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Ramachari Vs. Duraisami Pillai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1898)ILR21Mad167
AppellantRamachari
RespondentDuraisami Pillai
Excerpt:
civil procedure code - act xiv of 1882 section 232--transfer of decree--benami transfer. - - the plaintiff has not averred in his plaint or elsewhere that he was ignorant of the suit and proceedings, and there are circumstances indicating that he must have been aware of them, but as the point was not put distinctly in issue, the question has not been tried......whereas he was treated in the suit as a minor, he must be held to be bound by the decree if he was aware prior to the sale, of the suit or the subsequent proceedings, and still allowed the manager of the family to conduct the defence and proceedings on his behalf which the manager in truth did. the plaintiff has not averred in his plaint or elsewhere that he was ignorant of the suit and proceedings, and there are circumstances indicating that he must have been aware of them, but as the point was not put distinctly in issue, the question has not been tried. we think it ought to be tried now, and we remit the following issue for trial:whether the first plaintiff was aware, prior to the date of the sale, of the suit no. 340 of 1892, or of the execution proceedings therein.2. in. compliance.....
Judgment:

1. This case is unlike the Allahabad case quoted by the Judge as his authority for exonerating the first plaintiff from the decree, inasmuch as the first plaintiff was, as a fact, made a party to the suit. Although it has now turned out that he was a major at the time of suit, whereas he was treated in the suit as a minor, he must be held to be bound by the decree if he was aware prior to the sale, of the suit or the subsequent proceedings, and still allowed the manager of the family to conduct the defence and proceedings on his behalf which the manager in truth did. The plaintiff has not averred in his plaint or elsewhere that he was ignorant of the suit and proceedings, and there are circumstances indicating that he must have been aware of them, but as the point was not put distinctly in issue, the question has not been tried. We think it ought to be tried now, and we remit the following issue for trial:

Whether the first plaintiff was aware, prior to the date of the sale, of the Suit No. 340 of 1892, or of the execution proceedings therein.

2. In. compliance with the above order, the District Judge submitted the following finding:

On the evidence of the defendants, first and second witnesses, I find that the first plaintiff was aware of the Suit No. 340 of 1892, from the date when the third defendant was first served with notice of the suit.

5. The evidence relied on by the Judge, together with the probabilities of the case, coupled with the circumstance that the first plaintiff never denied that he was aware of the suit and subsequent proceedings, are sufficient to support the finding. The sale is therefore binding on the first plaintiff also. The result is that the decree of the lower Appellate Court is reversed with costs in this and in that Court, and the decree of the Munsif dismissing the suit with costs is restored.


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