AKKAMMAL Vs. KULLAMPATTIYAN ALIAS VELAPPA NAICKEN AND ORS.

JUDGEMENT

(1.) THIS is an appeal preferred against the Decree and Judgment of the learned Additional Subordinate Judge, Salem, in A.S. No. 140 of 1953, reversing the Decree and Judgment of the learned District Munsif of Salem in O.S. No. 362 of 1951.

(2.) THE facts are: The plaintiff Akkammal, widow of one Venkiti Naickan who died in March 1946, sued her parents -in -law, defendants one and two, and her brother -in -law, the third defendant, for partition in regard to non -agricultural lands and properties, and maintenance on the basis of the agricultural lands. The defendants contested the suit on the ground that the first item of the plaint A Schedule is the separate property of the second defendant and is not partible and similarly the second item of the A Schedule is a promissory note debt due by Kuppa Naicker to the second defendant, that items 1 to 6 of the plaint B Schedule are the stridhana properties of the second defendant and that the second defendant had already sold items 2 and 3 to one Akkandi Naicker about ten years ago and that the 7th item belongs to the second defendant by purchase and is her separate property and that therefore the B Schedule properties are not partible and on the basis of which the maintenance claim of the plaintiff cannot be assessed. The learned District Munsif found that the A Schedule properties belonged to the joint family and as regards B Schedule properties, the plaintiff having given up items 2 and 3 therein, those items 1 and 4 to 7 are liable to be charged for the maintenance claim of the plaintiff. Therefore, he gave a decree for partition of the plaint A Schedule properties and the outstandings mentioned in Exhibits B -3 to B -II and created a charge on the 1/3rd share of items 1 and 4 to 7 of the plaint B Schedule properties in respect of the maintenance decreed by him at Rs. 180 per annum. The Court -fee due to the Government was made payable by the defendants. There was an appeal by the defendants. In appeal, as the order -sheet shows, when the matter was taken up for hearing on 16th January, 1954, it appeared to the learned Subordinate Judge that the suit did not appear to have been properly valued and therefore he posted the appeal for arguments about the valuation of the suit to 18th January, 1954. On 18th January, 1954, he heard arguments and pronounced Judgment setting aside the Decree and Judgment of the lower Court and directing the plaint to be returned for being presented to the Court having jurisdiction. The respondent plaintiff was made to pay half the costs of the appeal to the appellants -defendants.

(3.) TO sum up two propositions clearly emerge viz., that where the objection as to jurisdiction has not been taken in the Court of the first instance and the merits of the case have not been affected, the appellate Court has to ignore the objection and proceed as if there was no defect of jurisdiction; secondly, the same course is to be followed where, though the objection was taken in proper time in the Court of the first instance, the appellate Court is not satisfied that the merits of the case have been prejudicially affected.