CROWTHER Vs. JNANABHARANAM

JUDGEMENT

(1.) THE 4th defendant is the appellant. THE suit is for damages charged on the plaint property. THE property is forest land 615 acres in extent in Darsanamkoppu Pakuthy. It belonged to one Thiruvambalam Pillai, the deceased husband of the first defendant and the father of defendants 2 & 3. THEy belong to the Vellala community following the Marumakkathayam system of inheritance. Thiruvambalam Pillai made a settlement of this property in favour of the first defendant. Subsequently, the first defendant executed a release in favour of Thiruvambalam Pillai. THE first defendant's daughter and grandchildren filed a suit (O. S. No. 115 of 1100 of the Nagercoil District court) for setting aside the release deed on the ground that the property belonged to their sub-tarwad. While that suit was pending Thiruvambalam Pillai, executed a sale deed, Ex. A, in favour of the plaintiff on 24-12-1102 conveying the right to receive from the State the Kudivila for all the royal trees which the State might mark and fell from the plaint property during the years 1103, 1104 and 1105 as also the right to the other trees, firewood and bamboos that stood in the property with the reservation that in the case of some blocks the trees that had already been felled would belong to Thiruvambalam Pillai himself. It was also provided in the sale deed that if the plaintiff met with any obstruction in working out his rights under the sale deed at the instance of persons other than the creditors whose debts the plaintiff undertook to discharge Thiruvambalam Pillai would remove those obstructions and that he would be liable to the plaintiff for any loss which the plaintiff might be put to by reason of the failure on the part of Thiruvambalam Pillai to remove such obstructions. It was also provided that the plaintiff would be entitled to recover such damages from the plaint property. It is alleged in the plaint that on account of the claim put forward by the daughter and grandchildren of ihiruvambalam Pillai and also because of the obstruction of Thiruvambalam pillai himself the State did not pay to the plaintiff the Kudivila for royal trees felled by the State. THE State filed an interpleader suit, O. S. No. 75 of 1109 of the Nagercoil District Court, impleading as parties to the suit the plaintiff, Thiruvambalam Pillai, his wife, daughter and grandchildren and deposited the Kudivila amount in court for payment to the rightful claimant. THE plaintiff who was the first defendant in that case contended that the amount belonged to him as per the sale deed, Ex. A, while Thiruvambalam Pillai who was the second defendant contended that the plaintiff was entitled only to rs. 5000, that even that amount he could draw only after discharging all the debts recited in Ex. A and that the balance amount of Rs. 11259 and odd was the value of trees not conveyed to the plaintiff under Ex. A. THE daughter and grandchildren contended that the sale deed, Ext. A, in favour of the plaintiff was not valid and that they were entitled to the kudivila amount. THE court held that the present plaintiff was entitled to the whole amount. It was also held that the plaintiff was entitled to get interest on the amount deposited by the State at 4 per cent per annum and also the costs of the suit from the assets of Thiruvambalam Pillai and from the present first defendant who was the 10th defendant in that case. THE present plaintiff preferred an appeal from that decree claiming interest and costs from defendants 3 to 5 also in that case, namely the daughter and grandchildren of Thiruvambalam Pillai. That appeal (A. S. No. 554 of 1116) was dismissed by the Travancore High Court. THE judgment is reported in 1945 T. L. R. 352. While that suit was pending in the district Court the daughter and grandchildren of Thiruvambalam Pillai filed another suit in that court, i. e. , O. S. N. 44 of 1110, claiming right to the kudivila amount deposited by the State. That suit as well as the earlier suit filed by them, namely, O. S. No. 1115 of 1100, were dismissed with costs. THE present suit was filed by the plaintiff even before the interpleader suit was disposed of. THE prayer in the suit is for a decree charging the interest on the kudivila amount as well as the costs in the inter-pleader suit and in O. S. Nos. 115 of 1100 and 45 of 1110 on the plaint property. THE plaintiff has also claimed a sum of Rs. 1000 as value of timber and firewood cut and removed by thiruvambalam Pillai from out of the timber and firewood sold to the plaintiff under Ext. A and also a further sum of Rs. 100 as costs incurred by the plaintiff in respect of a criminal case filed against the servants of the plaintiff by the lessees of Thiruvambalam Pillai. THE amount of interest on kudivila claimed in the suit is 44395 fanams. Rs. 500 is claimed as approximate costs of the interpleader suit while Rs. 200 is claimed as costs of O. S. No. 115 of 1100 and O. S. No. 44 of 1110.

(2.) THE 4th defendant purchased the plaint property from the first defendant under Ex. IX dated 16-11-1114. Defendants 1 & 4 contested the suit. THE first defendant contended that she was entitled to get damages from the plaintiff for the trees wrongfully felled by the State at the instance of the plaintiff, that neither she nor Thiruvambalam Pillai obstructed the plaintiff in realising the kudivila amount due to him and that the plaintiff was not entitled to get any of the amounts claimed in the plaint. THE 4th defendant also contended that the plaintiff was not entitled to get a decree for any of the amounts claimed in the plaint charged on the plaint property and that, so far as the claim for interest on the kudivila amount was concerned, the suit was barred by Order II, rule 2 of the Code of Civil procedure since the plaintiff did not claim a charge on the plaint properties for this amount in the interpleader suit in which the amount was claimed as damages.

(3.) AS for the interest on the kudivila amount the argument of learned counsel for the appellant is that this would not come within the purview of the indemnity clause, that no charge is created for this amount on the property and that the suit in respect of this amount is barred by order II, rule 2 of the Code of Civil Procedure.