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S. Thimmappa and anr. Vs. Gopiamma - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 116 of 1960
Judge
Reported inAIR1964Kant276; AIR1964Mys276
ActsCode of Civil Procedure (CPC), 1908 - Order 2, Rule 2; Indian Succession Act, 1925 - Sections 337; Limitation Act - Sections 12, 14 and 339
AppellantS. Thimmappa and anr.
RespondentGopiamma
Appellant AdvocatePadubidri Raghavendra Rao, Adv.
Respondent AdvocateA. Rangnath Rao, Adv.
Excerpt:
- code of civil procedure, 1908. order 6 rule 17: [a.n. venugopala gowda, j] amendment of written statement amendment seeking the defence on the ground that the previous advocate colluded with the other side rejection of held, amendment should be necessary for the purpose of determining the real question in controversy between the parties. amendment was sought before the commencement of trial of the suit. the proposed amendment is necessary to determine the real questions in controversy between the parties. trial court has failed to exercise the jurisdiction vested in it and the illegality is apparent. order of trial court was set aside and amendment was allowed. .....case are the end of january and march of every year. it was so even in the year 1957- but, in that year, the executors had right to postpone payment till 1-9-1957. in s. c. no. 126-57, the executors have definitely pleaded that they would pay the annuities on or after 1-9-57. that being so, there was no purpose in plaintiff claiming the annuity due at the end of march 1057 in o. s. no. 136/57. in view of the plea taken by the executors in s. c. no. 126/57, the claim if it had been made by the plaintiff, would have been considered as premature. it is true that despite the plea of the executors that they wanted one year's time for payment the plaintiff continued to press her claim as regards the annuity payable at the end of january 1957. but that is not a relevant consideration. it must.....
Judgment:

1. The only point urged in this appeal is that the plaint claim is barred by Order 11, Rule 2 of the Code of Civil Procedure.

2. The facts relevant for the purpose of deciding the point in issue are as follows:-- One Sesha Perjury executed a will on 4-6-1956 bequeathing all his properties to some of his relations. He died on 1-9-1956. Under the will, the plaintiff-respondent is entitled to get an annuity of 40 muras of rice. Out of these 40 muras, 20 muras are payable at the end of January of every year. The remaining 20 muras are payable at the end of March, every year.

On 25-3-1957 the plaintiff filed a Small Cause Suit No. 126-57 on the file of the learned Munsiff, Mangalore, claiming the portion of the annuity payable at the end of January 1957. That plaint was returned to the plaintiff as that Court held that the suit should have been instituted as an original suit. The plaint was re-presented to the proper Court on 11-6-1957. The claim made in that suit was ultimately settled out of Court. Thereafter, the plaintiff filed O. S. No. 268/57 on the file of the learned District Munsiff at Mangalore from which this appeal has arisen, claiming the portion of the annuity due at the end of March 1957. This claim is resisted on the ground that it is barred by Order 11, Rule 2, C. P. C.

3. The Courts below have rejected the contention of the defendants that the suit is barred by Order 11, Rule 2, C. P. C. on two grounds. Firstly they held that O. S. No. 136/57 is only a continuation of S. C. No. 126/57: secondly, they held that on the date O. S. No. 136/57 was instituted, cause of action had not arisen for claiming the annuity due in the year 1957 in view of Section 337 of the Indian Succession Act.

4. The Courts below were not correct in opining that O. S. No. 136/57 is a continuation of S. C. No. 126-57. A suit returned for presentation to the proper Court and its institution in the proper Court does not amount to a single proceeding the latter being the continuation of the former though the plaintiff may claim the benefit of Section 12 of the Limitation Act under certain circumstances The two suits are totally different suits. In the re-instituted suit the plaintiff can make any change he pleases. He may give up a portion of the claim or may add additional claims.

5. Rule 2 of Order 11 reads as follows:

'(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(a) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation: For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action. x x x x x'

In view of the above explanation, the portion of the annuity that became due at the end of January 1957 and the portion that became due at the end of March 1957 should both be considered as constituting one cause of action and as such the entirety of the claim' should have been included in O. S. No. 136/57-

This is also the view taken in Relam Subba Naicker Avergal v. Sundarabala Kathiresa Thevar, : AIR1954Mad158 . Therein, Chandra Reddi, J. (as he then was) held that when a plaint is returned to be presented to proper Court on the ground-of want of jurisdiction it is open to the plaintiff to amend the reliefs prayed for without prejudice to the right to claim the benefit of Section 14 of the Limitation Act provided there is no change with regard to the cause of action. It was further held therein that the re-instituted suit must be deemed to have been filed only when the plaint is presented in the Court of competent jurisdiction and not on the date on which the plaint was presented in the Court having no jurisdiction over the suit.

6. For the reasons mentioned above, in my judgment, the Courts below are not right in their opinion that O. S. No. 136/57 was a continuation of S. C. No. 126/57.

7. This takes us to the question as to the true scope of Section 337 of the Indian Succession Act. Before going into that question, it is necessary to mention that the claim made in S. C. No. 126/57 was at one stage resisted by the executors on the ground that the suit was premature as they had one year's time for paying the annuity, though ultimately the claim was settled out of Court. Having mentioned this fact, I may now proceed to consider the scope of Section 337 of the Indian Succession Act, That Section reads:

'An executor or administrator is not bound to pay or deliver any legacy until the expiration' of one year from the testator's death.'

In view of this provision, the executors or administrators are entitled to one year's time, if so desired by them, for paying up or delivering the legacies. Though the executors or administrators are not precluded from paying up or delivering the legacies on the dates mentioned in the will, the if can, ii they so choose, postpone paying up or delivering the legacies till the end of a year after the death of the testator. The choice is left to the executors or administrators. The meaning of Section 337 is made explicit by Sections 338 and 339. Section 338 says:

'Where an annuity is given by a will, and no time is fixed for its commencement, it shall commence from the testator's death, and the first payment shall be made at the expiration of a year next after that event.' Section 339 reads: 'Where there is a direction that the annuity. shall be paid quarterly or monthly, the first payment shall be due at the end of the first quarter, or first month, as the case may be, after the testator's death; and shall, if the executor or administrator thinks fit, be paid when due, but the executor or administrator shall not be bound to pay if till the end of the year.'

On an analysis of these three sections, it appears that the due dates for the payment of the annuities in the instant case are the end of January and March of every year. It was so even in the year 1957- But, in that year, the executors had right to postpone payment till 1-9-1957. In S. C. No. 126-57, the executors have definitely pleaded that they would pay the annuities on or after 1-9-57. That being so, there was no purpose in plaintiff claiming the annuity due at the end of March 1057 in O. S. No. 136/57. In view of the plea taken by the executors in S. C. No. 126/57, the claim if it had been made by the plaintiff, would have been considered as premature. It is true that despite the plea of the executors that they wanted one year's time for payment the plaintiff continued to press her claim as regards the annuity payable at the end of January 1957. But that is not a relevant consideration.

It must be remembered that the plaintiff had already paid court-fees in respect of the claim she made in S. C. No. 126/57 and that suit had been instituted even before the executors had claimed the benefit of Section 337 of the Indian Succession Act,

8. In my view, a claim falling within Section 337 of the Indian Succession Act becomes due on the date or dates stipulated in the will. But, the claim becomes enforceable only after the period mentioned therein. It is unnecessary to decide in the instant case whether a suit could have been instituted immediately after the claim became due but even before the same became payable. From the facts above stated it is clear that in the present case if the plaintiff had made a claim for the annuity due at the end of March 1957, the Court could not have given any relief to her till 1-9-1957. Hence, it cannot be said that the claim made in the present suit is barred by Order 11, Rule 2, C. P. C.

9. In the result, this appeal fails and the!same is dismissed with costs.

10. Appeal dismissed.


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