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Srinivasa Mudaliar Vs. Abraham Pillai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberCivil Rev. Petn. No. 1392 of 1948
Judge
Reported inAIR1950Mad824
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 22, Rules 3 and 5; Transfer of Property Act, 1882 - Sections 6
AppellantSrinivasa Mudaliar
RespondentAbraham Pillai
Appellant AdvocateR. Sundaralingam, Adv.
Respondent AdvocateA. Durairaj, Adv.
DispositionPetition allowed
Cases ReferredGlegg v. Bromley
Excerpt:
.....attract to itself mischief of section 6 (e) - held, petitioner entitled to be brought on record as legal representatives of deceased appellant. - - 15 of 1947 on the file of district court, tanjore, and the same is pending disposal, if per chance i should die before the said appeal is disposed of srinivasa mudaliar, son of chokkappa mudaliar of neppukoil (my younger brother) shall after my death continue the said appeal as my legal representative, himself realise the monies that may be obtained as a result of success in the said appeal and enjoy the same with all absolute rights. 104. a reading of these decisions shows that while they are good authority for the contention that only an appeal lies against the order of abatement of a suit or an appeal, they do not seem to be authority..........mudaliar of neppukoil (my younger brother) shall after my death continue the said appeal as my legal representative, himself realise the monies that may be obtained as a result of success in the said appeal and enjoy the same with all absolute rights. by this will i have given all my rights in the said appeal after my death to the aforesaid srinivasa mudaliar. i have consented thus and executed this will out of my free will. this will shall come into force after my death.' the petitioner herein filed the petition, i, a. no. 368 of 1947, under order 22, rule 3 civil p. c., praying to add him as legal representative of the deceased appellant and as appellant 2. the counter petitioner to the said i. a. no. 363 of 1947 opposed the petition on legal grounds and also put the petitioner to.....
Judgment:
ORDER

Basheer Ahmed Sayeed, J.

1. This civil revision petition is filed against the order of the District Judge of West Tanjore dismissing the petition of the petitioner herein praying that he may be impleaded as an appellant in A. S. No. 15 of 1947, which arose out of O. S. No. 206 of 1943. The petitioner is the legatee under a will executed by the appellant in A. S. No. 15 of 1947. The appellant in A. S. No. 15 of 1947 had filed a suit O. S. No. 206 of 1943 on the file of the District Munsif's Court, Tiruvadi, for dissolution of partnership and for accounts against one Abrahim Pillai and eight others. In the said suit the present petitioner's predecessor-in-interest who was plaintiff claimed that she was a partner in a rice mill along with defendant l in the suit, and that the partnership was started with the plaintiff and defendant 1 as partners they being entitled each to a moiety of the business, each having contributed a sum of as much as Rs. 1052/- and odd. Defendant 1 paid the plaintiff some sundry amounts, but never divided the profits with the plaintiff in the suit. The business consisted of a rice mill with Blackston engine of 20 horse power and other accessories along with the superstructure and the land on which the superstructure stood. The learned District Munsif of Tiruvadi, who tried the suit dismissed the same with costs holding that the plaintiff was not entitled to any amount or other relief. Against this decision the plaintiff preferred the appeal, A. S. No. 15 of 1947.

2. When the appeal was pending, the appellant, Thaipal Anni alias Meenambal Anni, executed a will in favour of the present petitioner. Srinivasa Mudaliar, and died some time later, By the will, the said appellant in A. S. No. 15 of 1947 beqeathed the subject matter of the appeal to the petitioner. The relevant portions of the will dated 28th July 1947 are as follows:

'There were disputes with regard to my share in the rice mill at Ayyanaparam, Tanjore taluk, and in respect of the same I filed O. S. No. 206 of 1943 on the file of the District Mundf's Court, Tiruvadi. It was dismissed and on that I have filed an appeal A. S. No. 15 of 1947 on the file of District Court, Tanjore, and the same is pending disposal, If per chance I should die before the said appeal is disposed of Srinivasa Mudaliar, son of Chokkappa Mudaliar of Neppukoil (my younger brother) shall after my death continue the said appeal as my legal representative, himself realise the monies that may be obtained as a result of success in the said appeal and enjoy the same with all absolute rights. By this will I have given all my rights in the said appeal after my death to the aforesaid Srinivasa Mudaliar. I have consented thus and executed this will out of my free will. This will shall come into force after my death.'

The petitioner herein filed the petition, I, A. No. 368 of 1947, under Order 22, Rule 3 Civil P. C., praying to add him as legal representative of the deceased appellant and as appellant 2. The counter petitioner to the said I. A. No. 363 of 1947 opposed the petition on legal grounds and also put the petitioner to strict proof of the will.

3. The question that arose for decision by the learned District Judge was whether the terms of the will validly entitled the petitioner to be treated for the purpose of the appeal as the legal representative of the deceased appellant. The learned District Judge dismissed the petition for being brought on record as legal representative following the decision in Rajamanikam Chetti v. Abdul Halim Sahib, : AIR1941Mad389 and stating that what was assigned to the petitioner by the original appellant was only a mere right to sue and that under Section 6(e), T. P. Act, a mere right to sue cannot be transferred. The learned District Judge also dismissed the main appeal as having abated in consequence of having dismissed the petition of the present petitioner for being brought on record as legal representative of the deceased appellant, The present revision petition has been preferred only against the order of the learned District Judge dismissing the petition for being brought on record, while no appeal has been preferred against the order declaring that the appeal itself had abated.

4. In the course of argument before this Court, a preliminary point was raised by the learned counsel for the respondent that this civil revision petition did not lie. He contended that the proper remedy for the petitioner was to have filed an appeal against the order of the learned District Judge declaring the abatement of the appeal and also an appeal against the order declining to bring him on record as legal representative.

5. Mr. Durairaj referred to various decisions, such as Bhikaji Ramchandra v. Parushotham, 10 Bom. 220, Subbyaya v. Saminadayya, 18 Mad. 496 : 5 M. L. J. 63, Meenatchi Achi v. Anantanarayana Aiyar, 26 Mad. 224 : 12 M. L. J. 380, Suppu Nayakan v. Perumal Chheti, A. I. R. 1917 Mad. 285 : 34 I. C. 372, Ayya Mudalivelan v. Veerayes, 43 Mad. 812 : A. I. R. 1920 Mad. 424 and Raghbir Saran v. Mt. Sohan Devi, A. I. R. 1925 Lah. 456 : 86 I. C. 104. A reading of these decisions shows that while they are good authority for the contention that only an appeal lies against the order of abatement of a suit or an appeal, they do not seem to be authority for holding that an appeal also lies against the order refusing a petition to bring on record a legal representative. The question as to whether a revision or an appeal lies against an order passed by a Court under Order 22, Rule 6, rejecting a petition to be brought on record as legal representative, appears to have been concluded by the decision in Venkatakrishna Reddi v. Krishna Reddi, 49 Mad. 450 : A. I. R. 1926 Mad. 586, where the learned Judges have held on a reference, that the refusal to appoint a person as the legal representative of a deceased plaintiff or a deceased defendant cannot be regarded as a final decree and that no appeal would lie against such an order. The learned Judges also observed in that case, that they would give no expression of opinion as to what would be the consequence if the petitioner appealed against the actual order of abatement or dismissal of a suit or appeal. In the present case under revision, as pointed out above, the petitioner has preferred only a revision against the order rejecting his petition to be brought on record as legal representative of the deceased appellant and he has not preferred any appeal against the order of the abatement of the appeal passed by the learned District Judge. Therefore, in so for as this revision petition against the order refusing to bring him on record as legal representative is concerned, I hold that the petitioner has followed the right procedure in filing a revision petition and there is no substance in the contention of the learned counsel for the respondent.

6. Mr. Durairaj has also invited my attention to a decision in Harekrishna Mallik v. Narsingh Das, A. I. R. 1935 pat. 121 : 148 I. C. 333, where it has been held that where it was possible for a party to appeal against the decision of the appellate Court and he has not appealed, he cannot agitate the matter which might have been agitated in appeal by preferring an application in revision. Relying on this case, the learned counsel for the respondent contends that in so far as the petitioner has not preferred an appeal against the order of abatement of the original appeal, he cannot be heard on this revision petition which is preferred against the order dismissing his petition for being brought on record as legal representative. I am afraid the decision relied upon by the learned counsel for the respondent does not support his contention. It is true that the petitioner has preferred only a revision petition against the dismissal of his petition for being brought on record as legal representative; but, it is nowhere stated that he should, at the same time, file a second appeal against the order of abatement of the original appeal and that unless this is done he should not be heard. There is nothing that compels the petitioner to file an appeal against the order of abatement in order to enable him to be heard on the revision petition against the order in the petition referred to above. It is open to any party to choose his own remedies against adverse orders passed and to proceed in such manner as he may be advised. A party may prefer a revision against the order passed refusing him to be brought on record and may not choose to prefer an appeal against the order of abatement which followed the dismissal of the petition under Order 22 Rule 3, Civil P. C. When be does so, he submits himself to risk by reason of his own choice.

7. It may be possible for the petitioner to prefer a petition to set aside the abatement or to prefer a second appeal against the order of abatement irrespective of the results of his civil revision petition under consideration. He may or may not get any relief, if he resorts to any of the steps stated above. It will all depend upon whether he has lost his rights under the law or whether he has still any left for enforcement. Under the circumstances, it is not possible for me to agree with the learned counsel for the respondent that inasmuch as the petitioner has not preferred an appeal against the order of abatement, this revision petition cannot lie. On the other hand, I feel that the petitioner is entitled to maintain this revision petition whether or not he has filed an appeal against the order of abatement. Only he takes the risk with his eyes wide open. No authority has been cited to controvert the view I have taken.

8. It is next argued before me by the learned counsel for the petitioner that the order of the learned District Judge in dismissing the petition on merits is not sustainable. He contends that what is transferred under the will is not a mere right to sue but it is a tangible interest in the partnership which includes assets and liabilities etc. I find there is substance in this contention. A perusal of the relevant portions of the will extracted above does make it clear that what is assigned under the will is not a mere right to sue. On the other hand, it is a half share in the rice mill at Ayyanapuram with all its assets and liabilities, such as, stock-in-trade, machinery, superstructure, land, etc., as set out in the plaint filed in O. S. No. 206 of 1943. In addition to this, the will also refers to the right of continuing the appeal and enjoyment of all the profits arising therefrom. When a transfer of such an interest, as is set out above, is made it is difficult to say how it can be a mere right to sue as defined in Section 6, T. P. Act. A perusal of the decision in Rajamanickam Chetti v. Abdul Halim Sahib, : AIR1941Mad389 , referred to by the counsel for respondent, would show that what was involved in that case was a 'claim for damages for wrongful dispossession of premises in breach of a lease agreement and what was assigned by way of sale in the said case was the profit and loss of the suit for damages which was based on wrongful dispossession.'

It was held in that case that the right to recover damages, whether for tort or contract, was a mere right to sue and could not be transferred. It wag also held that 'though the assignment of the fruits of a pending action was valid, it gave the assignee no right to interfere in proceedings in the action.' But the facts in the present case are far different from those in the case cited above. The learned District Judge has failed to appreciate the difference between a suit for damages arising out of a mere tort or contract land the present suit which is one for a definite half share of the assets and liabilities of a partnership business. I am of opinion that the learned District Judge has erred in applying the decision in Rajamanickam Chetti v. Abdul Halim Sahib, : AIR1941Mad389 to the present case when the facts are quite different and are easily distinguishable. On the contrary, the decisions in Venkata Subadrayamma v. Venkatapati Raju, 48 Mad. 230 : A. I. R. 1924 P. C. 162, Mrs. Saradambal Ammal v. Kandasami Goundar, : (1947)2MLJ374 and Muhammad Maracair v. Bathumal Beevi, : AIR1948Mad458 , relied upon by the counsel for the petitioner seem to be applicable to the facts of the present case, and are quite in point. Following these decisions I hold that what is transferred under the will is not a mere right to sue but the tangible interest in the property and a transferable right to sue, and on this basis the petitioner is entitled to an order on his petition for being brought on record as a valid assignee from the deceased appellant.

9. Mr. Durairaj for the respondent would argue that any right or interest to be available for transfer must be existent and tangible in character. Though it is not always necessary that an interest should be in existence for being transferred, still I do think that the interest transferred by the will in question is certainly not only in existence but also quite tangible. It does not make any difference that the suit of the plaintiff had been dismissed at the time of the transfer, for the simple reason that the decision of the District Munsif had not yet become final by any means. He relies upon the decision in Glegg v. Bromley, 1912 3 K. B. 474, but I do not think that decision applies to the facts of the present case, A reading of the sections of the Partnership Act, such as 4, 6, 29 and 69, do make it clear that an interest in partnership is nothing but an existing interest and tangible property which can be assigned and that it does not attract to itself the mischief of Section 6(e), T. P. Act. In these circumstances, I hold that the order of the learned District Judge under revision is not correct and I set aside the same and hold that the petitioner is entitled to be brought on record as the legal representative of the deceased appellant. I do not feel called upon to express any opinion as to what would be the case if the petitioner chooses to file an appeal or an application against the order of abatement, In this matter he must be left to his own remedies which he may be entitled to under the law.

10. The petition is allowed with costs.


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