THE OFFICIAL RECEIVER OF SOUTH ARCOT, REPRESENTING SOMASUNDARAM CHETTIAR Vs. V.RM.K.M.M. KULANDAIVELAN CHETTIAR AND ORS.

JUDGEMENT

(1.) THIS appeal raises a question of some general importance to the Nattukottai Chettiar community of Southern India, viz., whether a son is entitled by the custom of the community to a joint interest in his mother's stridhanam during her lifetime.

(2.) THE plaintiff's mother Deivanai Achi was married to Muthappa Chetty, the second defendant in the suit in 1897. At the time of the marriage, stridhanam was given to her by her brother in the shape of a hundi for Rs. 3,062 -8 -0 which was handed to Muthappa's father, Muthiah Chetty. The proceeds were credited as usual in the name of the second defendant in the oorkadai (head office) accounts at Devakottai where Muthiah Chetti's family was carrying on money -lending and banking business under the vilasam V. RM.K. with branches at Madura and other places. After the partition between Muthiah Chetty and his brothers in or about 1900 the amount appears to have been held by Muthiah Chetty's branch of the family which continued undivided and assumed the vilasam V. RM.K.M. According to the plaintiff, a sum of Rs. 5,143 -6 -3 out of the stridhanam fund, which by that time had amounted with accrued interest to Rs. 8,643 -6 -3, was transferred in October 1908 to the A. PR.S. SM. money -lending firm at Villupuram of Soma -sundaram Chetty, the maternal uncle of the second defendant and was there held in deposit in the individual vilasam of the second defendant. V. RM.K.M.M. Somasundaram Chetty was adjudicated insolvent by the DistrictCourt, South Arcot, in February 1929 and his estate including all the assets of the Villupuram firm vested in the appellant herein, the Official Receiver, South Arcot, who was the third defendant in the suit. Somasundara died in 1932 and soon after his death Deivanai Achi initiated proceedings before the Official Receiver for recovery of Rs. 40,324 -5 -6 made up of the said sum of Rs. 5,143 -6 -3 and accrued interest Rs. 35,180 -15 -3 claiming that " according to the custom of our community the money payable to me should be deemed as a trust fund for legal purposes " and should be paid in full. The Official Receiver rejected the claim on the grounds that it was not satisfactorily made out, that there was no trust and that the claim was barred by limitation. Deivanai Achi filed a petition, C.M.P. No. 459 of 1932, by way of appeal to the Insolvency Court. Agreeing with the Official Receiver, the learned District Judge dismissed the petition on 20th November, 1933 and thereupon Deivanai Achi preferred an appeal, A.A.O. No. 90 of 1934, to this Court. During the pendency of that appeal Deivanai died in November 1935 and the present plaintiff as her son applied to this Court in C.M.P. No. 175 of 1936 to implead him as the legal representative of his deceased mother alleging that "according to the custom prevailing among the Nattukottai Ghetties I am the Sole heir to the stridhanam amounts left by the deceased " and that he was willing to implead Thenammai Achi his sister as a party respondent " to avoid any possiblE dispute from the respondent." The application was ordered and the plaintiff was added as the second appellant and Thenammai Achi as the third respondent in the appeal. On Ist October, 1937, this Court agreed with the District Judge that Deivanai Achi failed to prove her claim and dismissed the appeal without going into the question of limitation.

(3.) THE defendants 1 and 2 did not contest the suit, but the third defendant representing the estate of Somasundaram Chetti filed a written statement pleading, inter alia, that the suit, so far as he was concerned, was not maintainable without the permission of the Insolvency Court which has refused permission, that. the claim was barred by limitation and that it was resjudicata by reason of the decision in the claim proceedings instituted by Deivanai Achi in the Insolvency Court. Issues 6, 7 and 8 were raised on, these pleas and were tried as preliminary issues, the parties being allowed to file such documents as they relied upon in regard to these issues. The Court held that the plaintiff's claim was barred as resjudicata and that the suit was not maintainable in the absence of permission by the Insolvency Court. It accordingly dismissed the suit without considering the other issues arising in the case.