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Thacharakkal Kannoth Areekastanoth Kuttu Alias Kuttiammu and anr. Vs. Othayoth Kokarippan Kalliani Amma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1943Mad474; (1943)1MLJ296
AppellantThacharakkal Kannoth Areekastanoth Kuttu Alias Kuttiammu and anr.
RespondentOthayoth Kokarippan Kalliani Amma and ors.
Cases ReferredVasudeva v. Sankara
Excerpt:
- .....was eo nomine a party to a decree whether he was a minor or a junior member of the family the decree passed in the suit binds him and his interests in the family property and that therefore he was bound to ask for a cancellation of that decree, that even if he did not ask for it in express terms it must be taken that he did ask for it and that he must be called upon to pay court-fees ad valorem on the amount of that decree. in a later decision in krishna menon v. calicut bank (1940) 2 m.l.j. 53 (short notes), pandrang row, j., held that even where a junior member of a tarwad was not eo nomine a party, if the person who is actually the karnavan was impleaded and a decree passed against the tarwad properties, the other members were bound by the decree passed in such a suit and that.....
Judgment:

Somayya, J.

1. The sole question in this revision petition is whether the court-fee paid by the plaintiffs on their plaint is correct. The plaintiffs are the junior members of a putravakasam tavazhi. The main allegations in the plaint are that the plaintiffs and defendants 2 to 12 were members of a putravakasam tavazhi that the second defendant was the karnavathi and manager of the putravakasam tavazhi and the third defendant, though the eldest son of the second defendant had never the karnavasthanam nor the right of management. The management of the properties was as specified in the gift deed granted by one K. Kuttiammo Haji the husband of the second defendant and was in the second defendant and not in the third who it is said lives in his wife's, house. Then reference is made to a decree in S.C.S. No. 88 of 1934 on the file of the Subordinate Judge's Court of Tellicherry where defendants 2 to 4. in the present action were alone impleaded and it is stated that the present third defendant was impleaded therein as the karnavan of the putravakasam tavazhi, that the decree was passed with the third defendant as the karnavan and that as the third defendant was never the karnavan the decree does not bind the plaintiffs who arc the other members of the tavazhi. The lower Court accepting the contention of the Court-fee Examiner held that the plaintiffs were bound to ask for the cancellation of that decree and that therefore they were bound to pay ad valorem court-; fee on the amount covered by that decree. In a recent decision by a Full Bench of this Court in Ramaswami v. Rangachariar : AIR1940Mad118 , one of the propositions laid down was that where a person was eo nomine a party to a decree whether he was a minor or a junior member of the family the decree passed in the suit binds him and his interests in the family property and that therefore he was bound to ask for a cancellation of that decree, that even if he did not ask for it in express terms it must be taken that he did ask for it and that he must be called upon to pay court-fees ad valorem on the amount of that decree. In a later decision in Krishna Menon v. Calicut Bank (1940) 2 M.L.J. 53 (Short Notes), Pandrang Row, J., held that even where a junior member of a tarwad was not eo nomine a party, if the person who is actually the karnavan was impleaded and a decree passed against the tarwad properties, the other members were bound by the decree passed in such a suit and that therefore a suit by a junior member would be governed by the principle laid down by the Full Bench. This decision of Pandrang Row, J., was not fully reported, but was in a short-note in Krishna Menon v. Calicut Bank (1940) 2 M.L.J.53 (Short Notes). The lower Court purported to follow this short note of the decision and held that the plaintiffs were bound to pay ad valorern. court-fees on the amount covered by the decree. Lower Courts are not entitled to rely upon short notes of decisions which are often incomplete and reliance on such short notes sometimes leads to great injustice. The present case is an illustration of this. In the case before Pandrang Row, J., the person who was admittedly the karnavan was impleaded in the prior suit and a decree was passed against the tarwad properties. In such a case, following an earlier decision of this Court in Vasudeva v. Sankara : (1897)7MLJ102 , the learned Judge held that if in a suit in which the person who was actually the karnavan was impleaded and a decree passed against the tarwad properties, that decree is one which needed setting aside at the instance of the junior members. Here the allegations in the plaint, which for this purpose must be taken as true, are that the third defendant was impleaded in the former suit as the karnavan of this putravakasam tavazhi, that the third defendant was not the real karnavan and that under the gift deed under which this putravakasam property was gifted the second defendant was given the right of management and that the third defendant had never the right of management vested in him. This is a very important distinction which the lower Court could not notice because it was not in the short note. The result is that the lower Court called upon the plaintiffs to pay a court-fee of Rs. 100 and they have had to come here to have the mistake rectified probably spending as much as the court-fee required to be paid by them. Lower Courts should not rely upon notes of recent cases. I find that the court-fee paid is sufficient and reverse the order of the lower Court. The lower Court will take the plaint on file and proceed to dispose of it according to law. There is no one against whom I can pass an order for costs in favour of the petitioners as this point was taken even before the issue of summonses to the defendants.


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