PALANIAPPA CHETTIAR Vs. LPLPNARAYANAN CHETTIAR

JUDGEMENT

(1.) This appeal arises from a suit by two Nattukottai Chetties, who are father and son, against plaintiff 1's brother, defendant 1, and the widow of plaintiff 1's father. The father of plaintiff 1 and defendant 1 died in 1930. The suit was laid in the Court of the Subordinate Judge of Devakottai and the properties alleged to be those of the family in Schedules A and B were admittedly situated within his jurisdiction. By far the greater part of the family consisted in certain money lending businesses which were being carried on in Burma. It was contended by defendant 1 that the Subordinate Judge had no jurisdiction to deal with these properties. It was pointed out in the second place that a civil Court in Burma had already at the instance of defendant 1 taken cognizance of a suit for partition in regard to the properties situated in Burma and that it had passed a preliminary decree. It was contended therefore that under Section 13, Civil P. C, that preliminary decree was conclusive in regard to the question of the division of the businesses in Burma. On both these points the learned Subordinate Judge held in favour of the contentions of defendant 1. He accordingly refused to consider the properties mentioned in Schedule C and decided to proceed with the suit only in so far as Schedules A and B were concerned. It is against this decision that the plaintiffs have filed the present appeal. We have heard the learned advocate for the plaintiffs only on the question of the applicability of Section 13 and as we agree with the decision of the learned Subordinate Judge on that point, we have considered it unnecessary to discuss the question whether the Court had jurisdiction on the ground that Burma is no longer a part of British India.

(2.) The main portion of the claim in respect of the businesses in Burma made in this suit is that they were under the management of defendant 1 for the period from the death of his father in 1930 until 1938 and that therefore defendant 1 ought to account to the plaintiffs for his management during that period. Various instances of misapplication of the family funds by defendant 1 were alleged. The same point was raised before the Court in Burma in para. 14 of the written statement filed in the Burma suit by the present plaintiff 1. It is contended in support of this appeal that although this matter was no doubt raised in the written statement, the learned Judge in Burma has given no decision upon it. In one sense that contention is undoubtedly true. There is no discussion whether the allegation made in the written statement in Burma is true or false; but this is for the obvious reason that at the trial which followed upon the pleadings the present plaintiff 1 obviously did not insist upon any issue being framed or any evidence being led on this question. It cannot be denied that no relief of any kind is granted by the preliminary decree to the present appellants in regard to the conduct of the businesses between 1930 and 1938. What is now argued in appeal is that because the preliminary decree gives no express decision on this contention of the appellant it is not, in the words of Section 13, "directly adjudicated upon."

(3.) We are unable to accept the contention that in order for any matter to be directly adjudicated upon there must be a positive discussion of evidence relating to that matter. It seems to us that if any claim is made by any party and subsequently abandoned at the trial of a suit and if the decree in that suit necessarily implies that that claim has not met with acceptance at the hands of the Court, then the Court must be deemed to have directly adjudicated against it. There can be no doubt that in this sense the Court in Burma has adjudicated that the present appellants shall not be entitled to call upon the present respondent 1 to account for his management of the businesses during the years 1930 to 1938. We are of opinion therefore that under the provisions of Section 13 this adjudication by the Court in Burma is conclusive on this point and therefore that the learned Subordinate Judge of Devakottai was right in refusing on this ground to enter into any enquiry upon it. This is sufficient to dispose of the present appeal which must be dismissed with costs of respondent 1.