation Act, to appeals and applications for review of judgment. 
The section provides for the case of an insufficiency of stamp " caused by 
" a mistake on the part of the appellant as to the amount of the requisite 
" stamp." It declares that, notwithstanding the insufficiency, the 
memorandum of appeal " shall have the same effect and be as valid as 
if it had been properly stamped." This section probably owes its origin to 
the decision of the Full Bench in BulkaranRai v. GobindNath Tiwarid). 
It was there held that the practice of giving an appellant time to supply a 
deficiency of Court-fee stamp and treating the memorandum of appeal as 
validlv presented on the day when it was presented with defective stamp, 
was [322] erroneous. This practice was one which generally prevailed 
in this and other Courts, and the effect of the new section was to legalize 
it, subject, however, to the condition that the deficiency of stamp was due 
to mistake on the appellant's part. In the absence of any such mistake it 
is clear now that in the case of appeals the decision of the Allahabad Court 
must prevail. The appeal must be rejected unless the memorandum 
adequately stamped is presented within due time. Since the Legislature 
has, by this new section, extended a limited indulgence to appellants, it 
cannot be supposed that it was intended to give plaintiffs, in respect of 
their plaints, the same indulgence in unqualified terms. To hold in favour 
of the plaintiff in the present case would mean that, whereas an appellant 
can take advantage of Section 582-A only on proving mistake, a plaintiff 
may deliberately and with his eyes open affix an inadequate Court-fee 
stamp and, on the balance being furnished within a time fixed, demand to 
have his plaint treated as if at institution it had been properly stamped. 
This cannot possibly have been the intention of the Legislature, for the 
section already mentioned and the latter part of Section 5 of the Limitation 
Act shows that appellants, not plaintiffs, are regarded as parties in whose 
favour the rigour of the law of limitation should be relaxed. 

The case of Skinner v. Orde (2) is relied upon in this as in other 
cases as containing a dictum of the Judicial Committee in favour of the 
view advocated hy the respondent's Vakil. Skinner v. Orde (2) is how- 
ever easily distinguishable from the present case. There the petition as 

(1) 12 A. 129. (2) 2 A, 241, 

228 



YII.] BANQAMMAL V. VENKATACHARI 20 Mad. 324 

originally presented by the plaintiff was complete and valid, and only re- 
quired the order of the Court under Section 308 of the Code then in force AUG. 25. 
to make it fully efficacious as a plaint. After the filing of the petition the pp _ T 
plaintiff acquired the means requisite for paying the Gourd fee, and A 
accordingly the proper stamp was affixed. The question was whether the LATE 
plaintiff was, as regards the date of the presenting of his plaint, to be OlVIL. 
placed on the footing on which he could have been, had the order above- mTT^Q 
mentioned been made, or whether the plaint should have been rejected ' ~" 
altogether. There was no question, in that case, of validating a plaint ' ' 
which was, in its inception, invalid. In the present case, on the contrary 
that is precisely the [323] contention which must be raised, and it clearly 
is not admissible, because a transaction ab initio void cannot be validated. 

I have already given reasons for holding that the plaint as presented 
was of no legal force or effect whatever. I agree with the decision in 
Jainti Prasad v. Bachu Singh (1). I reverse the decree of the District 
Judge and restore that of the District Munsif with costs. 

DAVIES, J. I entirely concur. 



20 M. 323=6 M.L.J. 64. 
APPELLATE CIVIL. 

Before Sir Arthur J. H. Collins, Kt., Chief Justice, and 
Mr. Justice Benson. 



RANGAMMAL (Plaintiff) Appellant v. VENKATACHARI 
(Defendant), Respondent* [16th March, 1896.] 

Fraudulent conveyance Collusive decree Fraud on creditors Fraudulent purpose 
carried out Suit by legal representative of the fraudulent transferor and judgment 
debtor to set aside conveyance and restrain execution of decree Widow of Hindu 
transferor, 

A with the intention of defeating and defrauding bis creditors made and 
delivered a promissory note to B without consideration and collusively allowed 
a decree to be obtained aginst him on the promissory note and conveyed to B 
a house in part satisfaction of the decree : and it appeared that certain of A's 
creditors were consequently induced to remit parts of their claim. A having died, 
his widow and legal representative under Hindu Law, now sued B to have the 
promissory note and the conveyance set aside and to have the defendant restrain- 
ed by injunction from executing the decree. 

Hdd, (1) that the plaintiff was not entitled, to relief, for A if now alive could 
not have claimed to have his own fraudulent act set aside and the plaintiff was in 
no better position than he would have been. 

Quare : Whether a widow might successfully maintain a claim for maintenance 
out of property alienated by her husband without consideration and fraudulently 
if she herself was no party to the fraud. 

[R., 330. 967 = 4 C.L.J. 22 = 10 C.W.N. 650 ; 4 N.L.R. 26; D., 3 P.R. 1906 = 109P. 
L.R. 1906.] 

THIS was an appeal from the decision of Subramania Ayyar, J., re- 
ported as Eangammal v. Venkatachari (2). The facts and pleadings are 
fully set out in the judgment of the Court below but for the purposes of 
this report may be here recapitulated. 

[324] The plaintiff who was the widow and legal representative of 
one Virasami Ayyangar, deceased, sued to set aside (i) the mortgage of 

* Original Bide Appeal No. 51 of 1895. 
(1) 15 A. 65. (2) 18 M. 378. 

229 



20 Mad. 325 



INDIAN DECISIONS, NEW SERIES 



tYol. 



1896 

MARCH 16. 

APPEL- 
LATE 
CIVIL. 

20 M. 323= 
6 M.L.J. 64. 



certain lands, dated the 3rd June 1891, executed by Virasami to the defend- 
ant, (ii) the decree in civil suit No. 319 of 1891, obtained by the defend- 
ant against Virasami in 1892 on a promissory note, also dated the 3rd 
j une 1391, an d (iii) the deed of sale of a house, dated 14th March 1893, 
executed by the latter to the former and for an injunction restraining 
him from enforcing the said mortgage and the sale, and from executing 
the decree. 

Th e i a t e Virasami Ayyangar was a trader, and at the time of the 
mortgage and of the promissory note mentioned above, was heavily 
indebted. The plaintiff alleged that Virasami in collusion with the defend- 
ant, for the purpose of defrauding his creditors executed the mortgage and 
the promissory note without receiving consideration for either of them and 
allowed the defendant to bring suit No. 319 of 1891, referred to above on 
the latter document and obtain a decree therein and executed the sale deed 
of the 14th March 1893 in part satisfaction of the amount alleged to be 
due under the said decree. The mortgage was found by the learned Judge 
in the Court below not to have been executed fraudulently without con- 
sideration. Upon this ground the plaintiff's suit with regard to the 
mortgage failed. The facts connected with the promissory note and the 
decree obtained thereon, as found by the learned Judge in the Court below 
were as follows : The promissory note was executed on the 3rd June, but 
no consideration for it passed then or at any other time. At about the 
time of the promissory note Virasami was indebted to one Virayya in the 
sum of Ks. 9,600, but, on the former representing his inability to pay a 
larger sum than Ks. 5,000, the latter accepted that sum in full discharge 
of his claim. 

On the 18th November 1891, Messrs. King & Co., creditors of Vira- 
sami, filed a suit against him to recover the amount due to them. In the 
same month the defendant filed a suit to recover the amount alleged to be 
due on the promissory note of the 3rd June 1891. In February 1892 
Messrs. King & Co., obtained a decree. On the 22nd February 1893, a 
notice was served on Virasami to show cause why the decree should not 
be executed. In the meantime the defendant had obtained a decree in 
the suit brought by him, and on the 14th March 1893, Virasami, in part 
satisfaction of the decree, executed in his favour the sale-deed which the 
plaintiff now sued to set aside. In August 1893, on Virasami [32S] 
representing to Messrs. King & Co., that he was unable to pay their debt 
in full, they accepted part of the sum due under the decree in full satisfac- 
tion thereof. On these facts the learned Judge held that the promissory 
note of 3rd June 1891 was executed to defeat Virasami's creditors, that 
the decree in the suit on the promissory note was collusively obtained and 
that the sale-deed was fraudulent. 

The learned Judge, following Venkatar amanna v. Viramma (l) and 
Chenvirappa v. Puttappa (2), held that the decree having been collusively 
obtained, Virasami could not have set it aside and that therefore the plain- 
tiff could not set it aside. With regard to the sale-deed, the learned Judge 
held that the sale could not be set aside inasmuch as Virasami had gained 
his fraudulent object in executing the promissory note of the 3rd June 1891 
in suffering a decree to pass against him and in executing the sale deed in 
that he had induced Virayya and Messrs. King & Co., to accept less than 
the sums due to them. 

The plaintiff appealed. 



(l) 10 M. 17. 



(2) 11 B. 708. 



230 



YII.] YAEAMATI KRISHNAYYA V. CHUNDRU PAPAYYA 20 Mad. 326 

Sundaram Sastri and Kumar asami Sastri, for appellant. 1896 

The Advocate- General (Hon'ble Mr. Spring Branson), for respondent. MABCH 16. 

JUDGMENT. APPEL- 

We have no doubt but that the finding of the Court below on both IATB 
the issues raised before it is correct, and that the legal inferences drawn CIVIL. 
therefrom are also correct. It is urged in appeal that the appellant was ' 
materially prejudiced by the absence of an issue as to whether or not ".' 8Z3== 
the fraud of the appellant's late husband was accomplished in a substan- 
tial manner. We cannot admit this plea. It was the appellant's 
case that her late husband's acts were without consideration and were 
done with a view to defraud creditors. The evidence of the appellants' 
own first, third and fifth witnesses shows that he was successful, and 
induced his creditors thereby to give up their claims to large sums of 
money. It seems to us to be clear that the deceased could not, if now 
alive, come into Court and chbim to have his own fraudulent acts set 
aside. But it is argued that the appellant, as his widow, is in a better 
position, and may claim relief against the consequences of her late 
husband's fraudulent transfers. We are unable to admit that, in the 
present case the widow is in a better position than her husband 
[326] would be, if alive. It is argued that the widow has a right to 
maintenance out of her husband's property, and has, therefore, an interest 
therein which ipso facto gives her a right to impeach its alienation, inde- 
pendently of the interest which she takes as widow and representative of 
the late owner. The case of Bamanadan v. Bangammal (1) is relied on 
in support of this contention. In regard to this plea, we think it enough 
to observe that there is no question of maintenance in the present case. 
We offer no opinion as to whether a widow might successfully maintain a 
claim for maintenance out of property alienated by her husband without 
consideration and fraudulently if she herself was no party to the fraud, 
but that is not the present case. Here she claims to set aside fraudulent 
transactions by which her husband profited and by which she, as his re- 
presentative, has also presumably benefited. This the Courts will not 
assist her to accomplish. The learned Judge has gone fully into the 
authorities on this question and we entirely concur in the conclusions at 
which he has arrived. We confirm the decree of the Lower Court and 
dismiss this appeal with costs. 



20 M. 326. 

APPELLATE CIVIL. 
Before Mr. Justice Subramania Ayyar and Mr. Justice Benson. 



YARAMATI KRISHNAYYA (Defendant No. I), Appellant v. CHUNDRU 

PAPAYYA AND ANOTHER (Plaintiff and Defendant No. 2), Respondents* 

[9th February and 7th April, 1897.] 

Fraud on creditors Sham sah-deed to defeat creditors Collusive decree Suit to declare 
title of fraudulent transferor in possession. 

A executed a sale-deed of bis land to 8. An attachment placed on the land 
was raised at the instance of B as vendee. The attaching creditor sued 
impeaching the transfer as collusive ; but finally consented to a decree upholding 

' Second Appeal No. 1455 of 1895. 
(1) 12 M. 260. 

231 



20 Mad. 327 



INDIAN DECISIONS, NEW SERIES 



[Vol. 



1897 

APRIL 7. 

APPEL- 
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20 M. 326. 



the title of B, who then applied to be registered as owner in the place of A. A, 
who remained in possession throughout, resisted the application, and now sued 
B for a declaration that he was entitled to remain on the register as owner. It 
was alleged and proved that the apparent sale deed was a sham, and had been 
executed for no consideration with intent to defraud the plaintiff's creditors, and 
[327] that the plaintiff had paid the attaching creditor to consent to the above- 
mentioned decree to which both he and B were parties : 
Held, that the suit should be dismissed. 

[Digs., 330. 967 (971) = 4C L.J. 22 = 10 C.W.N. 650; N.F., 31 M. 97 (99) = 18 M.L.J. 
151 = 3 M.L.T. 246; F., 23 B. 406; 4 lad. Gas. 233 (234) = 5 N.L.R. 146; 8 L. 
B.E. 245 (247); R., 31 M. 485 (487) = 18 M.L.J. 576 = 4 M.L.T. 331 ; 32 M. 323 
= 2 Ind. Gas 616 (617) = 5 M.L.T. 77 ; U.B.R. (1S97 1901) 544 ; D., 32 M. 325 
(327) = 17 M.L.J. 386 (387) = 4 M.L.T. 279 = 5 M.L.T. 255.] 

SECOND appeal against the decree of U. Atchutan Nayar, Additional 
Subordinate Judge of Rajahmundry, in appeal suit No. 48 of 1894, con- 
firming the decree of T. Varadarajulu, District Munsif of Peddapur, in 
original suit No. 379 of 1892. 

Suit to declare that the plaintiff was entitled to remain on the 
Eevenue Register as owner of certain land. In 1884 the plaintiff, being 
heavily indebted, executed, without consideration, a sale-deed of the land 
in favour of the second defendant, the arrangement being, that the pro- 
perty should be reconveyed to him after his debts had been discharged ; 
subsequently by arrangement between the plaintiff and the second defend- 
ant, the latter executed without consideration a sale-deed in favour of the 
first defendant. The plaintiff had throughout, up to the date of the suit, 
remained in possession of the lands. In 1887 one Manchina Ammanna, 
a creditor of the plaintiff, instituted a suit against plaintiff and obtained a 
decree, and in execution of the decree attached the lands in question. 
The attachment was resisted and raised. Maochina Arnmanna, then, 
brought a suit original suit No. 345 of 1887 making both plaintiff 
and first defendant parties to declare that the sale-deeds to the first and 
second defendants were nominal and were got up to secure the plaintiff's 
property from his creditors. The Munsif gave a decree in favour of 
Manchina Ammanna. When the case went up on appeal the parties to 
that suit entered into a compromise, in consequence of which the decree 
of the District Munsif was reversed, and the alienation now in question 
was upheld. 

Both the Lower Courts gave plaintiff a decree. The first defendant 
appealed. 

Sivasami Ayyar, for appellant. 

Sriramulu Sastri, for respondents. 

JUDGMENT. 

SUBRAMANIA AiYAR, J. Both the Lower Courts fouud that the lands 
(to the registry whereof in the Government Revenue accounts the 
present litigation relates) belonged to the respondent (plaintiff), that 
they were in his possession before and at the time of the plaint and 
that the sale relied upon by the appellant (first defendant) as giving him 
a title to the property was a mere sham transaction under which no in- 
terest passed to him. Upon those findings it was held that the appellant 
had no right to claim that [328] the registry of the property be transferred 
to his own name, and a decree was given to the effect that the respondent 
was entitled to have his name retained in the register as it had stood 
hitherto. 

232 



YII.] YARAMATI KRISHNAYYA V. CHUNDRU PAPAYYA 20 Mad. 329 



One of the contentions urged OH behalf of the appellant was that the 
respondent was precluded from asserting his title to the land by the de- 
cision passed in appeal suit No. 105 of 1839 on the Gle of the Cocanada 
Subordinate Court. This contention, though advanced for the first time 
in this Court, must prevail, inasmuch as the facts required to support it 
are either set out in the plaint itself or ara otherwise admitted. 

They are as follows : One of the respondent's creditors instituted 
original suit No. 345 of 1887 for the purpose of establishing that the trans- 
action purporting to be the sale in favour of the present appellant was but 
a device intended to defraud the creditors, and therefore the lands in ques- 
tion were really the property of the respondent. Bo5h the parties to the 
present appeal were made defendants to the suit, and a decree was therein 
given in favour of the creditor. The respondent however caused the pre- 
sent appellant to prefer an appeal against the said decree No. 105 of 1889 
already mentioned. The creditor and the present respondent were made 
respondents to such appeal. The Appellate Court, with the consent of the 
parties, including the present respondent himself, reversed the decree and 
upheld the alienation to the present appellant. The collusive decree thus 
passed cannot be impeached by the respondent (Venkatramanna v. Vir- 
amma (1)). On this ground alone and without going into the other points 
argued I would reverse the decrees of the lower Courts and dismiss the 
suit, but without costs. 

BENSON, J. The main question in this second appeal is whether the 
plaintiff can maintain the suit, based as it is on the allegation that cer- 
tain sale-deeds executed by the plaintiff were collusive and sham docu- 
ments, executed for the purpose of protecting his property against creditors. 
The facts of the case are briefly as follows : The plaintiff, being 
heavily involved in debts, executed, without consideration, a sham sale- 
deed of certain lands in favour of the second defendant, and afterwards 
caused the latter to execute another sham sale-deed in favour of the 
first defendant. 

Plaintiff, however, remained in possession of the land. 
[329] In original suit No. 345 of 1887, a creditor of the plaintiff 
attached the lands in execution of a decree against the plaintiff. The 
sham sale-deeds were used as a cloak, and the attachment was success- 
fully resisted. The creditor then sued for a declaration that the sale-deeds 
were collusive, and got a decree in the first Court. In appeal, however, 
the plaintiff paid him a certain sum and induced him to consent to a 
decree admitting the title of the first defendant, and a decree was passed 
accordingly. In 1892 the first defendant applied to the Collector for 
transfer of revenue registry of the lands to his (first defendant's) name, 
and the Collector issued a notice that he would alter the register unless 
plaintiff established his right by a civil suit. Plaintiff, therefore, 
brought the present suit for a declaration that the registry of the lands 
was not to be altered. Both the lower Courts decreed in his favour, and 
first defendant now appeals against these decrees. 

I do not think that the plaintiff's suit is maintainable. 

The law on the subject is very fully discussed in the case of Chenvi- 

rappa v. Puttappa (2) in Eingammal v. Venkitachari (3; in Sham Lall 

Mitra v. Amarendro Nath Bose (4), and in the recent English case of 

Rearley v Thomson (5). The general rule is that a man cannot set up an 



(1) 10 M 17. 
(4) 230.460. 



M VII 30 



(2) 11 B. 708. 

(5) L.B. 24 Q. B. D. 742. 

233 



(3) 18 M. 378. 



1897 

APRIL 7. 

APPEL- 
LATE 
CIVIL. 

20 M. 328. 



20 Mad. 330 



INDIAN DECISIONS, NEW SERIES 



[Yol. 



1897 

APRIL 7. 

APPEL- 
LATE 
CIVIL. 

20 H. 326, 



illegal or fraudulent act of his own in order to avoid his own deed (May on 
Fraudulent Conveyances, 432). But some exceptions or quasi exceptions 
to this rule have been admitted by the Courts. In Symes v. Hughes (1) 
a fraudulent transfer was set aside in order that effect might be given 
to a compromise arranged between the transferor and his creditors. Here 
it will be observed that the Court acted in the interest, and for the pro- 
tection, of innocent third parties. It may well be doubted whether a 
decree would have been given in that suit for the benefit of the transferor 
alone. So if a voluntary deed has been kept in the hands of the grantor, 
and has never been acted upon, nor the grantee informed of its existence, 
a Court of Equity will treat it as an imperfect instrument, and, if the 
grantee surreptitiously gets possession of it, a Court of Equity will relieve 
against it (Cecil v. Butcher (2)). 

A third exception was noticed by Parker, J., in Venkataramanna 
v. Viramma (3), viz., where a defendant is allowed to show [330] the 
turpitude of both himself and the plaintiff in order to protect himself 
against an action by the plaintiff to give effect to a contract or deed 
entered into for an illegal or immoral purpose. Here an exception is 
allowed not for the sake of the wrong doer, but on grounds of public 
policy, since the Court ought not to assist a plaintiff to recover property 
or enforce a contract in respect of which he has no true title or right. 
The rule of public policy cannot be applied without allowing the defendant 
to benefit by it. But the benefit is allowed him by accident as it were 
and not in order to secure him any right to which he is entitled (Holman 
v. Johnson (4), per Lord Mansfield, and Luckmidas Khimji v. Mulji 
Ganji (5). Even this exception is not allowed, if a decree has bet-n obtained 
by the fraud and collusion of both the parties. In such a case it is binding 
on both, Ahmedbhoy Hubibhoy v. Vulleebhoy Cassumbhoy (6), Prudham 
v. Phillips (7), Venkatramanna v. Viramma (3), and Chenvirappa v. 
Puttappa (8). 

I think that, broadly speaking, these are the only exceptions which 
are to be gathered from the English cases, and from the reported cases in 
this Court; and in the Bombay High Court The Calcutta High Court 
has gone further Debia Chcwdrain v. Bimola Soonduree Debia(&), Bykunt 
Nath Sen v. Goboollah Stkdar(lO), but the rule there laid down has been 
expressly dissented from by the Bombay High Court Chenvirappa v. 
Puttappa (8), which, as I think, justly remarks : "These decisions gc a 
"long way towards enabling a party to a dishonest trick, by which his cre- 
ditors may have been defrauded, to get himself reinstated when his purpose 
"has been served. "They have been dissented from also by this Court (Rang- 
ammal v. Venkatachari (11), confirmed in Rangammal v. Venkatachari (12). 
The Calcutta rule has, indeed, notwithstanding these dissents, been affirmed 
in Sham Lall Mitra v. Amarendro Nalh Bose (13). In doing so the Court 
relied on the case of Symes v. Hughes(l) already cited by me and on the 
case of Taylor v. Bowers (14) : In the former case, however, the interests 
of third parties were involved, and the latter case has been dissented from 
in Kearley v. Thomson(l5). Fry, L. J., in delivering judgment, stated 
" In that case (Taylor v. Bowers (14)) Mellish, L. J., in [331] delivering 
" judgment, says at page 300' if money is paid, or goods delivered for an 



(1) L.R. 9Eq. 475. 

(4) Cowper, 343. 

(7) 2 Arab. Rep. 763. 

(10) 24 W.R. 391. 

(13) 23 C. 460. 



(2) 2 Jac. and W. 565. 

(5) 5 B. 295. 

(8) 11 B. 708. 
(11) 18 M. 378. 
(14) L.R. 1 Q.B.D. 291. 

234 



(3) 10 M. 17. 

(6) 6B. 703. 

(9) 21 W.R., 422. 
(12) 20 M. 323. 
(15) L.R. 24Q.B.D.742. 



YII.] 



YAEAMATI KBISHNAYYA V. CHUNDRU PAPAYYA 20 Mad. 332 



illegal purpose, the person who has so paid the money or delivered the 

' goods may recover them back before the illegal purpose is carried out.' 
" It is remarkable that this proposition is, as I believe, to be found in no 
" earlier case than Taylor v. Boioersd.) which occurred in 1867, and not- 
" withstanding the very high authority of the learned Judge who ex- 
" pressed the law in the terms which I have read, I cannot help say- 
" ing for myself that I think the extent of the application of that principle, 
" and even the principle itself, may, at some time hereafter, require con- 
" sideration, if not in this Oourfc, yet in a higher tribunal ; and I am glad to 
" find that in expressing that view I have the entire concurrence of the 
" Lord Chief Justice." This passage was quoted with approval by this 
Court in Rangammal v. Venkatachari(2) . With the exception, then, of 
the cases to which I have referred, and which have been dissented from, I 
do not think that any authority will be found for holding that a plaintiff 
can come into Court alleging his own fraud and ask the Court simply and 
solely for his own benefit to set aside the fraudulent deed or make a 
declaration to protect him from the threatened consequences of his own 
act. In such a case the Court may well decline to move and may 
answer the plaintiff in the words which are often quoted from Story's 
" Equity Jurisprudence' "where the party seeking relief is the sole guilty 
" party, or where he has participated equally and deliberately in the 

fraud, or where the agreement which he seeks to set aside is founded 
" in illegality, immorality or base and unconscionable conduct on his 
" own part ; in such cases Courts of Equity will leave him to the conse- 
" quences of his own iniquity and will decline to assist him to escape 

from the toils which he has studiously prepared to entangle others" 
(Section 268). Especially will this be the case if the purpose of the 
fraud has been effected by defeat cf a third person's rights asserted in 
Court or effected in any other material way Ahmedbhoy Hubibhoyv. Vul~ 
leebhoy Cassumbhoy (3) Venkatramannav. Viramma (4) Chenvirappa v. 
Puttappa (5) Rangammal v. Venkatachan(%). I think, then, that the plaint- 
iff, apart from bis conduct in original suit No. 345 of 1887, has no title to 
come to a Court of Equity and a&k for such a declaration as he now seeks. 
[332] If the defendant were now seeking the assistance of the Court to 
obtain possession of the land from the plaintiff, it may well be that the 
Court would allow the plaintiff to plead the true rights of the parties, even 
though the plea involved a declaration by the plaintiff of his own turpi- 
tude. The Court would then allow the plea on grounds of public policy, 
and in order that it might not itself be made an instrument to aid the 
defendant in his fraudulent claim to possession contrary to the real agree- 
ment with the plaintiff. That, however, is not the case before us. The 
plaintiff is in possession, and he may be left; to rely on it if the defendant 
seeks to disturb him. 

The impropriety of assisting the plaintiff becomes, I think, even more 
clear, if his conduct in original suit No. 345 of 1887 be considered. In 
that suit the sham sale-deed was successfully used as a cloak to defeat an 
attaching creditor, and the latter was thus driven to a regular suit. He 
then succeeded in showing in the Court of First Instance that the sale- 
deed was a sham, but the present first defendant (then third defendant) 
in collusion with the plaintiff (then first defendant) appealed against the 
decree. The appeal was compromised by the present plaintiff paying 



1897 

APRIL 7. 

~ 

APPBL- 

LATE 
OlVIL. 



(1) L. R. 1 Q. B. D. 291. 
(4) 10 M. 17. 



(2) 18 M. 378. 
(5) 11 B. 708. 

235 



<3) 6 B. 703. 



20 Mad. 333 



INDIAN DECISIONS, NEW SERIES 



[Yol. 



1897 

APRIL 7. 

APPEL- 
LATE 
CIVIL. 

20 M. 326 



Ks. 150 to the attaching creditor, and a decree was passed affirming the 
title of the present first defendant. 

Thus the sham sale-deed was successfully used in a Court of Justice 
for the purpose for which it was concocted, viz., to defeat and delay a 
creditor, and the plaintiff afterwards acknowledged its validity in a Court 
of Justice and caused a decree to be passed affirming the same (see present 
plaint), a decree to which both he and the present- defendants were parties 
(Exhibit L). 

I think that, in these circumstances, it would be contrary to public 
policy, and disastrous to public morality, that the Courts should now 
allow him to plead his own baseness and should actively assist him to un- 
do his own solemn acts, and this even before his possession of the property 
is actually attacked by the partner of his crime. I would, therefore, set 
aside the decrees of the Courts below and dismiss the plaintiff's suit, but 
without costs, in consideration of the defendant's fraudulent conduct. 



20 H. 333. 
[333] APPELLATE CIVIL. 

Before Sir Arthur J. H. Collins, Kt., Chief Justice, and 
Mr. Justice Shephard. 



VARADARAJULU NAIDU (Platntif), Appellant v. 
SRINIVASULU NAIDU (Defendant), Respondent* 
[2nd and 25th February, 1897.] 

Collusive decree to defeat rights of a third party Suit to set aside decree. 

The plaintiff was a Hindu, who, in ordrr to prevent his undivided son from 
obtaining his share of the family property, made and delivered to the defendant 
certain promissory notes unsupported by consideration, the agreement between 
them being that the defendant should obtain a decree on the notes and in execu- 
tion attach and bring to sale and himself purchase the lands of the family and 
should hold them at the disposal of the present plaintiff. The suit and the sub- 
sequent proceedings in Court were carried on by them collusively, the present 
plaintiff supplying the necessary funds. The son then sued for his share of the 
property, and having, with the aid of his father (who had meanwhile lost bis con- 
fidence in the defendant) successfully impeached the sale as collusive, obtained a 
decree which was executed. It had been agreed that the defendant should hold 
the land at the disposal of the plaintiff, but he now refused to surrender to him 
his share. The plaintiff accordingly sued to recover his share of the property 
and for a declaration that the collusive decree against him and the subsequent 
proceedings in execution thereof were not binding on him ; 

Held, that it is not competent to a party to a collusive decree to seek to have 
it set aside, and that the plaintiff accordingly was not entitled to relief. 

[F., 8 Ind. Gas. 1179 (1180) =6 N-L.R. 177 ; R. , 23 B. 40G; 24 M.L.J. 49 (50) ; ^8 0. C. 
278 (281) ; 3 P.R. 1906-109 P.L.R. 1906.] 

APPEAL against the decree of Davies, J., on the original side of the 
High Court in civil suit No. 90 of 1895. 

This was a suit to declare that a promissory note for Rs. 6,050, 
executed by the plaintiff in favour of the defendant, was collusive, and not 
supported by consideration, and that a decree obtained by defendant 
thereon and execution proceedings taken under that decree were collusive, 
and that the defendant acquired no right in the properties, belonging to 
the plaintiff, which were sold in execution of the decree and purchased by 

* Original Side Appeal, No. 32 of 1896. 
236 



YII.] VARADABAJULU NAIDU V. SR1NIVASULD NAIDU 20 Mad. 335 



the defendant. The facts on which the plaintiff relied were set forth in 
paragraphs 1 9 of his plaint, which were as follows : 

" That the plaintiff's son, N. Vencatasami Nayudu, a young man, 
" was unruly and disobedient to the plaintiff and became impertinent 
" owing to the chance of his being able, as plaintiff's only son, to acquire 
" the family properties. 

[334] " That for the purpose of his (plaintiff's son) being brought to 
"submission to the plaintiff and to be dutiful to him, it was thought 
" necessary to devise some means or contrivance. 

" That the defendant was in 1891 living with the plaintiff and in his 
" house and the plaintiff had confidence in him. It was agreed between 
" the plaintiff and the defendant in Madras in 1891 that the plaintiff 
" should execute a promissory note in defendant's favour for a large sum 
" of money, that the defendant was to file a suit against plaintiff thereon 
" and obtain a decree and execute same by attachment and sale of 
" plaintiff's properties, unless in the meanwhile the plaintiff's said son 
" was reclaimed and became submissive, or plaintiff thought fit to stop 
" same or at any time to deal with the properties, that the plaintiff was 
" to supply funds for litigation, that the defendant was not to benefit at 
" all by these various transactions and that the properties or their sale 
" proceeds were always to be the plaintiff's, and that the defendant, at 
" plaintiff's request, was to do everything that the plaintiff might at any 
" time require to deal with the properties as his own, that the defendant 
" was not to do anything prejudicially to the plaintiff or to his interest, 
" the sole object of those transactions being to reduce the plaintiff's son 
'' to submission to plaintiff. 

" That in pursuance of the said arrangement and for no considera- 
" tion whatever, five promissory notes were executed on the same date 
" t for Rs. 1,500, Rs. 1,200, Rs. 1,600 and Rs. 875, and Rs. 6,050, respecti- 
"vely, but the first four were made respectively to bear different dates, 
"**. 10th February 1890, 18th October 1890, 2nd January 1891, and 
" 6th March 1891 to give a colour of truth to the transactions and to make 
" it appear that the last was executed in renewal of the earlier ones. 

" That, upon the promissory note of Rs. 6,050 bearing date the 1st 
"of August 1891, a suit was filed with funds supplied by plaintiff in this 
" Honorable Court, being civil suit No. 241 of 1891, by defendant 
" against plaintiff on or about 5th September 1891, and the defendant 
admitted execution and claim, and the decree was passed in or about 
" 27th October 1891 for Rs. 6,683-8-7 inclusive of costs or thereabouts. 

" That the decree was not executed for some time thereafter to see 

' whether the plaintiff's son would become obedient ; that there 

" t being no hope of same, the defendant executed the decree with 

' funds supplied by plaintiff against properties more particularly 

" [335] described in the schedule hereto and the same were sold in exe- 

" cution and purchased by defendant. 

" That the said promissory note and the decree and the execution 
' proceedings were all show transactions not supported by consideration 
14 and brought about for the purposes above mentioned, and defendant ac- 
" quired no rights thereunder for himself or his benefit, but that he is a 
' trustee for the plaintiff in respect of any property or rights he may have 
" acquired. 

" That the plaintiff attempted in or about August 1893 to sell the 
" said properties and asked the defendant to join him and enable him so 
" to do, but he evaded to comply with plaintiff's request and illegally 

237 



1897 

FEB. 25, 

APPEL- 
LATE 
CIVIL. 

20 M. 333. 



20 Mad. 336 INDIAN DECISIONS, NEW SERIES [Yol. 

1897 " refused to do so, unless the plaintiff paid him some money and thus 
FEB. 25. " broke the agreements with the plaintiff and acted fraudulently and 

" dishonestly. 

APPEL- " That the plaintiff's said son filed a suit against the defendant, being 

LATE " civil suit No: 174 of 1893, in this Honorable Court, setting out these 

OlVIL. facts and claiming the properties, and obtained a decree against the 

" defendant to the extent of his interest therein, and the plaintiff supported 

20 M. 333. " n j s gon J D ojakiog ou t fc aa t rue 8 b a fc 9 o f things as the defendant became 

" fraudulent and deceitful. 

"The defendant asserted that the promissory note for Rs. 6,050 was 
" executed for consideration and denied that the decree and execution 
" proceedings were collusive. 

" In the suit brought by plaintiff's son, civil suit No. 174 of 1893, 
' both the plaintiff and the defendant were made parties, and a decree was 
" passed declaring that the proceedings in execution and the sale were 
" void and had no effect whatever against the interest of the plaintiff's 
" son in the property." 

The suit was tried by Divies, J., who delivered the following 
judgment: 

DAVIES, J. The plaintiff entered into an agreement with the defend- 
ant by which the defendant first sued the plaintiff on a promissory note 
for Rs. 6,050 executed by plaintiff and having got a decree (Exhibit B) 
by consent thareon (Exhibit III), then executed it against plaintiff's pro- 
perty selling up and buying his lands in discharge thereof. The plaintiff 
now alleges that these were all sham transactions gone through for the 
purpose of reducing his son to obedience, and he prays for a decree set- 
ting aside the decree B passed on the promissory note, and the execution 
proceedings taken thereupon as null ani void, and for a declaration that 
the defendant has acquired no right or interest in the plaint properties, 
or in lieu of these reliefs a decrea, for Rs. 6,689 odd, as damages 
[336] for defendant's breach of contract in not re-conveying to him the 
plaint lands as was originally agreed to between the parties, after the 
object of the transactions had been served. 

Now the plaintiff's son has had his right declared to half the plaint 
properties in original suit No. 174 of 1893 on the file of this Court in which 
he sued his father, the present plaintiff, and the present defendant as first 
and second defendants for the fraud that had been practised on him and 
the findings in that suit are admittedly binding on the parties to this suit. 
It was then found that the transactions, the subject of the present suit, 
were merely colourable, and there was no consideration for the promissory 
note and also that the properties in question were not the self-acquired 
property of the present plaintiff as was alleged, but family property in 
which the plaintiff's son, had a half share (vide issues and judgment in 
that suit marked C and D). The real question I have to determine in 
this suit is whether the plaintiff acted as he did with a fraudulent intent 
upon his son's rights, and I think there can be no doubt about it on the 
facts shown. Not only did the plaintiff claim the plaint properties or at 
least some of them as his self-acquisition (see his affidavit, Exhibit I ), 
but he placed those properties by the action he took beyond the reach of 
his son, who was compelled to bring a suit to recover his rights thereon. 
It is all very well for the plaintiff to say it was done with the object of 
bringing his son to submission, but as it appears that the son was 
claiming his rights against his father at the time, the father's inten- 
tion clearly was to defraud his son of his rights by divesting himself 



YII.] VARADAEAJULU NAIDU V. SEINIVASULU NAIDU 20 Mad. 338 



of the whole of the family property. The steps taken by the plaintiff 
went far beyond the necessities of the case, if it was only to bring a 
recalcitrant son to order. The fact was there was a dispute between 
father and son as to the family property, and the father thought to 
settle the matter by depriving the son entirely of bis half share, by dis- 
posing of the whole property as if it was his self-acquisition with the 
power te get ib back for himself when it suited his convenience. This 
was clearly a fraud upon the son, and it has been so found in the suit 
brought by the son (Exhibit D). Finding, then, that there was not only a 
fraudulent intent on the part of the plaintiff against his son, but that the 
fraud was actually effected in so much as it necessitated the bringing of a 
suit by the son to get the fraud done away with, the question remains 
whether the plaintiff is now entitled to relief against the other conspirator 
in the fraud. Considering that the arrangement between them culminated 
in a decree of Court and execution proceedings solemnly [337] conducted 
thereafter, the law is clear that the plaintiff is entitled to no relief vide 
Venkatramanna v. Viramma (I), Ahmedbhoy Hubibhoy v. Vulleebhoy 
Cassumbhoy (2), Chenvirappav. Puttappa (3), and Rangammal v. Venkata- 
chari (4), the case of Par am Singh v. Lalji Mai (5) on which plaintiff 
relies notwithstanding. This latter case was relied on by plaintiff, per- 
haps, more to support his claim for damages under the agreement of defend- 
ant marked A to recover the property, but that letter does not contain 
any fresh agreement made by defendant after the fraud was completed. 
It is only an acknowledgment of the original and collateral agreement 
made when the fraud was contemplated. Having its inception in fraud 
it is not valid, but even treating it as a new agreement it would be void 
under Section 23 of the Contract Act as its object would be to defeat a 
provision of law, namely, the incapacity of the plaintiff to obtaining any 
relief by giving him indirectly the relief that he cannot obtain directly. 
The plaintiff's prayer for setting aside the decree on his promissory note 
and for a declaration against defendant's interest in the property, cannot 
be granted on the ground that he was a party to the fraud by which those 
things were brought about and his prayer for damages in lieu of those 
reliefs, must also be refused on the ground that it is based on the breach 
of an agreement which is invalid, as being part and parcel of the fraudu- 
lent scheme. The plaintiff has joined another cause of action in this case, 
namely, a claim for damages for his being arrested and imprisoned by the 
defendant under warrant (Exhibit II) for a balance due under the 
fraudulent decree. That cause of action arises clearly in tort and not in 
breach of contract, and must be rejected as a misjoinder, as it was not 
permissible to combine it in a suit to obtain a declaration of title to 
immoveable property (Section 44, Code of Civil Procedure^. 

The result is that the plaintiff's suit is dismissed with costs. 

Plaintiff appealed. 

Mr. K. Broion, for appellant. 

Srinivasulu Naidu, for respondent. 

JUDGMENT. 

We agree with the learned Judge in holding that the plaintiff must 
have intended to defeit his son's claim to the property and that, therefore, 
the arrangement made between him and the defendant was contrived in 
fraud of his son. But it was [338] argued that since the plaintiff had 



1897 

FEB. 25. 

APPEL- 
LATE 
CIVIL. 

20 M. 333. 



(1) 10 M. 17. (2) 6 B. 703. 



(3) 11 B. 703. 
239 



(4) 18 M. 378. (5) 1 A. 403. 



20 Mad. 339 



INDIAN DECISIONS, NEW SERIES 



[Vol. 



1897 

FEB. 25. 

APPEL- 
LATE 
CIVIL. 

20 M. 333. 



repented of his conduct before any harm was done to his son or any 
effect given to the transaction, it was competent to him to repudiate it 
and have the property restored to him. 

The case of Symes v. Hughes (1) cited by the appellant's counsel does 
not really support the proposition for which it was cited, for there, as the 
Master of the Rolls observes, the suit was prosecuted for the purpose of 
enabling the creditors to recover something. Here it is the party himself 
who, in his own interest, seeks to have the transaction annulled. It is 
very doubtful whether, in a case in which the maxim in pari delicto 
would otherwise apply, any exception arises by reason that the illegal 
purpose has not been carried out (Kearley v. Thomson (2) and Sham Lall 
Mitra v. Amarendro Nath Bose (3) ). In the present case the transfer of 
the property to the defendant had been completed, nothing remained to be 
done by the plaintiff, and it was only by means of a suit that his son vin- 
dicated his rights. Under these circumstances, we do not think it is 
possible to say that the plaintiff's fraudulent purpose had not been carried 
into effect. 

There is, however another ground on which we may base our judg- 
ment and that is that it is not competent to a party to a collusive decree to 
seek to have it set aside. Strangers, no doubt, may falsify a decree by 
charging collusion, but a party to a decree not complaining of any fraud 
practised upon himself cannot be allowed to question it. 

There is ample authority for his proposition beginning with the dictum 
in Prudham v. Phillips (4) (cited in argument in the Duchess of Kingston 
Case (5) ). 

The distinction between fraud and collusion lies in this that a party 
alleging fraud in the obtaining of a decree against him is alleging matter 
which he could not have alleged in answer to the suit, whereas a party 
charging collusion is not alleging new matter. He is endeavouring to set 
up a defence which might have been used in answer to the suit, and that 
he cannot be allowed to do consistently with the principle of res judi- 
cata. 

The appeal is dismissed. 

Rencontre, attorney for appellant. 

20 M. 339 = 7 M.L.J. 311 = 2 Weir 173. 
[339] APPELLATE CRIMINAL. 

Before Sir Arthur J. H. Collins, Kt. t Chief Justice, and 
Mr. Justice Benson. 



QUEEN-EMPRESS v. MOTHA.* [8th and 16th September, 1897.] 

Criminal Procedure Code Act X of 1882, Section 195 Sanction to prosecute Power of 
Court to go outside record. 

A Magistrate in deciding whether to sanction under Criminal Procedure Code, 
Section 195, a prosecution for giving false evidence has power to hold an enquiry 
and record other evidence besides tb.it in the case before him, in the course of 
which the offence ia supposed to have been committed. 

[F., 4 L.B.B. 234 (236) ; 2 Weir 177; R., 10 Cr.L.J. 225 = 2 S.L.R. 11 Cr. ; 13 Cr. 
. L.J. 209 (2I4) = 14 Ind. Gas. 305 = 22 M.L.J. 419 = 11 M.L.T. 367 = (1912)M. 
W.N. 499.] 



(I) L.R. 9 Eq. 475. 
(4) 2 Ambler, 763. 



Criminal Revision Case No. 169 of 1897. 
(2) 24 Q. B. D. 742. 
(5) 20 State Trials, 479. 

240 



(3) 23 C. 460. 



VII j QUEEN-EMPRESS V. MOTHA 20 Mad. 340 

PETITION under Sections 435 and 439 of the Code of Criminal Pro- 1897 

cedure praying the High Court to revise the judgment of the Joint SEP. 16. 
magistrate of Tinnevelly in criminal appeal No. 45 of 1897, confirming 

the order of the Sub- Magistrate of Tuticorin in criminal petition No. 230 ^ PI 

of 1896, sanctioning the prosecution of the petitioner for making false LATH 

statements in criminal casa No. 399 of 1896 on his file. CRIMINAL. 

The facts appear sufficiently from the judgment of the High Court. 

Rangachariar, for petitioner. 2 ^ "" * 8 '" 

The Public Prosecutor (Mr. Powell), for the Crown. -2 Weir 173 
Mr. Adam, for complainant. 

JUDGMENT. 

In this case one Motha was said to have committed an offence 
punishable under Section 193, Indian Penal Code, in a case before a 
Magistrate, and the Magistrate, in giving sanction under Section 195, 
Criminal Procedure Code, for his prosecution, held an enquiry and recorded 
other evidence besides that in the case before him to show that there was 
prima facie ground for the prosecution. It is contended for the petitioner 
before us that the original case before the Magistrate disclosed no founda- 
tion for the charge under Section 193, Indian Penal Code, and that, there- 
fore, the Magistrate had no power to make any enquiry or grant the sanction. 
In support of this argument reliance is placed on the decisions in Zemindar 
of Sivagiri v. The Queen (1) and Abdul Khadar [340] v. Meera Saheb (2). 
We are unable to accede to the petitioner's contention. The decision in 
Zemindar of Sivagiri v. The Queen (1) was based on the language of 
Section 468 of the Criminal Procedure Code then in force (Act X of 1872), 
and on certain remarks of Garth, C.J., in Kasi Chunder Mozumdar, in re 
(3) under the same Code. In neither of these cases did the learned Judges 
refer to the effect of Section 471 of the then Criminal Procedure 
Code though the section appears to have been mentioned in the course 
of the argument in the Madras case. We find it difficult to reconcile 
the decisions with the provisions of that section ; but since those cases 
were decided, the provisions of the Code of Criminal Procedure upon the 
point under consideration have been altered and enlarged. Section 468 of 
Act X of 1872 provided that " a complaint of an offence against public 
"justice" described in certain sections of the Indian Penal Code, "when 
'' such offence is committed before or against a Civil or Criminal Court shall 
" not be entertained in the Criminal Courts except with the sanction of 
" the Court before or against which the offence was committed, or of 
" some other Court to which such Court is subordinate." Section 195 of 
Act X of 1882 provides that " no Court shall take cognizance of any offence 
" punishable under " the same sections " when suah offence is committed in, 
" or in relation to, any proceeding in any Court except with the previous 
" sanction or on the complaint of such Court or of some other Court to 
" which such Court is subordinate." Then Section 476 of Act X of 1882 pro- 
vides that "when any Civil, Criminal or Revenue Court, is of opinion that 
" there is ground for inquiring into any offence referred to in Section 195 
" and committed before it, or brought under its notice in the course of a 
" Judicial proceeding, such Court, after making any preliminary inquiry 
" that may be necessary, may send the case for inquiry or trial to the 
" nearest Magistrate of the first-class and may send the accused in custody, 
" or take sufficient security for his appearance, before such Magistrate, 

(1) 6 M. '29. (2) 15 M. 224. (3) 6 0. 440- 

241 
M VII 31 



20 Mad. 341 INDIAN DECISIONS, NEW SERIES [Vol. 

1897 " and may bind over any person to appear and give evidence on such 
SEP. 16, " inquiry or trial." The powers conferred by this section are much more 
extensive than those conferred by Section 471 of Act X of 1872, and we 
APPBL- have no doubt but that it is now open to a Magistrate when a person is 
LATE accused of having committed before him an offence punishable [341] 
CRIMINAL, under Section 193 of the Indian Penal Code to inquire into the truth of 
the accusation, and then, if it seems proper in the interests of public 
20 M. 339= justice, to give sanction for the prosecution, even though the original record 
7 M.L.J. 311 did no fc ) on its face, disclose that the offence had been committed. 
=2 Weir 175. The words of the sections contain no limitation to an offence appear- 
ing on the face of the record though nothing would have been easier than 
to have expressed such limitation if it was intended to have effect. To 
admit the petitioner's contention would be by an artificial rule to screen 
from prosecution men who might have committed the grossest offences 
against public justice and offences perfectly capable of being proved, 
merely because owing to surprise, accident, oversight, or unavoidable 
circumstances, evidence of the offence was not, or could not be, produced 
before the Court at the same time that the offence was committed. 

It is, however, argued for the petitioner that the decision in Zemin- 
dar of Sivagiri v. The Queen (1) was followed in Abdul Khadar v. Meera 
Saheb (2). The former case is no doubt referred to in the latter, but with- 
out any reference to the fact that in the interval the law had been 
materially altered, nor was it necessary for the decision in Abdul Khadar 
v. Meera Saheb (2) to follow the decision in Zemindar of Sivagiri v. The 
Queen (1). 

The report in Abdul Khadar v. Meera Saheb (2) is very brief and im- 
perfect, but there the sanction was revoked, because the document "had 
not been given in evidence in the case," and, therefore, no offence under 
Sections 403 and 471, Indian Penal Code, had been committed. The 
approval of the decision in Sivagiri Zamindar v. The Queen (1) (if it was 
approved) was a mere obiter dictum. It was not necessary for the decision 
of the case then before the Court, nor was it, in fact, the ground of that de- 
cision and no reference was made to the change in the law made by Act 
X of 1882. 

We must, therefore, hold that that decision does not support the 
petitioner's contention. 

In the recent case of Shashi Kumar Dey v. Shashi Kumar Dey (3) 
the view we have taken was expressly maintained with reference to the 
language of the present Criminal Procedure Code. 

We dismiss the petition. 

Ordered accordingly. 



(1) 6 M. 29. (2) 15 M. 224. (3) 19 C. 345. 

242 



TH.] BALUSAMI PANDITHAR V. NARAYANA RAU 20 Mad. 343 

20 H. 312 = 7 M.L.J. 207. 1897 

[342] APPELLATE CIVIL. JULYJZO. 

Before Mr. Justice Subramania Ayyar and Mr. Justice Benson. APPEL- 



LATE 

BALUSAMI PANDITHAR (Defendant No. 3), Appellant v. OWIL. 

NARAYANA RAU (Plaintiff), Respondent* oawTaaa 

[5th and 8th February and 20th July, 1897.1 a ^* t ^ 

Hindu Law Succession Reversionary rights Sister's grandson Maternal uncle's 
son. 

The plaintiff sued as the nearest reversionary heir of one Vasudeva deceased 
to obtain a declaration that certain alienations made by the widow (who was 
defendant No. 1) in favour of defendant No. 2 was not binding on the reversion. 
Defendant No. 3 was the son of Vasudeva's sister's son, and was joined in the 
suit, because he claimed to be a nearer heir than the plaintiff who was the son 
of Vasudeva's maternal uncle. 

Held, that both the plaintiff and defendant No. 3 were athma bandhus of the 
deceased, but defendant No. 3 was the nearer reversionary heir. 

'[R., 29 M. 115(116); 33 M. 439 (445) = 5 Ind. Gas. 280=20 M.L.J. 275 = 7 M.L T. 
203 ; 35 M. 152 (160) = 11 Ind. Gas. 885 = 21 M.L.J. 856 (868) = 10 M.L.T. 226 ; 
24 M.L.J. 301 = 13 M.L.T. 213 = (1913) M.W.N. 202 (203).] 

APPEAL against the decree of V. Srinivasacharlu, Subordinate Judge 
of Kumbakonam, in original suit No. 56 of 1894. 

This was a suit brought for declarations that the plaintiff was the 
nearest reversionary heir to the properties of Vasudeva Pandithar, late 
husband of the first defendant ; and that the alienation of certain proper- 
ties by the first to the second defendant, under a document, dated the 18th 
February 1893, was invalid as against the plaintiff. 

The third defendant was added as a defendant, because he had 
asserted an interest in the properties of Vasudeva in original suit No. 47 
of 1893 claiming to be Vasudeva's sister's son's son. The plaintiff denied 
that the third defendant was so related to Vasudeva, and contended that, 
even if this relationship be true, his right was superior to that of the third 
defendant. 

The relationship of defendant No. 3 to the deceased Vasudeva was 
found to be as stated above and the plaintiff was found to be the son of 
Vasudeva's maternal uncle. The main question therefore in the suit was 
which of them was the nearer heir. As to this the Subordinate Judge 
said : " They both fall under the class of bandhus and are also the atbma 
" bandhus of Vasudeva Pandithar. Plaintiff being also expressly named as 
" one's own bandhu [343] in the text of ' Vijnaneswara' quoted in Chapter 
" II, Section 6, verse 1 of the Mitakshara. The contention of the plaintiff is 
" that, though the third defendant is a bandhu of his grandmother's brother, 
" the latter was not the third defendant's bandhu!; and that, as they are thus- 
" not, related as bandhus to each other and that as he and Vasudeva 
" Pandithar were related as such, he is the superior heir. That such a 
" condition should exist, admits of no doubt (BabuLal v. Nanku Ram (1)) 
and I find that the third defendant also fulfils it. Vasudeva being the 
" oitru bandhu of the third defendant, he was a cognate of the third de- 
" fondant's father. The son of a daughter of a sister was held in Umaid 
" Bahadur v. Udai Ghand (2) to be a bandhu of his grandmother's brother ; 



* Appeal No. 44 of 1896. 
(1) 22 C. 339. (2) 6 0. 119. 

243 



20 Mad. 344 



INDIAN DECISIONS, NEW SERIES 



[Yol- 



1817 
JULY 20. 

APPEL- 
LATE 
CIVIL. 

20 M 342 - 
7 M.L.J. 207. 



" and there can, therefore, be no doubt regarding the position of a sister's 
" son's son. 

" Both plaintiff and the third defendant are, therefore, the bandhus 
of lafce Vasudeva as the latter was of them, and they are therefore pro- 
perly qualified to inherit. But the difficulty is, which of them should be 
preferred. The Vakil for the third defendant relied on the order of 
succession among cognates according to the Mitakshara published in a 
recent work on the Hindu Liw by J. U. Battacharya,, a native Hindu 
Lawyer of Bengal, in which a grandson of a sister is ranked No. 7 as an 
athma bandhu exparte maternal to whom the propositus is pitru bandhu. 
while the son of a maternal uncle comes under No. 16. But if the test 
of the last rule propounded in Muttusami v. Muttukumarasami (1), viz., 
' that, as between bandhua of the same class, the spiritual benefits they 
' confer upon the propositus is, as stated in 'Viramitrodaya,' a ground of 
'preference :' if this test be applied to the present case, the plaintiff ap- 
pears to me to be the preferable heir. According to the evidence of two 
priest Brahmans of the class to which these parties belong, who have been 
examined as the plaintiff's fourth witness and third defendant's second 
witness, it is found that the plaintiff offers tarpanams to his paternal 
aunt and her son when he makes his daily Brahma Yeggiams and also 
' on Mahaliam tarpanam occasions, while a sister's grandson offers none 
to his father's or mother's maternal uncle on those or any other occa- 
' sions. Again, the son of a maternal uncle offers funeral oblations to the 
' maternal grandfather and great-grandfather [344] of the propositus, to 
' whom the propositus himself offers similar oblations ; and the sister's 
" grandson offers nothing to any common ancestors of himself and the 
" propositus. 

" It was said that, according to a text of the ' Nirnaya Sindhu,' a 
" work on the Hindu Law of rituals, which admittedly governs the class 
"of Brahmans to which these parties belong, a sister's son's son is entitled 
" to perform the funeral ceremonies of his grandmother's brother, while 
" the son of a maternal uncle had no placa given him for such perform- 
" ance in any text quoted in chat work. 

" Examining this work, which had not been translated, with the aid 
" of a Sanskrit pundit, I find that neither the son of a maternal uncle nor 
" the grandson of a sister have been named as persons entitled to perform 
" such funeral obsequies. In the chapter relating to Srardah Prakaranam, 
15 persons have been named as persons entitled to perform the cere- 
monies ; and of them, the sister's son is the last : a grandson of a sister 
is not named in it. In page 309 of this work (I refer to the one pub- 
lished in Devanagiri character in 1892 by Sridhara Sivalala) a text of 
' Katyayana ' in Madana Ratnam is quoted, which is as follows : A 
*' sister should be preferred to her sons. One who may be senior or junior 
" should perform samascaram to her brother. In their absence, a step- 
" sister should do it. In the same way their sons should do. 

" In page 305 of the same work, this rule is further emphasized in 
" a text of ' Yajanavalkya ' therein quoted, which runs thus: son, son's 
"son, son's grandson putrikaputran, wife, brother, his son, father, mother, 
" daughter-in-law, sister, her son, sapindas, samanodakan, these in their 
" order, in the absence of those who are named above them, are qualified 
" to offer pindam. 

(I) 16 M. 23. 
244 



YII.] BALUSAMI PANDITHAR V. NABAYANA BAU 20 Mad. 346 

"A quotation from ' Kala Dharisam ' is made in page 310 of the 1897 
Jl same work which substantially adopts the aforesaid rule with the Jut* 2*. 
" addition that it introduces a daughter's son after the putrikaoutran and 
41 one who takes the heritage. But a little above in the page is given a text APPEL- 
" as follows : a daughter-in-law, son of a sister, his son, gnathi, sammandhis LATE 
" and bandhus should perform ceremonies to one dying sonless. CIVIL. 

" It is this passage and this alone introduced the name of a sister's 
"son's son and omitted that of the sister after the daughter's son. It 20 M. 342 = 
"also adds after samanodakan, matha sapindan, matha samanodakan, 7 !' 207. 
" sishia, ruthwick, acharian, son-in-law and a fellow [349] student. It 
" also puts the wife after matha samanodakan instead of before the 
" brother. If this passage be correct and it is on this that the third 
" defendant relies, it is some authority for the third defendant. But, 
" having regard to the other texts quoted already, it rather appears that 
41 there is some mistake in the reading of this passage. How the sister's 
"descendants come in even without their mother is not clear. Her name 
1 was expressly mentioned in all the slokas quoted above, and even a step- 
" sister is given her place after the uterine sister. 

" If the term tat-putra should follow ' swasa ' with a ' cha ' also 
" following it (i.e., swasacha tat-putra) the whole sloka becomes then 
" consistent with the other passages already quoted, and it will then give 
" the sister and her son alone the right to perform the ceremonies and 
'*' not the son's son also. This appears to agree also with a sloka quoted 
"in the ' Dharma Sindhu,' which is an abstract of the bigger work called 
" the ' Nirnaya Sindhu ' (see page 261 of ' Dharma Sindhu' edited by 
Kristnajee R-imachendra Sastri Ninare in 1888). 

" I hold for these reasons that this work is no authority either for 
" one or the other party. But, upon other considerations already cited, 
" I think I may be justified in holding that the plaintiff has some 
" preferential right in him, and that, at all events, his rights are not 
"inferior to those of the third defendant." 

In the result the Subordinate Judge passed a decree declaring that 
the alienations in question were not operative after the lifetime of 
defendant No. 1. 

Defendant No. 3 preferred this appeal. 

Sivasami Ayyar, for appellant. 

Pattabhirama Ayyar, for respondent. 

JUDGMENT. 

This is a suit for a declaration that certain alienations made by the 
first defendant, the widow of one Vasudeva Pandithar, are not binding 
upon the plaintiff (respondent) as the nearest reversionary heir of Vasudeva. 
The third defendant (appellant) also claims to be Vasudeva's nearest 
reversionary heir. There is no dispute in this Court as to the actual 
relationship of these parties to Vasudeva. The plaintiff is the son of the 
maternal uncle of Vasudeva. and the third defendant is his sister's adopted 
son's son. 

As to the plaintiff, it is not denied that he belongs to the first of the 
three classes into which bandhus, or cognate kindred entitled [346] to 
inherit the estate of a deceased man, are divided, viz,, his own or athma 
bandhus, his father's or pitru bandhus and his mother's or matru bandhus, 
inasmuch as the plaintiff is a relation of the exact description specifically 
mentioned by ' Vijnaneswara ' as an athma bandhu {Mitakshara, Chapter 
II, Section VI, verse 1). As to the third defendant, the learned Vakil for the 

245 



20 MacL 347 . INDIAN DECISIONS, NEW SERIES ( [Yot 

1897 plaintiff urges that he is not :Va.sudeva's athma bandhu. But that he is 

Jwtrr 20 such a bandhu seems to be necessarily implied by the passage of the 

Mitakshara cited above. For it lays down that the father's sister's son, 

APPHL- that is, a descendant of even the paternal grandfather, is an athma bandhu. 

LATE How then can a bandhu, like the third defendant, who is able to trace his 

GlYIL. relationship to the deceased owner through a nearer ancestor, viz., the 

father, be held to be other than an athma bandhu ? The plaintiff's objec- 

2t H. 342- fci on on thjg point is, consequently, untenable. 

M.L.J. 207. The substantial question for determination is which of the two atbma 
bandhus (whose rights are admittedly not equal) has the preferential title 
to the estate of Vasudeva ? 

The plaintiff's claim to such title was sought to be supported by two 
arguments. The first argument was this : Vasudeva was the athma 
bandhu of the plaintiff while he was only the pitru bandhu of the 
third defendant; and the plaintiff 's propinquity to Vasudeva should, there- 
fore, be held to be greater than that which subsisted between Vasudeva 
and the third defendant. No decision or authoritative text was, however, 
cited in support of this argument. Since the question here is as to the 
title of the plaintiff to come in as the heir of Vasudeva, not as to Vasu- 
deva's title to take the estate of the plaintiff, had the former been the 
survivor, the fact so much, relied on, on behalf of the plaintiff must be 
treated as irrelevant to the exact point in issue, and, consequently, can- 
not be held to confer on the plaintiff a right to succeed in preference to 
the third defendant. 

The second argument on behalf of the plaintiff was that the third 
defendant could not, and did not, confer any religious benefit on Vasudeva, 
while the plaintiff could, and did, confer such benefit, and therefore the 
plaintiff had the better claim. 

In the argument this was discussed with reference to Vasudeva's 
participation in the offerings of cake and water made periodically by the 
plaintiff to two of his paternal ancestors -and also with reference to the 
question whether either party or both were competent to perform the 
obsequies of Vasudeva in the absence of nearer relations. 

[347] Now, with reference to the first of the abovementioned mat- 
ters, the plaintiff's paternal grandfather and great- grand father, to whom 
he has to present cake and water at stated times, being Vasudeva's 
maternal grandfather and great-grandfather, respectively, were, as such, 
entitled to similar oblations from Vasudeva also, who consequently parti- 
cipated in the offerings made by the plaintiff to those common ancestors. 
But on the other hand as between the third defendant and Vasudeva, 
there was no possibility of similar participation, since nons of the persons 
to whom the third defendant has to make offerings were entitled to 
like dues from Vasudeva. 

Next, with reference to the second matter, viz., eligibility to per- 
form the obsequies of Vasudeva, on behalf of the plaintiff no text expressly 
mentioning the son of the maternal uncle of a man as among those compe- 
tent to celebrate that man's funeral rites was cited. But on behalf of the 
third defendant, a text quoted in Kamalakara's work on ceremonial law 
the Nirnaya Sindhu to the effect that a man's sister's son's son is eligible 
to perform the exequial rites of that man was relied on. The Subordi- 
nate Judge suggested that there was some mistake in the reading of the 
quotation in question. This view, however, seems to be scarcely well- 
founded inasmuch; as the principal circumstances, relied on by the 1 
Subordinate Judge in favour of $hat view,, viz., thatino other known text 



VII] BALUSAMI PANDITHAR V. NARAYANA RAU 20 Mad. 349 

refers similarly to the competency of a sister's grandson, is rather a slender 1897 
foundation for the suggestion. JULY 30. 

In these circumstances it is not on the whole easy to lay down posi- . 
tirely that, in a spiritual point of view, the difference between the two 



claimants is of a very pronounced character and that the plaintiff's capa- 

city to confer religious Ibenefifcs upon Vasudeva decidedly preponderates. CIVIL. 

But granting, as the Subordinate Judge seemed disposed to hold, though uT"^* 

not very confidently, that the plaintiff's capacity is superior, does that 

give him a better title? Now, though the doctrine of religious benefit has 

exercised very much influence upon many of the great writers on Hindu 

Law, yet it is now rightly recognized that Vijnaneswara as well as most of 

his followers put their system on a radically different basis. (See 'Mayne's 

Hindu Law,' Sections 9 and 468 to 478 and Suba Singh v. Sarafraz Kun- 

war (1) ). 

[348] At the same time ib must be admitted that a high authority of 
the same school the Viramitrodaya has given countenance to the view 
that the doctrine of religious benefit; is not without its applicability even 
under the Mitakshara system (Chapter II, Part I, Section 2, page 158). 
(' Golap Ghander Sircar's Translation.') In the Allahabad case just refer- 
red to, Knox, J., seemed inclined to hold that the doctrine of the Virami- 
trodaya is not entitled to any weight (pages 226 7), but Bannerji, J., is 
not inclined to go that length (page 229). In this Court the doctrine was 
not long ago referred to, and relied on, in support of the proposition that, as 
between bandhus of the same class, a rule of preference may be found in the 
spiritual benefit which they confer (Muttusami v. Muttu Kumarasami (2)). 
It may, therefore, perhaps be unsafe to hold that the doctrine in 
question can never be resorted to in dealing with difficult questions arising 
under the Mitakshara Law and for the solution of which no definite rule 
is stated expressly or by implication in the leading treatises of that school. 
But be this as it may, there need be no hesitation whatever in saying that 
the doctrine ought not to be resorted to in derogation of the great princi- 
ples pervading the Law of Inheritance under the Mitakshara system. The 
first of such principles is that the nearer line excludes the more remote. 
Applying it here, the plaintiff must doubtless fail, since he traces his right 
as a bandhu through Vasudeva's grandfather (maternal), while the third 
defendant makes out his right through a nearer ancestor of Vasudeva, 
viz., his father. The learned Vakil for the plaintiff laid considerable 
stress on the fact that the plaintiff is the grandson of Vasudeva's 
maternal grandfather, whereas the third defendant is the great grand- 
son of Vasudeva's father. But it is not easy to see how this difference 
in the respective relationship affects the question under consideration. 
For, the competition here is not between persons descended from the same 
man, but between those who are seeking to establish their right through 
different persons, one of whom is unquestionably a nearer ancestor of the 
propositus than the other and whose line consequently must take prece- 
dence. If a more familiar illustration in support of so elementary a propo- 
sition were necessary, it is sufficient to refer to the case of a man dying 
leaving a divided nephew and a divided uncle. The nephew excludes the 
uncle though the [349] former is more removed from the father than the 
latter is from the grandfather of the propositus, the father and the grand- 
father being, of course, the respective common ancestors through whom the 
nephew and the uncle must respectively trace their right to inherit. 

(1) 19 A. 215. (a) 16 M. 23-19 M. 405 (P.O.). 

247 



20 Mad. 350 INDIAN DECISIONS, NEW SERIES [Yol. 

1897 Another fundamental principle of the law in favour of the third defend- 

JULY 20. ant's preferable right is that among bandhus of a class those who are ex 

parte paterna take before bandbus ex parte materna. It is scarcely neces- 

APPEL- sary to p i n t ou t that though the mother's propinquity to her son is under 

LATE the Mitaksbara greater than that of the father, yet in the language of the 

OlVIL. Saraswathi Vilasa " the greater eligibility belongs to the mother alone, and 

"not to the mother's bhandhavas " (Paragraph 598, 'Foulkes's Translation') 

M. 3*2 and this Court's ruling on the point; in Sundrammal v. Rangasami Muda- 
7 M.L.J. 207. n ar (]j renders it superfluous to cite other authorities respecting it. 

On both the above grounds, therefore, it is perfectly clear that the 
third defendant is a nearer reversionary heir of Vasudeva than the plaintiff; 
and as there was no allegation or proof of the existence of any circum- 
stances which would entitle the plaintiff to maintain the declaratory suit 
as a remote reversioner, the suit must fail on this preliminary ground. 

The appeal is accordingly allowed, the decree of the Subordinate 
Judge is therefore reversed, and the suit dismissed with costs of the third 
defendant in this and in the Lower Court. 



20 M. 349 = 7 M.L.J. 213. 

APPELLATE CIVIL. 

Before Mr. Justice Subramania Ayyar and Mr. Justice Benson. 



MINAKSHI AMMAL (Defendant No. 6), Appellant v. KALIANARAMA 
RAYER (Plaintiff), Respondent.* [9th March, 1897.] 

Civil Procedure Code Act XIV of 1882, Sections 317. 244 Purchase by a benamidar 
with funds belonging to a joint Hindu family Right of member of family not being 
a party to benami transaction to sue for his share. 

A Hindu sued for partition of his share of the family property and obtained 
a decree which he partially executed. He then died without issue, leaving [350] 
a widow. The rest of the family remained undivided, and the plaintiff was 
born into it after the decree was passed. Some of the members of the family 
arranged for the purchase of the late decree-holder's property with their money 
benami for them and for a similar purchase of other portions of the family pro- 
perty at Court-sales held a further execution of the decree. The plaintiff now 
sued for partition of inter alia those portions of tbe family property which had 
been the subject of the benami transactions : 

Held, that the plaintiff was entitled to share therein and was not precluded 
from asserting his right by Civil Procedure Code, Section 244, or Section 317. 

[F., 9 M.L.J. 298; R., 17 Ind. Gas. 434 (436) = (1912) M.W.N. 1071; U.B.R. (1905) 
p. 36 (Civil Procedure).] 

APPEAL against the decree of V. Srinivasacharlu, Subordinate Judge 
of Kumbakonam, in original suit No. 13 of 1894. 

The plaintiff, a minor, sued by his next friend to recover one-fourth 
share of the properties belonging to a joint Hindu family, consisting of 
himself, his three brothers, defendants Nos. 1 to 3, and the infant sons 
of defendants Nos. 2 and 3. 

Tbe only question between the parties necessary to be mentioned 
for the purposes of this report was the question between the plaintiff and 
the sixth defendant, which was raised on the following facts : 

Another brother (Krishna Row) of the plaintiff and defendants Nos. 1 
to 3 had instituted a suit for partition against his father (now dead) 

* Appeal No. 95 of 1896. 
(1) 18 M. 193. 

248 



YII.] MINAKSHI AMMAL V. KALIANARAMA BAYER 20 Mad. 351 

and defendants Nos. 1 to 3, the present plaintiff at that time not having 1897 
been born, and obtained a decree for one-fifth share in the family pro- MARCH 9. 
perties. Krishna Row obtained possession of certain properties under 
this decree, but, before the decree was fully satisfied, he died without APPEL- 
issue. leaving a widow. The widow entered upon the properties which LATE 
her husband had obtained under the decree. Some time after, the widow CIVIL, 
conveyed to the sixth defendant the properties obtained by her husband 
and all her interest in the decree in favour of her husband. The 20 M. 349 = 
purchase by the sixth defendant was benami and the purchase money 7 M.L.J. 213. 
was provided by the first and second defendants out of family funds. 
Subsequently the sixth defendant took out further execution of the parti- 
tion decree in favour of Krishna Row, and caused certain family proper- 
ties to be sold in Court-sale and purchased them benami with money 
provided by first and second defendants out of family funds. The plaint- 
iff was not a party to the benami transactions. 

The sixth defendant denied that the transactions were benami, and 
as to the purchases in court-sale relied on Section 317, Civil Pro- 
cedure Code, and contended that the question raised by plaintiff 
[351] ought to have been raised in execution proceedings under the decree 
in favour of Krishna Row. 

The Subordinate Judge then dealt with issues as follows : 
" Is the plaintiff entitled to a share in the disputed properties, I 
" mean such as were bought in Court auction, or is he barred from claim- 
" ing it either by Section 317 or Section 244 of the Civil Procedure Code ? 
" These are the questions raised in the last two additional issues and they 
" were raised on behalf of the sixth defendant. It seems to me that, so 
" far as the present plaintiff is concerned, neither of these sections apply 
" to shut him out and bar him from recovering his share of the lands 
" bought in this Court's auction in the sixth defendant's name. Though 
" he was a party to the decree, he was no party to the arrangement by 
which this sham purchase was made in the sixth defendant's name, and 
"" his object is not to set it aside as made in fraud of his rights as a mem- 
ber of the family to whom the purchase money belonged. Natesa v. 
" Venkatramayyan (1) is on all fours with the facts of these cases, and it 
" was there held that Section 317 would not operate as a bar. 

" The Privy Council case in Bodh Singh Doodhooria v. Gunesh Chunder 
" Sen (2), on which the sixth defendant's vakil relies, was considered in 
" the Madras case above quoted, and was distinguished, and I cannot 
find it to apply to the present case. 

In Monappa v. Surappa (3) the facts were that a purchaser in a 
" court-sale acknowledged he was a benami purchaser and gave up pos- 
session and after some time went to eject the true owner, when the true 
" owner next sued, he sought to defend his possession by relying on 
" Section 317. 

" In such a case too, the Court held that that section was no bar and 

what do we find the facts here established ? The sixth defendant did 

not claim any right as purchaser, though proceedings were had in her 

t name, and she was only given possession not under the process of Court, 

" but by the second defendant in fraud of plaintiff's rights long after the 

^ sale. She cannot plead that the possession thus given her was had under 

her rights as Court purchaser and seek the protection afforded by Seo- 

tion 317 as against the plaintiff. 

(1) 6 M. 135. (2) 19 W. B. 366. (3) 11 M. 234 (835). 

249 
M VII 32 



20 Mad. 352 INDIAN DECISIONS, NEW SERIES [Vol. 

1897 [352] " The cases of Kanizak Sukina v. Monohur Das (1) and Subha- 

MARCH 9. " Bibi v. Ilari Lai Das (2) also support the plaintiff, and although the 

" former case was dissented from by his Lordship the Chief Justice and 

APPEL- '' Mr. Justice Handley in Rama Kurup v. Sridevi (3) ; it was said that 

LATE " so far as it related to Section 317, it was an obiter dictum, whether it 

CIVIL. " wa8 8O or D k' their Lordships did not consider the two earlier Madras 

" cases reported in the sixth and eleventh volumes and did not dissent 

20 M. 349= " from them. 

7 M.L.J. 213. " Section 244 of the Civil Procedure Code too cannot bar the present 
" suit. It was contended that as the minor plaintiff was a party to the 
" decree in execution of which these properties were sold ; if the sale was 
" brought about improperly, he ought to apply under Section 244 to have 
the sale set aside and not bring a separate suit. Reliance was placed on' 
" Prosunno Kumar Sanyal v. Kali Das Sanyal (4), Mohendro Narain Ghatu- 
" raj v. Gopal Mondul (5). and Krishnan v. Arunachalam (6). It seems to- 
" me that the object of the present suit is not to set aside the sale but to 
' have it declared that the purchase made was benami, with the aid of 
" family funds and also that all proceedings had under that decree were. 
" sham and colorable, inasmuch as that decree had been discharged by 
" payment made from family funds. The Madras ruling quoted is not in 
' point. The question considered and decided in it was one which arose 
" in relation to the execution of a decree whether some properties, ift the 
" hands of a representative of a judgment-debtor, were or were not liable 1 
" for the same. 

" In Mohendro Narain Ghaturaj v. Gopal Mondul (5) it was cer- 

" tainly held that ' when circumstances affecting the validity of a sale in 

execution have been brought about by the fraud of one of the parties 

''to the suit and give rise to a question between these parties 

such as, apart from fraud, would lie within the provisions of Section 

11 244, a suit will not be to impeach the validity of the sale on the 

ground of such fraud ' and ' that in such a case, the judgment-debtor is- 

entitled, whether the sale has been confirmed or not, to make against 

the person guilty of the fraud or accessary thereto, such application, if 

any, under Section 311 as he may be entitled to make, his time for 

[353] making it being computed from the time when the fraud first 

became known to him." It was also held in the same case that ' in 

' cases in which the decree of the purchase is made benami,' Section 

" 244 did not apply and a suit might be brought to set aside the sale. 

" The present case falls under this last rule. Though the decree was 
" not passed benami the transfer of it and all proceedings had under that 
" transfer have been alleged and found to be benami. 

" The Privy Council ruling in Prosunno Kumar Sanyal v. Kali Das 
Sanyal (4) does not further limit this rule. It simply held that even 
" the rights of a stranger purchaser must be enquired into under Section 
*' 244 whenever that section applied." 

Defendant No. 6 preferred this appeal. 

Pattabhirama Ayyar and Mahadeva Ayyar, for appellant. 

Krishnasami Ayyar, for respondent. 

JUDGMENT. 

The Subordinate Judge has given excellent reasons founded on clear 
documentary and oral evidence, for his conclusion that the transfers to- 

(1> 12 C, 204. (2) 21 C. 519. (3) 16 M. 290. 

(4) 19 C. 683. (5) 17 0. 769. (6) 16 M. 447. 

250 



YIL] PONNAMBALA PILLAI V. SUNDARAPPAYYAR 20 Mad. 3Si 

the sixth defendant were benami for the family of the plaintiff and defend- 189T 

anfcs Nos. 1 to 3. These reasons have not been shown to he incorrect in MARCH f. 

the argument before us. We concur in the finding of the Subordinate 

Judge on this issue. As feo the effect of Section 317 of the Civil Proce- APPEL- 

dure Code with regard to the plaintiff's right to maintain the present LATB 

suit to recover his share of the family property, we observe that the pre- CIVIL. 

sent case is governed by the decision in Natesa v. Venkatramayyan (1). 

That case is exactly on all fours with the present case, and has not been 20 M - 349 = 

overruled or dissented from in the cases referred to by the appellant's'' M.L.J. 21S. 

vakil Rama Kurup v. Sridevi (2) Sankunni Nayar v, Narayanan Nam- 

budri (3) Kumbalinga Pillai v. Ariaputra Padiachi (4). 

Lastly, OQ the finding that the sixth defendant was not the real trans- 
feree of the decree, no question as to the effect of Section 244, Civil 
Procedure Code, on the plaintiff's right to maintain this suit can arise. 
We must, therefore, confirm the decree of the Subordinate Judge and 
dismiss this appeal with costs. 



20 M. 354 = 7 M.L.J. 240. 
[384] APPELLATE CIVIL. 

Before Sir Arthur J. H. Collins, Kt. t Chief Justice, and 
Mr. Justice Shephard. 



PONNAMBALA PILLAI (Plaintiff), Appellant v. SUNDARAPPAYYAR 
(Defendant), Respondent* [26th and 29th July, 1897.1 

Hindu Law Conditional contract to sell family lands Birth of vendor's son before 
fulfilment of condition. 

A Hindu entered into a contract to sell certain land, being family property of 
which he was not in possession, as soon as possession should be obtained. Before 
possession was obtained a son was born to him. A decree for specific perform- 
ance was passed and executed against him, the son not being brought on to 
the record. In a suit by the son for partition of the property in question : 

Held, that the plaintiff had an existing right in the property which was not 
bound by the decree and the subsequent proceedings, and that he was entitled to 
the relief sought. 

Semble : That a contract for sale of land made by a Hindu before a son is 
born to him is not binding on the son born before the transfer of the property 
takes place. 

[R., 17 C.L J. 38=17 C.W.N. 280 (288).] 

SECOND appeal against the decree of T. M. Horsfall, District Judge 
of Tanjore, in appeal suit No. 255 of 1895, confirming the decree of 
T. Venkatararnayya, District Munsif of Kumbakonam, in original suit 
No. 422 of 1893. 

The plaintiff sued for partition and possession of a moiety of certain 
land together with mesne profits. The property in question had belonged 
to the family of the plaintiff. He however was not born until 1874, 
before which date certain transactions had been entered into between his 
father and uncle, since deceased, and the present defendant. In 1872 
the father and uncle agreed to sell to defendant their family lands in a 
certain village including the property now in question, and later on in the 
same year they executed a conveyance of so much of the property as was 

* Second Appeal No. 754 of 1896. 
(1) 6 M. 135. (2) 16 M. 290. {3) 17 M. 282. (4) 18 M. 436. 

251 



20 Mad. 338 INDIAN DECISIONS, NEW SERIES [Vol. 

1897 then in their possession, and therein expressed their willingness to execute 

JULY 29. a sale-deed in respect of the rest of the land, of which they expected to 

get possession, as soon as that should happen. Possession was obtained 

APPEIj- in 1877, but the plaintiff s father refused to convey, and a suit for specific 

LATE performance [355] was brought against him. In this suit to which the 
OlVlL. present plaintiff was not a party, a decree was passed as prayed, and in 

the result the land of which partition is now sought was conveyed to 

20 M. 354= defendant. 

7 M.L.J 240. It was not found that the sile was justified by circumstances of 
family necessity, but both the Lower Courts held that the plaintiff was 
not entitled to recover. The District Judge expressed the view that the 
transaction based on the contract of 1877 was inseparable from that of 
1872 and was therefore binding on the plaintiff who was not born at the 
last- mentioned date. 

The plaintiff preferred this appeal. 

The Acting Advocate- General (Hon'ble V. Bhashyam Ayyangar) and 
Kristnasami Ayyar, for appellant. 

Pattabhirama Ayyar, for respondent. 

JUDGMENT. 

The facts of this case lie in a small compass and there was so little 
dispute about them that; no issues of fact ware raised in the Court of First 
Instance. In 1872 before the birth of the plaintiff, his father together 
with bis brother Saminada having certain debts to pay off entered into an 
oral contract with the defendant to sell to him their family lands in the 
village of Anakkudi and their share of the palace in the same place for 
the sum of Rs. 29,000. On the 10th May 1872 the vendors wrote to the 
defendant the letter marked XVIII. In it they say that three velies and 
odd have not yet been delivered into their possession under the Court 
decree and they ask the defendant to let the matter stand over and take 
a sale-deed in respect of the remaining properties for Es. 25,000. express- 
ing their willingness to execute a sale "in respect of the said maniam 
" punjah, &o., lands for a sum of Rs. 3,500 as soon as we get possession of 
" the same." To this request the defendant acceded, and accordingly a con- 
veyance in his favour was executed on the I2bh May 1872, comprising the 
other lands include i in the contract and expressed to be in consideration of 
the sum of Rs. 25,500, details of which are given in the document. The 
proceedings in the partition suit; referred to in the letter XVIII are not 
before us. But it appears from the exhibits put in by the defendant (XIV 
and XV) that it was in May 1872 uncertain what share of the punjah lands 
would fall to the vendors, and that, in the result, they did not get the 
lands which they expected fco get. This did not happen till February 1877 
before which date the plaintiff had been born and his father's brother 
[356] had died. By that time the plaintiff's father had repented of his 
bargain and accordingly he refuse! to convey to the defendant the punjah 
lands of which he came into possession. The result; of this conduct was 
a suit for specific performance brought by the present defendant. This 
litigation went on during 18SO and 1881 and ended in a decree against the 
plaintiff's father. The plaintiff himself was not joined in this suit, and it is 
quite impossible to hold, as was argued by the respondent's vakil, that the 
plaintiff was in any way represented in the suit by his father. Now, in this 
suit instituted soon after the plaintiff came of age, he claims a moiety of 
the property conveyed to the defendant in pursuance of the decree for 
specific performance made against his father. The plaintiff's case is that. 

252 



YIIJ 



PONNAMBALA PILLAI V. SDNDARAPPAYYAB 20 Mad. 357 



inasmuch as he was born before the decree was passed or the conveyance 
executed, and the sale of the property was not necessitated by the exigency 
of any debt pressing on his father, he being by birth a coparcener with his 
father is entitled to repudiate the sale so far as his moiety is concerned. 
The District Judge appears to have based his judgment in the defendant's 
favour on the ground that the sale was made under the original contract 
and that as the plaintiff was bound by the sale made on the 12th May 
1872, so he must be bound by the further sale made in pursuance of the 
same contract. It has not been found by either Court that there was any 7 
necessity for the sale impeached by the plaintiff. The defendant's case 
must therefore be rested on the ground that a contract for sale made by a 
Hindu before a son is born to him is binding on the son notwithstanding 
that the latter is born before the transfer of the property takes place. No 
authority was cited for this position, and we do not think it can be 
maintained. The son of a Hindu on his birth becomes a coparcener with 
his father in respect of family property. This right of the son may be 
defeated, or rather is prevented from coming into existence, by an aliena- 
tion of the property made before the son's birth. We are asked now to 
hold that a mere contract for sale operates as:an alienation, and that in 
the suit which may be brought on that contract by the purchaser the son 
has no other defence than the father would have. In support of the 
argument reference is made to the doctrine of equity according to which 
the purchaser under a contract for sale is for certain purposes regarded 
as the owner of the property. If otherwise this doctrine has any applica- 
tion we do not see how it can avail the defendant and alter the [357] 
fact that his vendor's interest in the property was liable to be diminished 
by the birth of a son. It is not as if the son claimed through the father. 
A purchaser in the position of the defendant before actual transfer of the 
property is in no worse position than the purchaser from a coparcener of 
an undefined share. As the latter takes subject to the chance of the 
vendor's share being diminished before partition takes place, so a pur- 
chaser in the defendant's position, contracting with one whose interest 
is liable to diminution, must take subject to that liability. 

But the whole argument for the defendant rests on the assumption 
that the contract enforced by the suit of 1880 was the original contract 
of 1872. We think this is a complete mistake. On the acceptance of the 
offer made in the letter already mentioned a new contract with new inci- 
dents was effected with regard to the lands which the plaintiff's father 
was not then in a position to deliver. In that new contract there was a 
condition which was not fulfilled until long after the plaintiff's birth. It 
is impossible, therefore, to hold that at the date of his birth there was no 
property in existence to which the plaintiff's right could attach. On the 
ground that the property of which partition has now been claimed had not 
passed from the family when the plaintiff was born, we must hold that the 
plaintiff is entitled to the decree for which he asks. It is suggested that 
he ought to be put upon terms and that it should be assumed that his 
share of the purchase money came to his hands. This, however, is a 
point; which ought to have been taken in the Court of First Instance and 
made the subject of an issue. It cannot be assumed that the plaintiff has 
become possessed of any part of the purchase money, and there is admit- 
tedly no evidence to support the observation made on the point by the 
District Judge. 

The decree must be reversed and a decree passed in favour of the 
plaintiff ; and the respondent must pay the costs in all the Courts. 

253 



1897 

JULY 29. 

APPEL- 
LATE 
GlVIL. 

M< 3M=a 
M - L -J- 2* 



20 Mad. 358 INDIAN DECISIONS, NEW SERIES [Vol. 

1896 20 M 388 = 7 ML J. 140. 

' OOT - 26> [358] APPELLATE CIVIL. 

APPEL- Before Sir Arthur J. H. Collins, Kt., Chief Justice, and 
LATE Mr. Justice Benson. 

CIVIL. 

20 M~388= SESHAMMAL (Plaintiff) Petitioner v. MUNUSAMI MUDALI 
7MLJ 140 (Defendant), Respondent* [26th October, 1896.] 

Presidency Small Cause Courts Act Act XV of 1882, Sections 37,38, 69 Stating Case 
on applcation for a new trial. 

When, upon an application to the Presidency Small Cause Court for a new 
trial, the Judges differ in their opinion as to any question of law and the major- 
ity without ordering a new trial reverse the decree of the Judge who tried the 
suit, the Court is bound to state a case for the opinion of the High Court under 
Section 69 of the Presidency Small Cause Courts Act. 

[F., 31 M. 490 = 18M.L.J. 480 = 4 M.L.T. 283.] 

PETITION under Section 622 of the Code of Civil Procedure praying 
the High Court to revise the decree of the Presidency Court of Small 
Causes, Madras, in suit No. 19335 of 1892. 

The plaintiff, the wife of the defendant, sued in the Presidency Small 
Cause Court to recover Rs. 310 expended by her on the marriage of their 
daughter. The case was tried by the Chief Judge who gave the plaintiff 
a decree. The defendant on 30th November 1894 applied to the Full 
Court for a new trial. The Chief Judge adhered to his view that the 
plaintiff was entitled to sue for the money expended, but the other Judges 
of the Court held that the suit was not maintainable. In the result the 
Court reversed the decree of the Chief Judge. 

The plaintiff preferred this petition. 

Kothandaramayyar, for petitioner. 

Pattabhirama Ayyar, for respondent. 

JUDGMENT. 

The plaintiff sued in the Presidency Small Cause Court, and her 
claim was decreed by the Chief Judge. Under Section 37 of the Act the 
defendant made an application for a new trial, and the Small Cause 
Court, consisting of the Chief Judge and two other Judges, heard the 
application, and in doing so went into the merits of the case. The Chief 
Judge differed from his colleagues on a point of law, and still maintained 
that the claim should be decreed, but his colleagues taking a different view 
on [359] the point of law, the Court reversed the decree passed by the 
Chief Judge and gave judgment for defendant with costs. 

Plaintiff now puts in this revision petition under Section 622, Civil 
Procedure Code, on the ground that, as the Judges differed on a point of 
law, they were bound, under Section 69 of the Presidency Small Cause 
Courts Act, to refer the case for the opinion of the High Court and either 
to reserve judgment or deliver a judgment contingent upon such opinion . 

We think the petition must be allowed. The provision of Section 
69 is imperative, it says : " If two or more Judges sit together in any 
" suit . . . and differ in their opinion as to any question of law. 
" . . the Small Cause Court shall draw up a statement of the facts of 
"" the case, and refer such statement ... for the opinion of the High 

* Civil Revision Petition No. 784 of 1895. 
254 



VII.] 



SINGA RBDD1 OB ALA BEDDI V. MADAVA BAU 20 Mad. 360 



" Court, and shall either reserve judgment or give judgment contingent 
" upon such opinion." 

It is contended for the counter-petitioner that the difference of 
opinion now in question did not arise " in any suit," so as to come within 
the purview of Section 69, but only on an application under Section 37, 
and it is pointed out that it has been held in the cases of Oakshott v. 
The British India Steam Navigation Company (1), Nusserwanjee v. 
Pursutum Doss (2), and Hall v. Joachim (3), that the Small Cause Court 
-cannot state a case for the opinion of the High Court on an application 
for a new trial under Section 37 of the Act. The fallacy in this argument 
lies in not observing that in the present case the Full Small Cause Court 
did more than consider the application for a new trial. No doubt the 
cases quoted are an authority for holding that, while the Court is 
considering whether a new trial shall be granted or not, Section 69 has 
no application, but, in our opinion, when the Court goes further and 
proceeds to deal afresh with the merits of the case, it must be held that 
the new trial has been granted, and that the Court is thenceforward 
engaged in trying the suit. In all the above-quoted cases the application 
was rejected, so that Section 69 could not, in any way, apply ; but in 
the present case though no separate order formally granting a new trial 
was made, \et such new trial was, by necessary implication, granted 
before the Court proceeded to re-hear the suit. The cases quoted are, [360] 
therefore, no authority for the counter-petitioner's contention. Indeed 
in every one of them it is assumed that, if a new trial had been granted, 
the reference to the High Court could properly have been raised, and we 
have no doubt, but that that assumption is correct. 

We must, therefore, set aside the revised decree of the Small Cause 
Court with costs, and direct that the suit be restored to its file, and be 
dealt with in accordance with law as laid down in Section 69 of the 
Presidency Small Cause Courts Act. As the Chief Judge who was a party 
to the decree now set aside is absent on leave, but will shortly return, it is 
desirable that the case should not be taken up for reference until his return. 



1896 

OCT. 26. 

APPEL- 
LATE 
CIVIL. 

Mi 888 = 
".L.J. HO. 



20 H. 360, 
APPELLATE CIVIL. 

Before Sir Arthur J. H. Collins, Kt., Chief Justice, and 
Mr. Justice Benson. 



SINGA REDDI OBALA EBDDI (Plaintiff), Appellant v. 

MADAVA BAU (Defendant No. I), Respondent.* 

[9th October, 1896.] 

Civil Procedure Code Act XIV of 1882, Sections 32, 45, 46 Dismissal of suit against 
one defendant without trial after first hearing. 

The plaintiff sued for damages for the infringement of certain hereditary rights 
claimed by him in connection with a temple. The first defendant was a Magis- 
trate and it was alleged as the c tuse of action against him that he had dis- 
obeyed the instructions of his superiors and played into the hands of the other 
defendant* by passing an illegal order. After issues had been framed the Judge 
without trial dismissed the suit with costs against the first defendant : 

Held, that the order was illegal. 

* Appeal against Order No. 34 of 1896. 
(1) 15 M. 179. (2) 11 0. 298. (3) 12 B.L.B. 34. 

255 



20 Mad. 361 



INDIAN DECISIONS, NEW SERIES 



[Yol. 



1896 

OCT. 9. 

APPEL- 
LATE 
CIVIL. 

20 H. 360. 



APPEAL against the order of W. G. Underwood, District Judge of 
Cuddapah, in original suit No. 4 of 1895. 

The plaintiff claimed that he had hereditary rights connected with the 
festivals of a certain temple, and he sued for damages for the infringement 
of those rights. 

Paragraphs 2, 3, 4 and 5 of the plaint, were as follows : 

" The second and third defendants who are Komatis induced the fourth 
" defendant to acquiesce in their attempts to break the abovementioned 
" time-honoured custom and invented, after their [361] recent accession 
"to the office of Dharmakartaship of the temple, frivolous and flimsy- pre- 
" texts for disgracing the plaintiff." 

" The first defendant, who was directed by the Deputy Magistrate of 
" Jammalmadugu Division to hold the scales evenly in this contentious 
" state, disobeyed the plain instructions issued to him on 21st May 1894 
" and played himself into the hands of the other defendants by passing an 
" illegal order on 25th May 1894 authorising the conduct of the fes- 
" tivals interdicted in spite of the fact that no reconciliation had taken 

1 >! 

place. 

"When the minor plaintiff and his next friend appeared on the night 
" of the abovesaid 25bh May 1894 at the Papagni river-bed on the occasion 
" of Garudotsavam and claimed the customary honours of Tomalai, the 
" first defendant abused his official authority and had them dragged by 
" sheer force and thereby disgraced and lowered them immensely in the 
" eyes of the assembled multitude besides wounding their feelings. 

" The wanton, malicious and vindictive refusal on the part of all 
' defendants to render the customary honours to the plaintiff, was further 
" aggravated by the high-handed, arbitrary and illegal proceedings of the 
" first defendant and has resulted in the extreme disgrace to the highly 
"respectable and wealthy family of the plaintiff." 

Defendant No. 1 filed a written statement denying the plaintiff's 
allegations as far as they affected him, and the District Judge, after issues 
were framed between the plaintiff and all the defendants, made the order 
now appealed against by which the suit was dismissed against the first 
defendant in the following terms : 

"I think I am right in dismissing K. Madava Kau from this suit with 

" costs. I do so accordingly. If he violated his powers as a Magistrate, 

" a case will undoubtedly lie against him. But that has nothing to do with 

" the present cause of action. The suit is wholly on the rights in the 

ceremonies, and it remains for the Court to decide if the dispute is 

wholly religious or a matter in which a secular Court can take cognizance 

and decide the issues raised or whether the matter should be settled in 

" the caste." 

The plaintiff preferred this appeal. 

Tiagarajayyar, for appellant. 

Mr. J". G. Smith, for respondent. 

ojQDGMENT. 

We do not understand under what provision of law the District 
Judge passed the order appealed against. Section [362] 32. Civil 
Procedure Code, gives the Court power to strike out the name of any de- 
fendant who has been improperly joined as a party, but that must be done 
on or before the first hearing. In the present case, the order was not made 
until some time after the issues were settled. Again if it aopeared to tha 
Court that the cause of action alleged against first defendant; alone, and 

256 



YII.] K. M. ONAKKAN V. T. K. ALITAMMA 20 Mad. 363 

that alleged against him jointly with the other defendants, could not be 1896 
conveniently tried together, the Court might have proceeded under Section OCT. 9. 
45, Civil Procedure Code, and have ordered the several causes of action to 
be tried separately ; but (unless the parties otherwise agreed, which was APPEL- 
not alleged in the present case) this power also could only be exercised LATE 
before the first hearing. ClVIL. 

Lastly, the first defendant might have applied under Section 46, Civil 
Procedure Code, to confine the suit to such cause or causes of action as 2 ^ ". 360. 
could be conveniently tried together. The District Judge does not appear 
to have acted under this section ; for he has not confined the suit as con- 
templated by that section, but has dismissed it all together with costs as 
against the first defendant. 

The District Judge has assigned no legal grounds for making such an 
order, and we can discover none in the papers before us. 

We must, therefore, set aside the order of the District Judge and 
direct him to restore the suit as against this first defendant to his file, and 
proceed to dispose of it in accordance with law. Costs will abide and 
follow the result. 



20 M. 362. 

APPELLATE CIVIL. 
Before Mr. Justice Suhramania Ayyar and Mr. Justice Benson. 



KOLLANTAVIDA MANIKOTH ONAKKAN (Plaintiff), Appellant V. 

TIRUVALIL KALANDAN ALIYAMMA AND OTHERS 

(Defendants), Respondents.* 
[25th February and 4bh March, 1897.] 

Civil Procedure Code Act XIV of 1882, Section 317 Execution sale Right to prove 
purchase benami. 

Certain property was mortgaged in 1881 and again in 1882. In 1883 the in- 
terest of one of the mortgagors in the property was brought to sale subject [363] 
to the mortgages in execution of a decree against him, and was purchased by 
the assignor of defendant No. 6. In 1884 a decree for sale was obtained on the 
mortgage of 1882, neither defendant No. 6 nor his assignor having been brought 
on to the record. In execution of that decree the property now in question was 
purchased by the predecessor in title of the plaintiff who now brought this suit 
for redemption, averring that the purchase of 1883 was benami for the mort- 
gagors. 

Held, that the plaintiff was not debarred by Civil Procedure Code, Section 317, 
from proving this averment. 

SECOND appeal against the decree of A. Thompson, District Judge 
of North Malabar, in appeal suit No. 467 of 1894, affirming the decree of 
A. Annasami Ayyar, District Munsif of Panur, in original suit No. 17 of 
1894. 

Suit to redeem a kanom, dated 22nd March 1881, and executed in 
favour of defendant No t. In February 1882 the mortgagors hypothecated 
certain property including the property now in suit to one Kunju Naray- 
anan Nambiar, who obtained a decree for sale in 1884. In July 1885 in 
execution of that decree the property was brought to sale, and that portion 
of it which was now in question was purchased by defendant No. 5, who 
in October 1888 transferred his rights therein to the plaintiff's sister. The 



M VII 33 



Second Appeal No, 1731 of 1895. 
257 



20 Mad. 364 



INDIAN DECISIONS, NEW SERIES 



[Vol. 



1897 

MARCH 4. 

APPEL- 
LATE 
CIVIL. 

20 H. 362. 



plaintiff's sister subsequently died and this suit was brought by the 
plaintiff as her representative and as the karnavan of fcha tarwad. Mean- 
while, viz., in 1883, in execution of a decree against one of the mortgagors, 
his interest in the property now in question was brought to sale subject to 
the mortgages of 1881 and 1882, and was purchased hy one Rama Kurup 
who assigned his right in 1888 to the present defendant No. 6, but he was 
not made a party to the suit in which the decree for sale was passed. The 
plaintiff now averred that Rama Kuvup had purchased banami for the two 
mortgagors. This averment the District Munsif hald could not be enter- 
tained with reference to Civil Procedure Code, Section 317, and as the 
plaintiff objected to opportunity being given to defendant No. 6 of redeem- 
ing the mortgage of 1882, he dismissed the suit. His decree was affirmed 
on appeal by the District Judge. The plaintiff preferred this second 
appeal. 

Mr. Krishnan and Vaithinatha Ayyat, for appellant. 

Ryru Nambiar, for respondent No. 6. 

ORDER. 

The plaintiff is the assignee of the rights of a purchaser in a Court- 
sale held in 1885, under a decree obtained in 1834 upon the hypothecation 
(Exhibit C, dated 23rd February 1882). The sixth defendant (res- 
pondent) purchased the right, title [364] and interest of apparently 
one of the mortgagors (in Exhibit C) in execution of a Small Cause Court 
decree in 1883, but was not made a party to the suit or Exhibit C. The 
question is whether the plaintiff is entitled to show that the sixth defend- 
ant purchased benami for the mortgagors in C. Bjth the Lower Courts 
have held that he is not so entitled. Under the purchase in the suit or 
Exhibit C, the plaintiff has acquire! the rights not; only of the mortgagors, 
whatever they were in 1885, but also the rights of the mortgagee under 
Exhibit C , as they stood on its date, viz., 23rd February 1882. It is 
contended for the respondent that under Section 317, Civil Procedure Code, 
as interpreted in Rama Kurup v. Sridevi (1), no person, under any circum- 
stances, may prove that the certified auction-purchaser was not the real 
purchaser ; but this is opposed to the conclusions arrived at in Natesa v. 
Venkataramayyan (2), and Ramakrishnappa v. Adinarayana(S). In the 
former it was held that Section 317 does not bar the son of a Hindu 
father from proving in a suit for partition that the certified purchaser was 
acting benami for the father. In the latter it was held that a person who 
did not claim under the benami purchaser was not precluded by Section 317 
from showing the real character of the purchase. Tnere can be no doubt 
but that the mortgagee under Exhibit C, as a person not claiming under 
either of the parties to the benami purchase, was entitled in the suit insti- 
tuted by him on the mortgage to show, if necessary, the true nature of the 
purchase. 

Consequently, the present plaintiff, as occupying his place, is equally 
so entitled. 

We must, therefore, ask the District Judge to find whether the pur- 
chase by the sixth defendant was benami for the mortgagors as alleged on 
behalf of plaintiff. If the finding on the above issue is in favour of the 
sixth defendant, we will ask the District Judge to find further whether the 
sixth defendant acquired by his purchase the right of both the mortgagors 
(Nambiars) or only of one of them against whom the decree was passed. 



(1) 16 M. 290. 



(2) 6 M. 135. 
258 



(8) 8 M. 511. 



11.] 



NAEASIMMA CHARIAR V. SINNAVAN 



20 Mad. 366 



Fresh evidence may be taken on these issues on both sides. Finding 
is to be returned within two months of receipt of this order, and seven 
days will be allowed for filing objections after notice of the receipt of the 
finding lias been posted up in this Court. 



20 M. 365. 



[365] APPELLATE CIVIL. 

Before Sir Arthur J. H. Collins, Kt., Chief Justice , and 
Mr. Justice Benson. 



APPEL- 
LATE 
CIVIL. 

2*11.362. 



NARASIMMA CHARIAR (Plaintiff), Petitioner v. SINNAVAN 
(Defendant), Respondent* [6th November, 1896.J 

JJegal Practitioners Act Act XVIII of 1879, Section 28 Oral agreement for pleader's 
remuneration Criminal Proceedings "Quantum metuit." 

A pleader was retained by an accused person to conduct his defence. The 
accused did not pay the agreed fee and the plaintiff whereupon declined to 
conduct his defence. The defendant who was one of the accused, then undertook 
orally to pay the fee, but failed to do so after the plaintiff had conducted the 
defence of both accused persons. The plaintiff now sued the defendant to recover 
the agreed amount : 

Held, that, under Legal Practitioners' Act, Section 28, the plaintiff was not 
entitled to recover on the contract, but that he was entitled to recover reasonable 
remuneration for the services rendered by him. 

PETITION under Section 25 of the Provincial Small Cause Court Act 
praying the High Court to revise the decree of K. Krishnamachariar, 
District Munsif of Madura, in small cause suit No. 1480 of 1895. 

The plaintiff was a First-grade Pleader, and he sued to recover Es. 25 
under the following circumstances. One Mathuranayagam Pillai retained 
the plaintiff to defend him in a criminal case, but failed to pay his fea 
whereupon the plaintiff refused to appear for him. Thereupon the defend- 
ant, who was also on his trial in the same case, undertook to pay the 
plaintiff Es. 25, the fee agreed to be paid by Mathuranayagam Pillai. 
Eelying upon this undertaking the plaintiff conducted the defence, but 
the defendant failed to pay the amount for which this suit was accordingly 
brought. 

The District Munsif dismissed the suit ; holding, with reference to 
Legal Practitioners Act, Sections 28 and 29, and Sundararaja Ayyangar 
v. Pattanathusami Tevar (1), that the claim could not be supported on 
the oral contract alleged by him ; and he expressing the opinion that under 
the circumstances, the plaintiff was not entitled to bring this suit to recover 
quantum meruit, and declined to consider the plaintiff's claim on that 
footing . 

The plaintiff preferred this petition. 

[366] Mahadeva Ayyar, for petitioner. 

Srirangachariar, for respondent. 

JUDGMENT. 

We agree with the District Munsif that Section 28 of the Legal 
Practitioners Act is applicable. The plaintiff may, however, recover 

* Civil Revision Petition No. 73 of 1896. 
(1) 17 M. 306. 

259 



20 Mad. 367 JNDIAN DECISIONS, NEW SERIES [YoL 

1896 reasonable remuneration for the work done by him for the benefit of the 
Nov. 6. client on the principle quantum meruit, Krishnasami v. Kesava (1). 

~ The District Munsif refused to go into this question on the ground 

APPEL- jhat the person benefited, viz., the second defendant, in the criminal case, 

LATE was DO party to the present suit. We observe, however, that the plaintiff 

ClVIL. would not have gone into Court at all but for the guarantee given by the 

first defendant, and the latter would have been in that case undefended. 

20 M, 365. rrjk e g rg j. ,} e f en( j an t then derived benefit from the plaintiff going into Court 
to defend him and the second defendant jointly. We think, therefore, 
that the plaintiff may recover reasonable remuneration for the services 
he rendered. We therefore set aside the decree of the District Munsif 
with costs and direct him to restore the suit to his file and dispose of it 
on the merits. 



20 M. 366. 
APPELLATE CIVIL. 

Before Sir Arthur J. H. Collins, Kt., Chief Justice, and 
Mr. Justice Benson. 



LINGUM KRISHNABHUPATT DEVU (Petitioner), Appellant v. 

KANDULA SIVARAMAYYA (Counter -petitioner), Respondent* 

[16th October, 1896.] 

Civil Procedure Code Act XVI of 1882, Sections 243, 588 Stay of execution pending 
suit between decree-holder and judgment-debtor Stay of execution refused Appeal. 

An appeal lies from an order refusing sbay of execution under Civil Procedure 
Code, Section 243, pending a suit between a decree-holder and his judgment- 
debtor, 

R., 14C.L.JU89 (495) ; 8 O.W.N. 257 ; 41 P.R. 1904 = 59 P.L.R. 1904.] 

APPEAL against the order of H. R. Farmer, District Judge of Viza- 
gapatam, in miscellaneous petition No. 78 of 1896. 

This was a petition under Section 243 of the Code of Civil Procedure 
preferred by the judgment-debtor in original suit No. 11 [367] of 1883, 
praying that the execution of the decree in that suit be stayed pending 
disposal of a suit instituted by him against the decree-holder. 

The District Judge in his order said : " Under the circumstances I 
" resolve to refuse to stay execution absolutely under Section 243, but, at 
" the request of counter- petitioner's pleader, a month's time will be given 
" him to apply to the High Court .... If no orders staying execution 
" are received from the High Court within a month and if no further time, 
" be granted execution will proceed." 

The judgment-debtor preferred this appeal. 

Mr. Adam and R. Subramania Ayyar, for appellant. 

Ramachandra Rau Saheb, for respondent. 

JUDGMENT. 

A preliminary objection is taken on the ground that the order appeal- 
ed against was passed under Section 243 of the Civil Procedure Code, and 
that no appeal lies against such an order. We do not think that this 
contention can be upheld. Following the reasoning and the rulings in the 

* Appeal against Order No. 52 of 1896. 
(1) 14 M. 63. 

260 



11.3 



RA"NGAYYA APPA RAU U. KAMESWARA RAU 20 Mad. 368 



<5asea of Ghazidin v. Fakir Bakhsh (1), KassaMalv. Gopi (2), Steel & Go. 
v. Ichchamoyi Chowdhrain (3), we hold that an appeal lies. We therefore 
disallow the preliminary objection. 

As to the merits, the District Judge states that he does not consider 
that the appellant will have difficulty in recovering any sum that may now 
be paid over to the respondent in execution of the decree. The decree was 
passed as long ago as 1883. We dismiss this appeal with costs. 



20 H 367 = 7 ML J. 59. 

APPELLATE CIVIL. 
Before Mr. Justice Subramania Ayyar and Mr. Justice Boddam. 



1896 

OCT. 16. 

APPEL- 
LATE: 
CIVIL. 

20 M. 366. 



BANGAYYA APPA EAU (Plaintiff), Appellant v. 
KAMESWARA RAU AND ANOTHER (Defendants). Respondents.* 
[29th October and 6th November, 1896.] 

Registration Act Act III *of 1877, Section 17 Deed of relinquishment by tenant to 
land-holder, 

An instrument by which a tenant in a zamindari, in consideration of the ze- 
mindar waiving his right to arrears of rent accrued due, relinquishes the land 
[368] to him, is not admissible in evidence, unless it is registered in accordance 
with law, although it may have been drawn up and delivered to the servants of 
the zemindar before he had signified his consent to waive his right to the arrears. 

R., 14 O.P.L.R. 29.] 

SECOND appeal against the decree of E. A. Elwin, Acting District 
Judge of Kistua, in appeal suit No. 1567 of 1893, affirming the decree of 
M. Venkataratnam, Acting District Munsif of Gudivada, in original suit 
No. 160 of 1892. 

Plaintiff was a zemindar and he sued for a declaration of his title to, 
and for possession of, certain land forming part of the zemindari, of which 
defendant No. 1 had been in possession as tenant. It appeared that the 
tenant, having fallen into difficulties, executed a document on the 20th June 
1888 addressed to the plaintiff in the following terms : " To the zemindar, 
&c., relinquishment report put in by Govindarazulu Kameswara Rau, cul- 
" tivator of Gurazada. Being unable to cultivate the 16 acres 84 cents of 
" dry land and 7 acres and 87 cents of wetland, 24 acres and 72 cents in 
" all, which I have been cultivating in the village of Gurazada, and, finding 
" it inconvenient to pay the arrears on it, I have relinquished the right to the 
" Sirkar (i.e., the zemindar). I agree to the removal of that land from the 
' village accounts in my name forfasli 1298 and to your disposing of the 
" same at your pleasure without my having anything to do with the arrears 
" of Rs. 600 and odd due thereon. This relinquishment report is put in 
" with consent." Subsequently defendant No. 1 executed in favour of 
defendant No. 2 a mortgage of the land in question upon which a decree 
was obtained by the mortgagee in original suit No. 176 of 1889, and in 
execution of the decree the land was brought to sale and part of it was 
purchased by the decree-holder. 

The plaintiff's case was that the instrument of mortgage did not re- 
present a real transaction and that the proceedings in the previous suit 



(1) 7 A. 73. 



* Second Appeal No. 925 of 1895. 

(2) 10 A. 389, (3) 13 0. 111. 



261 



20 Mad. 369 



INDIAN DECISIONS, NEW SERIES 



[YoL 



1896 were collusive. The instrument of 1888 was unregistered. On that 
Nov. 6. ground the District Munsif declined to receive it in evidence and dismisseot 

the suit. His decision was upheld on appeal by the District Judge. 
APPBIi- The plaintiff preferred this second appeal. 

LATE Sundara Ayyar and Ramasubba Ayyar, for appellant. 

GlVIL. Pattabhirama Ayyar, for respondents. 



2t 
I 



367- JUDGMENT. 

'"* S8i If the document in question was nothing more than a mere relin~ 

quishment presented by a tenant, the first defendant, to his landlord, the? 
plaintiff, under Section 12 of Act VIII of 1865, which authorises the for- 
mer to relinquish his holding at the [369] end of any revenue year by a 
writing signed in the presence of witnesses irrespective of the wishes of the 
landlord in the matter, there can be no doubt that the document did not 
require to be registered under Section 17 of the Indian Eegistration Act. 
But that the document was one given for a consideration which moved 
from the plaintiff to the first defendant, viz., the waiver by the former of 
his right to the arrears of rent amounting to Es. 600 due at the time of 
the relinquishment is clear from the terms of the instrument itself. It is 
true that the passage in the plaint, upon which stress was laid on behalf 
of the plaintiff, suggests that the paper in question had been delivered to 
the servants of the plaintiff before he signified his consent to forego his 
claim to the 600 rupees. But neither the fact that the plaintiff accepted the 
defendant's offer only after the paper, which was to operators evidence of 
the relinquishment, had been put into the hands of his servants, nor the 
circumstance that the acceptance was not in writing is at all material 
The moment the offer was accepted the paper which had been parted 
with by the first defendant conditionally, as it were, became fully 
operative between the parties to the arrangement and extinguished the 
interests which the first defendant had as a tenant. Therefore the con- 
clusion of the Lower Courts that the relinquishment was not a mere 
abandonment under Section 12 of the Eent Eecovery Act by the first 
defendant of his right to occupy the land, but a contract between him 
and the plaintiff which fell within Section 17 of the Eegistration Act, 
and which was, therefore, inadmissible for want of registration, appears ta 
us be correct. 

The second appeal fails and is dismissed with costs. 



20 M. 369 = 7 M L.J. 71. 
APPELLATE CIVIL. 

Before Mr. Justice Subramania Ayyar and Mr. Justice Davies. 



KRISHNASAMI ATYANGAR (Plaintiff), Appellant v. 

BANG A AYYANGAR (Defendant) Respondent* 

[4th December, 1896. j 

Civil Procedure Code Act XIV of 1882, Section 258 Adjustment of decteeout of Court 
Agreement not certified to Court Action for damages. 

A decree for partition of family property was passed in favour of two plaint- 
iffs; One of the plaintiffs having died before exucution, a question arose 
between the [370] survivor and one of the defendants as to the devolution of his 

* Appeal No. 220 of 1895. 
262 



YIL] KBISHNASAMI AYYANGAB V. RANGA AYTANGAB 20 Mad. 371 

interest, and the decision was in favour of the surviving plaintiff. The contending 1896 
parties made an arrangement according to which some of the land representing rj Ff . 4 
the share of the deceased plaintiff should be given to the defendant. This agree- 
ment was not certified to the Court and the decree was executed at the instance . 
of the surviving plaintiff who subsequently refused to give effect to the arrange- APPEIi- 
ment. The then defendant now sued in the alternative for possession of the LATE 
land awarded to him or for damages : p 
Held, (1) that the pi untifi's claim for the land was not maintainable ; 

(2) that the claim for damages for breach of the agreement was main- 20 H. 369 

tainable. 7 M L j ? 

APPEAL against the decree of V. Srinivasacbarlu, Subordinate Judge 
of Kumbakonam, iu original suit No. 56 of 1893. 

The plaintiff was the brother of defendant No. 1, and it appeared 
that their father and defendant No. 1 brought original suit No. 22 of 
1884 for partition of the family property against the present plaintiff and 
another coparcener, and the plaintiffs therein obtained a decree for a two- 
sixth share. Before the decree was executed, the father died, and a ques- 
tion arose as to whether the surviving plaintiff was entitled to the whole 
of the two-sixth share and this question was decided in his favour. The 
present plaintiff unsuccessfully appealed to the High Court. Afterwards, 
the decision of the Lower Court having been affirmed by the High Court 
the present plaintiff and his brother agreed to submit the matter to the 
arbitration of one Virasami Ayyangar, under whose award given on 23rd 
June 1888, the plaintiff's present claim arose. This transaction was not 
certified to the Court, but it was brought to its notice with a view of pro- 
curing a stay of execution. Execution however took place notwithstand- 
ing, as there was a contest as to the nature of the agreement ; and the 
present defendant since failed to give effect to the arrangement. The 
Subordinate Judge dismissed the suit now brought by the plaintiff for the 
land awarded to him and in the alternative for damages. 

The plaintiff preferred this appeal. 

Ramachandra Rau Saheb, for appellant. 

Sankaran Nayar and Sankaranarayana Sastri, for respondent. 

JUDGMENT. 

In so far as the plaintiff's claim is made for lands adjudged to the 
defendant in original suit No. 22 of 1884, it is not sustainable in the 
face of that adjudication. 

But as to the claim for damages for breach of the alleged agreement, 
the suit is not barred ( Viriraghava v. Subbakka (1) [371] and Mallamma 
v. Venkappa (2). If the Subordinate Judge in his orders in execution of 
the decree in the previous suit had decided that there was no agreement as 
alleged, that decision would no doubt have operated as a bar by res 
judicata to this suit which is based upon that agreement. We find, 
however, that there was no such decision. The agreement was set up 
simply for the purpose of staying execution until the arrangements under 
the agreement were ripe for being certified to the Court in adjustment of 
the decree. The Subordinate Judge proceeded with the execution of the 
decree, not because be found that there was no agreement, but, on the other 
hand, because there were disputes as to the nature of the agreement. 
Neither party applied under Section 258 of the Code of Civil Procedure 
to have an agreement certified, and there was no order under that section. 
The case of Guruvayya v. Vudayappa (3) does not therefore apply. 

(1) 5 M. 397. (2) 8 M. 277. (8) 18 M. 26. 

263 



20 Mad. 372 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 We must accordingly reverse the decree of the Lower Court and 

DEC. 4, remand the suit for trial according to law in so far as the claim for 

damages is concerned. The suit as a suit for delivery of lands is dismissed. 

APPEL- Costs to abide and follow the result. 

LATE 

^L L ' 20 M. 371. 

20 M. 369= APPELLATE CIVIL. 

7 M L.J. 71. 

Before Mr. Justice Subramania Ayyar and Mr. Justice Benson. 



NlTYANANDA PATNAYUDU AND OTHERS (Plaintiffs), Appellants V. 

SRI RADHA CHERANA DEO AND OTHERS (Defendants), Respondents* 
[5th February, 1897.] 

Mortgage Interest ' post diem ' Limitation. 

A mortgagee is entitled to interest post diem, if there is nothing in the docu- 
ment to indicate that the parties did not intend that interest should be paid 
after the due date. 

APPEAL against the decree of R. H. Shipley, Acting District Judge 
of Ganjam, in original suit No. 40 of 1894. 

Suit to recover principal and interest due on a mortgage bond, dated 
16bh April 1880, and executed by defendants Nos. 1 and 2 [372] in favour 
of plaintiffs Nos. 1 and 2. and the father deceased of plaintiff No. 3. The 
mortgage, omitting parties and parcels, was in the following terms : 

" On an adjusment of account made this day in respect of the regis- 
" tered deed executed by us and in favour of your father, late Raghunadha 
*' Patnayudu Garu, on 26th March 1875, and also the deed executed by 
" us both in favour of Nibyananda Patnayudu Garu and Brajuvasi 
" Patnayudu Garu, among you, on 14bh June 1879, the amount found 
" due is Rs. 2,453-9-0. This day we have borrowed from you in cash 
" Rs. 46-7-0 on account of our household expenses. For the total 
" Rs. 2,500 (two thousand five hundred rupees) we nave executed and given 
*' this deed. With interest at Re. 0-12-0 per cent, per mensem, we will 
" pay off the principal and the interest in eight years from this date, in 
" accordance with the terms shown herein below. The interest amount 
" due up to the 15th of Palguna Suddbam of each year, we will pay on 
11 that full moon date alone. 

" That, and also, if we pay Rs. 300 or any amount less than that on 
" that same date, this we will cause to be credited on the schedule of 
" boundaries hereto annexed. We will not demand counter-interest for 
" the amount we pay for the principal and interest. We will not contend 
" that we have made any payments vouched in any other manner than by 
" having the payment noted on the schedule of boundaries referred to 
" above. If we fail to pay the interest amount due up to the 15th of 
" Palguna Suddham of each year as mentioned above and commit default 
" in respect of the instalment, then, setting aside the interest settled of 
" Re. 0-12-0 per cent, per mensem, we will pay interest on the principal 
" from the date of default at the rate of Rs. 1-8-0 per cent, per mensem. 
" The amount of principal and interest, which shall ba found to be due at 
" the end of the eight years' term of this deed, will be paid fully on that 
" fixed date alone by either of us, by means of the mortgaged property and 
" our other property, and the payment will be caused to be entered on the 

* Appeal No. 61 of 1896. 



YIL] 



N. PATNAYUDU V. EADHA CHERANA DEO 20 Mad. 374 



" list of boundaries annexed hereto and this dead will be taken back. As 
" security herefor have been mortgaged to you and put in your possession 
" together with their appurtenances the dry land about acres 5-0, and wet 
"lands acres 100-0, total acres 105-0. So until the amount of this deed 
" is discharged, we will not mortgage whether simply or with possession, 
" or sell or do any such thing to any [373] other person. We as well as 
" our heirs shall be responsible in this regard. Excepting to you the 
" mortgagod property is not already under mortgage to others for money 
" borrowed from them." 

The following issues were among others raised in the case : 
Is plaintiffs' claim time-barred in whole or in part ? 
Are plaintiffs entitled to interest after the due date as damages 

or otherwise ? 

Did defendants make a valid tender to plaintiffs of any sum or 
sums of money under the suit bond ? If so, of how much 
and under what circumstances ? 
To what relief are plaintiffs entitled ? 

The District Judge held that the claim for interest under the docu- 
ment was bai-red by the three years' rule. He also held that the plaintiffs 
were entitled apart from the law of limitation to no interest post diem. 
As co this he made inter alia the following observations : 

"The plaintiffs' claim post diem interest, first, as of right, and, secondly, 

" they plead that it is an indulgence which the Court should grant them. 

" So far as the latter point is concerned, I would refuse to allow them 

" any interest between the due date and the date of the plaint. They 

have waited six years before suing the defendants, they refused to give 

" them any statement of accounts, and I think it is sufficiently clear that 

' they have let the debt run on as long as they dared, merely with a view 

' to harassing the defendants and getting good interest on their money. 

I am strongly of opinion that they should have immediately, on the 

( expiry of the due date, given defendants notice that as the debt was not 

" paid, the property would be attached. It does not lie with them to 

" plead that they are entitled to damages for money lying idle when it is 

through their own default that it has lain so long idle. 

" As regards the legality of such a claim, there are two cases quoted : 

Badi Bibi Sahibal v. Sami Pillai (1) and Gopaludu v. Venkataratnam 

' (2). From these two rulings, I gather that unless there is a stipulation 

to pay interest after due date, it cannot be claimed except as damages, 

and that such stipulation may be express or implied. In the present 

case I hold that there is no such stipulation. Oa the contrary, there is 

a distinct [374] agreement that the interest and the principal are to be 

tt repaid on a certain date by means of the mortgage, and, if necessary, 

j' ( other property. That is to say, that if the money is not paid on the 

due date, the mortgagees are to foreclose and recover the debt out of 

^ the sale- proceeds of the property. I do not hold it possible to reid into 

' j( this agreement any stipulation regarding post diem interest. The terminus 

tt ad quern is distinctly expressed and no other construction can be put 

M upon the words of the bond. The plaintiff's claim that the bond 

tt makes provision for post diem interest is therefore rejected, and as the 

tt due date was in the year 1888, any claim for post diem interest as 

i( damages is barred. I therefore decide the third issue against the 

plaintiff. 



1897 

FEB. 5. 

APPEL- 
LATE 
CIVIL. 

20 H. 371. 



(I) 18 M. 257 (261). 
M VII 34 



(2) 18 M. 175. 



265 



20 Mad. 375 INDIAN DECISIONS, NEW SERIES [Vol. 

1897 " I distinguish between principal and interest, I find that the princi- 

FEB. 5, " pal, i.e., Es. 2,500 is not barred. The time bar is 12 years and the suifc 

~" " was brought within time. As to interest, it is a different matter. The 

APPEL- " i as |j instalment of interest fell due on the 17th April 1888, and the 

LATE '' question is whether the time bar is 12 years or 3 years. 

ClVIL. " The pleader for the plaintiff argues that when the due date arrived, 

" and neither the balance of interest nor the principal was paid, the two 

20 M. 371. " gums principal and interest were merged and became one homogeneous 

" debt. But from this view I dissent. I hold that, for the purpose of 

'* considering what the time bar is, the two sums must be kept quite dis- 

" tinct, and this view is corroborated by the plaint itself. In the statement 

" of claim the last item is* Es. 1,429-11 for interest at 9 per cent, per 

" annum from 16th April 1888 to 24th August 1894. This is calculated 

" as the principal of Es. 2,500, but, if the interest had merged in the 

" principal in the due date, the sum on which post diem interest would be 

" calculated would be Es. 2,500 + Es. 211-4 + Es. 3,187-8. 

" The limit within which a suit lies for money payable for interest 
upon money due is 3 years Schedule II, Article 63, Limitation Act." 

In the result the District Judge passed a decree for the principal 
only without the interest with the ordinary directions for sale in default of 
payment. 

Plaintiffs preferred this appeal. 
Pattabhirama Ayyar, for appellants. 
Mr. Subramanyam, for respondents. 

JUDGMENT. 

[375] There is nothing in the document to indicate that the parties 
did not intend that interest should be paid after the expiration of the eight 
years, within which the principal was to be repaid, and we must, there- 
fore, hold, having regard to the ordinary expectations of parties who ente? 
into transactions of this kind, that it was the intention of the parties in 
this case that interest should continue to be paid until the liquidation of 
the debt. This is in accordance with the principles laid down in the re- 
cent Privy Council case Mathura Das v. Raja Narindar Bahadur Pal (1) 
which is now the authoritative guide on the question of post diem interest. 

We must allow the appeal with costs in both Courts and modify the 
decree by allowing interest at the rate of 18 per cent, from the date of 
default up to 16th April 1888, and thereafter at 9 per cent, per annum up 
to the date of the Lower Court's decree, and further interest on the whole 
amount at the rate of 6 per cent, till payment. Credit should be given 
for the amount paid towards interest by the defendants as found by the 
District Judge. There will be the usual order for sale in default of pay- 
ment within six months from this date. 



(1) 23 I. A. 138. 
266 



YII.] SANKABAN NAKAYANAN V. ANANTHANAEAYANAYYAN 20 Mad, 376 



20 H. 375. 
APPELLATE CIVIL. 

Before Mr. Justice Muttusami Ayyar and Mr. Justice Wilkinson. 



SANKARAN NARAYANAN (Defendant No. 11), Appellant v. 

ANANTHANARAYANAYYAN AND OTHERS (Plaintiffs AND Defendants 

Nos. 1 TO 9), Respondents* [23rd December, 1892.] 

Civil Procedure Code Act XIV of 1882, Section 32 Joinder of parties Change in 
character of suit. 

In an ejectment suit by a landlord against bis tenant, the Court should not 
bring on to the record the person from whom the plaintiff holds the land, not 
persons claiming to hold it from a third party, nor such third party. 

[376] SECOND appeal against the decree of V.P. DeEozario, Subor- 
dinate Judge of South Malabar, in appeal suit No. 1052 of 1890, affirming 
the decree of V. Kamasastri, District Munsif of Palghat, in original suit 
No. 419 of 1888. 

Plaintiff sued to recover possession of certain land with arrears of 
rent on the defendants removing the improvements effected by them. 

The District Munsif passed a decree as prayed, which was affirmed 
on appeal by the Subordinate Judge. 

Paragraph No. 18 of the District Munsif's judgment referred to by 
Wilkinson, J., was as follows : 

" In the first written statement the defendants Nos. 2 to 6 and 9 
" set up their own right over the plaint property. But in the second peti- 
" tion put in by them, they stated holding under the eleventh defendant's 
" family, but without specifying on what right they held under him. Plaint- 
" iffs' twenty-eighth witness, who is the first defendant in the cognate suit 
" No. 425 of 1888, admits that, after consulting with the eleventh defend- 
" ant, he put in a similar petition in that suit relinquishing bis own right 
" and setting up holding under the eleventh defendant without specifying 
" the nature of the right (vide M. P. No. 3177 of 1888). This fact shows 
" that at the time that petition was put in, that defendant and the 
" eleventh defendant had not made up their minds as to the nature of the 
" right which the former was to set up. Exhibits A-90 and A-91 are dec- 
" ree and judgment in a suit similar to the present one brought to recover 
" a Kudiyirup included in the Saswathom deed. Vella, the second defend- 
' ant, in that suit is the demisee under Exhibit 16. But he set up his 
" own right and made no mention whatever of holding on Janom under 
" the eleventh defendant. These facts are strong enough to disprove the 
" genuineness of Exhibits 15 and 16. Exhibit 8, the alleged Marupattam 
" of 1014, relates to a house different from those of these two suits. 
Velu Nair, plaintiffs' seventeenth witness, the alleged demisee under 
Exhibit 8, disowns the kanom and claims the property as his own jenm. 

* Second Appeal No. 1737 of 1891. 

In Second Appeals Nos. 658 and 1403 of 1895 preferrad against the decree of the 
Subordinate Judge of Calicut in appeal suit No. 417 of 1893 judgment was delivered 
by DAVIES and BODDAM, JJ., which was as follows : 

JUDGMENT. These second appeals are only on questions of fact, and must, there- 
fore, be dismissed with costs. 

This case is another illustration of the objectionable practice in Malabar con- 
demned by Mr. Justice Wilkinson in his judgment, with which we thoroughly agree in- 
Second Appeal No. 1737 of 1891. In order that the practice may be put a stop to, that 
judgment will be reported. 

267 



1892 

DEC. 23, 

APPEL- 
LATE 
CIVIL. 

20 H. 378, 



20 Mad. 377 



INDIAN DECISIONS, NEW SERIES 



[Yol. 



1892 

DEC. 23. 

APPEL- 
LATE 
CIVIL. 

20 M. 379. 



" The lands forming the eastern and northern [377] boundary in Exhibit 
" 8 are described to be tbe eleventh defendant's jenm. But plaintiffs' 
" twenty-sixth witness vakil Sankunni Nair claims them as his own." 

The further facts of the case appear sufficiently for the purposes of 
this report from the judgment of Mr. Justice Wilkinson. 

Sundara Ayyar, for appellant. 

Pattabhirama Ayyar, for respondents. 

JUDGMENT. 

WILKINSON, J. I reserved judgment in this case not on account of 
any point of law which required further consideration, for upon the 
facts found tbe second appeal must fail ; but because the case seemed 
to me at the hearing to be a typical instance of a class of cases which are too 
common in Malabar in which an ordinary suit between landlord and 
tenant valued at a few rupees, is allowed to be converted into a suit in 
which the title to extensive properties is determined. On further exami- 
nation I find that the present is a remarkable case of that nature. The 
value of the suit was Rs. 20 and the stamp duty paid Bs. 1-8-0. The first, 
plaintiff instituted the suit in 1888 to recover, with arrears of rent from 
1882, a paramba leased by first plaintiff's deceased brother in February 1874 
under a registered Pattam chit to the first and eighth defendants. These, 
viz., first plaintiff and first and eighth defendants were the only necessary 
parties to the suit, but for some reason or other the sons and grandsons of 
defendants Nos. 1, 8 and were also made parties with the usual result. The 
lessees did not appear, but their sons and grandsons did, and they denied the 
letting and plaintiff's right to the paramba, and claimed the property as 
their own. It appears, however (vide paragraph 18 of Munsif's judgment), 
that subsequently these defendants were got at by the eleventh defendant, 
and at his instigation they put in a petition stating that they held under 
him, but carefully omitted to specify under what right they held. The* 
first plaint/iff proved the letting sued upon, and the District Munsif 
granted him a decree. The Appellate Court, however, remanded the suit 
with directions to make the jenmi under whom plaintiff held on Saswa- 
thorn tenure and the jenmi set up by the lessees' sons and grandsons, 
parties and to try the question of title. This was done, and, after a 
protracted litigation, the plaintiff's title has been declared. I cannofe 
imagine a more monstrous case. A question of title to property 
of very considerable value has been decided in a suit by a lessor' 
against a lessee under a registered deed, the execution of [378] which 
was not denied by the lessees, and which was proved beyond all! 
doubt by the lessor. The sons and grandsons of the lessees were impro- 
perly made parties in the first instance, and still more improperly, 
were allowed to change their defence in the course of che suit, and to set 
up a person who is now shown to have no sort of right, and whose lease- 
deed is found to be a forgery. The suit is one of 1888. It has oocupiec 
the time and attention of three Courts and has been pending for four years 
The eleventh defendant has been allowed to obtain a decision as to hit 
title at a cost of eight annas or so, and the stamp revenue has beet 
ruthlessly defrauded. The case ought not to have been converted from f 
suit of one character into a suit of an entirely different character. Th< 
sons and grandsons and their spurious landlord should have been referrec 
to a separate suit for a decision of the question of title. It is nothing lesi 
than a scandal that cases should be tried in the manner in which thi 
has been. 



268 



ini.] 



PARAMANANDA DAS V. MAHABEER DOSSJI 20 Mad. 379 



Both Courts have found that the lease sued on was granted, that the 
land is held under it, that second plaintiff under whom first plaintiff holds 
on Saswathom right is the jenmi, and that the Marupattam on which 
appellant relies is a recent fabrication. There are no grounds for this 
second appeal, which is dismissed with costs. 

MUTTUSAMI AYYAR, J. I am also of opinion that upon the facts 
found, the decision of the Judge is right, and that there are no grounds 
for interference in second appeal. 



20 M. 378 = 7 M.L.J. 89. 

APPELLATE CIVIL. 

Before Mr. Justice Subramania Ayyar and Mr. Justice Boddam. 



1892 

DEC. 23. 

APPEL- 
LATE 
CIVIL. 

20 M. 373, 



PARAMANANDA DAS AND ANOTHER (Counter-Petitioners), Appellants 

v. MAHABEER DOSSJI (Petitioner), Bespondent* 

[2nd and 12th November, 1896.] 

Civil Procedure Code Act XIV of 1892, Sections 244, 257 (a) Representative of judg. 
ment-debtor Agreement for satisfaction of judgment-debt, 

A money decree was passed against a zamindar by the High Court in 1883, 
and it was transferred to the District Court for execution. The decree-holder 
[379] attached and prepared to bring to sale certain villages of the judgment- 
debtor. These villages were included in a mortgage subsequently executed by 
the judgment- debtor in favour of third parties. Both before and after the mort- 
gage the decree-holder received from the zamindar certain sums in consideration 
of his agreeing to postponements of the sale ; also it was agreed between them at 
a date subsequent to the mortgage that interest should be computed at a higher 
rate than that provided by the decree. Subsequently the decree-holder sought 
to bring the land to sale, and in computing the amount then due gave credit for 
none of the sums so received and calculated interest at the enhanced rate. The 
mortgagee objected that the computation was erroneous in both these respects 
and the District Judge upheld his objection. The judgment-debtor took no part 
in the contest : 

Held, (1) that the mortgagee was a representative of the judgment-debtor 
within the meaning of Civil Procedure Code, Section 244, and that an appeal lay 
against the order of District Judge ; 

(2) that the District Court not being the Court which passed the decree 
had no power to sanction the agreements under Section 257 (a), and the decision 
was right, 

[F., 17 M.L.J. 321; R., 24 M. 639; 34 M. 450(451)=7 Ind. Gag. 418 = 20 M.L.J. 
961 = M.L.T. 240; 13 C.P,L.R. 1 ; 21 M.L.J. 829 (831) ; 8 M.L.T. 374 (375).] 

APPEAL against the order of E. J. Sewell, Acting District Judge of 
North Arcot, passed on miscellaneous petition No. 93 of 1894. 

This was an application in execution of the decree of the High Court 
on its original side in civil suit No. 194 of 1883 which had been transfer- 
red to the District Court of North Arcot for execution. 

The decree in question was a money-decree passed on 20th September 
1883 against the Zamindar of Carvetnagaram and his eldest son ; and in 
execution, the decree-holder obtained a warrant of attachment of certain 
villages, and a notice of sale was given. The order for sale was made on 
8th September 1884. On the 2nd December of the same year the judg- 
ment-debtor mortgaged with possession the land in question to the pre- 
sent petitioners, and the sale in execution was repeatedly postponed by 

* Appeal against Order No. 33 of 1896. 
269 



20 Mad. 380 INDIAN DECISIONS, NEW SERIES [Yol. 

1896 arrangements between the decree-holder and the judgment-debtor. Finally 
NOV. 12 the sale was fixed for the loth February 1894. On the previous day, 
the present petition was preferred by the mortgagee, who alleged that, 
APPEL- j n t^ interval, the decree had been discharged, and he prayed that the 
LATE attachment be raised or that the sale should only be made subject to his 
OlVIL. rights under the mortgage. The petition was put in under Civil Proce- 
dure Code, Sections 275 and 278. The District Judge held that Section 
20 M. 378= 278 was inapplicable for the reason that the petitioner had no interest in 
7M.L.J.89, fchg property at the date of attachment which was in April 1884. As to 
Section 275 he expressed the opinion that action should be taken under it 
only [380] before the proclamation of sale was issued ; but he decided 
that the Court should issue a fresh proclamation of sale under Section 
287 and that, before doing so, it should ascertain the amount remaining 
due under the decree, on the information available, whether from the 
mortgagee or from any one else. He accordingly proceeded to make 
that inquiry. The amount asserted by the decree-holder to be due was 
arrived at by computing interest on the principal sum at the rate of 12 
per cent, in accordance with an agreement made with the judgment-debtor 
in July 1885 instead of at the rate of 6 per cent, as provided in the decree. 
Moreover, credit was not given for certain sums paid by the judgment- 
debtor to procure the consent of the decree-holder to the various adjourn- 
ments of the sale above referred to. None of these arrangements having, 
as it was alleged, been sanctioned by the Court, the petitioner contend* 
that all the amounts received in accordance therewith should be credite 
in discharge of the claim under the decree. As to this the Judge said : 
" The Zamindar (defendant) and the plamtiff put in a joint applicatior 
" on the 13th July 1885 (miscellaneous petition No. 135 of 1885), 
" stating that the defendant had paid Rs. 2,000 towards the amount due 
" that Rs. 19,961 remained due, which defendant undertook to pay 
" plaintiff before July 29th, 1885, with interest at 12 per cent, per annut 
" and that in default the attached property should be put up to auctioi 
" without fresh sale notice, and the petition asked that the sale shoulc 
" be adjourned to July 29th. The order on the petition is not signec 
" but consists of the word ' ordered ' and the date July 15th, 188 
" The writing is that of Mr. H. T. Knox, who was theu District Judge 

and the office order book bears the same order with his initials. 
" am of opinion that thip cannot be taken to be a sanction of an agre 
" ment to pay interest at 12 per cent, instead of the 6 per cent, ordered ir 
" the decree. There is not the smallest mention of the fact that the rat 
" agreed upon is a different rate to that in the decree, nor was ther 
" anything whatever to attract the attention of the Judge (Mr. Knox) to the 
*' fact so as to lead him to call for and look at the decree. There is nc 
" request for sanction of the arrangement, nor is any section at all quotec 
" for the application as required by the Rules of Practica. The sol 
" request is for an adjournment of the sale to July 29th, the agreemer 
" being recited as a reason for the grant of [381] the adjournment. It 
" seems to me quite clear that there was no sanction of the agreement at 
41 all. Even if it were held that it was indirectly approved the approve 
'' only extended up to July 29fch, the agreement baing only for adjournmer 
*' until then and it being expressly stated that no further time is to ba giver 
4< beyond July 29bh. On July 29th, another application was put in (miscal- 
*' laneous petition 160 of 1885). This time, Section 291, Civil Procedure 
*' Code, was quoted, the petition is distinctly for adjournmant of sale anc 
*' for that only, and no further reference is made to the rate of interest t: 

270 



PABAMANANDA DAS V. MAHABEER DOSSJI 20 Mad. 382 

"*' be charged. But thenceforward interest at 1 per cent, is claimed in all 1896 
11 the execution applications. The next question is whether the District Nov. 12. 
" Court of North Arcot could sanction any such agreement. It is necessary 
" to consider this question in connection with the sums paid from time to APPEI*- 
" time for postponement. The question of fact, in connection with them, LATB 
"is not quite so clear. In some of them, the payment is not alleged to OlVIL. 
"be in consideration of postponement. Whether it ever was would be a 
"*' question of fact on which evidence might have to be taken. But ^0 " 378= 
41 if the District Court had no power to sanction such payments 7 H-I*,J. 89. 
'' for postponement, it is not necessary to inquire whether in fact 
" it did so or not. Now the Court which passed the decree was 
" the High Court ; the decree was transferred for execution to the District 
"Court of North Arcot. The High Court certainly did not sanction 
'" these agreements. Petitioner contends that the District Court had no 
" power to sanction them. The counter-petitioner contends that the Court 
" had power under Section 228, Civil Procedure Code. The petitioner con- 
tends that the sanction of the arrangement did, in fact, alter the decree, 
*' and that a decree can only be altered under Section 206 or 210, Civil 
" Procedure Code. The contention is no doubt right and it seems 
' to me that to enforce under the decree, the provisions as to 12 per cent. 
" interest, instead of the 6 D3r cent, allowed under the decree, was not 
*' executing but altering the decree. The case as to any sums agreed to ba 
" paid for adjournment is different. To recover such sums in execution 
' of the decree would no doubt be to alter the decree. If that is proposed 
" to be done, I have no doubt that it is wrong. But the petitioner goes 
" further and contends that all such sums must be credited in satis- 
" faction of the decree. It is not contended that they were so paid by 
" [382] the Zamindar, but it is contended that, under the last clause of 
"Section 257 (a), they must be so applied, because paid in contravention 
" of the terms of the section ; and they are in contravention, because the 
" agreement to pay them was not sanctioned by the proper Court. Every - 
" thing turns, therefore, upon the question whether the phrase ' Court 
" which passed the decree,' in Section 257 (a) is to be strictly interpreted 
" and confined to its literal meaning, or whether Section 228 may be held 
" to give such powers to the Court to which the decree is transferred for 
"execution." 

In conclusion he said : " I am of opinion that the District Court 
" had no authority to grant time under Section 257 (a). It follows, there- 
" fore, that any amounts paid in consideration of such postponements 
" must, under the second and third clauses of Section 257 (a), be applied 
" in satisfaction of the judgment-debt." 

The result was that the decree-holder was found to have been over- 
'paid, and it was ordered that no sale proclamation be issued. 

The decree-holder preferred this appeal. 

The Advocate-General (Hon. Mr. Spring Branson) Ranga Ran and 
Ramanuja Chariar, for appellants. 

Bhashyam Ayyangar and Gopalasami Ayyangar, for respondent. 

JUDGMENT. 

No doubt in Jagat Narain v. Jag Rup (1) Oldfield, J., observed that 
the word repres2ntative in Section 244, Civil Procedure Code, has no 
more extended meaning than heir, devisee or executor. But, in Badri 

(1) 5 A. 452. 
271 



20 Mad. 383 INDIAN DECISIONS, NEW SERIES [Yol, 

1896 Narain v. Jai Kishen Das (1) Edge, C. J, and Banerji J, give strong reasons 
Nov. 12t for holding that the term in question has in the context a wider signifi- 
cation. Accordingly when a person purchased mortgaged property from 
APPEL- thg mortgagor after a decree had been obtained against him by the mort- 
LATE gagee for the enforcement of the latter's right such purchaser was held 
OrviL. by the Calcutta and Allahabad Courts to be within the meaning of Section 
244 (a) 'representative' of the mortgagor, defendant (Gour Sundar Lahiri 
20 M. 378= v Hem Chunder Choudhury (2) and Janki Prasad v. Ulfat Ali (3). 
7 M L.J. 89. This being so, it is difficult to distinguish on principle the case of the 
respondent here from the decisions just cited. For, though, in the present 
instance, the appellants' decree against the Raja, in [383] execution of 
which the questions in dispute have arisen, was for money only, yet as 
at the time the respondent obtained from the Raja the taluk on mortgage, 
the property had been attached on account of the appellants' decree ; the 
respondent who holds the mortgage which is subject to the said lien, 
must be held to stand in a position substantially similar to that occupied 
by the purchasers of the equity of redemption after the mortgage decrees 
in the Calcutta and Allahabad cases referred to above. 

The contention, therefore, that the respondent is not a representative 
of the judgment-debtor, the Raja, within the meaning of Section 244 and 
the preliminary objection founded thereon that no appeal lies are, in our 
opinion, unsustainable. 

The next question argued is whether the North Arcot District Court 
had power to sanction agreements of the kind referred to in Section 257 
(a) of the Civil Procedure Code. Clearly it had not, inasmuch as it was 
not the Court which passed the decree. The words of the Section 
absolutely confine the power to grant the sanction to Courts which pass 
the decree. 

The view taken by the District Judge on this point is right. 
The appeal fails and is dismissed with costs. 



20 M. 383 = 2 Weir 613. 
APPELLATE CRIMINAL. 

Before Sir Arthur J. H. Collins, Kt., Chief Justice, and 
Mr. Justice Benson. 



QUEEN-EMPRESS v. SESHADRI AYYANGAR.* [29th October, 1896.] 

Criminal procedure Code Act X of 1882, Section 487 Judicial proceedings. 

A Magistrate, who has refused to set aside an order sanctioning a prosecutior 
on the charge of perjury, has no jurisdiction under Criminal Procedure Code 
Section 487, to try the case himself. 

[P., 13 Or. L.J. 1 (2) = 13 Ind. Gas. 111.] 

APPEAL under Section 417 of the code of Criminal Procedure agains 
the judgment of acquittal passed in criminal appeal No. 9 of 1896. 

[384] The accused was charged under Section 193, Indian Pent 
Code, for giving false evidence in a judicial proceeding. 

The Joint Magistrate of North Arcot;, having previously rejected 
application preferred to him for the revocation of the sanction, giver 

* Criminal Appeal No. 370 of 1896. 
(1) 16 A. 483. (2) 16 C. 355. (3) 16 A, 284 

272 



11.] QUEEN-EMPRESS V. SUBRAMANIA ATTAR 20 Mad. 385 

under Criminal Procedure Code, Section 195, by the Magistrate before 1896 
whom the offence was alleged to have been committed, tried ihe case and OCT. 29. 
convicted the accused, who thereupon appealed to the Se^slons Court. 
Tiie StSfcions Judge held wiih leieience to Section 487 of the Code of APPEL- 
Crimmal Piootdure and In re Madhub Chunder Mozumdar v. Novodeep LATE 
Chunder Pundit (1) that the Joint Magistrate under the circumstances had CRIMINAL. 
DO jurisdiction to try the case. He accordingly set. aside the conviction 
and acquitted the accused. 20 M 883 = 

This appeal was preferred on behalf of Government. 2 * elr 613< 

The Acting Public Prosecutor (Mr, N. Subramanyam], for the Crown. 
Seshugin Ayyar, for accused. 

JUDGMENT. 

The order of the High Court, dated 28 .h January 1896, on which the 
apoellant ralies, was pa-ssed mainly on the ground that there hal b'eo 
undue deli,y in making the application for transfer. Section 487, Criminal 
Procedure CoJe, was not refeired to in the petition then before the High 
Couro. uor in the order of the High Court, and was apparently not 
considertd. 

Ou the merits we think thit it is impossible to say that an order 
whether original or appellate granting or refusing or revok ng sanction 
under S ;ctioii 195, Criminal Procedure Code, is not a " Judicial proceeding" 
as defined in S ciion 4 of the Ace, and looking to the wide terms 
" brougiio under his notice " u^ed in Section 487, we are of opinion that 
the Magistrate who declined to revoke the sanction was precluded from 
himseif trying the case. 

Tiie Sessions Judge was, therefore, right in ordering a new trial. We 
dismiss this appeal. 



20 M. 3)5 = 1 Weir 871. 

[385] APPELLATE CRIMINAL. 

Before Sir Arthur J. H. Collins, Kt , Chief Justice, and 
Mr. Justice Shephard. 



QUKEN-EMPRESS v. SUBRAMANIA ATTAR.* [14th January, 1897.] 

Railway Act Act IX of 1890, Section 1 3 Kx ess charge and fare recoverable as a 
fin* Mtgist.ate not competent to impose imprisonment in default Fine Imprison- 
ment, 

Seciion 113, sub-Section (4), (1) of the Indian Riilwiy Act (IX of 18901, which 
directs that, ou failure to pay on demand excess cb*rge ad fa e whuri due the 
amount tthail, on npplicati< n, be recovered by a Mauistra as if it were a fine, 
does nnc authorize the Magistrate to imp >se imprisonment in default.. Tbe 
exc bs oh-irge nna fare referred to in the ^eouoii is uoo a fiae, th )Ugh it in iy be 
recovered as such. 

IF., 4 lod. Gas. 236 = 5 N.L.R. 151.] 

CASE reported for the ordtrsof the Hiph Court under Section 438 of 
the Code of Criminal Proceduie by A. E. C. Stuart, District Magistrate of 
South Anoi. 

The iase was stated as follows: "A passenger named Suhramania 
" Ayyar was found in a ttnr i-ciass Ra'lvvay carriage of the S >uth Indian 

* Cnmiual Kevi-io > C&-B No. 537 of 1 1 J6. 
(i) 16 C 141. 

273 
M VII- 35 



20 Mad. 386 



INDIAN DECISIONS, NEW SERIES 



[Yol. 



1897 
JAN. 14. 

APPEL- 
LATE 

CRIMINAL. 

20 H. 383 = 
1 Weir 871. 



" Bail way train, No. 14, at the Chidambaram Bail way Station on the night 
" of the 12bh July last. The Station Master forwarded the passenger to 
' the Station-house Officer of the place with a letter requesting the latter 

to collect; the Bailway fare from the passenger and send the amount to 

him. The Station-house Officer sent the passenger with the letter of the 

" Station Master to the Stationary Sub-Magistrate of Chidambaram. The 

' Sub-Magistrate took up the case under Section 113 of the Bailway Act 

IX of 1890, and examined the passenger who represented that he had 
' purchased a ticket at Mayavaram for Chidambaram, and that on his 

way he was robbed of his bag containing money and tho ticket, and that 
' he knew nobody who would stand surety for him at Chidambaram where 

he was a stranger. The Sub-Magistrate believed the passenger, and having 

obtained his alleged address released him on his own bond for B^. 20 

[386] conditional on his appearance at Chidambaram on 18th July 1896. 

The passenger, however, failed to appear again. A distress warrant was 
' issued by the Sub- Magistrate to collect the amount due, but the warrant 

was returned with an endorsement that the passenger was not to be found 
I in the place mentioned. The Sub-Magistrate reported the facts to the 
' authorities of the South Indian Bailway Company, who reoresented to me 
'that the Sub-Magistrate's procedure was irregular. When the Sub- 
' Magistrate was called upon to explain, he seeks to justify his procedure 
' by saying that Sections 64 to 67 of the Indian Penal Code do not apply 
' to the cases contemplated by Section 113 of the Bailway Act, and that he 

had no power to award imprisonment in default of payment of the amount. 
' His view of the case is apparently supported by the rulings of the Bombay 
' High Court in Queen- Empress v. Kutrapad). That ruling appears to 
' have been arrived at by their Lordships with some hesitation, and as the 

point is one of considerable general importance, it seems desirable that an 
' authoritative ruling of the Madras High Court for the guidance of the 
' Magistracy of this Presidency should be obtained. Should it be definitely 
1 settled that imprisonment cannot be awarded in default of the payment 

of the excess charge and fare though the law expressly enacts that this 
' sum shall be recovered ' as if it were a fine imposed,' the commission of 
" t frauds upon Bailway Companies, as in the present case, will be greatly 
" facilitated." 

The Public Prosecutor (Mr. Powell], for the Crown. 
Rama Rau, for the accused. 

OBDEB. 

We agree with the decision in the Bombay case, Queen-Empress v. 
Kutrapad). We decline to interfere. 



(i);i8 B. 440. 
274 



QUEEN-EMPRESS V. KANAPPA PILLAI 20 Mad. 388 

20 M. 387 = 2 Weir. 240. 1897 

[387] APPELLATE CRIMINAL. APRILS. 

Before Sir Arthur J. H. Collins, Kt., Chief Justice, and APPEL- 

Mr. Justice Shephard. LATB 

CRIMINAL. 
QUEEN-EMPRESS v. KANAPPA PILLAI. [8th April, 1897.] 

20 M. 387- 

Criminal Procedure Code Act X of 1882, Section 202 Reference of cases to the Police 
for enquiry. 

A Magistrate can send a case for enquiry by the Police under Criminal Pro- 
cedure Code, Section 202, only when for reasons stated by him he distrusts the 
truth of the complaint. In cases where the accused is a member of the Police 
force, it is generally better that the enquiry should be prosecuted by a Magistrate. 

,P., 22 A. W.N. 1902, 195; 11 Or. L.J. 205 = 5 Ind. Gas. 714 (717)=4 P.W.B. 1910 
Or.] 

PETITION under Sections 435 and 439 of the Code of Criminal 
Procedure, praying the High Court to revise the proceedings of A. W. B. 
Hiegens, District Magistrate of Tinnevelly, in calendar case No. 11 
of 1897. 

The accused was an Inspector of Police and the District Magistrate, 
in the proceedings sought to be revised, sent the case for enquiry to the 
Superintendent of Police without himself expressing any opinion as to 
the truth of the comolaint. This procedure was in accordance with a 
rule which had previously been issue I by the District Magistrate for the 
guidance of the magistracy of the district in like cases. 

The complainant preferred this petition. 

Mr. Wedderburn, for petitioner. 

JUDGMENT. 

The District Magistrate does not appear to have given any reasons 
for distrusting the truth of the complaint and sending the case for 
enquiry to the Superintendent of Police. We infer that he acted uoon 
the view expressed in paragraph 4 of his own circular No. 557, dated 18th 
April 1895. We are of opinion that the rule there laid down is illegal, as 
Saction 202 of the Code directs the Magistrate to send a case for enquiry 
by the Police only when he distrusts tha truth of the complaint, and it 
requires the Magistrate to give his reasons. The terms of the fourth 
paragraph of the District Migistrate's circular actually override the 
provisions of the Criminal Procedure Cod^, Section 202. 

[388] The orders of the Police are not binding on the magistracy. 

We are further of opinion that great caution should be shown in 
sending, for investigation by the Police, charges against members of that 
force. In such case* it would generally be better that the enquiry should 
be prosecuted by a Magistrate. 

The District Magistrate is directed to proceed with the case accord- 
ing to law. 

Ordered accordingly. 



Criminal Revision Case No. 115 of 1897. 
275 



20 Mad. 389 INDIAN DECISIONS, NEW SERIES [Vol 

18Q7 20 H. 388 = 2 Weir 251. 

APRILJ23, APPELLATE CRIMINAL. 

APPEL- Before Mr. Justice Subiamania Ayyar ani Mr. Justice Benson. 
LATE 

_ QUEEN-EMPRESS v. SINNAI GOUNDAN AND OTHERS. 

CRIMINAL. [23rd April, 1897J 

80 M 888 Criminal Procedure Code Act X of 1882, Section 203 Duty of Magistrate to examine 
2 Weir 251, witnesses for the complainant. 

When a case has not been disposed of under Criminal Procedure Code, Section 
203, and the complainant's witnesses have been summoned, the Magistrate ia 
bound to examine the witnesses tendered by the cirnp ainant, and is not entitled 
to acquit the accused on a consideration of the complainant's statement alone. 

CASE reported for the orders of the High Court under Section 438 of 
the Code of Criminal Procedure by H. Bradley, District Magistrate of 
Coimbatore. 

ID this case the accused were charged before the Sub-Magistrate oi 
Palladam with the offences of forcible rescue of cattle being taken 
to the pouud, assault, and criminal intimidation. Ttie Sub-Magistate 
summoned the witnesses named by the complainant, but examined the 
complainant alone and then acquit'ed the accused. 

Toe Public Prosecutor (Mr. Powell), for tbe Crown. 

Venkatasubbayyar, for accused. 

OEDER. 

Inasmuch as the case was not disposed of under Section 203, Cri- 
minal Procedure Code but summonses were issued to the complainant's 
witnesses, the Magistrate was not at liberty, as he [389] assumes, to 
" stop tbe case whenever be liked." Hewas bound to examine t!>e witnesses 
tendered by the complainant before acquitting the accused. Tnis the 
Magistrate admits he did not do. 

We must, therefore, s t at-ide the acquittal and order a re-trial. 

We observe that the Magistrate though he issued summonses to the 
complaii, ant's witnesses, did not ex-nnine them, but acquitted i he accused 
on a consideration of the tomplaii ant's statement alone. It is not cleir 
why this unusual and illegal \ rocedure was followed. Having regard to 
it and to tbe fact that the Magis rate has foimed a deei-u d opinion in the 
case bef> re bearing the evidencn for the pro-ecution, we oiie;t that 
the D. strict Magistrate do transfer the case for tr.al to some other 
Magistrate. 



Criminal R< vision Case No. 16 of 1897. 
276 



VII.] PALANIANDI TBVAN V. PUTHIBANQONDA NADAN 20 Mad. 390 



20 H. 389. 

APPELLATE CIVIL. 
Before Mr. Justice Subraminia Ayyar and Mr. Justice Benson. 



PALANIANDI TEVAN AND OTHERS (Defendants), Appellants v. 

PCTHIRANGONDA. NADAN AND OTHERS (Pllintiffs Nos. 2 TO 5), 
. Respondents* [30th and 3 1st Mtroh and 27bh September, 1897.] 

Easements Act Act V of 1882, Section 2 (6) Easement over a well Customiry a right 
to use t)ie well. 

No fixed period of enpvment is lail down by law as necessary to establish a 
customary right, and a custom iry right to use a well may exist apart from a 
dominant heritage. 

CR., 2 Ind. Gas. 427 = 20 M.L.J. 699 = 8 M.L.T. 399 (403)]. 

SECOND anpeal asainst the decree of T. Ramasami Avyangar, 
Subordinate Juige of Midura (West) in appeal suih No. 422 of 1895, 
reversing the decree of K. Krishnamachariar, District Mansif of Madura, in 
original suit No. 566 of 1894. 

The plaintiffs having obtained leave under Civil Procedure Code, 
Section 30, sued on behalf of themselves and other members of the Shanar 
caste for a declaration of their right to draw water from a certain well, 
and for an injunction to restrain the defendants from interfering with 
their exercise of that right. 

The defendants Nos. 1 to 3 claimed that the well belonged to them, 
and defendants Nos. 4 and 5 stated that they had been [390] drawing 
water from it with the consent of the other defendants. The District 
Munsif held that the well was on the land of defendants Nos. 1 to 3 and 
not on poramboke land as alleged by plaintiffs, and that the plaintiffs had 
no right to make use of it. He according'y dismissed tho suit. The 
Subordinate Judae reversed his decree and passed a decree in favour of 
the plaintiffs. He held it to be established, that people of all cashes in 
the village including Suanars had ooenly and without any obstruction for 
upwards of thirty years made use of the well in question, and held that 
the plaintiffs, having in common with other resHenns of the village enjoy- 
ed the well, had acquired a right of customary easement. 

The plaintiffs preferred this second appeal. 

Desikachariar, for appellants. 

Mr. J. Satya Nadar and Sundara Ayyar, for respondents, 

ORDER. 

The case set up in the plaint is that the well was not the private 
property of the defendants, but was situated in poramhoke land and was 
used bv the plaintiffs, and those on whose behalf they sue, as a matter of 
right for the past ninety years. This would indicate that the plaintiffs 
claimed what is called a '' customary right" snob as is referred to in 
Section 2 (b) of the " InHian Eisements Act, 1882," and in Channanam 
Pillay v. Manu Puttur (1). The Subordinate Judge found that the well 
belonged to the defendants, but that it had been used by the plaintiffs 
and those on who^e behalf they sued, onenly and without obstruction, for 
upwards of thirty years, and he, therefore, held that they had established 

* Second Appeal No. 213 of 1896. 
(1) 1 MvL.J. 47. 

277 



1897 

SEP. 27. 

APPEL- 
LATE 
CIVIL. 

20 H. 389. 



20 Mad. 391 



INDIAN DECISIONS, NEW SERIES 



1897 
SEP. 27. 

APPEL- 
LATE 
CIVIL. 

20 H. 389. 



customary easement over the well. The plaintiffs' claim was not put for- 
ward in the plaint as one of easement, and there is no allegation or issue" 
or clear finding as to their possession of a dominant heritage entitling 
them to the easement. 

Without a dominant heritage there can be no easement. 

We fear that the Subordinate Judge has not clearly distinguished in 
his mind a customary right from a customary easement. 

No fixed period of enjoyment is laid down by law as necessary to es- 
tablish a customary right. The character and length of enjoyment which 
are necessary for such purpose have been, in our opinion, correctly laid 
down in Kuar Sen v. Mamman (l). 

We must, therefore, ask the Subordinate Judge to submit findings on 
the evidence on record on the following issues, viz. : 

[391] (1) Whether the plaintiffs and those whom they represent 
have a customary right to use the water of the well as claimed in the 
plaint. 

(2) If not, whether the plaintiffs and those whom they represent are 
the holders of a dominant heritage in the village and as such have a cus- 
tomary easement (Section 18, Easements Act) to use the water of the 
well as claimed in the plaint. 

The Subordinate Judge is requested to submit his findings within a 
month from the date of the receipt of this order. Seven days will be 
allowed for filing memorandum of objections after the findings have been 
posted up in this Court. 

[The Subordinate Judge made his return as follows : 

Plaintiffs' vakil gave up the first issue and confined himself to the 
second issue. He contends that the dominant tenement to which the 
customary right of easement is attached is the possession of residence by 
the plaintiffs and those whom they represent. I think the contention 
musi prevail. Since it appears from the evidence of the plaintiffs' witness- 
es that all the residents of Kokilapuram, except Neechars or Pariahs and 
Pallars, have been using the water of the well, plaintiffs by possessing 
houses and becoming residents of Kokilapuram have acquired the right 
of easement to use the water of the well. 

I therefore find the first issue in the negative and the second issue 
in the affirmative.] 

This second appeal coming on for final hearing, the Court delivered 
the following 

JUDGMENT. 
We accept the finding and dismiss the second appeal with costs. 



(1) 17 A. 87. 
278 



HI.] 



BANQAYYA APPA RAU V. BATNAM 



20 Mad. 393 



20 M. 392. 

[392] APPELLATE CIVIL. 
Before Mr. Justice Subramania Ayyar and Mr. Justice Boddam. 



1897 



EANGAYYA APPA EAU (Plaintiff), Appellant v. EATNAM 
AND OTHERS (Defendants), Respondents in Second 

Appeal No. 906. 

SRIRAMULU (Defendant) Respondent in Second Appeal No. 907 . 
KRISHNAMMA AND OIHKRS (Defendants), Respondents 

in Second Appeal No. 908. 
PENDALA BHUPATI (Defendant), Respondent in Second Appeal 

No. 909. 

LAKSHMIPATI (Defendant), Respondent in Second Appeal No. 910. 
KOTAYYA (Defendant), Respondent in Second Appeal No. 911. 
LAKSHMINARAYANA AND ANOTHER (Defendants), Respondents 

in Second Appeal No. 989. * 

ACHAYYA AND ANOTHER (Defendants), Respondents in Second Appea.1 
No. 990. [27th October and 6uh November 1896 and 25th August, 1897.] 

' Res judicata ' Civil Procedure Code Act XIV of 1882, Section 13 Decision of 
Revenue Court. 

A z vinincUr distrained for rent under the Rent Recovery Aot of 1865. There- 
upon the tenant filed a summary suit under that Aot in a Revenue Court, and 
the distraint was annulled on thu ground (hat the z*mmdar bad not tendered a 
proper patta as required by Section 7. The ztmindar now sued in the Court of 
the District Munsif to recover the arrears of reut : 

Held, that the question of the propriety of the patta tendered was not res 
judtcata. 

[R., 21 M. 48-2 (F.B.) ; 31 M. 62 = 17 M.L.J. 601 = 3 M L.T. 186; D., 27 M. 65.] 

SECOND appeals against the decrees of E. A. Elwin, Acting District 
Judge of Kistna, in appeal suits Noa. 2155, 2156, 2216, 2217, 2218, 2219, 
2133, aud 2134 of Ib93, affirmiug the decrees of C. Eama Eau, District 
Muusit of Bazwada in original suits Nos. 88, 82, 84, 85, 86, 83, 87, and 
89 of 1893, respectively. 

The plaintiff in all these suits was the Zamindar of Nuzvid and the 
defendants were his tenants, and he sued them to recover [393] arrears of 
rent. The two questions which arose in e-ich suit were (1) whether the 
plaintiff had tendered a proper patta as required by the Act; (2) whether 
the claim was barred by limitation. On the first point the Lower Courts 
held against the plaintiff on the ground that the pattas tendered had been 
held to ba improper in the course of summary proceedings under the Eent 
Eecovery Act. Tue second question was also decided against the plain- 
tiff. 

The suits were accordingly dismissed. 

The plaintiff prelerred these second appeals. 

Sundara Ayyar, for appellant in all cases. 

Tne Acting Advocate-General (Hon. V. Bhashyam Ayyangar), for 
appellant in second appeal No. 989 of 1895. 

Mr. Krishnan, for respondents in all cases. 

* Second Appeals Nos. 906 to 911, 989 and 990 of 1895. 
279 



APPEL- 
LATE 
CIVIL. 

20 H. 392. 



20 Mad. 39* 



INDIAN DECISIONS, NEW SERIES 



[Vol. 



1897 

AUG. 25, 

APPEL- 
LATE 
CIVIL. 

20 H. 392. 



ORDER. 

In Second Appeal No 906. The faots of the case, so far as the ques- 
tion raised with reference to the claim for the rent for fasli 1299 is c^n- 
cerned, appear to he these : Before the present suit was instituted the 
appellant (plaintiff) had distrained for that rent under the Re->t Recovery 
Act VIII of 1865. Thereupon the respondents (de'endants^ fil^d a sum- 
mary suit hefore the Collector under the provisions of that Ant to set 
aside the distraint. The distraint was set aside on the ground, ifc would 
seem, that the appellant; had not; tendered a proper patta as reqnird hy 
Section 7 of the Act. This finding of the Collector has now been held, by 
the District Munsif as well as by the District Judge, to conclude the 
appellant from showing, in the present snit, that there was such a tender. 
The question is whether this decision is right. 

We think it is not. Rngava v. Rajagopal (l) relied upon on behalf of 
the respondents, no doubt supports the view taken by the Lower Courts. But 
that case is in confTct with the earlier decision in Rama v. Tirtasami (2) 
and was dissented from in Gnnqarazu v. Knndireddiswami (3^ bv Mu f tu- 
sami Ayyar and Best, JJ., who followed the case of Rami v. Tirtasami (2). 
The same learned Judges held in Oliver v. Markandayyan (4) also, that 
decisions of Revenue Courts do not operate as res judicata, when the same 
question arises between the parties in a Civil Court. Moreover inasmuch 
as the Revenue Courts canot entertain sui^s for rent like the present, those 
tribunals are not, within the meaning of [3941 Section 13 of the Code of 
Civil Procedure, Courts of competent jurisdiction entitle! to adjudicate so 
as to bar the Civil Courts from trving, in such suits, a question already 
decided by the former tribunals. This being so, the fact that Section 13 
is not exhaustive on the subject with which it deals, cannot render annli- 
cable here, the reasoning adopted by Burki*t, J., in liar Charan Singh v. 
Har Shanker Singh (5) which would be legitimate only if the case, is one 
falling outside the terms of the sention. For, the present case is not one 
of the latter description, but is covered by the express language of the 
section ; the words therein " competent to try such subsequent suit" 
absolutely precluding the decision of the Revenue Courts from operating 
as res judicata. To hold otherwise, under these circumstances, would 
clearly be in direct contravention of the legislative provision and would 
not be an application of the general principle of res judicata to a case not 
provided for by statute. 

As to the claim f-r the rents for faslis 1296, 1297 and 1298 held to 
have been barred bv limitation on the authority of the decision in Srira- 
mulu v. Sobhanndri Avpa Rau (6) which overruled that of Mnttusami 
Ayyar, J., in Sobhanadri Appi Han v. Chalamanna (7), the annellant, we 
think, is entitled to prove as he was nermittd to do in Ramakrishnammn 
v. Rangayya Appa Rau (8). that his right was acknowledged or that the 
bar of limitation was in some other way removed. 

We must therefore call for fresh findings on the following issues OD 
the evidence on record as well as upon any other evidence which the 
parties might adduce at the enquiry : 

1. Is the plaintiff's suit for faslis previous to 1299 time-barred ? 

2. Whether proper pattas were tendered in the suit faslis ? 

(1) 9 M. 89. (1} 7 M. 61. (8) 17 M. 106. 

(4) Spcond Appeals Nos. 750 to 754 of 1892 unreported. 

(5) 16 A. 464. (6) 19 M. 81. (7) 17 M. M5. 
(8) Civil Revision Petitions Nos. 29 to 117 and 198 to 205 of 1895 unreported. 

280 



YII.] B. B. V. S. M. B. KBISHNA BAO V. COUBT OF WABDS 20 Mad. 396 

The findings are to be submitted within one month of the receipt of 
this order. Seven days will be allowed for filing objections after the 
findings have bean posted uo in this Court. 

In Second Appeal Nos. 907 to 911, 939 and 990 of 1S95. For the 
reasons given in our judg oont ia second aooeil No. 90 5 of 1395. we call 
for a finding on the issue whether the claim is barred by limitation. 

Fresh evidence may be taken. Tie finding ia to be submitted 
within one month after the receipt of this ord^r. Seven d-iys will 
[395] be allowed for filing objections after the finding has been posted 
up in this Court. 

[In compliance with the above ord^r, the District Jud^e returned 
his finding in the second issue wrish WAS as follows: 

I find on this issue that oab'.as wjra tenlerel in ftslis 1299 and 1300, 
but that the pattas were not prooer or such as the defendant wis bound 
to accept in that they imposed improper conditions as to buildings and 
raised the rent without the Collector's sanction. 

The District. Judge reported thit the second aop^als with reference 
to which the first issue was framed, had been compromised. In the 
result the second anpaal having been posted agiin for disposal, some of 
them were withdrawn, and the High Court delivered judgment dismissing 
the rest.] 



20 M. 393 (P.O.) =21 I A. 191 = 7 Sar. P.C.J. 252. 
PEIVY COUNCIL. 
PBESENT : 

Lord Macnaghten, Lord Morris. Mr. Way, Sir Henry De 
Villiers and Sir Henry Strong. 

[On petition from the High Court at Madras.} 



KAJA BAO VBNKATA SURIYA MAHIPATI RAM KBISHNA 

BAO BAHADUR (Plaintiff), Appellant v. 
THE COURT OF WAKDS AND ANOTHKB (Defendants), 
Respondents. [31st July, 1897.1 

Preparation of the copy of the record Papers to be omitted. 

In a suit in which the original Court hid framad and decided several issues, 
the High Court on appeal confined nheir decision to the q ies5ious waioh, in their 
opinion, governed the case, leiving other issues undecided as noG affecting the 
result after tha decision to which they had cime. 

Afterwards the suit w*s admitted to appoil ia conformity with Section 603, 
Code of Civil Procedure. 

Ia the preparation of the printed oopy of th<* record the question arose whe- 
ther the copy should be nude of the whole reiord. or of only so much of it as was 
material to the correctness of the High Court's decision. 

Their Lnrdships directs! that only so ma )h of the original re-jord as bore upon, 
and was material to the questions deiidai by the High Court, and the subject of 
the appeal, should be printed in the copy. 

[396] PETITION for an order amending directions (30th April 1897) of 
the High Court as to the preparation of the copy of the record of an 
appeal. 

The petitioner was the plaintiff in a suit which had been admitted to 
appeal in conformity with Section 603. Cide of Civil Prr>c j dur^. He askei 
for a direction, reversing that made on petition to the High Court, as to 



1897 

ADO. 25. 

APPEL- 
LATE 
CIVIL. 

20 M. 392, 



M VII- 36 



281 



20 Mad. 397 INDIAN DECISIONS, NEW SERIES [Yol. 

1897 the course to be followed in preparing the copy of the record for the hear- 
JULY 81. ing an appeal by the Judicial Committee. The direction asked for was 

that a copy of only so much of the original record should be printed for 

PRIVY transmission to the Registrar as was material to tne questions decided by 
COUNCIL, the High Court in the judgment under appeal. 

20 n ggg The petition stated that the suit to which it had reference was filed 

(P C )= * n 1^91 in the District Court of Godavari for a declaration that the minor 

24 I A 194 = defendant was not the legitimate son of the late Raja of Pittapur ; that a 

7 Bar P C J w '^' d&ted ^ e ^th March 1890, whereby that Raja had bequeathed the 

252 ' ' wno ' e f his property to the minor defendant, was invalid as against the 

plaintiff ; and that the latter, as the adopted son of the late Raja, was 

entitled to succeed to the entire estate. 

The Court of Wards, as defendant on behalf of the minor, admitted 
the adoption of the plaintiff, but asserted that the minor defendant was 
the legitimate son of the late Raja, and that the will, whereby this son had 
become entitled, was valid and effectual. 

The most important of the several issues framed by the District 
Court questioned the validity of the will, and the legitimate birth of the 
minor. The District Judge, upon the issues, decided that the minor was 
not the son of the Raja, and that the plaintiff had been given to be adopt- 
ed by the Raja on the clear understanding between the Raja and the 
child's natural father, that upon the adopted son the inheritance should 
devolve. The decision, therefore, was that the plaintiff's title prevailed ; 
and from this judgment, in 1895, the defendants appealed to the High 
Court. 

There was no dispute in the appellate Courfc that the estate waa an 
an impartible one. That Court, having found that there was no proof 
that the estate was not subject to be alienated by the last owner, held 
that the will of 1890 was not invalid, or imperative, by reason of any 
settlement having been made by the Raja in the plaintiff's favour. Thus 
the High Court decided that the will was a valid one, and this involved 
the dismissal of the suit, and they [397] held that ib was unnecessary to 
inquire into the matter of the legitimacy of the minor, or to hear the 
appeal on any further issue (See Court of Wards v. Venkata Surya 
Mahtpati Ramakrishna Roio (1)). 

On the 27th January 1897, an appeal against this judgment was ad- 
mitted, in conformity with Section 603, Code of Civil Procedure. On the 
19th February following, the Deputy Registrar of the High Court forward- 
ed to the pleaders, on each side in the above appeal, a list of the papers 
on the record for them to select which should be printed for the copy to be 
transmitted. 

The petitioner's vakil submitted a list limited to papers which, in his 
opinion, were material to the question decided by the High Court. But 
the pleader for the defendants proposed what would have been, practically, 
the printing of the entire record. The reasons given by the latter were 
that the Judicial Committee, according to what was believed to be thsir 
practice, would go into the whole case, if they should reverse the decree 
of the High Court, and would not remit the suit to be heard in India. 
For this it would be necessary that the whole record should be before 
them. On the other hand, on behalf of the plaintiff, it was contended 
that a copy of the whole record would, at this stage, be unnecessary in 

(1) 20 M. 167. 

282 



VII ] RANGA PAI v. BABA 20 Mad. 398 

whatever way the appeal might be disposed of. If the High Court's judg- 1897 

meat should be affirmed there would be an end. If that judgment should JULY 31. 
be reversed, the suit would be remitted to India, each party being entitled 

to have the High Court's decision upon the whole of the facts. PRIVY 

On the 30th April 1897, the High Court ordered that the Eegistrar COUNCIL, 

should take the usual course, and have the whole record transcribed ; and o n IT~J, QB 

that he should decide, after consulting the parties, what paper was part ' 

of the record. 24 I A 1M- 

Against this order the present petition was filed. ' 

Mr. /. D. Mayne, for the petitioner, submitted that to carry out the a *' ' ' ' 
order of the High Court would cause unnecessary delay and expense. The 
evidence of as many as seventy-five witnesses for the plaintiff had been 
recorded, and of one hundred and twenty five for the defendants. One 
hundred and eighty-six documents had been filed for the plaintiff, and more 
than four hundred for the defendants. Next to nothing of the oral evidence, 
very few [39(jJ of the documents, and probably only the deed of adoption, 
and the testamentary papers of the late Eaja, had any bearing in the 
questions decided by the High Court which were of law. If the record 
should be limited to what was material to the only issues to which the 
appeal related, the appeal could be heard in a few months. If the whole 
record had to be transmitted, it would be some ye^rs before the appeal 
could be heard. 

There was no appearance for the respondents. 

OEDEE. 

Their Lordships were of opinion that the direction asked for should 
be giveu. The order of Her Majesty in Council upon their report was 
that the order of the High Court be reversed, and that the Eegistrar of 
the High Court be directed to transmit only so much printed copy of the 
original record as properly bears upon, and may be material for, the deci- 
sion of the questions of law which were decided by the High Court and 
form the subject of the present appeal. 

Solicitors for the petitioner Messrs. Frank, Richardson & Sadler. 



20 H. 398. 

APPELLATE CIVIL. 
Before Mr. Justice Shephard and Mr. Justice Davies. 



EANGA PAI AND ANOTHER (Plaintiffs), Appellants v. BABA 

AND ANOT.HBK (Defendants), Respondents.* [21st, 23rd, 24th and 30bh 

January and 1st September, 1896 and 6',h August, 1897J 

Limitation Ac Act XV of 1877, Section 10 Suit between Co-trustees Breach of trust 
Court Fees Act Act VII of 1870, Section 5 Objection -is to Court fee paid on 
appeal. 

The plaintiffs and defendants together with one Subbaraya Pai who died in 
1884, were trustees of a temple, having been appointed by the committee under 
Act XX of 1863. For some years before his death Subbaraya P*i was left in 
exclusive management. Subsequently the defendants were in sole management 
of the temple until 1891, when the plaintiffs brought the present suit charging 
that the defendants had excluded them from the right of management, and 
claiming that they should make good sums lost to the institution by reason of 
breaches of trust alleged to have been committed by them. Some of the breaches 
of trust took place before 1884. O( the others, which took place subsequently, 
some consisted in improper dealings with the temple property to the detriment 

* Appeal No. 156 of 1894. 
283 



20 Mad. 399 



INDIAN DECISIONS, NEW SERIES 



[Yol. 



1897 

AUG. 6. 

APPEL- 
LATE; 
CIVIL. 

20 H. 398, 



of the temple and to the advantage of certain relatives of the defendants. The 
[399] plaintiffs ilso a^ked for an injunction to restrain the defendants from 
ezcludine them from management : 

Held (1) that, in the absence of evidence of an absolute denial bv the defend- 
ants of the plaintiffs' right to act as trustees, the suit for an injunction w is not 
barred by limitation : 

(2) that the suit could not be regarded as a suit by the beneficiaries and was 
not within the operation of Limitation Act, Section 10; 

(3) that the suit was not maintainable in respect of breaches of trust com- 
mitted in the lifetime of the demised mmager, as being to that extent barred 
by limitation, and also for the reason that such breaches were not more imput- 

able to tbe defendants than to the plaintiff* ; 

(4) that evan if it hal been proved that the coranvnUv inte^e^ted in the 
temole had sanctioned th acts of the defendants now compUinei of, that cir- 
cumstance would not suffice to excuse the defendants ; 

(5) that the defendants were liable to m ike good the loii ocovnonel by any 
breach of trust committed within six years of the date when the suit was in^tit- 
u'ed even in the absence of fraud, and that in estimating such loss prospective 
loss should be assessed. 

Held further . that an objection taken on behalf of respondent 1 ? at the hearing 
of an appeal as to the amount of Court- fee stamp affixed to the petition of appeal 
to the High Court, cannot be entertained. 

[R., 37 C. 914 = 8 Ind. Cas. 1145 (1146); 9 C.L.J. 383 = 13 C.W.N. 557; D., 21 M. 269.] 

APPEAL againsb the decree of W. C. Holmes, District Judge of South 
Canara, in original suit No. 13 of 1891. 

The plaint set out that the plaintiffs and defendants were trustees of 
the Venk-itramana templa at Mangalore, that the defendants and Subba- 
raya Pai. a trustee who died in 1884, spent temple funds for other than 
temple purposes and acted injuriously to the interests of the temple, that 
since Subharaya Pai's death, the defendants actel injuriously to the 
interests of the temple and caused loss to the temple, that the defendants 
acted independently of the plaintiffs in temple affairs ; and it prayed 
for a decree (l) ordering an account to he taken of the temole manage- 
ment from 1876-77 to date, and ordering the defendants to make good the 
loss which was estimated at Rs. 2,600 and (2) prohibiting the defendants 
by an injunction from conducting the temple affairs except in conjunction 
with the plaintiffs The defendants filed a joint statement to the effect 
that the plaintitfs were appointed trustees of tbe temnle in 1875, but did 
not enter on the duties of the office, that the plaintiffs took the side of 
certain out-caste Bhandaries in 1876 and were refused all interference in 
the temple affairs, that the temple affairs had always ben managed by 
a single trustee chosen by the community, that till his death in 1884 
Snbharaya Pai was the sole manager, that since then the second 
[400] defendant was the sole manager, that t,he plaintiff had no right to 
join in the management againsb the will of the managing moktessor, that 
the allegations as to the improper management of the temule were nob 
true, that Subbarava Pai was sotalv responsible for any mismanagement 
during his term of office, that the plaintiffs we^e not entitled to an account 
nor to join in the management of the temple, and that the suit was barred 
by limitation. 

It appeared that the parties wera aooointed trustees of the temole in 
question by the committee un^r the Religious Endowments Ac 1 ;, 1863. 
Up to the date of Subbaraya Pai's death he had been in exclusive manage- 
ment ; and it is unnecessary for the purposes of this report to state the 
nature of the breaches of trust alleged to have been committed in his 
lifetime. The breaches of trust dealt with in the fourteenth and following 

284 






VII.] 



RA1TGA PAI V. BABA 



20 Mad 401 



issues were alleged to have taken place subsequently, and they consisted 
in omissions by the defendants to collect det>ts due to the institution, 
and their remission of certain debts due to it by relatives of the defendants 
and leas-es and mortgages of the trust property in favour of the defend ants' 
relatives and detrimental to the institution. Some of these acts had been, 
it was said, sanctioned by the community interested in the temple. 

The District Judge decreed to the plaintiffs the injunction sought 
but otherwise dismissed the suit. 

The plaintiffs preferred this appeal. 

Pattabhirama Ayyar and Ma,dhavn Rau, for appellants. 

Ramachandra Rau Saheb and Narayana Rau, for respondents. 

JUDGMENT. 

In this case objection is taken by the respondents' vakil to the 
amount of ihe (Jouro fee stamp affixed by the aupellants to their petition 
of appeal. In our opinion the objection taken at the hearing of tne aopeal 
cannot be entertained. The mode in which any question as to the amount 
of any lee pa>able in the High Court should be determined is prescrihel 
in Chapter II of the Court Fees Act. The 5t,h Section provides that any 
Buch question ari&iug between the officer whose duty it is to see that any 
fe<J is paid and any suitor or attorney shall be referred to the taxing offi ^er 
whose decision shall be final, except in case of a reference b^mg made by 
bim to the Chief Justice when the decision of the Chief Justice shall be 
final. In the present instance there was no reference to the Chief Justice. 
ID is suggested that the provision as to the finality of the taxing officer's 
decition is [401] intended to apply only as b tween the appellant and the 
officer meunoued in the section and that it does not prevent a respondent 
from questioning the decision. If this w-<re the right construction of the 
section witb re'erence to the taxing officer's decision, it must also hold 
good with regard to the decision of the Chief Justice. Neither decision 
can, in this view, be regarded as final except as regards the pirty who has 
filed the petition of appeal or other document. We can find nothing in 
the language ot the section to justify this conclusion. Hal it been in- 
ttndid 10 givetiijaliiy of such a restricted kind to either decision, the term 
' feuiior' would not have been used. We must hold therefore that the tax- 
ing officer's decision cannot be questioned bv the respondents' vakil. The 
oases to which we were referred are not really in uoint, for i-h* Aci rmkes 
adisiinction between the High Court and o'.her Courts and in those cises 
it was nut in the H gh Court that the appeal out of wnich the dispute 
regaidiug the stamp arose had to be fred. 

The appeal is against so much of the decree of the District Judge as 
dismisses the p aiutifiV suit, an I objection is taken by the resnonlents to 
the remaining part ol the decree wnich is in favour of the plaintiffs. 

It will be convenient to deal first with the po ! nt of lim tation raised 
by the rspondeuts in answer to the whole suit. Tne ulainrifiV claim is 
of a two'o.d chaiacter. Tnereis first the charge of breach of trust against 
tbe respondents and a prayer for an account, and secon ily 'he allegation 
that the defendants behave independently of the ulaint ffs in respect of 
temple affairs" at d a prayer for an injunction restraining the defendants 
from conducting tl<e temple affairs wir.hout the co operation of the 
plaint fl's. With regard to this la'ter head of claim the plaint is unfortunate- 
ly vague, ani no date is ass gn d to the alleged exclusion of the i lamtiffs. 
In their writttn statement the defendants allege that tbe plaintiffs " have 



1897 

AUG. 6. 

APPEL- 
LATE 
CIVIL. 

20 M. 398. 



20 Mad. 402 INDIAN DECISIONS, NEW SERIES [Yol. 

1897 been refused all interference in the temple affairs and its management" 

AUO- 6. since 1876, and on this they found their plea of limitation. 
. ~~ _ We agree with the District Judge in his conclusion on this point. 

API EL- It is clear from the evidence that, although the plaintiffs did not take 
LATE any active part in the management of the temple, there was no absolute da- 
ClVIL. nial by the defendants of their right to act as trustees. Oa the contrary 
:~ they were on occasions, for [402] instance in 1384 after the death of Sab- 
' baraya Pai, when an acquittance had to be given to his widow, and in 1887 
when a suit was being brought, associated as trustees with the defendants. 
As the present suit was brought in August 1890, there can be no doubt 
that the suit is not barred by the law of limitation, so far as the second 
head of claim is concerned, and no other ground was urged by the respond- 
ents' vakil for impeaching the decree granting relief in respect of this 
claim. As regards the other claim laid against the defendants, it is con- 
tended on behalf of the plaintiffs that the suit is one for which they are en- 
titled to claim the benefit of the 10th Section of the Limitation Act and 
that accordingly the defendants can ba made liable in respect ol 
breaches of trust occurring at any time since thay were appointed trustees. 
To support this contention it is necessary for tha plaintiffs to make 
out that they are suing as representatives of the temple in order to 
recover for its benefit the property which belongs to it, and it was ar- 
gued by the plaintiffs' vakil that that was in fact the nature of the suit. 
In the view we take it is unnecessary to decide somewhat doubtful 
question whether Section 10 of the Act applies to a suit like the present 
charging breaches of trust and claiming an account. (See Saroda Pershad 
Chattopadhya v. Brojo Nath Bhuttacharjee (1) and Thackersey Dewraj 
v. Hurbhum Nursey(^)). For in our opinion the suit is really brought to vin- 
dicate the rights of the plaintiffs as co-trustees with the defendants and 
to protect their interest, and not, except indirectly, the interests of the 
temple. That this is the character of the suit appears from the very 
prayer for an injunction already mentioned. In respect of that prayer 
at least the plaintiffs cannot say that they represent the beneficiaries. 
We do not overlook the language of the plaint on which the plaintiffs' 
vakil relies. The allegation that there has been loss to the temole 
and the prayer that the money due to the temple may be paid by the 
defendants are not inconsistent with a suit instituted by the plaintiffs 
on their own behalf, for it is to their own interest to rescue and preserve 
the property of the temple. The matter may be tested by asking whether 
the plaintiffs are entitled to charge against the temple the costs of thia 
litigation. How conld this possibly ba allowed when it is se<m that, but for 
. the supineness [403] of the plaintiffs, no breach of trust would have occur- 
red and no litigation wouH have been necassary ? It would be obviously 
unjust to allow the plaintiff s to figure in one character for one purpose and 
in another for another purpose. It might possibly be different if the defend- 
ants were not, as well as the plaintiffs, trustees of the temple, but as 
against the plaintiffs their co-trustees the defendants have defences opec 
to them which would not be available against third parties representing 
the temple. It has been urged in this oasa that a trustee is not at liberty 
to sue his fellow- trustee except under special circumstance^. Tbis is i 
defence which is open to the defendants as against the plaintiffs, but woulc 
of course not be open to them if they ware cal'ed to account by strangori 
suing solely in the interest of the devasom. That one trustee mav brini 

(1) 5 C. 910. (2) 8 B. 432. 

286 



JTII.] BANGA PAI v. BABA 20 Mad. 404 

i suit against another charging him with breach of trust is not denied. 
rhere are precedents for such a suit, but what the plaintiffs' vakil Aua. 6. 
has been unable to cite is a case in which a suit such as would ordinarily . 
be brought by ^cestui que trust has been maintained against a trustee by * 
a fellow trustee. We are of opinion that the present suit cannot be re- LATH 
garded as a suit brought by the cestui que trust. It is a suit arising out ClVIL. 
of differences between the four trustees which in an incidental way only ~ 
can benefit the temple. Such a suit we do not think can be regarded as 
within the operation of Section 10. Applying then the ordinary law of 
limitation we have to see whether the plaintiffs' claim founded on alleged 
breaches of trust is barred in whole or in part. 

Some of the charges relate bo acts done and moneys exoended before 

the death of Subbaraya Pai ; others relate to matters occurring after that 

date and within six years of the time when the suit was brought. The 

suit is in our judgment barred so far as it relates to the former charges, 

for Subbaraya Pai died in July 1884 more than six years before the suit 

was brought. Independently of the bar of limitation the defendants have 

another answer to the charges relating to the management of the temple 

affairs in Subbaraya's lifetime. As we have already said it is not in every 

case of breach of trust that one trustee is enabled to sue another (soe Bahin 

v. Hughes (1) and Section 27 of the Indian Trusts Act). When the 

breach of trust is equally imputable to two trustees, obviously no such 

suit can lie. And where there are [404] three trustees and the 

management of the business has been left exclusively to one of them, it is 

clear that as between the other two, who are equally innocent, though 

they may be equally responsible to the cestui que trust, there can be no 

suit instituted. In both of these cases the parties are in pari delicto. In 

the present case it is part of the defendants' case and it is otherwise clear 

from the evidence, that Subbaraya Pai was until his death in exclusive 

management of the affairs. Against him or his representatives it may be 

that a suit could have been successfully brought by the other trustees. 

But the defendants have not been shown to be any more responsible for 

his acts than the plaintiffs themselves. Bath plaintiffs and defendants 

have aoparently neglected their duty. For these reasons we think the 

plaintiffs must fail so far as they seek to maka the defendants responsible 

for breaches of trust which occurred in the lifetime of Subbirava. If it 

were necessary to go into the question, wa should be unable bo agree with 

the Judge that the costs of litigation carried on by Subbaraya Pai could 

properly be charged against the temple fund. 

It remains for us to deal with the o'iher charges which form the sub- 
ject of the fourteenth and following issues. The facts for the most part are 
admitted. Except in certain instances soeaially mentioned b3low, there 
is evidence to show that the defendants are resoonsible for the other acts 
and defaults of which the plaintiffs complain. Oi the other hand, there is 
no evidence to implicate the plaintiffs. The only question therefore is 
i whether these acts constitute breaches of trust on the part of the defend- 
i ants. The District Julga hfcs considnrel that it is sufficient answer for 
: the defendants to make the^e charges to say that they acted with the 
consent of the community. Ha refers to this ground of defence in con- 
nection with almost all the charges laid against the defendants. In our 
opinion this defence cannot be allowed to prevail for two reasons. In the 
first place it is not proved satisfactorily that the community did sanction 

(]) L.R. 31 Ch. D. 390. 
287 



20 Mad. 405 



INDIAN DECISIONS, NEW SEBIES 



[Vol. 



1897 the several acts of the defendants, and secondly, if sach sanction was given, 

AUG. 6, it wouid not excuse the defendants, if otherwise they bad beengulty 

of breach of tiust. This must cleaily be so, for the trustees of the 

APPEL- temple weie not appointed by the community. Tney were all apt>o;nbed 

LATE under tie Act of 1863 by the commiitre, and to the committee they are 

CIVIL. responsible for iheir conduct. The fact that ihe community have approved 

the acts of the trustees may be evidence that [405] such acts were not 

20 M. 398. improper but we fail to see how in any other way tbeir approbation or 

consent can qualify the character of the defendants ' acts. 

The first act cbarged against the defendants is the remission of 
Es. 200 arrears of rent due by a relative of the two defendants. Tnere is 
then a remission of Rs. 183-5-4 an 1 further a remission of Rs. 539 on a 
document executed by one of the defendants, Raghunatha Kini. These 
acts of the defendants, especially wh n regtrd is ha 1 to the persons who 
were benefited by them, are sj clearly detrimental to the interests of the 
temple that it would be difficult; to justify them. No attemut, however, 
has bejn made to prove any spacial eircum-tances ; there is the alleged 
approval of the cjmmuuity and that is considered by the District Judge 
sufficient justification. Apparently he was uu ler the imoression that actual 
fraud must/ ba proved against the defea lants to make them liable. Clearer" 
evidence of breach of trust than is given with regard to tbe charges 
embraced in the fourteenth issue can hardly be conceived. 

The charges embraced in thti fif eenth issue are similar in kind and 
the observations just ma le apply to them. Hnre atjain one of the persons 
benefited by the remission is a relative of tin defen Unts. Tnesi charges 
we must also hold to be esttblishel. The sixteenth issue relates to mat- 
ters which happened in Subbaraya's time The pltintiffs must therefore 
fail in respect of that issue. The seventeenth issue relates to deb's due to 
the temple ami not collected by the defendants. The findings on this Issue 
are not very clear, but we cannot sav that the Judge has erre 1 with re- 
gard to it. As to many of the dnbts it is not shown that the defendants 
are to blame for the non-cullect.ion. The eighteenth issue embraces three- 
matters. The first is a remission of Rs. 280 in favour of a cousin of one 
of 'he defendants. No justification is offered. Tnis charge must be 
allowed. The second is a matter which occurred in Subbiraya's tira. 
This charge must be disallowed. As to the third we must confess that 
we do not undersiaml the chaige. Nor do the observations of the Ju'ige 
upon it give us any definite information. No particulars of thes^ all j gd 
breaches of trust were given by the plaintiffs, ami it is only from the 
ibsue that wo gather the nature of them. We are referred to the answer 
to the iuterrog* tones but the interrogatories [406] themselves are nob 
before us. Failing any defini e evidence we musst disallow this charge. 

In the result we mut all >w the app j al in respect of the items as ta 
which we have foun i the deiendant-t chargeable. There will be a decree 
for the sums nam d by the Jud^n and allo *e I by this ju Ig nent with in- 
ttret-t at *ix. ^eroent. from the di'e when the re nission in each case was 
mane. The appellants are en'itled to costs in this and in the Court 
Lelow pro^oitionate io the sums which w II ba decreed to them. Tha 
memorandum of objections is dismissed with c>shs. 

Before drawing up the decree we must ask the District Judge to fi'id 
on eviueute DOW on record with regard to the fiiteent.h issue, w >at is the 
amount kst to the temple by tne bre iuhes of trust mentioned in that i-sue ? 
The finding must be submitted within six weeks from tbe due of the 

288 



VASUDEVA UPADYAYA V, VISVABAJA THIRTHASAMI 20 Mad. 407 



of this order, and seven days will be allowed for filing objections after the 
finding has been posted up in this Court. 

[The District Judge having submitted his finding in compliance with 
the above order objections were taken by the parties and the Court called 
for a further finding making, inter alia, the following observation " with 
" reference to the time as to which the loss has to be calculated, it is to ba 
" observed that prospective loss as well as past has to be provided for, 
" for no second suit can be brought." 

This appeal coming on for final hearing, the Court delivered the 
following 

JUDGMENT (FINAL). 

In addition to the amount mentioned in the original judgment the 
plaintiffs are entitled to the sum of Bs. 64 and also to the sum of 
Us. 2,770-5-6 representing the loss of interest on the sum of Rs. 10,250 at 
2J per cent, from llth September 1886 to the 3rd July 1897. That 
disposes of the case.] 



20 M. 407. 

[407] APPELLATE CIVIL. 
Before Mr. Justice Subramania Ayyar and Mr. Justice Benson. 



VASUDEVA UPADYAYA (Defendant No. 2), Appellant v. 
VISVARAJA THIRTHASAMI AND ANOTHER (Plaintiff and 

Defendant No. 1), Respondents.* 

[26th July and 23rd August, 1897.] 

Letters Patent, Section 15 Civil Procedure Code Act XIV of 1882, Section 588. 

A District Munsif having dismissed a suit