SIVABAGIATHATCHI Vs. MUTHUKUMARA PILLAI

JUDGEMENT

(1.) Mr. Rangachari raises two preliminary points; but we must overrule them both, He contends that the Munsif had no jurisdiction to try this suit as the plaintiff should have asked for a declaration in respect of all the properties of Pichai Pillai. We think he was not bound to do that. Section 367 of the Code of Civil Procedure, 1882, entitles him to sue for a declaration that he is the legal representative of the plaintiff in the former suit, that is, that he is the legal representative as regards the property claimed in that suit. In any view, the plaintiff cannot be compelled to sue in respect of all the properties of Pichai Pillai. The plaintiff may be in undisputed possession of the bulk of them. The next contention is that the declaration now granted will be infructuous as the District Court in Pichai Pillai s appeal would still have to decide under Order XXII, Rule 5, of the new Code, whether the plaintiff was the legal representative. Assuming this to be so, it does not follow that the decision in this suit would be of no avail. Our decision would probably have the force of res judicata as regards the plaintiff s right to represent Pichai Pillai in the appeal.

(2.) Passing now to the merits the question is whether the Subordinate Judge s conclusion that the defendant was privy to the murder of her son is legally sustainable. He bases his finding, in paragraph 7, on the defendant s admission, on the evidence of the plaintiff s witnesses Nos. 4 and 9 and on certain other reasons previously set forth. In paragraph 2 of his judgment he seems to base his finding almost exclusively on the defendant s statements Exhibits J, J1, J2, and her evidence as the plaintiff s 10th witness. We have read through the whole of them. We found nothing in them which can even be twisted into any evidence of her guilt. As regards the reasons in paragraph 6 the Subordinate Judge is quite in error in stating that the only conclusion that could be come to was that the defendant must have been privy to the murder or that it was committed in consultation with her. There, of course, remain the statements of the 4th and 9th witnesses for the plaintiff. The statement of the latter that the defendant admitted to him that Chokkalingam stated to her on Friday that he had finished the business, if believed, is capable of the inference that she knew before what the business was. The evidence of the plaintiffs 4th witness is of very slender probative value. As the bulk of the evidence on which the Subordinate Judge has relied, is either irrelevant or of no probative value, we must send the case down for a fresh finding on the question of fact included in the first issue, namely whether the defendant abetted the murder of her son" on the evidence on record. 2. The finding should be submitted within six weeks from this date, and seven days will be allowed for filing objections.

(3.) In compliance with the order contained in the above judgment, the Subordinate Judge of Kumbakonam submitted the following FINDING