KAMALATHACHI Vs. MEENAKSHI ACHI

JUDGEMENT

(1.) This is an application for leave Rao, J. to appeal to His Majesty in Council. The plaintiff in the suit claimed that the property in question belonged in four equal shares to herself and her three sisters defendants 1, 2 and 3. The suit was resisted by the first defendant, who asserted that she was exclusively entitled to the property and denied that it was divisible into four shares. There was a further prayer in the plaint that the first defendant should be directed to render an account of her management of the property. First, dealing with the question of title, the learned trial Judge accepting the plaintiff's contention held that the property was divisible into four shares. Then as regards the claim to an account, the learned Judge held that on the analogy of the principle applicable to the manager of a Hindu coparcenary that the first defendant's liability to account was restricted to the property as it existed at the time of the suit. There was a mortgage for about Rs. 65,000 representing the income from the estate, executed by the first defendant's husband one Balaguruswami Odayar in her favour, and the learned Judge held that in respect of this item alone, the first defendant was liable to account and passed a decree to the effect that the mortgage interest belonged to all the four sisters. There was an appeal to the High Court, and the learned Judges held that on the question of title, that the first defendant was solely entitled to the property. The title put forward by the plaintiff having been thus negatived it necessarily followed that no relief could be granted on the basis of the first defendant's accountability. The learned Judges therefore did not give any finding, and indeed there was no need to do so, on the question of the first defendant's liability to account.

(2.) The present application for leave by the plaintiff's legal representative and defendants 2 and 3 is opposed on behalf of the first defendant, but the opposition is partial as will be seen. The plaintiff's claim is divisible, it is said, into two parts: first, the right to the property itself; secondly, the right to an account. It is not disputed that the requirement of Section 110, Civil Procedure Code, as to the pecuniary value of the subject-matter is fulfilled. In regard to the first part of the claim, the High Court's judgment being a reversing one, the request for leave is not opposed. But it is said that the High Court's judgment in regard to the second part of. the claim is an affirming one and it must therefore be shown that the appeal involves some substantial question of law. From the facts adverted to above, this contention, it will be seen, is obviously wrong. The lower Court did not wholly disallow the claim to an account. The finding that the mortgage belonged to the four sisters is tantamount to holding that the first defendant was liable to account in respect of the sum covered by it, in other words, the finding involved that the first defendant was not solely entitled to the amount but her right extended only to a fourth part of it. This being so, the judgment of the High Court which negatived this right, cannot be said to be an affirming judgment. The respondent's contention must therefore be overruled.

(3.) Further, to give effect to this contention would lead to an anomaly. Supposing the Privy Council disagreeing with the High Court should find in favour of the plaintiff, is the restricted leave (which alone under this contention we can grant) to fetter their Lordships and prevent them from giving effect to their decision, that is, by passing a decree for an account ? There can be no doubt whatsoever that we ought not to make an order leading to an anomaly of this sort. It has been contended that when there are two claims made, one to property and the other to an account, it should be deemed that there are two distinct subject-matters vide Venkitasami Chettiar V/s. Sakkulti Pillai (1936) 44 L.W. 533 and that for the purpose of the granting of leave each should be considered separately. In the view we have taken, it is unnecessary to consider this question.