Court : Chennai
Reported in : AIR1946Mad151; (1945)2MLJ439
Yahya Ali, J.1. There were three brothers, Sivalinga, Ekambara and Chocka-linga. The last died about 12 years ago. Ekambara died on the 16th July, 1940, issueless leaving him surviving his widow. Sivalinga was the survivor. After the death of her husband, Ekambara's widow filed O.S. No. 8 of 1944 in the Court of the Subordinate Judge of Kumbakonam against Sivalinga as the first defendant and Chockalinga's widow as the second defendant. She claimed inter alia a share in the properties other than agricultural lands by virtue of the provisions of the Hindu Women's Rights to Property Act, 1937. In his written statement, me first defendant while contesting the suit on other matters stated with reference to her claim to the division of houses and moveable properties that he had no objection to the partition of the divisible items comprised under those schedules and to the separate possession and enjoyment of a moiety of the said items by the plaintiff until her death. On the basis of this ad...
Tag this Judgment!Court : Chennai
Reported in : AIR1946Mad110; (1945)2MLJ463
Alfred Henry Lionel Leach, C.J.1. The appellant who is a Muhammadan, applied in the Court of the District Judge of North Malabar for an order appointing him the guardian of his children by the respondent. Subsequently he amended his petition and asked for an order of the Court requiring the respondent to return the children to his custody. The District Judge dismissed the petition. Hence the appeal.2. The appellant has been married three times. The respondent was his second wife. By his first wife he had a son. He divorced her and the son is in the custody of his mother. By the respondent he has three children, two boys and a girl. The eldest child is nine years of age and the youngest five years of age. The appellant married his third wife before he divorced the respondent. He is now living with the third wife in the house of her tarwad. The respondent is living in her own tarwad house with her mother. Her children are living with her. The respondent has remarried.3. Being the lawful ...
Tag this Judgment!Court : Chennai
Reported in : AIR1946Mad124; (1945)2MLJ479
Horwill, J.1. The three appellants were charged in the Court of the Sessions Judge of Bellary under Section 302 of the Indian Penal Code with the murder of a boy aged 6 years, named Ramappa, by cutting his throat. The learned Sessions Judge convicted the first and second appellants of the offence with which they were charged and sentenced them to death. He however accepted the explanation by the third appellant in his confessional statement that he took no part in the murder and was not aware that it was going to be committed, and so found him guilty only under Section 201 of the Indian Penal Code, because he had buried the knife with which the murder was committed. He was sentenced to 5 years rigorous imprisonment.2. As the offence was committed in the house of P.W. 4 during the absence of himself and his wife and there were no persons in the house other than the murdered boy and his little sister aged 3, there are no actual eye witnesses of the murder. But there is important circumst...
Tag this Judgment!Court : Chennai
Reported in : AIR1946Mad118; (1945)2MLJ504
Alfred Henry Lionel Leach, C.J.1. This appeal arises out of a suit for partition instituted in the Court of the Subordinate Judge of South Malabar. It has been filed by the first and the second defendants. The point raised by them is a very simple one. The plaintiff has filed a memorandum of cross-objections which challenges the correctness of the interpretation of an agreement entered into between the members of the joint family on the 30th September, 1925. The question here is not quite so simple.2. The joint family was composed of three brothers, Kasturi Pillai, Sevanthan Pillai and Appavu Pillai. Kasturi died on the 6th October, 1925, and Sevanthan on the 19th May, 1930. The plaintiff is the son of Kasturi. There were five defendants : Appavu, his three sons and the widow of Sevanthan. The plaintiff averred that he was entitled to a half share of the family estate as the family had throughout remained joint and there were only two surviving coparceners namely himself and his uncle ...
Tag this Judgment!Court : Chennai
Reported in : AIR1946Mad74; (1945)2MLJ399
Yahya Ali, J.1. There is a very short point in this appeal. There were two decrees passed in O.S. Nos. 129 of 1933 and 521 of 1935, against the appellant temple represented by its de facto trustee, and the temple by its de jure trustee filed O S. No. 632 of 1939, out of which this appeal arises, for a declaration that those two decrees obtained by the first defendant against the de facto trustee did not bind the temple. Both the suits were for arrears of salary claimed by the archaka. The trial Court held that neither of those decrees was binding on the temple. The Subordinate Judge on appeal found that the decree in O.S. No. 521 of 1935 was binding, but with reference to the decree in O.S. No. 129 of 1933 he held that it was not binding, and the trustee has appealed against that part of his decree. The archaka has not appealed with regard to the other portions of the decree concerning O.S. No. 129 of 1933. The decision of this appeal turns upon the question whether a decree can be val...
Tag this Judgment!Court : Chennai
Reported in : AIR1946Mad150; (1945)2MLJ513
Alfred Henry Lionel Leach, C.J.1. When the facts of this case are understood the decision of the appeal presents no difficulty.2. On the 19th May, 1936, the land in suit was bought by two brothers, A. Brah-mayya Sastri and K. Suryaprakasa Rao. They are referred to in the judgment of the trial Court as ' the Sastri brothers ' and it will be convenient to refer to them as ' the Sastri brothers ' in this judgment. They bought the land in their own name. The money belonged to their nephew, the first defendant in the suit. With the balance of the money belonging to the first defendant they commenced to build a house on the land. The money was not sufficient to complete the building and in order to raise further funds they mortgaged the property to the second defendant on the 20th August, 1936, to secure a loan of Rs. 2,000.3. In Original Suit No. 434 of 1937, one K. Ramabrahmam had obtained a money decree against the Sastri brothers and in execution had attached the property in suit. On the...
Tag this Judgment!Court : Chennai
Reported in : (1945)2MLJ387
Rajamannar, J.1. The lower appellate Court has held that the suit is not maintainable on the ground that the notice requisite under Section 80 of the Code of Civil Procedure is defective. The suit was to set aside a revenue sale in respect of a certain holding in Nileshwar village, South Kanara district. The notice mentioned R.S. No. 722/4-B. It is now admitted that the sale that actually took place and in respect of which the plaintiff claims relief is of R.S. No. 722/4-A. The learned Counsel for the appellant contended that the error in the notice arose on account of the bona fide clerical mistake and substantially the conditions required by Section 80 of the Code of Civil Procedure have been complied with. He also relied on the ruling in Venkataramakrishnier v. Secretary of State for India in Council (1925) 23 L.W. 464. I do not agree that an error in the description of the subject-matter of the suit is an insubstantial error. I may also add that there is no evidence in this case th...
Tag this Judgment!Court : Chennai
Reported in : AIR1946Mad170; (1945)2MLJ456
Alfred Henry Lionel Leach, C.J.1. The question in this appeal is whether a decree obtained by the respondent has become barred by the law of limitation.2. On the 21st September, 1932, the respondent obtained a decree against the appellants and their father for the payment of Rs. 2,832-12-0 with interest and costs. On the 22nd January, 1935, the respondent filed an application for execution in the Court of the District Judge of Kistna. This was numbered as Execution Petition No. 26 of 1935. Another creditor of the defendants had obtained a decree against them in Original Suit No. 5 of 1931 and had already applied for execution by the attachment and sale of the properties of the judgment-debtors. This application was numbered as Execution Petition No. 172 of 1932. The object of the respondent in filing Execution Petition No. 26 of 1935 was to obtain rateable distribution of the properties already attached by the decree-holder in O.S. No. 5 of 1931. He asked for an order for attachment, b...
Tag this Judgment!Court : Chennai
Reported in : AIR1946Mad296
ORDERSahabuddin, J.1. The petitioner was the defendant in O.S. No. 146 of 1942 filed by the respondent in the Court of the District Munsif of Coconada. The case of the respondent was that the petitioner who is his brother-in-law, agreed to lend him Bs. 525 on security of his lands in Yanam which is in French Territory. Under the French law, the immovable properties in French territory can be made liable only under a decree obtained in French Courts. The petitioner and respondent, therefore, proceeded to Yanam and obtained a consent decree from the Sub-Court of Yanam to the effect that the respondent owed the petitioner a sum of RS. 525 and agreed to pay the same with interest at 8 per cent, per annum within a period of two years. But, as a. matter of fact, the petitioner had by that time paid the respondent only Bs. 100 and though he promised to pay the entire balance in Coconada, he paid him only Rs. 25. The respondent, therefore, claimed the balance with interest mainly as damages fo...
Tag this Judgment!Court : Chennai
Reported in : AIR1946Mad73
Rajamannar, J.1. The lower appellate Court has held that the suit is not maintainable on the ground that the notice requisite under Section 80, Civil P.C., is defective. The suit was to set aside a revenue sale in respect of a certain holding in Nileshwar village, South Kanara District. The notice mentioned R.S. No. 722/4-A. It is now admitted that the sale that actually took place and in respect of which the plaintiff claims relief is of B. Section No. 722/4-A. The learned Counsel for the appellant contended that the error in the notice arose on account of a bona fide clerical mistake and substantially the conditions required by Section 80, Civil P.C., have been complied with. He also relied on the ruling in Venkatarama Krishniar v. Secy of State A.I.R. 13 1926. I do not agree that an error in the description of the subject-matter of the suit is an insubstantial error. I may also add that there is no evidence in this case that the error was bona fide and due to an accidental slip. The...
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