Court : Chennai
Reported in : AIR1936Mad618; (1936)71MLJ209
Venkatasubba Rao, J.1. This appeal raises the difficult question as to the power of an executing Court to pronounce upon the validity of the decree which it is called upon to execute. In this case, on behalf of the minor third defendant, it was contended, that as he had been represented in the suit by his father whose interest was adverse to his own, the decree passed was a nullity and could not therefore be executed. This point was taken at the stage of execution and the lower Court held that it has no power to go into that question. The correctness of this view is challenged before us and we have had long and learned arguments on the point.2. I do not think I can do better than refer at the very outset to the oft-quoted case of Kalipada Sarkar v. Hari Mohan Dalal I.L.R. (1916) 44 Cal. 627. The decree in that case was one passed against a lunatic represented by a minor as his next friend and the learned Judges rightly treated that decree as a nullity. That being granted, the question ...
Tag this Judgment!Court : Chennai
Reported in : AIR1936Mad603; 165Ind.Cas.765
ORDERBeasley, C.J.1. This is a Civil Revision Petition against the judgment of the District Munsif dismissing the plaintiff's suit. The plaintiff is the petitioner. The claim was for Rs. 153 balance due on a promissory note dated 25th September 1930 and executed by the defendant and five others to the plaintiff for Rs. 850 with interest at 12 per cent per annum. On settlement, Rs. 900 was agreed to be paid by the defendant to the plaintiff on 9th June 1933. The other five executants paid their quota. The defendant did not pay his portion of the amount, i.e., Rs. 150. Hence the suit. The defendant filed a written statement pleading (1) discharge found against by trial Judge, and (2) that the purpose for which the amount was borrowed was not valid in law. The promissory note is Ex. A and there are six executants to it, the present respondent being the third executant, and there is the following recital:We have this day borrowed from you Rs. 850 in cash for our toddy-shop business. On dem...
Tag this Judgment!Court : Chennai
Reported in : 166Ind.Cas.828
Beasley, C.J.1. This is an appeal from an order of the Additional Subordinate Judge of Madura dismissing the appellant's application, dated April 4, 1932, under Order XXXIV, Rule 6 of the Civil Procedure Code, for a personal decree on the ground that the application was time-barred. It was agreed in the lower Court that Article 181 of the Limitation Act applies to this case. That article gives a period of three years from the time when the right to apply accrues. The sale of the property in Court auction took place en October 12, 1925. There was an application to set aside the sale of the ground of fraud or irregularity, which was dismissed on February 22, 1926, upon which date the sale was confirmed. The judgment-debtor filed an appeal against the order of dismissal and that appeal was dismissed by the High Court on November 10, 1930. The dispute is as to when the right to apply under Order XXXIV, Rule 6, Civil Procedure Code, accrued. The respondents hero successfully contended in th...
Tag this Judgment!Court : Chennai
Reported in : AIR1936Mad709; (1937)1MLJ50
Varadachariar, J.1. The Taluq Board of Koilpatti sued 'the Sivagiri Zamindar for a declaration of rights and for recovery of money on foot of an agreement, Ex. A, executed on 6th June, 1895, by a former Zamindar of Sivagiri in favour of the Tinnevelly Taluq Board in whose territorial jurisdiction Sivagiri was then included.2. The correspondence exhibited in the case established that the then Zamindar was keen upon having a Taluq Board Hospital established at Sivagiri, the headquarters of his Zamindari, but the Taluq Board was not prepared to do so unless the Zamindar agreed to make a contribution both towards the cost of construction and towards the expenses of its maintenance. The Zamindar having accepted this condition, the hospital was opened in September, 1894, in a building temporarily occupied for the purpose; but, before beginning the construction of a permanent building, the Board insisted on and obtained a registered document Ex. A from the Zamindar. By this document, the Zami...
Tag this Judgment!Court : Chennai
Reported in : 164Ind.Cas.697
Varadachariar, J.1. The Taluq Board of Koilpatti sued the Sivagiri zemindar for a declaration of rights and for recovery of money on foot of an agreement, Ex. A., executed on June 6, 1895, by a former zemindar of Sivagiri in favour of the Tinnevelly Taluq Board in whose territorial jurisdiction Sivagiri was then included.2. The correspondence exhibited in the case establishes that the then zemindar, was keen upon having' a Taluq Board Hospital established at Sivagiri, the headquarters of his zemindari, but the Taluq Board was not prepared to do so Unless !he zemindar agreed to make a contribution both towards the costs of construction and towards the expenses of its maintenance. The zemindar having accepted this condition, the Hospital was opened in September 1894, in a building temporary occupied for the purpose; but, before beginning the construction of a permanent building, the Board insisted on and obtained a registered document Ex. A from the zemindar. By this document, the zemind...
Tag this Judgment!Court : Chennai
Reported in : AIR1937Mad29
Venkataramana Rao, J.1. The suit out of which this second appeal arises was instituted by the plaintiff for a partition of the properties specified in the plaint on the ground that they are joint family properties wherein he and his father, defendant 9, are interested, for delivery of a half share therein and for setting aside certain alienations alleged to have been made by his father of portions of the suit property. His ease is that his grandfather was one Appanna who died leaving him surviving two sons, plaintiff's father, defendant 9, and his brother Pattabhiramayya, that all the three constituted members of an undivided family, that Pattabhiramayya died in 1911, that thereafter the plaintiff and his lather continued to be joint and undivided, that without any legal necessity defendant 9 alienated items 2, 3 and 4 of the plaint in favour of defendants 6, 7 and 8 respectively and therefore the alienations are not binding upon his half share. Defendant 4 is the mother of defendant 9...
Tag this Judgment!Court : Chennai
Reported in : AIR1936Mad639; 163Ind.Cas.149; (1936)71MLJ53
K.S. Menon, J.1. The plaintiff, as the adopted daughter of one Duggirala Seshachelam, a dancing woman of the prostitute class, sued to recover possession of the plaint properties from defendants 1 to 3 and their tenants defendants 4 and 5, alleging that defendants 1 to 3 were let into possession as her tenants under a oral lease. The trial Court found that the oral lease was not true and that the adoption, though true, was invalid, as it was intended for bringing up the plaintiff as a prostitute. The lower appellate Court agreed with the trial Court in its finding about the oral lease, but held that the adoption was valid as it was made with the object of getting the plaintiff married to the third defendant and gave a decree as sued for; hence this second appeal by defendants 1 to 3.2. The only question for decision in this second appeal is whether the adoption of the plaintiff is valid. The finding of the lower appellate Court is that Seshachalam adopted the plaintiff for the purpose ...
Tag this Judgment!Court : Chennai
Reported in : AIR1937Mad92
Venkataramana Rao, J.1. The suit out of which this second appeal arises was instituted by the plaintiff to enforce a statutory charge which defendant 1 had under a sale-deed dated 5th May 1915 executed by him in favour of defendant 3 of the suit property and which the plaintiff purchased at a Court-sale. The sale by defendant 1 was for Rs. 5,500 and out of the same a sum of Rs. 833 was retained with defendant 3. The object was to enable defendant 3 to pay maintenance out of the interest thereon to one Manickam, the step-mother of defendant 1. The sale-deed was executed on 5th May 1915, and on the same date an agreement was also executed by defendant 3, Ex. 1, in favour of defendant 1 reciting the retention of the said sum of Rs. 833 and providing that the sum should be retained with defendant 3 so long as the maintenance payable to the stepmother continues, that he should pay the interest on the said amount at the rate of nine per cent towards the maintenance payable to the said Manick...
Tag this Judgment!Court : Chennai
Reported in : 168Ind.Cas.101
Venkataramana Rao, J.1. The question raised in this second appeal is whether the defendants are holding the suit lands on a perpetual or saswatham tenure. It is found by both the lower Courts that, Ex. 1, the original demise, was granted to the defendants' predecessor-in-title. The document provides for the payment of a kanom of Rs. 50 and there is a significant provision at the end of it, viz.,At, the end of very twelve years a renewal should be taken charging the sail aura of Rs 50 as kanom and you may enjoy the same without surrendering or causing it to be surrendered.'2. On April 27, 1995, there was another deed of demise, Ex. A, in and by which the suit property was demised.for a period of twelve years on Kuzhikanom right and for carrying on trade, fixing rent of Rs. 10 for each shop;and there is the following stipulation thereon, viz.,you may hold in possession the said properties as hitherto....3. It appears that there was a melcharth granted by the predecessor-in-title of plain...
Tag this Judgment!Court : Chennai
Reported in : AIR1936Mad559; 163Ind.Cas.724; (1936)71MLJ398
Venkataramana Rao, J.1. The question raised in these becond Appeals is whether a mortgage of a temple service Inam is valid. It is conceded by Mr. Patanjali Sastri that a sale of it is invalid. But he contends that a mortgage stands on a different footing. In Sundararaju Dikshatulu v. Seshadri Dikshitulu (1927) 54 M.L.J. 76 Kumara-swami Sastri, J., was inclined to the view that a mortgage would be invalid, On page 80 he observes:It has now been settled by this Court that alienations of temple service lands by sale, gift or mortgage, are invalid. I need only refer to the decision of the Full Bench in Anjaneyulu v. Sri Venugopala Rice Mill, Ltd. : AIR1922Mad197 .2. The Full Bench case dealt with the case of an attachment in execution of a decree, The ground of prohibition is based on public policy. As Sir Walter Schwabe observes, an alienation by the holder:Is quite opposed to the nature of his interest and duty, namely, that he should enjoy the produce of the land as salary for the publ...
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