Chennai Court March 1934 Judgments
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Naidu and ors. Vs. Subbaroya Chetty and ors.
Court: Chennai
Decided on: Mar-07-1934
Reported in: (1934)66MLJ695
Venkatasubba Rao, J.1. This appeal raises an important question as regards the validity of an attachment effected under Order 21, Rule 46 of the Code of Civil Procedure. The 1st defendant held an anomalous mortgage and under the terms of the mortgage' deed was in possession of the property. The plaintiff obtained a decree against him, attached his interest in the, mortgage under Rule 46, brought it to sale and purchased it in Court auction. The plaintiff, as the purchaser of the 1st defendant's mortgage interest, has brought this suit for possession and for mesne profits. As regards his claim to possession, no question arises, as the property has since the suit been delivered to the plaintiff. The lower appellate Court has passed a decree for mesne profits not only against the 1st defendant, who does not appeal, but also against defendants 2 to 6, with whose liability alone we are now concerned. I have said that the plaintiff himself became the purchaser at the Court sale; he obtained ...
Thulasi Ammal Vs. Official Receiver
Court: Chennai
Decided on: Mar-07-1934
Reported in: AIR1934Mad671
Venkatasubba Rao, J.1. Plaintiff 1 is the husband and the suits have been filed for a declaration that the deeds in question, although taken in the name of his wife, the defendant, were benami for himself and that the beneficial interest vests in him. The lower Courts have decreed the suits, but in my opinion their judgments are vitiated by a clear error. The source from which the money comes, as I observed in a recent judgment, furnishes undoubtedly a valuable test, but to regard it as the sole or conclusive criterion, is clearly wrong. (S.A. No. 1148 of 1929). This is precisely the misbake which the lower] Courts have made. In the case I have just referred to, I was dealing with Section 81, Trusts Act, but the provision that directly applies to the facts here is Section 82 which runs thus:Where property is transferred to one parson for a consideration paid or provided by another person, and it appears that such, other person did not intend to pay or provide such consideration for the...
(Pallampati) Lakshmi Narayana Vs. Iyanapurapu Suryanarayana and ors.
Court: Chennai
Decided on: Mar-07-1934
Reported in: AIR1934Mad680; 152Ind.Cas.515
Curgenven, J.1. In this case the question whether a certain portion of a compromise decree is executable arises for consideration. The suit was brought to recover possession of certain godowns and for past and future rent or profits. It was compromised and a decree passed in terms of the compromise petition filed by the parties. The plaintiff was not to get possession but the defendants agreed to acknowledge him as landlord, to pay up the arrears and to pay future ground rent at certain rates. It is this last condition with which we are now concerned and the question is whether it is so expressed as to be executable or whether it remains merely declaratory.2. It appears to me that the question whether a decree is executable has to be settled primarily upon the form or language of the decree itself. If the form is unambiguously that of an executable decree, then it is executable in form whatever objections may appear to its execution. Only if it is ambiguous ought: considerations such a...
Papi Naidu (Deceased) and ors. Vs. Subbaroya Chetty and ors.
Court: Chennai
Decided on: Mar-07-1934
Reported in: AIR1934Mad498; 154Ind.Cas.533
1. This appeal raises an important question as regards the validity of an attachment effected under Order XXI, Rule 46 of the Code of Civil Procedure. The 1st defendant held an anomalous mortgage and under the terms of the mortgage deed, was in possession of the property. The plaintiff obtained a decree against him, attached his interest in the mortgage under Rule 46, brought it to sale and purchased it in Court-auction. The plaintiff as the purchaser of the 1st defendant's mortgage interest, has brought this suit for possession and for mesne profits. As regards his claim to possession, no question arises, as the property has since the suit been delivered to the plaintiff. The lower Appellate Court has passed a decree for mesne profits not only against the 1st defendant, who does not appeal, but also against defendants Nos. 2 to 6, with whose liability alone we are now concerned. I have said that the plaintiff himself became the purchaser at the Court sale; he obtained the sale-certifi...
(Karuppath Veetil) Sankaranarayana Menon Vs. (Mangat) Vasu Menon and a ...
Court: Chennai
Decided on: Mar-06-1934
Reported in: AIR1934Mad471
Curgenven, J.1. In the suit out of which these proceedings arose, one Madhavan Nair obtained an assignment of the decree and an order under Order 21, Rule 16, Civil P.C., recognizing that assignment. In E.P. No. 183 of 1929 the petitioner applied for execution on the ground that he was the real beneficiary under the assignment deed and he produced a declaratory decree to that effect. This decree recited that the assignment of the decree in other suit was benami for him. The question which now arises is whether under the terms of Order 21, Rule 16, he is entitled to be recognized as assignee decree-holder in place of Madhavan Nair and to be allowed to execute the decree. The two Courts below have differed upon this point. The learned District Munsif has come to the conclusion that the decree obtained by the petitioner merely declares that the assignment is benami for him and will not amount either to an assignment in writing or by operation of law as is required by the rule. The learned...
Mudara and ors. Vs. Muthu Hengsu and ors.
Court: Chennai
Decided on: Mar-06-1934
Reported in: AIR1935Mad33
Pandalai, J.1. The plaintiffs, of whom plaintiff 3 is the assignee, of a mortgage from the other plaintiffs, appeal against the decision of the learned District Judge of South Kanara confirming the decree of the Subordinate Judge and dismissing their suit on the mortgage Ex. A dated 6th March 1919, for Rs. 1,500 executed by defendants 1 and 2 for themselves and as guardian of defendants 3 to G and three others since deceased who were all members of an Aliyasanthana family to which the mortgaged property belonged. The defence was that the mortgage was invalid for various reasons viz., (1) that it should have been executed not only by those who executed it but also by the members of a collateral branch according to the terms of a partition deed (Ex. 2); (2) that even all the members of the mortgaging branch had not joined the mortgage and (3) that the mortgage was not for debts binding on the family. The District Munsif found that the mortgage was true in the sense that the mortgagee pai...
Vemasami Veeraghavulu and anr. Vs. Thiruvendipuram Chengalamma Garu an ...
Court: Chennai
Decided on: Mar-05-1934
Reported in: AIR1934Mad409
ORDERCurgenven, J.1. The petitioners brought two separate mortgage suits against the same mortgagor and these proceeded to the passing of final decrees. Against the preliminary decrees appeals were preferred to this Court and were in due course dismissed, but in the decrees dismissing them the time for redemption of the mortgaged property was not extended. Meanwhile on the footing of the original final decrees applications were made for sale of the mortgaged properties and were ordered accordingly. Soon after these applications were filed it appears that the attention of this Court was drawn by communication from the judgment-debtors to the fact that no time for redemption had been fixed in the appellate decrees and without notice to the decree-holders orders were thereupon passed extending the time in each case to six months from the date of the appellate decrees, which would come to 19th October 1928. The effect of these orders was of course that fresh final decrees would have had to...
Thandavan Chettiar and anr. Vs. U.K. Unnalachan
Court: Chennai
Decided on: Mar-05-1934
Reported in: AIR1934Mad435
Jackson, J.1. We are not prepared to hold that Walsh, J., has erred. If two persons, one of whom is a party to the suit and one not a party, prefer a claim under Order 21, Rule 58, the party to the suit must proceed by way of appeal by virtue of Section 47 and the non-party by way of suit by virtue of Order 21, Rule 63. In the obiter dictum at the end of U Kala v. Ma Hnin U A.I.R. 1927 Rang 137 it is assumed that the claim was not made in execution, (see bottom of p. lid) which distinguishes it from our case, though why this assumption is made we do not understand. Goba Nathu v. Sakharam Taju A.I.R. 1920 Bom. 223 proceeds on the rights of the auction purchaser. We see no absurdity, in one party proceeding by way of suit and another by way of appeal; the two proceedings could ordinarily be linked: while if it is a district or subordinate Court that is executing the decree1 against a party to the suit, its jurisdiction should not be taken away at the party's own instance by coupling hims...
Nallaswami Gurukkal and ors. Vs. Sadasiva Gurukkal
Court: Chennai
Decided on: Mar-05-1934
Reported in: AIR1935Mad5a; 153Ind.Cas.464
Venkatasubba Rao, J.1. Mr. Varadachanar in his interesting argument has contended that Article 148, Lim. Act, does not apply, as the hereditary right of an archaka, to offer worship in a temple, is not in the nature of immovable property as the lower appellate Court has held; but it is unnecessary to deal with this argument, as, in my view, the plaintiff (the respondent) is bound to fail on another ground, with which I shall presently deal. On the death of Kalyanasundaram Ayyar, his widow Minakshi, who succeeded to her husband's turn of worship. in certain temples, granted a mortgage over that right in 1884 (i.e., about 45 years previous to the suit) in favour of defendant 1's father, the maternal uncle of Kalyanasundaram. The plaintiff, on the strength of the deed obtained by him from Meenakshi in 1927, seeks to redeem the right of worship that had boon mortgaged. The trial Court has hold, negativing the plaintiff's contention that he has failed to prove that he is the reversioner and...
(Varnasi) Venkata Sastrulu and anr. Vs. Kalluri Veerabhadrudu
Court: Chennai
Decided on: Mar-02-1934
Reported in: AIR1935Mad26
Venkatasubba Rao, J.1. This case (S.A. No. 241) illustrates forcibly the way in which the subordinate judiciary, I find, often misapplies the rule as to the fraud on the Registration Law laid down by the Privy Council Harendra Lal v. Haridasi Debi 1914 P.C. 67 and Mathura Prasd v. Chandra narayan 1921 P.C. 8. It is forgotten that, as in the case of every other kind of fraud, the party, who sets up this defence is bound to make it out by clear and cogent evidence. As has been pointed out by Beasley, C.J. and Curgenven, J., in their judgment in Ramanathan Chetti v. Delhi Batcha Thevar 1931 Mad. 335.There should be the strongest evidence of the fact there was collusion between the mortgagors and the mortgagees before the mortgagees can be deprived of the mortgage amount owing under the mortgage deed by reason of its registration being invalid, because of the inclusion of a small item of property not belonging to the mortgagors.2. Again, it is important to bear in mind that a mere failure ...
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