KATTA VENKATAYYAGARI SRINIVASAYYA Vs. GOWRA LAKSHMAYYA (DECEASED)

JUDGEMENT

(1.) This appeal arises out of a suit for damages for wrongful attachment of the plaintiff's properties. The first plaintiff is the father and the second and third plaintiffs are his sons. The third plaintiff has a son, Sriramayya, who was summoned as a witness in a suit instituted by the defendant against certain third parlies. He did not appear and the present defendant accordingly applied to the Court to take proceedings under Order 16, Rule 10, Civil Procedure Code. In the attachment thus issued, four items of property were attached, as though they were the property of Sriramayya. Admittedly, Sriramayya would not in any event be entitled to the full interest in those properties, because, even on the footing of the plaintiffs and Sriramayya being undivided, Sriramayya would be entitled only to a sixth share. There can be little doubt, that, whoever may be responsible for it, the warrant of attachment was wrongly drafted in not limiting the attachment to the sixth share of Sriramayya in the properties.

(2.) The plaintiffs, however, contended that before the date of that attachment, there had been a division between the three plaintiffs under an unregistered partition deed Ex. C and that as between the third plaintiff and Sriramayya, Sriramayya had relinquished his interest in the family property by a registered deed of relimquishment, Ex. A, in 1927. It also appears that in the Municipal registry these properties no longer remained joint in the names of the plaintiffs but that specific items had been registered in the names of the three plaintiffs, in pursuance of the partition Ex. C. According to the plaintiffs, therefore, Sriramayya had no interest at all in these properties. The plaintiffs further complain that the defendant acted maliciously and without reasonable care, in getting the properties attached, when Sriramayya had no interest whatever therein.

(3.) The learned District Judge came to the conclusion that the defendant could not be said to have acted maliciously but that he must have been reckless or at any rate did not know or realise that the plaintiffs family had become divided. He refused to accede to the defendant's contention that the partition arrangement in the plaintiff's family was not true or operative. Though Ex. C was unregistered, he was of opinion that it could be received in evidence to prove a division of status; and in view of Ex. A, which was a registered document, and of the entries in the Municipal books he held that the plaintiff's story of partition and release by Sriramayya of his interest in the family properties must be true. He also rejected the defendant's contention that he could not be held liable in damages because the attachment was made under the orders of the Court. Relying on the principle recognised in Kissorimohun Roy V/s. Harsukh Das (1889) L.R. 17 I.A. 17 : I.L.R. 17 Cal. 436 (P.C.) he awarded Rs. 100 each to the three plaintiffs by way of damages. Against this decree, the defendant has appealed. The third plaintiff has filed a memorandum of objections, claiming that a larger sum should have been awarded.