Court : Chennai
Reported in : (1896)ILR19Mad337
1. The finding is that the transfers made by the widow in favour of the appellant were not made, as alleged by him, for purposes binding upon the respondent, a reversioner. It was, however, contended on behalf of the appellant that, notwithstanding the above finding, the alienations should be upheld on the principle of Hindu law recognised by the Judicial Committee in Behari Lall v. Madholal Ahir Jaya Wall I.L.R. 19 Cal. 236 since the intention of the widow in transferring the lands in dispute was to benefit the appellant and the transfers were made with the assent of the person who was the nearest reversioner then. Now to admit of the doctrine of law laid down in the case cited being applied, it should be shown that the widow's estate was completely withdrawn, so that the whole estate should get vested at once in the grantee as effectually as if the widow had renounced in favour of the nearest reversioner and the latter as full owner had conveyed the property to the grantee. But that ...
Tag this Judgment!Court : Chennai
Reported in : (1897)7MLJ195
Subramania Aiyar, J.1. The plaintiff sues upon a bond executed to his deceased father. In the absence of any admission or evidence to the contrary, the presumption is that the debt was one due to the family, and no certificate of heirship was necessary to enable the plaintiff to recover the debt.2. I set aside the order of the Subordinate Judge and direct the suit be restored to the file and dealt with according to law. Costs to abide and follow the result....
Tag this Judgment!Court : Chennai
Reported in : (1896)ILR19Mad497
Subramania Ayyar, J.1. The first contention on behalf of the appellant was that the debt mentioned in the appellant's application for the certificate was the property of the appellant's father Sattaya Pillai. But, as Sattaya Pillai, the appellaat, and the respondent were members of an undivided family, the presumption is that the debt was one due to the joint family, and there is nothing on the record to rebut this presumption.2. The next contention was that the Judge should not have directed the grant of the certificate in the joint names of the appellant and the respondent. No doubt the cases in Shitab Dei v. Debi Prasad I.L.R. 16 All. 21 and Lonachand Gangaram Marwadi v. Uttamchand Gangaram Marwadi I.L.R. 15 Bom. 684 show that ordinarily certificates should not be granted to rival claimants jointly. But in the present case it is clear that the real object of the application for certificate was to raise questions as to the validity of the adoption of the respondent, a matter which wa...
Tag this Judgment!Court : Chennai
Reported in : (1896)ILR19Mad345
1. The first point taken is that inasmuch as the plaintiff has died since the date of decree and after the filing of the appeal, leaving only his mother who has been brought on the record as the representative, the father is entitled by survivorship. It is said that the partition effected by the decree is not absolute so long as the decree remains appealable. The rights of the party are accordingly liable to be affected by events happening subsequently. There can be no question that the mother of the plaintiff is the person who represents him on his death and would therefore be entitled to the benefit of the decree. The right to continue a suit for partition after the death of the plaintiff would, of course, not devolve on his widow or other heir not being a co-parcener with the defendant, because immediately on the death happening before decree, the right of survivorship would take effect. It would not be the ordinary case of a suit abating on the ground of the right to sue not surviv...
Tag this Judgment!Court : Chennai
Reported in : (1897)ILR20Mad120
1. 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 mortgagee 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. 2. The claim for alleged improvements said to have been effected by the first mortgagee since his purchase can...
Tag this Judgment!Court : Chennai
Reported in : (1896)ILR19Mad257
1. On the 12th August 1892 there was executed in the appellant's favour by the other defendant a mortgage of certain property in the Madura district which, at the time, was the subject of proceedings in a suit brought by the plaintiff in Singapore. This latter suit was founded upon an hypothecation of the property, which, as it was not registered, would not in itself create any charge. The Subordinate Judge has decreed in favour of the plaintiff on the ground that the mortgage taken by the appellant was taken subject to the result of the suit in the Singapore Court. He considers that the doctrine of lis pendens applies.2. We are unable to agree with him. The 52nd Section of the Transfer of Property Act expressly limits the operation of the doctrine to suits in British India. Moreover, on general principles it is clear that a purchaser cannot be affected immediately by proceedings in a foreign Court. The decree of a foreign Court cannot directly affect land situated in British India. It...
Tag this Judgment!Court : Chennai
Reported in : (1896)ILR19Mad425
1. The suit having been dismissed on the ground of limitation and without any evidence being taken, it is necessary to see precisely what is the cause of action alleged in the plaint.2. The defendants are the administrators with the will annexed of one Pestonjee Nusserwanjee who died in 1881. The plaintiff is entitled under the will to a legacy of Rs. 2,100 and to a share of the residuary estate. In the sixth paragraph of the plaint, the plaintiff takes exception to the account filed by the defendants in July 1886, and in the eighth and following paragraphs he makes certain charges against the defendants with regard to their administration of the estate. He assesses his claim at Rs. 40,000 and asks for relief in respect of the matters charged against the defendants. He does not ask for payment of his legacy, nor for the ascertainment of the share of the residue to which he is entitled. The District Judge has treated the suit as one for an account and has held that, assuming time to hav...
Tag this Judgment!Court : Chennai
Reported in : (1896)ILR19Mad269
ORDER1. In all these cases, the Joint Magistrate has set aside the findings and sentences of a Second-Class Sub-Magistrate and has ordered a retrial on the ground that, as the Sub-Magistrate made a memorandum of the evidence in English instead of in the Vernacular, there is no legal record of the evidence, and the trial was therefore wholly irregular and illegal. He refers to a judgment of the Sessions Court of Madura, in which the same view was taken.2. We are of opinion that the decisions of the Joint Magistrate are erroneous.3. The Sub-Magistrate was trying cases of the classes mentioned in Section 355, Criminal Procedure Code. That section does not require him to record the evidence of the witnesses, but only to make a memorandum of the substance of the evidence of each witness as it proceeds. Section 357[1], Criminal Procedure Code, carefully prescribes the language in which the evidence of witnesses in the trials and inquiries referred to in Section 356 shall be taken down, but t...
Tag this Judgment!Court : Chennai
Reported in : (1896)ILR19Mad335
Subramania Ayyar, J.1. The plaintiffs sue for possession of certain lands from which they state they have been wrongfully evicted. Their case is that the first plaintiff holds the melvaram right and the plaintiffs Nos. 2 to 6 the kudivaram right in the village of Peria Pudukulam, that the lands in dispute form part of the said village, that the defendants Nos. 12 to 85, who had been cultivating the lands under the plaintiffs Nos. 2 to 6, had, at the instigation of the defendants Nos. 1 to 11, cut and carried away the crops that had been raised for the fasli 1298, and that ever since the defendants Nos. 1 to 85 have combined together and retained possession of the lands, alleging that the same form part of the village of Rangian belonging to defendants Nos. 1 to 11.2. The Subordinate Judge held that the plaint was, on the face of it, bad for misjoinder of parties and causes of action.3. Now when two persons are interested in a piece of land--one as melvaramdar and the other kudivaramdar...
Tag this Judgment!Court : Chennai
Reported in : (1896)ILR19Mad267
1. The District Judge ought to have followed the ruling in Venkatachella Pillay v. Chinnaiya Mudaliar 5 M.H.C.R. 166 which is clearly in point.2. At first sight it may seem strange that a purchaser may not bring a suit for partition in circumstances in which a member of the family other than the vendor may bring such a suit. There are reasons, however, why the one suit for partial partition should be allowed and the other not.3. To allow the purchaser from one member of a family to bring a suit for the partition of the particular property purchased might facilitate members of an undivided family in dealing with the property in fraud of the rights of the family. It is not unreasonable that the purchaser should have no greater powers against the family than his vendor. On the other hand, it is to the advantage of the family to be able to ascertain by partition the particular property which the purchaser may retain and to be freed from all relations with a stranger to the family. Nor is t...
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