V.D. KUMARAPPAN Vs. L. SUPPIAH

JUDGEMENT

(1.) THIS appeal by the plaintiff in the court below, in a suit for recovery of Rs. 13,406 -26 nP being his share of the sale proceeds of a property owned in common between him and defendants 1 and 2, together with a direction to the first defendant to pay the amount in India, and for recovery of Rs. 5087 -50 nP towards damages, involves only restricted aspect or the suit. As will be clear from the issues framed at the trial, there was also a question of the jurisdiction of the learned Subordinate Judge of Padukottai to try this suit for recovery of a share of sale proceeds of property situate in Ceylon, and sold in Ceylon. There was a further question of the bar of limitation. We are not now concerned with these questions, since the court held that it had jurisdiction, and that the suit was not barred. If we turn, for a moment, to the reliefs sought by the plaintiff (appellant) we see that they are enumerated as, firstly, a direction to first defendant to pay plaintiff Rupees 13,406 -25 nP in India, and secondly, for Rupees 5087 -50 nP as damages; the latter part is not now pressed. Hence, as we stated at the outset, what survives for our decision is the narrow point whether, under the circumstances of this suit claim, the first defendant is bound to pay this amount claimed by the plaintiff as his share of the sale proceeds, in India.

(2.) IT is not in dispute that the first defendant, the plaintiff and the brother of the plaintiff the second defendant, entered into a mutual power of attorney in 1952 (Ex. A. 1) which inter alia invested each of these parties with power to sell the Ceylon properties both on his own behalf, as a co -owner, and on behalf of the other two, presumably in a capacity as agent. There is one term in this power which is of some importance, in the light of the subsequent events. It is a term that each of the persons will apply to the Controller of Exchange or other authority for remittance to the others or any one or more of them, to India, of the purchase price or prices, after the sale occurs, or of other moneys belonging to each of the parties, from time to time. It is not in dispute between the parties that there is an Exchange Control Act in force in Ceylon, under Ss. 7 and 31 of which enactment various disabilities are imposed upon persons bringing moneys out of Ceylon into India, or persons in India authorising other persons to receive moneys in Ceylon on their own behalf.

(3.) THERE are certain other facts which are heavily against the contention of learned counsel for plaintiff (appellant) that we should somehow spell out, from the history of the relationships and transactions in this case, a legal obligation of the part of the first defendant to pay the moneys in India to plaintiff. One extraordinary feature of the case is that the sale was held on 24 -6 -1956, and that when plaintiff was duly intimated of the facts, plaintiff actually repudiated the sale, and purported to cancel the power of attorney by a communication dated 9 -8 -1956. The sale itself was challenged by the plaintiff (appellant). Later, it is true, the appellant found it convenient to accept the accomplished fact; he accepted that sake, and his right to receive his share of the sale proceeds. He has subsequently affirmed that, throughout, he was willing to receive the payment, and that he is not to be blamed or to suffer if, owing to the operation of law, the first defendant is unable to make the payment in India, which upon the contention of the learned counsel for appellant, is the only practicable mode of payment. It is for these reasons that, in this suit the appellant prayed for a decree for payment of the amount in India.