VEDALINGAM PILLAI, MINOR Vs. VEERATHAL ALIAS SORNATHACHI

JUDGEMENT

(1.) One Amirthammal had two sons, Vythilinga the 1st defendant, Dakshinamoorthy, the father of defendants 3 to 5 and at least one daughter. There was some dispute about the property belonging to the daughter s husband and a suit was pending in respect of it. A compromise was come to and by Exhibits A and B, the property in suit was given to Amirtham in 1882. Subsequent to this arrangement, disputes arose between the mother and the sons regarding the right to this property which is of considerable value. The mother gave leases to enable the lessee to eject the sons. There was some litigation based on these leases. Ultimately in Suit No. 228 of 1908, a decree was obtained for money by a creditor against Amirtham and Vythilinga. In execution, the property in suit was attached, as belonging to the judgment debtors. Dakshinamoorthi intervened with a claim petition. Exhibit XVIII (c) is the order thereon dated the 4th February 1910. The exact interpretation of this order will be dealt with later on. In June 1910, the share of Vythilingam in certain items of the property was sold. It is alleged for the respondent that the sale proceeds were utilised to pay off the decree and that the decree has been fully satisfied. Mr. Krishnaswami Aiyar for the appellant does not admit this and contends that as this point was not argued in the court below, it is not open for the respondent te rely on it and to base a legal argument on it. The suit Was brought by the daughters of Amirthammal claiming the property as their mother s stridhanam and praying for an injunction restraining the defendants from interfering with their enjoyment. The Court of first instance held that the property was taken by Amirthammal under Exhibits A and B, benami for her sons and dismissed the suit. In appeal the District Judge has reversed the decree. He has held that the benami character of Exhibits A and B has not been established and that it has not been proved that the sons were holding adversely to their mother. On the question whether the failure to sue with in a year of the order on the claim petition barred the plaintiffs, he held that the title of Amirthammal was not adjudicated upon in the claim petition and that neither she nor her heirs were bound to sue within a year, (Article 11 of the Limitation Act) to establish their titles.

(2.) This Second Appeal is against that decree. The second appeal has been very fully and ably argued before us, as was to be expected from the learned vakils engaged in the case; and as the matter may not rest here and as the decision affects considerable property, I think it desirable to deal with the questions at some length.

(3.) As regards the findings that Exhibits A and B were not executed btnami for the sons, Mr. A. Krishnaswami Aiyar rightly stated, that the finding was not open to attack in Second Appeal. Whatever may be the powers of the Judicial Committee to examine the evidence where two Indian Courts differ, it has been held that the Civil Procedure Code does not give the Second Appellate Court that power. The same observations apply to the finding as to the adverse possession.