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Sundrammal Vs. Kullappa Chetti Alias Thambianna Chetty - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1895)5MLJ36
AppellantSundrammal
RespondentKullappa Chetti Alias Thambianna Chetty
Cases ReferredSurfoji v. Kamakshiamba I.L.R.
Excerpt:
- - this appeal must also fail and is dismissed with costs......the schedule on the personal security of one krishnaswami chetty.2. on the 4th december 1893 the widow appealed against the judge's order in no. 15 of 1894 so for as it required her to give security on the 4th may 1894. the counter petitioner preferred appeal no. 56 of 1894, objecting to the order of the judge so far as it declared that sundrammal was not bound to mention all the debts and that personal security was sufficient. on the 25th april 1894 the brother filed a memorandum of objections urging that the judge ought to have made an enquiry as to the right to the certificate and granted it to him in preference to the widow.3. as regards c. m. a., 15 of 1894 it cannot be supported for several reasons. appellant is a hindu widow and assuming, as alleged by her, that her husband had.....
Judgment:

Muthusami Aiyar, J.

1. One Anga Muthu Chetty, residing in the District of Salem, died on the 20th February 1893. He left a widow named Sundrammal and a brother named Kullappa alias Thambianna Chetty. The former applied for a certificate to collect the debts due to her husband alleging that he had divided from his brother. The Judge ordered on 25th August 1893 that a certificate do issue to the widow on her furnishing security. He also granted her one month's leave to file an amended schedule. She since applied for two months' time to file a complete schedule. The brother then opposed her application on two grounds, viz. (1) that Sundrammal had not stated in her application all the debts, and (2) that he should have had notice of her tendering personal security as sufficient on the 31st March 1894. The judge overruled both objections and held that the widow was entitled to have the certificate for the debts mentioned by her in the schedule on the personal security of one Krishnaswami Chetty.

2. On the 4th December 1893 the widow appealed against the Judge's order in No. 15 of 1894 so for as it required her to give security on the 4th May 1894. The Counter Petitioner preferred Appeal No. 56 of 1894, objecting to the order of the judge so far as it declared that Sundrammal was not bound to mention all the debts and that personal security was sufficient. On the 25th April 1894 the brother filed a memorandum of objections urging that the judge ought to have made an enquiry as to the right to the certificate and granted it to him in preference to the widow.

3. As regards C. M. A., 15 of 1894 it cannot be supported for several reasons. Appellant is a Hindu widow and assuming, as alleged by her, that her husband had divided from his brother, the latter had an interest as reversioner in the estate of the deceased. I observe that the brother claims the certificate in preference to her and the judge was bound under Section 9 to direct her to furnish security. Even if he only exercised a discretion in demanding security, as he is entitled to do, this Court will not interfere on appeal with the exercise of his discretion. It has further been argued that an appeal lies under Section 19 from an order directing that, security be given. Having regard to the language of Section 19, it does not appear that an appeal is allowed. It suggests an intention to allow no appeal except as to the grant of certificate as was held with reference to Act 27 of 1860 in Mon Mohinee Dossee v. Kettur Gopal Dey (1875) 24 W.R. 362 As shewn above the appeal fails also on the merits and is dismissed with costs.

C. M. A. 56 of 1894.

5. The widow is not bound to mention all the debts in her application. Under Section 10 she is at liberty to have the certificate extended to debts not originally mentioned. Nor is the appellant entitled to appeal, as to the form of the security taken by the judge in the exercise of his discretion. No appeal is allowed by' Section 19 against the order of the judge except with reference to the grant of the certificate. This appeal must also fail and is dismissed with costs....

Metno of objections.

6. The Act contains no provision for filing a memorandum of objections. Section 19 refers only to appeals and there is no provision in the Act which extends the provisions of Section 561 C. P. C. As it is in the nature of a cross appeal the probable intention was that the respondent should also prefer an appeal. Turning to the merits, it is not denied that the brother was divided though it is alleged that there was a subsequent reunion. The question whether there was a reunion or not would be too intricate for a summary (enquiry and the grant of certificate to Sundrammal is not inconsistent with the principle laid down in Surfoji v. Kamakshiamba I.L.R. (1884) M. 452 with reference to Act XXVII. of, 1860 which is adopted by the present Act. Even if there had been a summary enquiry, the judge might have stayed proceedings and declined to try the issue whether there was reunion in a summary proceeding and granted the certificate to Sundrammal. I dismiss the memorandum of objections also with costs.


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