PONNAMMAL ALIAS GURUVAMMAL Vs. KANTHAMMAL

JUDGEMENT

(1.) Venkata Reddi and Bapu Reddi yere two brothers. The former died in 1917 leaving two widows of whom only one, viz., the first plaintiff is now surviving. Bapu Reddi died in 1936 leaving behind him two widows who are defendants 1 and 2. Venkata Reddi and Bapu Reddi had a sister named Chinnammal and the 3rd defendant is the son of this Chin-nammal. A few days after Bapu Reddi died defendants 1 and 2 executed a surrender deed of their entire interest in the estate in favour of 3rd defendant. It is alleged in the plaint that the mother of 3rd defendant also joined in the execution of the document. The plaint alleges that the law applicable is the Mitak-shara law as it prevails in Travancore and that according to that system of law on the death of Venkata Reddi and Bapu Reddi their estate vested in all the widows together. The plaint further alleges that the surrender deed executed by defendants 1 and 2 and Chin-nammal is void and of no legal effect whatsoever. After the execution of the surrender deed various alienations were effected. The plaintiffs, therefore sued to recover possession of the entire estate from defendants 1 to 3 and their alienees. In view of the doubt whether the 1st plaintiff was entitled to recover the properties on her own sole behalf the prayer was cast in the alternative for recovery of possession either for herself alone or on behalf of herself and defendants 1 and 2. There was also a prayer for a declaration that the surrender deed executed on 5th October 1936 by defendants 1 and 2 in favour of 3rd defendant and the alienation made by defendants 1, 2 and 3 are null and void and of no effect whatsoever as against the plaintiffs. Court-fee was paid as in a suit for possession. The Court-fee Examiner took the view that the alternative prayer could not be granted without the cancellation of the surrender and other deeds and that in consequence the plaintiff should pay court-fee on the market value of the shares of the defendants in the suit properties. This objection was upheld by the learned Subordinate Judge of Tirunelveli and it is against this order that the present revision petition has been filed.

(2.) The law in this province is perfectly clear that a person who is not a party to a decree or a document is not bound to sue for its cancellation. At page 279 in 'Rama-Swami v. Rangachariar', ILR (1940) Mad 25J, the legal position has been thus explained.

(3.) Mr. Ramamurthi who tried to support the decision of the Court below referred to me to the decision in 'Ramasubba v. Ayyalu', ILR (1941) Mad 708. The facts in the case were : A grocer who had supplied goods brought a suit against a temple represented by its hereditary trustee. The suit was founded upon a promissory note and the promissory note had been executed in respect of goods supplied by the plaintiff. The plaintiff did not press the suit against the trustee against whom it was dismissed but he did obtain a decree against the temple. Three worshippers of the temple subsequently filed a suit in which they impugned the decree passed against the temple on the ground that the trustee had not been looking after the temple's interests but allowed them to be sacrificed in return for his being exonerated. The Court held that though the second suit was ostensibly by three worshippers it was really by the temple and that as the previous decree was against the temple the subsequent suit must be treated as one for cancellation of the earlier decree in the earlier suit and court-fee must be paid accordingly. The learned Judges who decided that case stressed one circumstance which distinguishes that case from the present one, viz., that in that suit the plaintiffs, the worshippers, did not claim any personal benefit. This point mentioned by Mockett J. was also explained by Wadsworeh J. when he remarked : "That the plaintiffs did not ask for the protection of any interest of their own. By the simple device of putting both the temple and its present trustee into the array of defendants they Hope to disguise the fact that they are in substance praying on behalf of the temple for the cancellation of a decree obtained against the temple." It will be noticed that in the present case plaintiff is seeking to protect her own interests and there is no reason to suspect at this stage that she is in any manner acting for or on behalf of persons who are parties to execute documents. The decision cited by Mr. Ramamurthi does not, therefore, apply to the facts of this case.