K MARUDANAYAKAM PILLAI Vs. SUBRAMANIAN CHETTIAR

JUDGEMENT

(1.) This appeal arises out of execution proceedings taken in O.S. No. 43 of 1930 in the Court of the Subordinate Judge of Mayavaram. That was a suit filed by a creditor against a Hindu widow in respect of two promissory notes, Exs. A and B, executed by her in April, 1928 and April, 1929, respectively for Rs. 3,000 and Rs. 2,000. In due course the creditor obtained his decree and applied for execution against the estate of the widow's husband which was then in her possession. In his execution application, the second respondent was the receiver in O.S. No. 7 of 1931. That was a suit filed by the nearest reversioner against the widow for the appointment of a receiver. The Subordinate Judge held that it was open to the creditor to proceed against the estate of the debtor's husband by an order passed in March, 1932. Subsequently in about July, 1932 the widow died. There was no long therefore any necessity for the continuance of the receiver in the suit, and it is the reversioner who now appears as the appellant in this appeal.

(2.) The first question which arose for decision before us was whether on the frame of the suit it was possible for the respondent-creditor to be permitted to proceed against the estate in the possession of the widow. We have been referred to numerous decisions on this point the conclusions of which are not altogether unanimous, but the conclusive authority must be the latest pronouncement of the Privy Council reported in Lalit Mohan Pal Roy V/s. Dayamoyi Roy Chowdhurani (1926) 52 M.L.J. 426 (P.C.). It is there laid down very clearly that, if the plaintiff proceeds against a female owner in whose hands any estate lies in which she has but a limited interest and intends to make that estate liable for the debt on which he is suing, he must frame his suit in a proper manner, that is to say, give an indication in his plaint that it is the estate as well as the person of the female defendant against whom he is proceeding. We have therefore to examine the records in the present case, and particularly the plaint, in order to see whether the respondent has given any such indication. There is no clear and express statement in the plaint that he wishes any decree to be passed binding the estate in the hands of the defendant; but we find in the concluding paragraph 8 the following prayer: The plaintiff therefore prays that the Court may be pleased to pass a decree directing payment to him of the amount detailed below, with subsequent interest thereon according to the contract rate from the date of the plaint up to the date of realisation and all the costs of the suit with subsequent interest, on the liability of the defendant's properties.

(3.) It is argued for the appellant that the expression "defendant's properties" may possibly mean the properties in which she has an absolute right, though there is no evidence in this case that any such properties exist, or, in the alternative, it may mean her life interest in the estate in question. But if the latter is the real meaning of the phrase, there seems to be no purpose served in the use of the phrase. It is of course obvious, when any plaintiff brings any suit against any defendant, that any property possessed by that defendant in which that defendant has an absolute right must be available to be proceeded against if a decree is granted, and it seems to us more probable that, in making this specific reference to the defendant's properties in his plaint, the plaintiff did give an indication, though perhaps not so clear a one as he might have done, that he intended to make the estate liable.