Chennai Court September 1938 Judgments
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Minor Minakshi Aiyar by Next Friends Vs. Noor Muhammad Rowther and ors ...
Court: Chennai
Decided on: Sep-02-1938
Reported in: AIR1939Mad210; (1939)1MLJ379
Krishnaswami Aiyangar, J.1. The disputes which have given rise to these appeals relate to a fund in Court standing to the credit of O.S. No. 33 of 1924 on the file of the Sub-Court, Kumbakonam. It is a sum of Rs. 2,983-2-6 representing the value of the share of one Adamsa Rowther in a rice mill situated in Pandaravadai village. Adamsa died in 1919 involved in debts, but he had left considerable properties in and round Pandaravadai. He appears to have carried on a business in Saramban in the F. M. S., which was after his death taken over by his son-in-law, Abdul Rahiman, and continued by him. Kadir Bacha was a brother of Adamsa who has figured prominently in the arrangements made by Adamsa's heirs for the discharge of his debts. These heirs, were Noor Muhammad and Muhammad Ibrahim his sons, Mohideen Bivi a daughter, and Zuleka Bivi his second wife. A major portion of his properties was transferred by them to their uncle Kadir Bacha on 28th May, 1922, by a deed which shows that except fo...
Velur Munuswami Mudaliar Vs. Darwaija Raghupati
Court: Chennai
Decided on: Sep-02-1938
Reported in: (1939)2MLJ290
Abdur Rahman, J.1. This is a petition for revision against the order of the District Munsiff of Tirupati rejecting the petitioner's application for stay of suit No. 861 of 1935 under Section 10, Civil Procedure Code, until the matter in Appeal No. 6 of 1934 pending in the District Court of Chittoor is decided. It has been urged on behalf of the petitioner that inasmuch as the main contention between the parties in the present suit and in Appeal No. 6 of 1934 relates to the occupancy rights claimed by the petitioner he is entitled to demand a stay. It cannot be disputed that the provisions contained in Section 10 are mandatory in character and when the facts of a particular case invoke the operation of that section, the Courts have no other alternative but to give effect to it and stay the suit. I have therefore to determine if the 'matter in issue' in the present suit is directly or substantially in issue in Appeal No. 6 of 1934, which must be taken to be the continuation of a previous...
Velur Munuswami Mudaliar Vs. Darwaja Raghupathi
Court: Chennai
Decided on: Sep-02-1938
Reported in: AIR1940Mad7
ORDERAbdur Rahman, J.1. This is a petition for revision against the order of the District Munsif of Tirupati rejecting the petitioner's application for stay of Suit No. 861 of 1935 under Section 10, Civil P.C., until the matter in Appeal No. 6 of 1934 pending in the District Court o Chittoor is decided. It has been urged on behalf of the petitioner that inasmuch as the main contention between the parties in the present suit and in Appeal No. 6 of 1934 relates to the occupancy rights claimed by the petitioner, he is entitled to demand a stay. It cannot be disputed that the provisions contained in Section 10 are mandatory in character and when the facts of a particular case invoke the operation of that Section, the Courts have no other alternative but to give effect to it and stay the suit. I have therefore to determine if the 'matter in issue' in the present suit is directly or substantially in issue in Appeal No. 6 of 1934, which must be taken to be the continuation of a previously ins...
Samanthan Karakkattitathil Chandukutty Nambiar, Present Karnavan and M ...
Court: Chennai
Decided on: Sep-01-1938
Reported in: AIR1939Mad926; (1939)2MLJ593
Wadsworth, J.1. This appeal arises out of a suit for the redemption of a Kanom mortgage. The appellant is the first defendant's legal representative. The contesting respondent is the plaintiff who is the jenmi mortgagor. It is quite clear that this mortgage, which is alleged to be one of the year 1859, has not been properly proved unless Ex. A is treated as good evidence of the terms of the mortgage and is regarded as having been technically proved in evidence in the trial Court. Ex. A, which is part of a book kept in the family of the plaintiff containing details of the terms of a considerable number of Kanom demises, was alleged to be a copy of the actual document of mortgage and the trial Court gave a decree on the basis that it was an actual copy. The Subordinate Judge in appeal took the view that Ex. A was not an actual copy but was a memorandum of the terms of the mortgage contained in a book kept in the ordinary course of business and it was therefore admissible to prove the ter...
Natesa Aiyar Vs. Venkalakshmi Ammal and ors.
Court: Chennai
Decided on: Sep-01-1938
Reported in: (1939)2MLJ568
Burn, J.1. I cannot agree that the omission of the learned Subordinate Judge to give notice to the appellant of the transfer of the appeal from the District Court, was a sufficient cause for him to absent himself when the appeal was heard. He was served with a notice in the appeal and he omitted to put in an appearance. If he had done so, he would have known that the case had been transferred to the, Subordinate Judge. An applicant under Order 41, Rule 21, Civil Procedure Code, who admits receipt of notice is obliged like an applicant under Order 9, Rule 13 to show that he was 'prevented by sufficient cause from appearing'. On the facts in this case, it cannot be said that, the appellant was prevented; he simply chose to let the appeal be decided ex parte. This appeal is dismissed with costs of the first respondent....
Kariparambil Yusuf Moidu Vs. Sambanthri Haji Abdul Khader Sahib and Br ...
Court: Chennai
Decided on: Sep-01-1938
Reported in: AIR1939Mad7; (1938)2MLJ768
Burn, J.1. This is one of the too frequent cases in which a surety, when the time comes for fulfilling his obligation, displays the greatest reluctance to do so. The learned District Judge is undoubtedly right in pointing out that this is not one of the cases to which Section 135 of the Contract Act applies. There is here no question of surety being damnified by reason of a contract between the creditor and the principal debtor. The learned Subordinate Judge was wrong in supposing the decision in Annadana Jadaya Goundar v. Konammal (1932) 64 M.L.J. 386 : I.L.R. Mad. 625 to be applicable; Mr. Justice Venkatasubba Rao (as he then was) points out that before Section 135 of the Contract Act can be applied there must be a contract.2. The surety's obligation under his bond in this case was not merely to produce the debtor and to pay up if the debtor failed to do so; he bound himself to pay the debt at once, if the petition to set aside the ex parte decree should be unsuccessful. The granting...
Sundarammal Minor by Next Friend P.V.E. Ponnuswami Chettiar Vs. Jagada ...
Court: Chennai
Decided on: Sep-01-1938
Reported in: AIR1939Mad65; (1938)2MLJ1013
Varadachariar, J.1. The plaintiff appeals against a decree denying relief to her in respect of the plaint B schedule properties, on the ground that the suit has not been instituted in conformity with the provisions of Section 92, Civil Procedure Code. These properties belonged to one Rajamanickam Chetti who by his will dedicated them to certain public charitable purposes and appointed one Sivaraman Chetti to be the hereditary trustee for the administration of these charities. Sivaraman Chetti died in May, 1933, leaving him surviving, the first defendant who was his third wife, the second defendant who is her daughter and the plaintiff who was his daughter by the deceased second wife. The suit out of which this appeal arises was instituted by the next friend of the plaintiff, making various allegations of mismanagement, waste, etc., against the first defendant both in respect of the private estate of Sivaraman Chetti and the trust properties. As regards the trust properties the question...
Natesa Ayyar Vs. Venkalakshmi Ammal and ors.
Court: Chennai
Decided on: Sep-01-1938
Reported in: AIR1940Mad53
Burn, J.1. I cannot agree that the omission of the learned Subordinate Judge to give notice to the appellant of the transfer of the appeal from the District Court was a sufficient cause for him to absent himself when the appeal was heard. He was served with a notice in the appeal and he omitted to put in an appearance. If he had done so, he would have known that the case had been transferred to the Subordinate Judge. An applicant under Order 41, Rule 21, Civil P.C., who admits receipt of notice is obliged like an applicant under Order 9, Rule 13, to show that he was prevented by sufficient cause from appearing. On the facts in this case, it cannot be said that the appellant was prevented; he simply chose to let the appeal be decided ex parte. This appeal is dismissed with costs of respondent 1....
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