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Arunagiri Goundan and anr. Vs. Ramaswami Pillai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1941Mad867; (1941)2MLJ537
AppellantArunagiri Goundan and anr.
RespondentRamaswami Pillai
Cases ReferredArunachalam Chetty v. Jagannatha Pillai
Excerpt:
- - arunachalam chettiar air1935mad919 .the facts there are almost precisely similar to those in the present case and with respect i do not see any reason why i should not follow the reasoning of the learned judge......belonged and who therefore continue to own the joint family property. the suit was decreed by the learned district munsif in somewhat unusual circumstances. it was originally filed as a small cause suit in tindivanam, its valuation being below rs. 300 and the judge who was then in charge of the court having extended small cause powers. this judge was succeeded by another judge who was not so empowered and so the suit was transferred to the original side. a third district munsif then presided over the court and he was empowered to try all suits up to the valuation of rs. 300 as small cause suits. this third district munsif has clubbed together three suits and disposed of them in a single judgment. the third of these suits is the one which was numbered as o. section 193 of 1936. the first.....
Judgment:

King, J.

1. The subject matter of this petition is a promissory note executed by the first defendant in a suit in the Court of the District Munsif of Tindivanam numbered as O.S. 193 of 1936. The plaintiffs are the nephews of one Shanmugha Goundan in whose favour the promissory note had been assigned. Shanmugha Goundan is now dead and the plaintiffs have filed this suit as members of the joint family to which Shanmugha Goundan had belonged and who therefore continue to own the joint family property. The suit was decreed by the learned District Munsif in somewhat unusual circumstances. It was originally filed as a small cause suit in Tindivanam, its valuation being below Rs. 300 and the Judge who was then in charge of the Court having extended small cause powers. This Judge was succeeded by another Judge who was not so empowered and so the suit was transferred to the Original Side. A third District Munsif then presided over the Court and he was empowered to try all suits up to the valuation of Rs. 300 as small cause suits. This third District Munsif has clubbed together three suits and disposed of them in a single judgment. The third of these suits is the one which was numbered as O. Section 193 of 1936. The first defendant in O. Section 193 of 1986 after the decree had been given against him, appealed to the learned District Judge of South Arcot. The learned Judge set aside the decree on the ground that the plaintiffs were not entitled to sue as they had not obtained a succession certificate. This is now a revision petition by the plaintiffs against the decree of the learned District Judge dismissing their suit.

2. The first point taken in revision is that the learned District Judge had no jurisdiction to entertain the appeal. It is contended that when a suit is tiled as a small cause suit and is disposed of by a Judge who possessed the necessary powers to try it as a small cause suit, it must be deemed to have been disposed of as a small cause suit and therefore there can be no right of appeal. It is contended further that this legal principle must be applied even though the suit be numbered as an original suit. In support of this contention I have been referred to a decision of Stone, J., reported in Ramaswami Muthirian v. Arunachalam Chettiar : AIR1935Mad919 . The facts there are almost precisely similar to those in the present case and with respect I do not see any reason why I should not follow the reasoning of the learned Judge.

3. By the respondent (first defendant) I have been referred to two rulings of this Court, one of Patanjali Sastri, J., in Kamalathammal v. Harihara Aiyar : AIR1941Mad103 , and the other in Chockalingam v. Palaniappa : (1932)63MLJ689 . Both of these cases dealt with facts which can be easily distinguished. They are cases of suits which began their existence as small cause suits in the Court of a Subordinate Judge and were subsequently transferred for trial to a District Munsif. It was held in both of them that the District Munsif was not debarred from trying the suits from the mere fact that they had first been instituted as small cause suits in the Court of a Subordinate Judge. It is of course impossible for any Court to have held in the case of suits valued at more than Rs. 300 that when a District Munsif did in fact come to try them, he must be deemed to have tried them as small cause suits. These rulings therefore afford no assistance to the learned advocate for the respondent in attempting to challenge the authority of Ramaswami Muthirian v. Arunachalam Chettiar : AIR1935Mad919 . The argument for the petitioners must be accepted that the learned District Judge had no jurisdiction to hear this appeal.

4. The only question that remains is whether in these circumstances I should interfere under Section 115 of the Code of Civil Procedure. Such interference is of course permitted, and in my opinion should be practised unless there are clear indications that the learned District Judge is obviously right and the learned District Munsif obviously wrong upon other points in the case. I have not gone fully into the question whether the plaintiffs had the right to sue in this matter. It seems to me however, prima facie that if they are entitled to act for the members of the family, no succession certificate would be necessary for them. See the decision of Beasley, J., in Arunachalam Chetty v. Jagannatha Pillai (1926) 24 L.W. 659. I do not propose now to consider the objections sought to be raised on behalf of the respondent that it was in reality the other members of the joint family who had the right to sue, and not the plaintiffs. The situation is simply this : on the finding of fact the respondent owes money upon this promissory note to the joint family. A decree has been passed against him by the District Munsif at the instance of the plaintiffs on the clear understanding that the property in the decree belongs to the joint family. The first defendant therefore suffers no prejudice from being compelled to discharge his obligations under this decree. There can be no question of any other plaintiffs suing him for this debt on the allegation that the present plaintiffs have wrongly appropriated it to themselves. There therefore remains no obstacle to my taking action under Section 115 of the Code of Civil Procedure and this being a clear case in which the learned District Judge has acted without jurisdiction I set aside his decree and restore the decree of the learned District Munsif.

5. During the pendency of the appeal the first defendant filed an application claiming relief under Act IV of 1938. This application was of course not dealt with by the learned District Judge because he had dismissed the plaintiffs' suit and its consideration therefore became unnecessary. The first defendant has now repeated his application claiming relief under the Act in this Court; and my decision confirming the decree of the learned District Munsif will be subject to the disposal of that application which is herewith sent for disposal to the learned District

6. The respondent must pay the costs throughout of the petitioners.


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