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Srimathu Raja Muthu Vijaya Raghunatha Doraisingam Alias Gouri Vallabha thevar, Zamindar of Sivaganga, Through His Dewan and Authorised Agent, Mr. R.M. Sundaram, I.C.S. Vs. Muthu K.R.M. Muthia Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1938)2MLJ1016
AppellantSrimathu Raja Muthu Vijaya Raghunatha Doraisingam Alias Gouri Vallabha thevar, Zamindar of Sivaganga
RespondentMuthu K.R.M. Muthia Chettiar and ors.
Cases ReferredBachchu Singh v. Secretary of State
Excerpt:
- - , rejected the appeal on the ground, that the notice given by singa dorai to the court of wards should be held to be available for the benefit of the persons claiming under him, i would like to rest my decision on a grammatical construction of section 49 of the court of wards act itself. this might have persuaded the learned judges in placing a different construction of section 80, civil procedure code, and holding that the intending plaintiff who has been referred to in, the latter part of the section must be necessarily taken to refer to the same person who bad served the notice......institute the suit instead. in that case it cannot be reasonably argued, in my opinion, that the notice served by the intended plaintiff has spent itself on account of his death and cannot be availed of by his sons or heirs. there is nothing in section 49 of the act which would make another notice essential as long as the suit is based substantially on the same cause of action which was stated in the notice. section 49 appears to have been so drafted as to cover cases of this character. the position of an assignee, on whom the interest of the intending plaintiff may devolve by a voluntary act of the latter would be the same, in my opinion, and no objection can be raised on the ground that he had not served the court of wards with another notice after his assignment. it may be that if.....
Judgment:

Pandrang Row, J.

1. The facts of this case have been stated by Varadachariar, J., in his judgment and it is needless to repeat them. The only point that has been decided is that the notice given in May 1928 by one Singa Dorai satisfies the conditions embodied in Section 49 of the Court of Wards Act. The law on the subject has been fully discussed by Varadachariar, J., and there is no need to add to his discussion of the case-law. The section of the Court of Wards Act which has to be construed is Section 49, which runs as follows:

1. No suit relating to the person or property of any ward shall be instituted in any Civil Court until the expiration of two months after notice in writing has been delivered to or left at the, office of the District Collector specified in the notification under Section 19 or the Collector appointed under Section 46, as the case may be.

2. Such notice shall state the name and place of the abode of the intending plaintiff, the cause of action and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

2. The notice given in this case completely complies with all the provisions of this section. The person who gave the notice was one Singa Dorai, the senior proprietor of the village, the proprietors of which are the present plaintiffs. He was certainly the intending plaintiff at the time the notice was given. He was the original complainant before the Survey Officer and the respondent before the appellate Survey Officer. The notice was given because the appellate Survey Officer's decision was against Singa Dorai. It is not pretended that any one else was the intending plaintiff at the time the notice was sent. The cause of action and the relief claimed which are given in the notice are not different from the cause of action and the relief claimed in the present suit. The plaint contains a statement that the notice was delivered or left at the offices referred in the section and this delivery is not denied. It would thus follow that all the requirement of the section have been really fulfilled.

3. The main objection urged by the Zamindar's advocate in this appeal is that Singa Dorai who gave the notice is not the actual plaintiff in the present suit in which the plaintiffs are those who derived title from him subsequent to the issue of the notice, Singa Dorai having transferred his interest in the village in August, 1928, to certain persons who in turn transferred the same to the plaintiffs in September, 1928. In other words, the contention of the learned Advocate for the appellant is that when after the notice is given as required by Section 49, the person who gives the notice dies or transfers his interest in the subject-matter to another, a fresh notice has to be given under Section 49. It is difficult to see how this conclusion can be said to follow necessarily from Section 49. It certainly does not follow from the letter of this law; nor can it be said that the object of this law requires such a conclusion to be drawn. A transfer of the subject-matter does not affect the object for which such notice is required to be given. I may also say that the reasons given by Varadachariar, J., in support of his conclusion appear to be sound, and that the conclusion which he has come to is one in consonance with justice and is not opposed to law. There is no reason therefore why that decision should be interfered with in appeal.

4. The appeal should accordingly be dismissed with costs.

Abdur Rahman, J.

5. I agree. While our learned brother Varadachariar, J., rejected the appeal on the ground, that the notice given by Singa Dorai to the Court of Wards should be held to be available for the benefit of the persons claiming under him, I would like to rest my decision on a grammatical construction of Section 49 of the Court of Wards Act itself. A close perusal of this section shows that although under Sub-clause (2) an intending plaintiff is required to serve the Court of Wards with a notice in which his name, place of his abode, the cause of action and the relief which he claims are to be stated, Sub-Clause (1) of the section has been so drafted as not to provide that the suit must necessarily be instituted by the very person who had served the Court of Wards with a notice. It merely enacts that no suit relating to the person or property of any ward shall be instituted in any Civil Court until the expiration of two months after notice in writing has been delivered. Had the legislature intended that the person who had served the Court of Wards with a notice would alone be entitled to sue, it could have said so without any difficulty. It is true that when the suit is to be filed on the basis of the cause of action mentioned in the notice, the person serving the notice would ordinarily be the same as the person instituting the suit; but the person, who intended to file a suit and who actually served the Court of Wards with a notice, may have died before the suit is instituted and his sons or heirs may have had to institute the suit instead. In that case it cannot be reasonably argued, in my opinion, that the notice served by the intended plaintiff has spent itself on account of his death and cannot be availed of by his sons or heirs. There is nothing in Section 49 of the Act which would make another notice essential as long as the suit is based substantially on the same cause of action which was stated in the notice. Section 49 appears to have been so drafted as to cover cases of this character. The position of an assignee, on whom the interest of the intending plaintiff may devolve by a voluntary act of the latter would be the same, in my opinion, and no objection can be raised on the ground that he had not served the Court of Wards with another notice after his assignment. It may be that if his title is denied by or on behalf of the Court of Wards, he would be called upon to establish the same before he is held entitled to any relief. But if he chooses to file a suit on the cause of action stated by his assignor, in the notice served on the Court of Wards, no legitimate objection can be raised against him on that score. A number of cases either following or decided on the lines adopted in Bachchu Singh v. Secretary of State for India in Council I.L.R. (1902) All. 187, were pressed upon us by the learned Counsel for the appellant in support of his contention. There is no doubt that the language used in Section 80, Civil Procedure Code, is very similar to that employed in Section 49 of the Court of Wards Act but there is, first of all, some difference in the manner in which the two sections were drafted, that is, while the provisions of Section 80 are contained in one paragraph, those contained in Section 49 have been sub-divided into two. This might have persuaded the learned Judges in placing a different construction of Section 80, Civil Procedure Code, and holding that the intending plaintiff who has been referred to in, the latter part of the section must be necessarily taken to refer to the same person who bad served the notice. Secondly the word 'intending' before the word 'plaintiff has now been taken out and this change appears to the to have been effected with the object of removing a doubt in construing Section 80, Civil Procedure Code, to which it was otherwise liable.

6. For these reasons, I consider that there is no merit in this appeal and it should be dismissed with costs.


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