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B. Thavasimuthu Nadar and anr. Vs. R. Thavasimuthu Nadar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1931Mad824
AppellantB. Thavasimuthu Nadar and anr.
RespondentR. Thavasimuthu Nadar and ors.
Cases ReferredSri Ranga Thathachariar v. Srinivasa Thathachariar A.I.R.
Excerpt:
- .....appeal from the order of the master dated 15th october 1929 refusing the appellant leave to file a written statement in o.s. no. 655 of 1921. the facts of the case are as follows. the suit was filed in july 1921. there was a preliminary decree on 18th january 1924. th(c)-present appellant was born on 2nd february 1924. defendant 1, the appellant's-father, became a lunatic some time in. 1929 and on the application of the appellant he was allowed to be impleaded in the case as a defendant by kumaraswami sastri, j. this was on 19th february 1929. but in that order kumaraswami sastri, j., said: 'he must take. matters as they stood when the preliminary decree was passed.' this practically precluded him from filing any fresh; written statement. defendant 1 died oft 5th july 1929. the.....
Judgment:

Ramesam, Offg. C.J.

1. This is an appeal from the order of Beasley, C. J., dated 14th November 1929 dismissing an appeal from the order of the Master dated 15th October 1929 refusing the appellant leave to file a written statement in O.S. No. 655 of 1921. The facts of the case are as follows. The suit was filed in July 1921. There was a preliminary decree on 18th January 1924. Th(c)-present appellant was born on 2nd February 1924. Defendant 1, the appellant's-father, became a lunatic some time in. 1929 and on the application of the appellant he was allowed to be impleaded in the case as a defendant by Kumaraswami Sastri, J. This was on 19th February 1929. But in that order Kumaraswami Sastri, J., said: 'He must take. matters as they stood when the preliminary decree was passed.' This practically precluded him from filing any fresh; written statement. Defendant 1 died oft 5th July 1929. The respondents filed an application to record the fact that the appellant would be the legal representative of the deceased defendant 1. This was ordered on 19th August 1929. The present application was filed on 6th September 1929 to receive a fresh written statement on behalf of the appellant who was impleaded as defendant 12. The Master refused this application and on appeal Beasley, C. J., dismissed the appeal. Hence the appeal before us.

2. One of the points raised by the respondents before us is that an appeal against this order does not lie and a decision in Imambandi v. Mutsaddi A.I.R.1918 P.C.11, is relied on. So far as I am concerned, if there is any other point on which I. can dispose of the appeal I would leave this objection alone and would not prefer to rest my judgment upon the-decision of this question. Coming to the merits, seeing that the appellant had. been already made a party in February 1929, the application in August 1929 is undoubtedly an application under Order 22, Rule 2 and not an application under Order 22, Rule 4. That being so, the appellant would not have a right to file an additional written statement by reason of the fact that he was noted on record as the legal representative of the deceased defendant 1 in August 1929. But it may be said that he had a right to file an additional written statement when he was originally brought into the record i. e., in February 1929. Kumaraswami Sastri, J., held that he must take matters as they stood on the record at the date of the preliminary decree. If this order is erroneous the remedy of the appellant was to have appealed against that order.

3. But apart from this view which may be regarded as a technical view, there is another ground on which it may be held that the appellant had really no right to file any additional plea. It is true that a Hindu's son would in general have the right of questioning the nature of the father's debt either in execution or in a separate suit and after the insertion of Section 53 in the new Code of Civil Procedure the question can be raised by a son after decree. The judgment of Lord Hobhouse in Nanomi Babuasin v. Modhun Mohan [I886]13Cal.21, shows that a Hindu's son has always such a right, but it is subject to the qualification that he was in existence at or before the time when the decree against the father was passed.

4. In the present case though no doubt the appellant was not born by 18th January 1924 he must have been conceived and it is a principle of Hindu law that a person en ventre sa mere should be regarded as in existence from the time of the conception. So we must regard the appellant as in existence on 18th January 1924. But that is not enough to help the appellant. It is now an established principle that, when a suit for partition in a joint family is filed, the filing of the suit effects a severance of the family, subject to the condition, that the suit is proceeded with. if the suit is withdrawn there is no severance; but if the suit is ultimately decreed, whatever the interval of time may be, the dat6 of severance is the data of the plaint. This principle is established by the Privy Council cases in Suraj Narain v. Iqbal Narain [1913] 35 All. 80 and Kawal Nain v. Budh Singh A.I.R.1917 P.C.33. This principle was applied in Krishnaswami Thevan v. Pulukaruppa Thevan A.I.R.1925Mad.717 and in Sri Ranga Thathachariar v. Srinivasa Thathachariar A.I.R.1927Mad.801.

5. That being so, in this case there is a complete severance between the branch of the appellant and his father on the one hand and the other members of the family on the other hand in July 1921, the date of plaint and there is a preliminary decree against the appellant's father declaring his accountability which. must be taken to date back to the date of plaint, Now in July 1921 the plaintiff was not in existence either actually or en ventre sa mere. That being soy he cannot raise the question as to whether the joint family property of his father in his hands should be liable for the obligations incurred by his father, which obligations are declared in the preliminary decree. Therefore I am inclined to think that the conditions imposed upon him in the order of Kumaraswami Sastri, J., in February 1929 were rightly imposed. The result is that the appeal is dismissed with costs. One set.


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