R RATHNASABAPATHY CHETTIAR Vs. AMMAKANNAMMAL

JUDGEMENT

(1.) I have had the advantage of reading the judgment prepared by my learned brother in this case and I entirely agree in the result. I only desire to say one thing in this connection. There seems to me to be a grave defect in the method of pleading and still more in the method of drawing up the issues which appears to be finding favour in these Courts. It is a settled rule of English pleading that any charge involving anything of the nature of fraud should be set out specifically with particulars where necessary. For instance, if breaches of trust are alleged on the part of a trustee it is essential that they shall be particularised in precise detail such as sums of money or other items of trust property alleged to have been misappropriated. Besides that safeguard we have the system in this country of having issues settled before the trial which is supposed to extract from the pleadings the matters which are really in dispute between the parties and to reduce them to a series of short propositions. That is not part of the English system. It is inherited from the Scottish system of jurisprudence. Not being familiar with that system 1 can express no opinion as to its merits or demerits in the country of its birth. But I do know this in a general way that a Scottish Judge who is settling issues treats it as a very serious matter and reduces his issues to a high degree of precision and exactitude even when full pleadings are demanded. In India I am afraid the system of settling issues is so perfunctory that the issues are really worse than useless as a guidance to the Trial Judge. That, at any rate, was in the main my experience during the eight years in which I sat day by day on the Original Side. Sometimes the issues were vitiated by the fact that when one got into the case it was quite obvious that they put the onus on the wrong party; sometimes they were so vague as to be a less guide to what really was to be tried even than the pleadings. I could not take a better example than the seventh issue settled in this case which runs as follows: Have the trustees been guilty of any, and, if so, what breaches of trust, misfeasance, malfeasance and non-feasance in respect of the trust estate?

(2.) That opens the door to allow the defendants to bring any sort of charge at the trial, unspecified and unparticularised, and gives the plaintiff whose conduct is impugned, no sort of notion what charge and how many charges, all obviously of a very grave nature, he has to meet. I remember asking a very experienced and eminent County Court Judge in England whether he did not find difficulty from the absence of regular pleadings in the County Courts such as one would find in the High Court. He said: No. I find that the parties know perfectly well what they have come to have decided and at the time their case is opened their advocates know exactly what matters to direct my attention to.

(3.) Whether that be correct or not, of course I am not in a position to say; but of this, I am quite certain that, if one is to act on that principle not only issues but pleadings may just as well be abolished to-morrow. That, I think, is not right especially in India because I think the litigant ought to know at any rate. in general terms what case he has got to meet, and especially in cases where there are allegations of fraud and breaches of trust. I think that those matters ought to be particularised to a point at which he knows not merely generally but in detail what he has to meet. I would personally suggest that issues settled as they are now settled by a Judge who knows nothing about the case and usually signs the issues drafted by counsel who know little more are worse than useless and have a fictitious importance which they do not deserve. I would far sooner see attempts made by better instruction in the Law College and above all in the Chambers where the budding practitioner learns his business in the art of pleading with sufficient definiteness to make it clear exactly what the Court is called upon to try. In every jury trial in England a junior counsel for the plaintiff before the case is opened summarises the pleadings giving the substance of them and concludes in these words: "On that issue is joined and those are the issues which you have to try;" and a good junior will make it clear to the jury what exactly the issues are raised by the pleadings and takes a good deal of trouble to see that his summary is correct and omits nothing material. But, of course, with the laxity of pleadings which obtains in this country it is very difficult, it is almost impossible that the issues settled on those pleadings should not partake of the same laxity. The remedy appears to me to teach the budding practitioner to plead properly and definitely. It should not be difficult to teach a young man how to plead. There is a very good work by Dr. Blake Odgers in England and for the student it is not really necessary to go to the larger work by Bullen and Leake except for proper forms of pleading particular classes of cases. Two books on pleading have appeared in this country, one by Sir Cecil Walsh, K.C., who recently retired from the Allahabad High Court, and the other a bigger book which I looked through at the time but the name of the author of which I regret to say I have forgotten. Of course, at one time English pleadings were overlaid with technicalities and plaintiffs were often non-suited for some purely technical slip in the pleading and had to amend it and start all over again, all that after witnesses have been summoned, briefs delivered and everything was ready for trial. That state of things was put an end to by the Judicature Acts and I think the present state of pleading in England, though it leaves room for making it quite easy to distinguish between the work of a neat and slipshod pleader, really does enable the Judge to know exactly what the points at issue between the parties are, If a pleading is vague and leaves it obscure as to what precisely is the case intended to be set up, it is quite easy for the opposite party to take out summons for further and better particulars of this or the other paragraph of the statement of claim or. defence and hundreds of such summonses are disposed of after hearing counsel by the Masters every day in Chambers. It is the rarest thing in the world to have applications for particulars of allegations in pleadings in an Indian Court. I think that what happens is that the juniors in charge of the cases trust to the settlement of issues to bring definiteness into the case, a hope in which in my experience they have often been grievously disappointed and of course at that stage the leaders probably would not even have considered the case at all which may not come up for trial for months. Most Indian pleadings are overlaid with pleading the evidence in support of the particular facts alleged. That is useless cumbering of them but as a rule it does not do much harm. But in cases where there are allegations of fraud or kindred allegations more particulars are absolutely essential and I should like to see the Indian student and the young budding advocate put through a real course of proper instruction in the art of pleading. That would bear fruit in time if it is properly carried out. And I think it must be taught in the first instance by English professors or English barristers who worked under and know the English system. I am not gainsaying that in the hands of experienced advocates at the trial the opening of the case of the parties gets rid of a lot of verbiage and focusses the attention of the Court on what is really material and really necessary. Rut in my opinion it is almost impossible to gather it from the issues even with the assistance of the pleadings which I must honestly confess I think are less loose and vague in their terms than the majority of issues framed to-day. The Indian system of pleading we have adopted is of course taken from the English system of jurisprudence just as the framing of the issues is taken from the Scottish system as I have pointed out; but unfortunately particularity and preciseness which are characteristic of all the very ably drawn English pleadings are entirely absent from Indian pleadings for the most part. There are no doubt some well-drawn pleadings in India but almost invariably these are very often cases in which a summons has been taken out by the opposite party to compel the pleader on the other side to re-draft his pleadings in a more specific form. I think it would be well worth while to have a committee of legal teachers and a few practitioners to go into this matter and consider what suggestions could be fruitfully made to bring about a better state of things. I think the present is a case in which vague pleadings and vague issues might have led to serious embarrassment or even to a miscarriage of justice. Pakenham Walsh, J. This is an appeal by the 1 plaintiff against two parts of the decree in C.S. No. 595 of 1925. The suit arose in the following circumstance: The appellant is the adopted son of one Ratnavelu Chetti who was a Dubash in Best and Co. This Ratnavelu Chetti was a wealthy gentleman and on the 18 May, 1919, he executed a deed of trust setting apart certain moveable and immoveable properties for certain charities and for allowances to some of his relations. Effect was given to the deed of trust from July, 1919 and the founder died in February, 1922. His adopted son, the appellant, succeeded his father as President of the Trust Board. Owing to the fall in value of the trust properties, the trustees found themselves unable to meet the sums payable under the trust deed from the income of the trust properties. They passed a resolution in March, 1923, to cut down the allowances proportionately all round. This being objected to by some of the beneficiaries, an application was made on the Original Side asking for directions for the abatement of the provisions contained in the trust deed. Waller, J., ordered that a suit should be filed and consequently this suit was filed by the trustees. The materially contesting defendants were defendants 11, 12 and 18. Of these the 11 defendant is the sister's son of the founder of the trust. He is really responsible for any serious opposition to the suit scheme but he has not appeared in this Court to oppose the appeal. A Commissioner was appointed by the Court to go into the accounts and submit his report. His first report was dated the 15 March, 1927 and a further report was called for to take accounts as to what a building known as "Kilton" cost for construction and how much of the total cost had been taken out of the trust funds. We are not concerned in this appeal with the matter of "Kilton." The decree states in paragraph 2 that the Commissioner's two reports be and are hereby confirmed, but with regard to the two matters on which this appeal is preferred and which are dealt with in paragraphs 4 and 5 of the decree, the Commissioner gives no decision on the first and on the second his report does not support the order passed in the decree.