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N. Achyutam and ors. Vs. V. Surayya - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Reported inAIR1924Mad845
AppellantN. Achyutam and ors.
RespondentV. Surayya
Cases ReferredPeda Venkanna v. Sreenivasa Deekshatulu
Excerpt:
- .....plaintiff. the debt was disputed by the 1st defendant, but the first court found that his plea was false. defendants 2 to 4 pleaded that before suit there was an out and out division between their father, the 1st defendant and themselves. the learned district munsif held in favour of the partition. in consequence of that finding he dismissed the suit against the sons giving effect to the rule enunciated in peda venkanna v. sreenivasa deekshatulu (1918) 41 mad. 136; the learned subordinate judge on appeal disagreed with the district munsif and founrl that there was in fact no partition. it was then argued on behalf of defendants 2 to 4 that there was at any rate a division in status, and to prove it they relied upon exhibit i, a notice which was sent by the 2nd defendant to the 1st.....
Judgment:

Venkatasubba Rao, J.

1. This appeal arises out of a suit instituted for the recovery of a certain sum of money from the 1st defendant and defendants 2 to 4 who are his sons. The 1st defendant carried on business in brass utensils and in the course of that business became indebted to the plaintiff. The debt was disputed by the 1st defendant, but the first Court found that his plea was false. Defendants 2 to 4 pleaded that before suit there was an out and out division between their father, the 1st defendant and themselves. The learned District Munsif held in favour of the partition. In consequence of that finding he dismissed the suit against the sons giving effect to the Rule enunciated in Peda Venkanna v. Sreenivasa Deekshatulu (1918) 41 Mad. 136; the learned Subordinate Judge on appeal disagreed with the District Munsif and founrl that there was in fact no partition. It was then argued on behalf of defendants 2 to 4 that there was at any rate a division in status, and to prove it they relied upon Exhibit I, a notice which was sent by the 2nd defendant to the 1st defendant. The lower appellate Court did, I think, give a finding that there was no bona fide severance at all effected. But I am not going to base in decision upon that circumstance alone. Defendants 2 to 4 did not plead a division in status, and I do not think that in a case of this nature, they should be permitted to advance that plea for the first time in appeal. The claim was obviously a just claim as the debt was incurred in the course of trade and it was not tainted with illegality or immorality and nevertheless the defendants might rely on any legal defence if it had been properly pleaded and thus defeat the claim. But when the plea specifically set up was found to be false they should not be permitted in the circumstances to put forward in appeal a case not suggested in the written statement nor even at the trial. The difficulty that may arise by the new plea being permitted to be advanced will become apparent by a perusal of the notice Exhibit I. One of the questions that may arise is, was Exhibit I intended to be given on behalf of the 2nd defendant alone or on behalf of the 2nd defendant and his minor brothers? Secondly, if it was intended to be also on behalf of the minor brothers, would it be operative so far as the shares of the minors are concerned? Then a question of fact may arise, was the severance in status effected bona fide or was the object to defraud the plaintiff and other creditors? These are considerations which would become relevant if the plea of division in status should be admitted. The defence taken by the defendants 2 to 4 having been found to be false, the plaintiff must have a decree. I therefore, confirm the decision of the Subordinate Judge and dismiss the Second Appeal with costs.

2. It follows that C.R.P. No. 612 of 1921, is also dismissed but, in the circumstances, without costs.


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