C KUPPIAH CHETTY Vs. PSARASWATHI AMMAL

JUDGEMENT

(1.) These revision petitions both arise out of an order of a Bench of the Madras Small Cause Court directing a new trial under Section 38 of the Presidency Small Cause Courts Act. A preliminary point has been raised in the following rather unusual circumstances. The application for a fresh trial was heard by the Chief Judge and the second judge, the third judge Mr. Padmanabha Aiyangar being then absent. The judgment as signed and issued purports to be a judgment of all the three judges of the Court. A report submitted by the learned Chief Judge makes it clear that the case was actually heard only by the Chief Judge and the second Judge and that these two judges alone were concerned with the preparation of the judgment and they signed it without reference to the third judge. By some regrettable error the judgment thus completed seems to have been placed before the third judge for signature and he also signed it though he had nothing whatever to do with the trial of the case. It is no doubt regrettable that a judge should sign a judgment about which he knows nothing and with which he has no concern; but in the circumstances I am not satisfied that this error can be taken to detract from the validity of the judgment. The case was tried by two judges, the judgment was prepared by those two judges and was signed by those two Judges. The superfluous initials of the third judge cannot be said to make the judgment a judgment of that judge also who initialled it in error.

(2.) Turning to the merits of these two revision petitions the facts of the case are that the plaintiff desired to acquire certain shares in a company which were owned by Mr. Ratna Mudaliar who was the father-in-law of the first defendant. The plaintiff therefore paid a sum of money to the defendants and took from them a promissory note which is the basis of the present suit. At the same time he gave them a letter (Ex. I) in which he promises to return the promissory notes duly cancelled as soon as the defendant got Mr. Ratna Mudaliar's 20 shares transferred to the plaintiff or his nominee. This was on the 17 February, 1934. On the 26th February, 1934 Mr. Ratna Mudaliar executed an agreement which is Ex. II in which he undertakes to transfer to the plaintiff the shares in question and the agreement goes on "I herewith hand over to you duly endorsed the share certificates", and there are further recitals as to the liabilities under the transfer. This agreement purports to be signed by Mr. Ratna Mudaliar on the 26 February and to be counter-signed by the plaintiff on the same date. The actual share certificate is Ex. Ill and this certificate contains an endorsement of transfer signed by Mr. Ratna Mudaliar and dated the 26 February transferring the shares to the plaintiff; but the spaces for the signature of the transferee and of the company's officials are not filled. A few days after this transaction Mr. Ratna Mudaliar resigned his position in the management of the company and the plaintiff became its chairman. Nothing more was done in the matter of the transfer of the shares until the company got into difficulties and went into liquidation in November. Then we have Ex. IV dated the 20 November, 1934 which is a lawyer's notice to the two defendants claiming payment of the amount due under the promissory note.

(3.) The suit on the promissory note was tried by the learned second judge of the Small Cause Court who came to the conclusion that the transfer endorsement on the share certificate Ex. III was not signed by Mr. Ratna Mudaliar on the 26th February, that the agreement Ex. II was taken back by the first defendant from the plaintiff after counter-signature and was never afterwards delivered to the plaintiff, that Ex. III was not delivered or even tendered to the plaintiff and that the plaintiff did not as alleged request the first defendant to keep in his custody Exs. II and III until the return of the promissory note. On these findings the learned Judge came to the conclusion that the ownership of the shares remained with Mr. Ratna Mudaliar, that the defendants had not done that which was obligatory upon them if they wanted the promissory note to be cancelled and that they could not require the plaintiff to take a transfer of the shares after such unreasonable delay when the company had gone into liquidation and that the defendants were therefore obliged to pay the amount due under the promissory note.