NALLAVADIVA AMMAL Vs. SUBRAMANIA PILLAI AND EIGHT ORS

JUDGEMENT

(1.) The first question is whether the appeal to the Lower Appellate Court should have been dismissed as out of time. It was undoubtedly first filed with a proper stamp after the period allowed by the Limitation Act had expired. But appellant having failed on 31st December 1914 in his application for leave to appeal as a pauper, on 4th January 1915 obtained three weeks time for payment of court-fee and paid. it within that period. The delay from 31st December 1914 to 4th January 1915 may be disregarded, because the Court was closed on the days in question and the failure during them must be regarded as condoned by the subsequent order. The question is whether that order was legitimate.

(2.) I think that it was, and with reference to more direct considerations than those afforded by Section 5, Limitation Act, the Lower Appellate Court has to some extent relied (sic) the reasoning of Farran, C.J., in Bai Ful v. Desai Manorbhai (1898) I.L.R. 22 Bom. 849 to the effect that the decision on the appellant s pauperism disposes Only of his application for leave to appeal as a pauper and leaves undisposed of the memo randum of appeal, which must accompany that application. The memorandum, though unstamped, is not a nullity and can be validated with effect from the date of presentation by the supply of the requisite stamp within a time fixed by the Court with reference to Order VII, Rule 11(c). I would respectfully adopt this reasoning, since it is consistent with the decisions of the Privy Council and this Court in Skinner v. William Orde (1879) I.L.R. 2 All. 241. (P.C.) and Patcha Sahib v. Sub-Collector of North Arcot (1892) I.L.R. 15 Mad. 78. It is of course open to the objection that appeal memoranda in pauper cases, are not usually dismissed by any order distinct from that passed on the pauperism application and are not in practice returned for payment of deficient duty, as ordinary memoranda would be. But there is nothing in the ordinary practice to prevent such return, where, as in this case, the appellant asks for it; and the anomaly, if any, is less than that involved in the alternative view of the law, that Order VII, Rule 11(c) is inapplicable and the dismissal of the pauper application in effect entails dismissal of the appeal, since time would hardly ever be left for its presentation after the dismissal proceedings.

(3.) Next, as to the merits, the Court of First Instance dismissed plaintiff s suit on the pleadings, and the Lower Appellate Court remanded it for trial in the order under appeal. In doing so, it, no doubt, made one mistake. For, it referred to the absence from the plaint, of any admission regarding the exclusion of the suit properties from the partition of 1910 as conclusive, although the Court of First Instance stated explicitly that such an admission had been made before it. As such an admission was contained in the subsequent answers to second defendant s interrogatories, we have no difficulty in assuming that one was made at the hearing. That mistake had however very little influence on the decision. Plaintiff, as appears from his affidavit in connection with the revision of the issues, tacitly abandoned his objections to the partition of 1876 at the hearing. Suing as divided from his father and first defendant, he could be entitled only by inheritance from the former to a half share in his separate property. If, notwithstanding that the suit property was in second defendant s name, it had not really been conveyed to her., before the father s death, the alternative is not, as the Court of First Instance held, only that it was the joint family property of the father and Second defendant, which had been left undivided in 1910. It might, as matter of law, be argued in accordance with the principle implied in Appovier v. Rama Subba Aiyan (1866) 11 M.I.A. 75 that, a separation in status having been intended, undivided items were held by the father and second defendant as tenants-in-common j or again that the suit items were in fact the father s separate property throughout. And, if either of these cases were established, plaintiff would be entitled by inheritance to a share, in the former case to half of the father s undivided half share, in the latter to half of the whole. The Lower Appellate Court s decision was correct on this point and must be confirmed.