A D NARAYANA SAH Vs. KANNAMMA BAI (DEAD)

JUDGEMENT

(1.) This is an appeal from a judgment of Eddy, J. The plaintiff in the Court below, who has since died, was a Hindu widow claiming to be a member of the Bhujakshatriya community. The first two defendants are brothers; and all the defendants with the exception of the 2nd defendant are responsible officers of that community. The plaintiff's claim was for damages for slander and for a declaration, injunction and damages for excommunication. Her case was that the defendants orally stated that she had given birth to an illegitimate child in the Gosha Hospital, Madras. The learned Trial Judge found that all the defendants uttered the slander complained of and gave the plaintiff Rs. 2,000 in respect of her claim for damages. Then the next claim of the plaintiff was that she was excommunicated by the defendants without being given an opportunity of defending herself against a charge of unchastity made by two women to the defendants that she had given birth to an illegitimate child at the Gosha Hospital and praying for a decision of the Caste Panchayat. This was in May, 1927, and the result of the allegation was that the defendants decided in May to excommunicate the plaintiff on account of the charge of unchastity made against her. She was accordingly excommunicated and it is said that the order of excommunication was promulgated in October, 1927, when the defendants uttered the slander complained of by the plaintiff and in respect of which she sought damages in the Trial Court. In respect of the wrongful excommunication she claimed a declaration that the order of excommunication was invalid and that she Was entitled to be re-admitted into the Bhujakshatriya - community and an injunction restraining the defendants from enforcing the order of excommunication and from publishing trie alleged defamatory statements and damages. In the plaint it is alleged that the slander was published on and between the 7 May, 1927 and the 15 October, 1927. It is obvious that with regard to the former date, the suit for damages is barred by limitation but the learned Trial Judge has found as a fact that the slander was again published on the 15th October, 1927, and as the1 suit was filed in September, 1928, the plaintiff's claim with regard to that slander was not barred. On the claim for damages for wrongful excommunication, the plaintiff has been awarded by the learned Trial Judge Rs. 500 damages. He has also granted her the declaration and injunction prayed for.

(2.) This case raises two very interesting points: (1) Whether a claim for damages by a Hindu woman in respect of an allegation of unchastity is sustainable on the Original Side of this High Court without proof of special damage, and (2) whether a suit claiming damages for wrongful excommunication is maintainable.

(3.) Upon the first point we have had the benefit of the very able arguments of Mr. Duraiswami Aiyar on behalf of the appellants and Mr. K. Krishnaswami Aiyangar on behalf of the respondents. Mr. Duraiswami Aiyar's contention is that the law with regard to slander which has to be administered on the Original Side of this High Court is the Common Law of England and" that the Slander of Women Act of 1891 is not made applicable to India, that therefore, as no special damage was set out in the plaint and proved at the trial, the plaintiff's suit for damages for slander ought to have been dismissed. This contention opens up at once a large and interesting discussion as to what is the law to be administered by the High Courts here; and in order to guide us, we have been taken back to the earliest Charters of the Courts in this Presidency Town. We have-had a very careful examination of the first Mayor's Court: Charter of 1687, the Mayor's Court Charters of 1726 and 1753, the Recorder's Court Charter of 1798, the Supreme Court: Charter of 1800, the Letters Patent of this High Court of 1862 and the amended Letters Patent of 1865. We have also been referred to Regulation II of 1802 applicable to the Madras, mofussil Courts. In the Mayor's Court Charter of 1687 "all. causes whatsoever, civil and criminal, between party and party whoever they be shall be adjudged according to equity and good conscience ." In the Mayor's Court Charter of 1726 the judgment is to be given according to "justice and right". In the Mayor's Court Charter of 1753 the Court is to give judgment according to "justice and right". In the Recorder's Court Charter of 1798 the Court is "to have such jurisdiction and authority as Our Justices of Our Court of King's Bench have, and may lawfully exercise, within that part of Great Britain called England, as far as circumstances will admit" and the Court is to give judgment according to "justice and right". The next Charter is the Supreme Court Charter of 1800. In it the Court is invested with a jurisdiction similar to the jurisdiction of the King's Bench in England and it is also to give judgment according to "justice and right". By clause 21 of the Charter it is provided that the Court ... shall have like power and authority to hear, try and determine all, and all manner of civil suits and actions, which, by the authority of any Act or Acts of Parliament might have been heard, tried or determined by the said Mayor's Court at Madras aforesaid, or which may now be heard, tried on determined by the said Court of the Recorder of Madras.