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N. Kayambu Pillai Vs. Lakshmi Ammani Ammal by Guardian Ad Litem the Manager of Court of Wards for Marungapuri Estate - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1938Mad491; (1938)2MLJ137
AppellantN. Kayambu Pillai
RespondentLakshmi Ammani Ammal by Guardian Ad Litem the Manager of Court of Wards for Marungapuri Estate
Cases Referred(Sivarama Aiyar v. Ahilambal Animal
Excerpt:
- - in other words, by reason of the death of the plaintiff his representative would be in a better position than himself, an anomaly which, by a reasonable construction can be prevented. , directing the appellant to furnish security is perfectly right......plaintiff or his representative; it would be wrong to make the 'plaintiff' in one place mean the original party and in the other, his representative. the short answer to this is undoubtedly what is suggested by mr. kuttikrishna menon; in both the places the word 'plaintiff' means 'the plaintiff or his representative; otherwise the section will lead to an absurdity. any other construction will make the dispaupering of the representative impossible, where the original plaintiff entered into the agreement. in other words, by reason of the death of the plaintiff his representative would be in a better position than himself, an anomaly which, by a reasonable construction can be prevented.8. in the result, the appeal fails and is dismissed with costs.9. l.p.a. no. 107 of 1937.10. the order.....
Judgment:

Venkatasubba Rao, J.

1. Horwill, J., made an order dis-paupering the appellant and its correctness is questioned in this Letters Patent Appeal.

2. The suit was filed by one Duraiswami in 1928 against the Court of Wards for the recovery of Marungapuri estate. He was allowed to institute the suit in forma pauperis, and died in 1929, and was succeeded by his son Ponnuswami, who brought himself on the record and continued the action. The suit was dismissed in 1930. Ponnuswami was allowed to file the appeal as a pauper and died in 1935 during its pendency. The present appellant Kayambu Pillai, being the executor under Ponnuswami's will was then brought on the record as his legal representative. The petition in question was filed by the Court of Wards to dispauper the appellant on the ground that his predecessors in interest, i.e., Duraiswami and Ponnuswami had entered into certain agreements of the kind contemplated1 by Clause (e) of Order 33, Rule 5, Civil Procedure Code.

3. The first question that arises is, whether the agreements, having regard to their nature, fall within the provision above mentioned, in other words, does a third party obtain under them an interest in the subject-matter of the action? The agreements referred to were executed in favour of this very Kayambu Pillai. Besides these agreements, there were also in his favour two powers of attorney. The effect of these transactions was, that Kayambu Pillai was to be the agent, first of Duraiswami, and then of Ponnuswami, for conducting the litigation, receiving in the first instance, a salary of Rs. 1,000 a month--to be increased to Rs. 2,000 after possession of the estate was obtained. He had the right to remain as agent fora period of 25 years, this period, as Horwill, J., points out

being sufficient not only to carry the appellant over the present litigation but to enable him to continue in possession of the estate and the collection of its moneys for a considerable time after the zamindari was recovered - if the litigation should prove successful.

4. Under Ponnuswami's will, though the appellant appears in the guise of an executor, he gets as legacy about nine lakhs, which presumably represents the aggregate amount payable to him under the original contracts. The will also shows that the appellant's predecessors had stipulated to pay some advocate about one and a half lakhs for his services. The estate is devised eventually in favour of the appellant's son.

5. On these facts the question arises, as already stated, does Kayambu Pillai under the agreements referred to aboveobtain an interest in the subject-matter of the litigation within the meaning of Clause (e) of Order 33, Rule 5, Civil Procedure Code. Mr. Venkatachari for the appellant contends that nothing is an 'interest' under this section, which does not amount to such, under the combined effect of the provisions of the Transfer of Property Act and the Registration Act. This contention is totally opposed to, and frustrates the intention of the section. The contention really amounts to this: unless by reason of the agreement, a transferee or assignee is brought into existence, who is a mortgagee or co-owner or charge-holder, the section will have no application. The provisions in this order are intended to aid a pauper suing for his own benefit, but not to enable an ostensible pauper to figure as plaintiff, when in the fruits of the litigation, a third party has been given an interest. The only responsible way of construing the word 'interest' is to hold that it is used in its general and ordinary sense and not in the technical sense ascribed to it by the appellant's counsel. This lias been so held by Sargent, C.J., and Birdwood, J., in Manohar Ramchandra v. Lakshman Mahadev I.L.R.(1885) 9 Bom. 371 where a similar contention was repelled. The judgment is short, but it rejects the contention that the interest must be a vested and completed interest under the section. In a recent decision (Sivarama Aiyar v. Ahilambal Animal (1937) 46 L.W. 649) to which one of us was a party the same view was taken. Several cases have been referred to where this principle has been tacitly accepted and Mr. Venkatachari has not been able to point to a single decision in his favour.

6. The next argument turns upon the meaning of the wording of Clause (c), Rule 9 of Order 33, Civil Procedure Code, the material portion of which reads thus:

The Court may on the application of the defendant order the plaintiff to be dispaupered, if he (the plaintiff) has entered into any agreement with reference to the subject-matter of the suit under - which any other person has obtained an interest in such subject-matter.

7. The argument is that this section can apply only to the party who has entered into the agreement. In both the places where the word 'plaintiff' occurs, it means either the original plaintiff or his representative; it would be wrong to make the 'plaintiff' in one place mean the original party and in the other, his representative. The short answer to this is undoubtedly what is suggested by Mr. Kuttikrishna Menon; in both the places the word 'plaintiff' means 'the plaintiff or his representative; otherwise the section will lead to an absurdity. Any other construction will make the dispaupering of the representative impossible, where the original plaintiff entered into the agreement. In other words, by reason of the death of the plaintiff his representative would be in a better position than himself, an anomaly which, by a reasonable construction can be prevented.

8. In the result, the appeal fails and is dismissed with costs.

9. L.P.A. No. 107 of 1937.

10. The order of Horwill, J., directing the appellant to furnish security is perfectly right. There is no reason why we should interfere with the exercise of his discretion. The appeal fails and is dismissed with costs.


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