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Kattick Ramunni 1st Grade Pleader, District Court Vs. Udayamangalath Mithale and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in14Ind.Cas.279
AppellantKattick Ramunni 1st Grade Pleader, District Court
RespondentUdayamangalath Mithale and ors.
assignment - authorization to recover amount from, person with whom a pro-note was deposited--attachment after assignment, effect of--suit for moveable property under attachment by court of foreign state--defendant residing within the jurisdiction of the forum of institution--civil procedure code (act v of 1908), section 16(f)--agreement for payment of pleader's fees--legal practitioners act (xviii of 1819), section 28. - - kerala verma belonged to a rich and influential family which had their seat in chirakel in north malabar. but it appears that kerala varma, as well as other branches of the original family, built houses and acquired property in travancore and resided with their families there......when tippo saltan fell arid the east india company took possession of north malabar, kerala varma successfully petitioned the company for restoration of his family properties in north malabar which were of considerable extent. but it appears that kerala varma, as well as other branches of the original family, built houses and acquired property in travancore and resided with their families there. kerala verma had a place at travancore and also one in chirakkel where he used to come to look after his north malabar estate. the ladies of his family which, in the marumakkatayam system, consists of cousins of the mother, the sisters and the nephews and wives, never came to north malabar and the government pro-note in question and other pro-notes were at the time of kerala verma's.....

1. The suit which has given rise to this appeal was instituted by the, plaintiff as Karnavan and Manager of Meethala Kavilagam to recover from the defendant, who is a 1st grade Pleader of Tellichery, a Government promissory-note for Rs. 10,000 which originally belonged to one Karalavarma, who died on the 21st day of January 1893 in North Malabar and whom the plaintiff succeeded as the head of the Methala Kavilagam. The defendant claims title to the note as having received it from one Utharamal Shamburan of Mariapalli Kavilagam for whom he acted as Pleader in several suits, on the understanding that he might take the fees due to him out of its sale-proceeds and he also resists the suit on the ground that the pro-note in question being under attachment in the territory of Travancore, which is a Foreign Stale, by an order of a Travancore Court, the District Court of North Malabar had no jurisdiction to entertain the suit and on various other grounds which, in the view we take of the effect of Exhibit G. which is described as a surrender deed executed on 29th day of March 1908 by Vetharammal in favour of the plaintiff, do not call for discussion. Exhibit Gr. was executed (briefly speaking) under these circumstances. Kerala Verma belonged to a rich and influential family which had their seat in Chirakel in North Malabar. When North Malabar was invaded by Haidar Ali and Tippn Sultan, sometime in the end of the 18th cantury, the family which consisted of several branches migrated to Travancore whose Rajah who was related to them gave them protection. After the battle of Srirangapatam, when Tippo Saltan fell arid the East India Company took possession of North Malabar, Kerala Varma successfully petitioned the Company for restoration of his family properties in North Malabar which were of considerable extent. But it appears that Kerala Varma, as well as other branches of the original family, built houses and acquired property in Travancore and resided with their families there. Kerala Verma had a place at Travancore and also one in Chirakkel where he used to come to look after his North Malabar Estate. The ladies of his family which, in the Marumakkatayam system, consists of cousins of the mother, the sisters and the nephews and wives, never came to North Malabar and the Government pro-note in question and other pro-notes were at the time of Kerala Verma's death actually situated in the Travancore Territory.

2. TJpon Kerala Verma Rajah's death, all his estate, including the note in dispute, were taken possession of by the Travancore Government as the escheat on the allegation that Kerala Varma died heirless. Vetharammal already mentioned instituted a suit in his capacity as Karanavan of Mariapillai to establish the right of his Tarwad as heir of Kerala Varma in Alleppy Court in the Travancore State in the year 1895. In that suit the present plaintiff, who was also a member of the Manapally Tarwad, was made a party (4th defendant) but he was not joined as Karanavan of Mathiala Tarwad nor were all the members of that Tarwad which he represents in this suit impleaded in the Alleppy Court. The present plaintiff did not appear. Vetharammal succeeded in the suit and the title of Mariapillai Tarwad as heirs of Kerala Varma was declared to be inoperative according to the law of Travancore. It was also held that the present plaintiff was not exclusively entitled to Kerala Varma's estate tinder a Will executed by Kerala Varma. We may also mention in passing that the plaintiff in this case also bears his title on adoption of his mother and sister by Kerala Varma in accordance with the decree of the Travancore Court. Vetharammal obtained possession of the pro-note in dispute. Then, in 1901 or 1902, the present plaintiff filed a suit against Vetharammal (Original Suit No. 14 of 1902) in the North Malabar District Court (in British India) to establish his right as Karnavan of Methiala Tarwad to the property situate in British India as heir to Kerala Varma by virtue of the adoption and the Will and for recovery of possession Of some of these properties from Vetharammal. He obtained a judgment in his favour which was confirmed by the High Court in 1904.

3. It appears that the plaintiff, having succeeded in his suit with respect to the proper-ties in British India, intended to take steps to recover the properties in Travancore. It was then that he and Vetharammal came to an amicable understanding and Exhibit G. was executed. It recites the previous history of the litigation between them, acknowledges the plaintiff's right as heir to the estate of Kerala Varma and states that Vetharammal has made over possession of all such properties belonging to Kerala Varma's estate as were in his possession to the plaintiff. As for the pro-note in question, which was then in the possession of the defendant, Vetharammal, after acknowledging the plaintiff's right to it as Kerala Varma's heir, authorises the plaintiff to recover the same with principal and interest by suit or otherwise from the defendants to whom it had been entrusted by Vetharammal.

4. Now, [there can be no doubt, whatever might have been the state of the title to the pro note before the date of Exhibit G. as between the plaintiff and Vetharammal, the latter, by that document, divested himself of any right that he might have to the note and transferred it to the plaintiff. Mr. Seshagiri Iyer, the learned Vakil for the defendant-appellant, argues that Exhibit G. ought not to be construed as an assignment of the note but as a mere release or rather an acknowledgment of plaintiff's title, so that if the plaintiff in fact had no title, Exhibit G. did not give him any. Now, Exhibit G. expressly authorises the plaintiff to recover the property from the defendant, while, no doubt, it says at the same time that the paper belonged to the plaintiff himself. It comes to this, that, if Vetharammal had in fact any right to the pro-note, he intended to assign it to the plaintiff; that is, in our opinion, (he clear effect of Exhibit G. by which the disputes between the plaintiff and Vetharammal were settled. But Mr. Seshagiri Iyer strenuously argues that this was not the plaintiff's case and, therefore, it is not open to us to place this construction on Exhibit G.; but in paragraph 6 of the plaint, reliance is placed on Exhibit G. in support of the plaintiff's title and the appellant tried to meet the plaintiff's case on this point by alleging in paragraph 12 of the written statement that the so-called assignment, meaning Exhibit G., was fraudulently got up between the plaintiff and Vetharammal in order to defeat the latter's creditors including the defendant. And the latter part of the first issue in wide enough to cover the plaintiff's title on the basis of Exhibit G. There can be no doubt that the defendant was quite alive to the legal effect of Exhibit G. if it stood unimpeached, but he did not raise any issue in support of the allegation of fraud made in paragraph 12 of the written statement and the evidence on record does not substantiate that allegation. Reliance is placed on a statement elicited from the plaintiff in cross-examination that he did not get not get any assignment of Vetharammal's rights in the note, but, but it is clear that what he (sic) thereby was that he was not prepared to acknowledge that Vetharammal had any right at all in the note. It does not appear that when the plaintiff made that answer, his attention was drawns pecifically to Exhibit G though the document was referred to apparently in the next question. However that may be, the plaintiff did rely on Exhibit G. in support of his title and if the express language of the document, read in the light of the circumstances in which it was executed as recited therein, has the effect of vesting whatever rights Vetharammal had in the note in the plaintiff, the fact that the latter cannot define its exact legal effect can make no difference. At all events, Vetharammal himself, in face of Exhibit G. could not deny the plaintiff's title to the note. Can the defendant do so?

5. In the argument before us, his learned Vakil was unable to contend, and having regard to the plaintiff's own evidence such contention would have been hopeless, that the pro-note was absolutely assigned to the defendant. What he contended was that the defendant had an equitable charge or a lien on the pro-note by virtue of an agreement with Vetharammal that he should hold it as security for his fees. This matter has been fully discussed by the learned District Judge and we entirely agree in his conclusion. We agree with him that it is not satisfactorily proved that any fee was actually due to the defendant from Vetharammal. He has, according to his own showing, been paid at least Rs. 500 for his fees in Suit No. 14 and certain expenses. There is nothing to show that Vetharammal was bound to pay him more as found by the District Judge. The fees for the defendant's professional services in the previous litigation had also been paid. As for the alleged agreement to pay Rs. 5,000, the defendant has not called Vetharammal or his Kariastan; supposing the Kariastan agreed to pay this amount, there is nothing to show that he had any authority to enter into such agreement. Besides, an agreement of the nature alleged is required by Section 28 of the Legal Practitioners' Act, 1579, to be in writing, signed by the person retaining the Pleader and must be filed in Court within 15 days of its execution; otherwise it would not be valid. The agreement alleged by the appellant was verbal. The defendant has, therefore, no charge or lien on the pro-note or any sort of right to it. The note which had been withdrawn from circulation was in fact entrusted to him so that he might realise the money thereunder for his client. He thus holds it as agent of Vetharammal and has no higher right to it as against the plaintiff than Vefcharammal himself. We might mention here that Mr. Seshagiri Iyer applied to us for an opportunity to prove by further evidence that Vetharammal owed his client fees and that the pro-note was handed to him as security for such fees. But issues Nos. 6 and 7 were framed to raise this very question and it is not suggested that opportunity was not given to the defendant to adduce any evidence he thought fit in support of his case. We do not think we can rightly accede to Mr. Seshagri Iyer's request.

6. In this view of the case, the only other question for decision is the effect of attachment of the pro-note made by an order of the Alleppy Court on the jurisdiction of the North Malabar Court. Now, the attachment was made at the instance of the defendant himself before judgment in a suit instituted by him against Vetharammal in the Alleppy Court to recover a certain sum of money. The attachment was made after the date of Exhibit Gr., and if, by that deed Vetharammal's rights in the note were transferred to the plaintiff, any subsequent attachment by a creditor of Vetharamal could not affect the plaintiff's right. It may be noted that the note was in the hands of the defendant himself, and it was just before the institution of the present suit that the defendant instituted his suit against Vetharmmal in the Alleppy Court and obtained the order of that Court attaching the note in his own hands. He himself produced it in Alleppy Court, so that the order of attachment might be carried out. The learned District Judge holds this action of the defendant fraudulent, but we do not think it ought to be regarded as necessarily involving any fraud or dishonesty. All that is necessary to say is that it is ineffectual to defeat the plaintiff's right.

7. Reliance is placed on Section 16(f) of the Code of Civil Procedure, which lays down that a suit for recovery of moveable property actually under attachment should be instituted in the Court within the local limits of whose jurisdiction it is situated. Bat that is a Rule for regulation in the Municipal Courts, as is clear from the explanation to the section, and it was not intended thereby to lay down any rule in cases where moveable property is under attachment in Foreign Territory. Independently, however, of Section 16(f), it may be that, when moveable property is under attachment in a Foreign Territory by the order of a Foreign Court, the Courts in British India would have no jurisdiction to entertain a suit for the recovery of such property. But here attachment was at the instance of the defendant himself, who is a resident of British India, and it is open to him to get back possession of the property from the Travancore Court. The mere fact that moveable property which is sought to be recovered from the defendant over whom the Court has jurisdiction is situate in a Foreign Territory does not oust the jurisdiction of the domestic tribunal, for moveables always follow the person, and a decree in personam can be executed by enforcing personal obedience of the defendant. The appeal must be dismissed with costs. We note that the decree of the District Judge does not provide for payment of the value of the note as an alternative remedy, as it should do, but as we understand that the defendant hag deposited the pro-note in the District Court, it is not necessary to modify the decree.

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