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Srimathu Raja Muthu Vijaya Raghunatha Doriasingam Alias Gowri Vallaba thevar Avergal, Zamindar of Sivaganga Through Subramanya Ayyar, Dewan and Authorised Agent Vs. Muthu K.R.M. Muthayya Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1936Mad583; 163Ind.Cas.539; (1937)2MLJ466
AppellantSrimathu Raja Muthu Vijaya Raghunatha Doriasingam Alias Gowri Vallaba thevar Avergal, Zamindar of Si
RespondentMuthu K.R.M. Muthayya Chettiar and ors.
Cases ReferredVenkata Rangiah v. Secretary of State
Excerpt:
.....cannot reasonably be regarded as proceedings in a civil court. , that it is difficult to exclude a suit like the present from the scope of section 49. the decision of anantakrishna aiyar, j. cases like bhola nath roy v. there have been interesting discussions in the courts as to the sufficiency of the address given in the notice (cf. eales v. 11. it is true that several cases have recognised that provisions like those of section 49 must be held to be satisfied by a substantial compliance and that a notice must be fairly and reasonably construed in respect of its contents. i am of opinion that provisions like those of section 49 of the court of wards act must be construed in the light of well-established general principles of law, and that a notice given by a person, when it otherwise..........of the trial court on the sixth issue in the case. that issue was in the following terms:has notice of suit been given to the first defendant as required by law?2. the only point for determination now is whether the decision of the lower appellate court on that issue is not correct.3. the question arises in connection with a suit filed by the members of a nattukottai chetty family, seeking to set aside the decision of the appellate survey authority in a boundary dispute under the survey and boundaries act. the plaintiffs are at present the proprietors of a jivitham village in the sivaganga zamindari known as kilayur and the dispute related to the boundary between that village and the adjoining ayan village of elayangudi belonging to the sivaganga estate. at the time of the.....
Judgment:

Varadachariar, J.

1. This is an appeal against an order of remand passed by the District Court of Ramnad, where it reversed the decision of the trial Court on the sixth issue in the case. That issue was in the following terms:

Has notice of suit been given to the first defendant as required by law?

2. The only point for determination now is whether the decision of the lower appellate Court on that issue is not correct.

3. The question arises in connection with a suit filed by the members of a Nattukottai Chetty family, seeking to set aside the decision of the appellate survey authority in a boundary dispute under the Survey and Boundaries Act. The plaintiffs are at present the proprietors of a jivitham village in the Sivaganga Zamindari known as Kilayur and the dispute related to the boundary between that village and the adjoining Ayan village of Elayangudi belonging to the Sivaganga estate. At the time of the institution of this suit, the Sivaganga estate was under the management of the Court of Wards; the Zamindar was accordingly impleaded as the first defendant, represented by the Estate Collector. The issue now under consideration was raised in view of the terms of Section 49 of the Madras Court of Wards Act which prescribes a two months' notice as a condition precedent to the institution of a suit relating to the person or property of any ward. The second clause of that section provides that:

Such notice shall state the name and place of abode of the intending plaintiff, the cause of action and the relief which he claims.

4. The plaint relied upon a notice given by one D Singa Dorai Thevar on 2nd May, 1928 (Ex. A). From the documentary evidence in the case, it appears that this Singa Dorai was the owner of one half of Kilayur, the present plaintiffs being owners of the other half, that Singa Dorai had been registered as landholder under the Estates' Land Act under a decree of Court (Ex. E), that an attempt on the part of the plaintiffs, in 1924, to get a member of their family registered as landholder proved unsuccessful and that Singa Dorai was regarded as the 'senior' proprietor of the village, apparently with reference to Clause 6 of Section 3 of the Survey and Boundaries Act. So far as I am able to gather from the papers filed in the case, the proceedings before the Survey authorities were conducted by Singa Dorai alone, though he must presumably have acted on behalf of all the co-owners. Reading Ex. A in the light of these circumstances its terms are significant. Singa Dorai there describes himself in paragraph (1) as the 'senior proprietor,' refers in paragraph 3 to the possession and enjoyment of himself and his co-sharers and, when stating the reliefs in paragraph 10, refers to an injunction restraining the Zamindar from interfering with the enjoyment of the suit plots by himself and his co-sharers. But it will also be noticed that the names and addresses of his co-sharers are nowhere stated in the notice. To complete the narrative of events, I may state that before the institution of this suit, the plaintiff's family became purchasers of Singa Dorai's interest under Ex. G dated 24th September, 1928, through an intermediate sale under Ex. F dated 29th August, 1928. That is apparently the reason why Singa Dorai himself is not a party to this suit.

5. There can be little difficulty in holding that if Ex. A could be relied on by the plaintiffs, it sufficiently complies with two of the requirements of Section 49 of the Court of Wards Act, namely, statement of the cause of action and statement of the relief. The question for consideration therefore relates to the third requirement under that section, namely, statement of the name and place of abode of the intending plaintiff.

6. In the first Court, the learned Subordinate Judge was of opinion that Ex. A could not be availed of by the plaintiffs; he held that a notice of suit could be held to comply with the section only when the person who gave the notice is himself the plaintiff. On appeal, the learned District Judge was of opinion that Ex. A could be availed of by the plaintiffs because it was a notice given by Singa Dorai 'as representing the estate', that is, on behalf of all the co-owners he thought it immaterial that the names and abodes of the plaintiffs had not been set out in Ex. A.

7. The view of the lower appellate Court on the interpretation of Section 49 and the construction of Ex. A has been criticised before me on behalf of the appellant; but, before dealing with this point, it will be convenient to dispose of two contentions urged on behalf of the respondent. It was argued (i) that no notice was necessary in this case and (u) that at any rate, the objection on the score of want of notice was no longer available to the appellant whose estate has now ceased to be under the Court of Wards. In support of the first contention, reliance was placed upon the decision in Rajah of Ramnad v. Subramaniam Chettiar (1928) I.L.R. 52 Mad. 465. The question there arose in connection with a claim suit under Order 21, Rule 63, Civil Procedure Code; and Phillips, J. (with whom Odgers, J., apparently agreed on this point) held that as the claim suit must be deemed to be a continuation of the earlier claim proceedings, no fresh notice under Section 49 of the Court of Wards Act was necesssary. This decision has been commented upon by Venkatasubba Rao, J., in Rangasami Goundan v. Errappa Gounder (1934) 67 M.L.J. 426. (See also observations of Wallace, J., in Subramanyam v. Narasimham (1928) 56 M.L.J. 489 If the facts here were the same as in Rajah of Ramnad v. Subramaniam Chettiar I.L.R.(1928) 52 Mad. 465 the decision would be binding upon me; but, as pointed out by Venkatasubba Rao, J., a suit like the present stands on a different footing from a claim suit, at least for one reason,, namely, whereas in a claim suit the prior proceedings will ordinarily be in a Civil Court, the survey proceedings cannot reasonably be regarded as proceedings in a Civil Court. The institution of the suit to set the survey decision aside must therefore be deemed to be the initiation of the proceeding, so far as the Civil Court is concerned. With respect, I agree with Venkatasubba Rao, J., that it is difficult to exclude a suit like the present from the scope of Section 49. The decision of Anantakrishna Aiyar, J., in S.A. No. 1296 of 1926 has also been explained in Rangasami Goundan v. Errappa Gounder (1934) 67 M.L.J. 426. The learned Judge no doubt refers to the possibility that the suit under Section 14 of the Survey and Boundaries Act may be viewed as a continuation of the proceedings before the Survey authorities; but, as I read that judgment, he refers to that theory only to reinforce his argument that there was no actoi the local authority which was called in question in that suit, so as to attract the operation of Section 225 of the Local Boards Act. On Letters Patent Appeal, L. P. A. No. 101 of 1930, the decision of Anantakrishna Aiyar, J., was confirmed only on the ground that the suit was not one of the kind provided for in Section 225.

8. In support of the other contention advanced on behalf of the respondents, their learned advocate argued that the objection of want of notice was available only to the Court of Wards and must therefore cease to have any force as soon as the Court of Wards gave up management, even though it be during the pendency of the suit. He maintained that the absence of notice will not make the institution of the suit illegal, because it has been held in cases under Section 80, Civil Procedure Code, that the objection of want of notice may be waived. I am unable to accept this contention. Cases like Bhola Nath Roy v. Secretary of State for India I.L.R.(1912) 40 Cal. 503 are not really analogous, because while in suits contemplated by Section 80, Civil Procedure Code, the Secretary of State is a party, the Court of Wards is not the party in suits contemplated by Section 49 of the Court of Wards Act. The objection in the latter class of cases is really taken on behalf of the ward and as long as he continues to be a party, the fact that the management of his estate has changed hands, can make no difference. It may be that the cessation of the management by the Court of Wards may release him from certain disabilities (cf. Atma Ram v. Beni Prasad (1935) L.R. 62 IndAp 257: I.L.R. 57 All. 678 (P.C.) but there is nothing in the Act or in general principles to deprive him on this ground of a plea which the legislature has enacted for the benefit of his estate. The observation of Sadasiva Aiyar, J., in Jagana Sanyasiah v. Atchanna Naidu (1921) 42 M.L.J. 339 that when a Receiver ceases to be on the record of a suit the objection as to want of sanction of the Court which appointed him also ceases to be available, must be understood in the light of the fact that the Receiver himself was a party to the suit (unlike a guardian ad litem) and of the reason given by the learned Judge that the sanction is required in such cases only as a matter of respect to the appointing Court. There is no question of waiver in this case, because the 1st defendant has all along been insisting on the objection to the sufficiency of notice.

9. On the main question, I am unable to confirm the decision of the lower appellate Court on the particular ground assigned in its judgment. Whether a statement of the names and abodes of all the intending plaintiffs is necessary to enable the Court of Wards to settle the dispute if they so chose is not a matter that the Court is free to speculate upon. There have been interesting discussions in the Courts as to the sufficiency of the address given in the notice (cf. Eales v. Municipal Commissioners I.L.R.(1890) 14 Mad. 386 James v. Swift (1825) 4 B. & C. 681: 107 E.R. 1214 and Oshorn v. Gough (1803) 3 Bos. & Pul. 551: 127 E.R. 297). But no decision (except Secretary of State v. Perumal Pillai (1900) 11 M.L.J. 117: I.L.R. 24 Mad. 279 has upheld a notice that did not at all contain the names and abodes of some of the intending plaintiffs. In the words of Lord Mansfield in Taylor v. Fenwick (1803) 3 Bos. & Pul. : 127 E.R. 299 (Note):

The Legislature has thought fit to prescribe a precise form. Whether right or not, it does not matter.

10. It may be, as pointed out in Bhola Nath Roy v. Secretary of State for India I.L.R.(1912) 40 Cal. 503 that it is not necessary that the notice should be signed by all the intending plaintiffs (cf. Mohini Mohun Das v. Bungsi Buddan Saha Das (1889) I.L.R. 17 Cal. 580 (P.C.). Having regard to the joint family system and the co-ownership system prevailing in this country, I am inclined to concur in the opinion of the learned District Judge that a notice of suit may be given by one or some of several joint owners or co-owners on behalf of all. But I see no hardship in insisting that the names of all the owners who, it is intended, should join as plaintiffs in the suit, should be specified (with their addresses) in the notice. I can quite realise the extravagance of requiring the names of babies in a joint family being required to be specified but it does not seem to me necessary that such babies or minors should be joined as plaintiffs in the suit. All that Section 49 requires is the specification of the name and abode of the 'intending plaintiff' which must be taken to mean all the plaintiffs where they are more than one.

11. It is true that several cases have recognised that provisions like those of Section 49 must be held to be satisfied by a substantial compliance and that a notice must be fairly and reasonably construed in respect of its contents. But I cannot hold that the theory of substantial compliance is applicable where the names of co-sharers figuring as plaintiffs in the suit are wholly absent from the notice.

12. At the time that the decision of the learned District Judge was pronounced in this case, the judgment in The Secretary of State for India v. Perumal Pillai (1900) 11 M.L.J. 117: I.L.R. 24 Mad. 279 stood unchallenged and the decision of Sundaram Chettiar, J., in Venkata Rangiah Appa Rao v. Secretary of State for India : AIR1931Mad175 which certainly departed from Secretary of State for India v. Perumal Pillai (1900) 11 M.L.J. 117: I.L.R. 24 Mad. 279 remained as the judgment of a single Judge. The learned District Judge therefore felt himself at liberty to take what he calls a 'common sense' view of the matter in the light of Secretary of State for India v. Perumal Pillai (1900) 11 M.L.J. 117: I.L.R. 24 Mad. 279. I may observe in passing that it is very doubtful if even the judgment in Secretary of State for India v. Perumal Pillai1 can help a case where the person who gave the notice does not figure as plaintiff at all. The decision in Venkata Rangiah Appa Rao v. Secretary of State for India : AIR1931Mad175 has since been confirmed by a Division Bench on Letters Patent Appeal (vide Venkata Rangiah v. Secretary of State for India (1935) 41 L.W. 591). The view taken in Venkata Rangiah Appa Rao v. Secretary of State for India : AIR1931Mad175 has also been followed by a learned Judge of the Bombay High Court in Secretary of State v. Hargovandas : AIR1935Bom229 . The result is Secretary of State for India v. Perumal Pillai (1900) 11 M.L.J. 117: I.L.R. 24 Mad. 279 can no longer be regarded as of unchallenged authority.

13. It is not for me to comment upon the judgment in Venkata Rangiah v. Secretary of State for India (1935) 41 L.W. 591 But I may respectfully observe that the consequences of the wide rule there laid down may, in many cases, especially where the claimants are joint owners or co-owners, be evaded, by impleading as defendants the co-owners whose names and addresses have not been given in the notice. On the other hand, it will be a regrettable result if in suits on behalf of joint families, for instance, the plaint should be wholly rejected because some members not born at the date of the notice or who were minors at the time have been omitted from the notice but added as plaintiffs in the suit. It is common knowledge that in this country suits are postponed to the last possible day and in cases of the kind suggested, a new suit after a notice in proper form may be out of time.

14. I am however of opinion that the lower appellate Court's decision on the 6th issue may be affirmed on another ground. As will appear from the narrative already given, the plaintiffs are purchasers of Singa Dorai's interest under sale deeds subsequent to the date of the notice, Ex. A, that is, in law they are his representatives in interest. I am of opinion that provisions like those of Section 49 of the Court of Wards Act must be construed in the light of well-established general principles of law, and that a notice given by a person, when it otherwise satisfies the requirements of law, must be available for the benefit of persons claiming under him. I am aware that the decisions of the Allahabad High Court in Bachchu Singh v. Secretary of State for India in Council I.L.R.(1902) 25 All. 187 and Muhammad Siddiq Ali Khan v. Anwar-ul-Hasan I.L.R.(1923) 45 All. 563 and of the Bombay High Court in Mahadev v. Secretary of State : AIR1930Bom367 are opposed to this view. But, with due respect to the learned Judges, I am unable to follow those decisions. Mahadev v. Secretary of State : AIR1930Bom367 is to some extent distinguishable as laying stress on the omission from Section 80 of the Civil Procedure Code of 1908 of the word 'intending' from the expression 'intending plaintiff' found in Section 424 of the old Code; but the decision in Bachchu Singh v. Secretary of State for India in Council I.L.R.(1902) 25 All. 187 was on the same expression as is found in Section 49 of the Court of Wards Act. The learned Judges of the Allahabad High Court held that to permit the successor to rely on a notice given by his predecessor will amount to adding words to the section. This is only a reiteration of the view which in certain well-known classes of cases has been superseded by the enactment of Section 146 in the Civil Procedure Code. Very much like the same view was enunciated in certain decisions of this Court which held that on the death of a decree-holder or judgment-debtor, no execution petition pending at the death could be continued by or against the legal representatives. This again has been overruled by a Full Bench Venkatachalam Chetti v. Ramaswamy Servai (1931) 62 M.L.J. 1 : I.L.R. 55 Mad. 352 (F.B.) cases like Lalit Mohan Mandal v. Satish Chandra Das I.L.R.(1906) 33 Cal. 1163 and Subbiah v. Sundara Boyamma (1927) 54 M.L.J. 582 : I.L.R. 51 Mad. 697 furnish no true analogy because there is no justification in the present case for the assumption that the right is only a 'personal right'. I respectfully adopt the view stated in Ramakrishnama Chetty v. Vuvvati Chengu Aiyar : AIR1915Mad633 that legal representatives and assignees must prima facie be taken to be included in any reference to a person in a statute, unless the reason of the rule of law cannot clearly apply to anybody but the original owner of the property. The observation of Sesha-giri Aiyar, J., in Ramarayanimgar v. Maharajah of Venkatagiri (1920) 40 M.L.J. 236 : I.L.R. 44 Mad. 301 about the rule of liability being 'too broadly stated'in Ramakrishnama Chetty v. Vuvvati Chengu Aiyar : AIR1915Mad633 does not touch the present question. I see nothing inconsistent with the decision of the Privy Council in Bhagchand Dagadusa v. Secretary of State for India (1927) 53 M.L.J. 81: 1927 L.R. 54 IndAp 338: I.L.R. 51 Bom. 725 (P.C.) in holding that these statutory provisions for notice must be construed in the light of well-established general principles. There is no question here of whittling down the statutory requirement or controlling it by extraneous considerations.

15. Mr. Justice Sundaram Chettiar has no doubt referred to the decisions in Bachchu Singh v. Secretary of State for India I.L.R.(1902) 25 All. 187 and Mahadev v. Secretary of State : AIR1930Bom367 but he refers to them only by way of analogy. As the appellate Bench has not based its decision upon these cases, I think I am at liberty to deal with the question on its own merits. I notice that even in Ven-kala Rangiah Appd Rao v. Secretary of State for India : AIR1931Mad175 the second plaintiff was a purchaser from the first, but it is not possible to gather from the report whether the purchase was before the date of the notice given by the 1st plaintiff or after the date of the notice. I have examined the printed papers; they disclose no further information than is contained in the Letters Patent Appeal judgment that there was no formal sale deed but the 2nd plaintiff had been put in possession under an agreement for sale. Nothing is stated as to the date of the agreement or transfer of possession. It is only if the 2nd plaintiff's title had accrued subsequent to the notice that he could be held to claim under the first, in the sense in which that expression is used in such context. Sundaram Chettiar, J., lays stress upon the fact that the suit claimed relief on behalf of both the plaintiffs this leads me to think that the case did not proceed on the footing of one person claiming under another. Before the Letters Patent Appeal Bench the only question canvassed was:

Whether the suit brought by two plaintiffs is maintainable when the notice required by Section 80, Civil Procedure Code, was given by the 1st plaintiff only.

16. The answer, in the words of the learned Chief Justice, was:

Where there are more plaintiffs than one claiming relief, those plaintiffs are required to give the notice.

17. Sundaram Chettiar, J., no doubt observes that

there should be identity of the person who issued the notice with the person that brings the suit.

18. In a sense, this will be correct, that is, if legal identity is all that is required and the transferee or heir is in law the continuation of the persona of the transferor or ancestor. But, I am not, with all respect, prepared to accept the correctness of the statement of the learned Judge, if physical identity of the person is to be insisted on. To take a converse illustration, it is well established that notwithstanding physical identity, a person claiming in his own right is legally different from the same person claiming as a trustee. It seems to me much more consistent with the purpose of provisions like Section 80, Civil Procedure Code or Section 49 of the Court of Wards Act to hold that notwithstanding the physical identity of the person, a notice given in one character will not avail when the claim is made in the other character than to hold that the physical identity of the individual is the deciding factor.

19. It was lastly pointed out that the plaintiffs are now suing as 'full' proprietors of the village of Kilayur whereas they could have acquired only one half from Singa Dorai. I do not think this circumstance brings the case within the decision in Venkata Rangiah v. Secretary of State for India (1935) 41 L.W. 591. If I am right in the view that plaintiffs are entitled to maintain this suit as 'representatives' of Singa Dorai, the nature of the reliefs asked for is such that they can obtain all they want in that capacity and it is immaterial that their interest in the village is larger than that of Singa Dorai.

20. I accordingly confirm the order of the lower appellate Court though for different reasons and dismiss the appeal. In the circumstances I make no order as to costs.

21. Leave to appeal granted.


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