NAMAGIRI AMMAL Vs. MUTHU VELAPPA GOUNDAN

JUDGEMENT

(1.) The plaintiff as Receiver brought this suit for recovery of the amount due on a promissory note executed by the 1 defendant on 10 August, 1919 in favour of one Krishna Aiyangar. It was contended by the 1 defendant, among other things, that there was no such pro-note as that mentioned in the plaint, that the pro-note executed by him in favour of Krishna Aiyangar had been partially discharged and that the plaintiff is not entitled to bring a suit on the pro-note as it had not been attached by a Court. The Subordinate Judge dismissed the suit upholding the contention of the 1 defendant. Plaintiff has preferred this appeal.

(2.) The plaintiff brought O.S. No. 152 of 1922 in the District Munsif's Court of Gopichettipalayam against her father, Krishna Aiyangar, for possession of lands and mesne profits and applied for attachment before judgment of the pro-note executed by the 1st defendant to Krishna Aiyangar for Rs. 6,000 and the Court ordered attachment on 21st January, 1920 and notice of it was served on the 1 defendant on 23 January, 1920. The plaintiff thereupon applied for the appointment of a Receiver for the. collection of the amount due on the pro-note and she was appointed interim Receiver on 15 August, 1922. The 1st defendant filed a counter-statement and objected to the appointment of a Receiver. The District Munsif, notwithstanding the objection of the 1 defendant, appointed plaintiff Receiver and she has brought this suit in her capacity as Receiver for the amount due on the pro-note. She has made her stepmother, the widow of Krishna Aiyangar, 2nd defendant. The contention of the 1 defendant is that the pro-note sued on is not the one executed by him in favour of Krishna Aiyangar and the suit must, therefore, fail. In paragraph 3 of the plaint the pro-note is described as having been executed to the plaintiff's father, Krishna Aiyangar, by the 1st defendant on 10 August, 1919 for Rs. 6,400 bearing interest at Rs. 10 per Rs. 100 per annum. The defendant admits having executed a pro-note to Krishna Aiyangar on 10 August 1919 for Rs. 5,892 bearing interest at 8 per cent, per annum. In Ex. F, the attachment order served on the 1 defendant on 23 January, 1920, the pro-note is described as one executed to Krishna Aiyangar for Rs. 6,000. There, is nothing on record to show that the 1 defendant objected to the attachment of the pro-note for Rs. 6,000 when he was served with the notice Ex. F; nor did he mention in the counter-statement Ex. C filed by him, when opposing the appointment of Receiver, that the pro-note in respect to which he was restrained was not in existence and therefore the order was of no avail. On the other hand, he contended that the suit on the pro-note would be beyond the jurisdiction of the Munsif's Court and, therefore, it could not appoint a Receiver in respect of the pro-note. When the plaint contains sufficient particulars as to the identity of the pro-note sued on. the suit should not fail by reason of an error or a mistake in its description which does not mislead the defendant as to the nature and the particulars of the claim. Here the names of the promisor and the promisee and the date of the pro-note are correctly given and the amount mentioned is Rs. 6,000, whereas the actual amount of the pro-note is Rs. 5,892. The plaintiff was not in possession of the note at the time when she filed the suit. It cannot be said in the circumstances that the 1 defendant was taken by surprise or that he was not aware of what the plaintiff was suing on. When a plaint contains sufficient averments and indicates with reasonable precision what the claim sued on is, the suit should not fail by reason of the omission or incorrect description of any particular. It is unnecessary to consider in detail the case-law on the point. In Viswanadha Pandora Sannadhi V/s. The South Indian Bank, Tinnevelly (1917) 6 L.W. 712 at 714 the learned Judges observed: What the Courts have to find out in such cases is whether the claim agrees substantially with the subject-matter of the purchase. As reasonable amount of certainty is all that can be expected having regard to the knowledge and the circumstances of the plaintiff, the principle enunciated by Lindley, M.R., in Cowen and Trucfitt, Ltd. (1899) 2 Ch. 309 applies to this case.

(3.) In that case Lindley, Master of the Rolls, observed with regard to the maxim Falsa demonstratio nan nocet: I do not know that the principle can be better put than it is in Jarman on Wills, 5th Edition, page 742, where it is said the rule means that where the description is made up of more than one part, and one part is true, but the other false, there, if the part which is true describe the subject with sufficient legal certainty, the untrue part will be rejected and will not vitiate the devise.