# Thayammal v. K. DAS A. K. SARKAR and M. HrnAYATULLAH JJ). Subramaniaswami

- **Citation:** [1960] 2 S.C.R. 729
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** CIVIL APPELATE JURISDICTION: Civil, Appeal No. 20.0 of 1955
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thayammal-v-k-das-a-k-sarkar-and-m-hrnayatullah-jj-subramaniaswami-1771
- **Pages:** 11

## Headnote

•
•
S.C.R.
SUPREME COURT REPORTS
1.
R. MUTHAMMAL (Died)
2. PARAMESW ARI THAYAMMAL
v.
729
SRI SUBRAMANIASW AMI DEVASTHANAM,
TIRUCHENDUR
1960
J,l. M uthammaZ
(Died)
Parameswari
Thayammal
v.
(S. K. DAS A. K. SARKAR and M. HrnAYATULLAH JJ). Subramaniaswami
'
·
'
Devasthanam
Hindu Law-Exclusion from inheritance-Litnacy, if must be
congenital.
A Hindu was found to be a lunatic when succession opened.
It was claimed that under the texts lunacy must be congenital
to exclude from inheritance.
Held, under the Hindu law lunacy as distinct from idiocy
need not be congenital to exclude from inheritance, if it existed
when succession opened.
Muthusami v. Meenammal. (1920) I.L.R. Mad. 464, Wooma
Parshad Roy v. Grish Chunker Prochundo, (1884) I.L.R. IO Cal.
639 and Deo Kishen v. Budh Prakash, (1883) I.L.R. 5 All. 5oq
(F.B.) approved.
Murarji Gokuldas v. Parvatibai, (1876) I.L.R. l Born. 177 and
Sanku v. Puttamma, (1891) I.L.R. 14 Mad. 289,_disapproved.
CIVIL APPELATE JURISDICTION:
Civil, Appeal No.
20.0 of 1955.
Appeal from the judgment and decree dated January 20, 1943, of the Madras High Court in A. S. No.
392 of 1943, arising out of the judgment and decree
dated March 30, 1943, of the Sub Judge, Tuticorin in
0. S. No. 34 of 1939 .
S. V. Venugopalachariar an\} S. K. Aiyangar, for the
appellant No. 2.
A. V. Viswanatha Sastri, R. Ganapathy Iyer and
G. Gopalakrishna, for respondent No. 1.
1960. January J.1. The judgment of the Court was
delivered by
HIDAYATULLAH J.-This appeal has been filed on Hidayatul/ah J.
leave granted by the High Court of Madras against its
judgment and decree dated January 20, 1947, by which
the decree of the Subordinate Judge, Tuticorin, dated
March 30, 194:3, was substantially modified .
..,
93
730
SUPREME COURT REPORTS [1960 (2)]
r960
Before the application for leave to appeal to the
R. Muthammal Judicial Committee .could be filed, the first defendant
(Died)
(Ramasami Pillai) died, and the applic:.tion for leave
Parnmeswa.i
was filed by his widow, R. Muthammal, who was the
Thayammal
fourth defendant in the suit. R. Muthammal also died
v. .
. soon afterwards, and her place was taken by Paramessubrama niaswam•
. Th
l (h
d
l
b
f R
·
D
th
am
wari
ayamma
er
aug 1ter
orn o
amasam1
'"~"
Pillai), who was the fifth defendant in this case. Along
Hidayatullah ]. with these three defendants, the other members of
Ramasami Pilfa,i's family were also joined as defendants. The suit was filed by Sri Subramaniaswami
Devasthanam, Tiruchendur (hereinafter called for
brevity, the Devasthanam), and the Devasthanam is
the only contesting respondent in this Court.
One Poosa Pichai Pillai had five sons and three
daughters, of whom Meenakshisundaram Pillai died
on May 21, 1919.
Before his death Meenakshisundaram Pillai executed a registered will on .May 20,
1919, and a registered codicil on May 21, 19'9. By
these documents, he left his entire property to his
only son, M. Picha Pillai, with the condition that
should he die without issue, the property was to go to
the Devasthanam .
. M. Picha Pillai died a bachelor on December 10, 1927.
Three claimants claimed the property after his death.
The first naturally was the Devasthanam claiming
under the gift over to it. The other two were tho
heirs of M. Picha Pillai, who asserted that the gift
over was void, and Meenakshisundaram's wife's
brother and sister, Arunachala Irungol Pillai and
N.S. Muthammal (third defendant), respectively, who
claimed under an alleged will of M. Picha Pillai. The
heirs of M. Picha Pillai were defendants 7, 8, 10, 13
and 14, the father of defendants 9, and the first
defendant. These claimants denied the claim of the
Devasthanam, contended that the will and the codicil
above mentioned gave an absolute estate to M. Picha
Pillai, and that the gift over to the Devasthanam was,
therefore, void. The Devasthanam filed O.S.No. 57
of 1932 for declaration and possession of the properties covered by the will, together with other reliefs.
During the pendency of the suit, the heirs of

## Text

•
•
S.C.R.
SUPREME COURT REPORTS
1.
R. MUTHAMMAL (Died)
2. PARAMESW ARI THAYAMMAL
v.
729
SRI SUBRAMANIASW AMI DEVASTHANAM,
TIRUCHENDUR
1960
J,l. M uthammaZ
(Died)
Parameswari
Thayammal
v.
(S. K. DAS A. K. SARKAR and M. HrnAYATULLAH JJ). Subramaniaswami
'
·
'
Devasthanam
Hindu Law-Exclusion from inheritance-Litnacy, if must be
congenital.
A Hindu was found to be a lunatic when succession opened.
It was claimed that under the texts lunacy must be congenital
to exclude from inheritance.
Held, under the Hindu law lunacy as distinct from idiocy
need not be congenital to exclude from inheritance, if it existed
when succession opened.
Muthusami v. Meenammal. (1920) I.L.R. Mad. 464, Wooma
Parshad Roy v. Grish Chunker Prochundo, (1884) I.L.R. IO Cal.
639 and Deo Kishen v. Budh Prakash, (1883) I.L.R. 5 All. 5oq
(F.B.) approved.
Murarji Gokuldas v. Parvatibai, (1876) I.L.R. l Born. 177 and
Sanku v. Puttamma, (1891) I.L.R. 14 Mad. 289,_disapproved.
CIVIL APPELATE JURISDICTION:
Civil, Appeal No.
20.0 of 1955.
Appeal from the judgment and decree dated January 20, 1943, of the Madras High Court in A. S. No.
392 of 1943, arising out of the judgment and decree
dated March 30, 1943, of the Sub Judge, Tuticorin in
0. S. No. 34 of 1939 .
S. V. Venugopalachariar an\} S. K. Aiyangar, for the
appellant No. 2.
A. V. Viswanatha Sastri, R. Ganapathy Iyer and
G. Gopalakrishna, for respondent No. 1.
1960. January J.1. The judgment of the Court was
delivered by
HIDAYATULLAH J.-This appeal has been filed on Hidayatul/ah J.
leave granted by the High Court of Madras against its
judgment and decree dated January 20, 1947, by which
the decree of the Subordinate Judge, Tuticorin, dated
March 30, 194:3, was substantially modified .
..,
93
730
SUPREME COURT REPORTS [1960 (2)]
r960
Before the application for leave to appeal to the
R. Muthammal Judicial Committee .could be filed, the first defendant
(Died)
(Ramasami Pillai) died, and the applic:.tion for leave
Parnmeswa.i
was filed by his widow, R. Muthammal, who was the
Thayammal
fourth defendant in the suit. R. Muthammal also died
v. .
. soon afterwards, and her place was taken by Paramessubrama niaswam•
. Th
l (h
d
l
b
f R
·
D
th
am
wari
ayamma
er
aug 1ter
orn o
amasam1
'"~"
Pillai), who was the fifth defendant in this case. Along
Hidayatullah ]. with these three defendants, the other members of
Ramasami Pilfa,i's family were also joined as defendants. The suit was filed by Sri Subramaniaswami
Devasthanam, Tiruchendur (hereinafter called for
brevity, the Devasthanam), and the Devasthanam is
the only contesting respondent in this Court.
One Poosa Pichai Pillai had five sons and three
daughters, of whom Meenakshisundaram Pillai died
on May 21, 1919.
Before his death Meenakshisundaram Pillai executed a registered will on .May 20,
1919, and a registered codicil on May 21, 19'9. By
these documents, he left his entire property to his
only son, M. Picha Pillai, with the condition that
should he die without issue, the property was to go to
the Devasthanam .
. M. Picha Pillai died a bachelor on December 10, 1927.
Three claimants claimed the property after his death.
The first naturally was the Devasthanam claiming
under the gift over to it. The other two were tho
heirs of M. Picha Pillai, who asserted that the gift
over was void, and Meenakshisundaram's wife's
brother and sister, Arunachala Irungol Pillai and
N.S. Muthammal (third defendant), respectively, who
claimed under an alleged will of M. Picha Pillai. The
heirs of M. Picha Pillai were defendants 7, 8, 10, 13
and 14, the father of defendants 9, and the first
defendant. These claimants denied the claim of the
Devasthanam, contended that the will and the codicil
above mentioned gave an absolute estate to M. Picha
Pillai, and that the gift over to the Devasthanam was,
therefore, void. The Devasthanam filed O.S.No. 57
of 1932 for declaration and possession of the properties covered by the will, together with other reliefs.
During the pendency of the suit, the heirs of M. Picha
• -
-
-
-
-
•
S.C.R.
SUPREME COURT REPORTS
73I
Pillai and the present defendants 15 and 16 (two of
I96°
the three sons of Arunachala Irungol Pillai) assigned R. Muthammal
their interest in favour of the Devasthanam. The
(Died)
result of the suit, therefore, was that a decree in favour
Parameswari
of the Devasthanam was passed in regard to the
Thayammal
interest of the assignors, but it was dismissed as
v..
.
regards the interest ofN.S. Muthammal (third defend- Su~am~~iaswami
ant) and Pothiadia Irungol ~Pillai (second defendant)
evas anam
who had not entered into the compromise. It may Hidayatullah ].
be mentioned here that by Ex. D-22, a registered
agreement dated May 20, 1928, the heirs had already
agreed to give to Arunachala Irungol Pillai and
N.S. Muthammal one-eighth share each respectively
in the properties of M. Picha Pillai. Thus, by this
compromise the Devasthanam received 5/6th share of
the properties of M. Picha Pillai, the remaining l/6th,
going to Pothiadia Irungol Pillai (l/24th) and N.S.
Muthammal (I/8th).
The Devasthanam filed an
appeal in the High Court against the dismissal of the
suit in respect of this I/6th share and failed.
An
appeal was then taken to the Judicial Committee,
which also failed. The judgment of the Privy Council
is reported in Sri Subramaniaswami Temple v. Ramaswamia Pillai (1 ).
Without waiting, however, for the result of the
appeal in so far as the I/6th share was concerned, the
Devasthanam filed the present suit joining the two
sets of claimants for declaration, ejectment and
possession by partition of the properties to which it
claimed title and for mesne profits. The properties
were shown in various schedules annexed to the
plaint; but it is unnecessary to refer to those schedules
except where the needs of the judgment so require.
One of the contentions raised by the plaintiff-Devasthanam in this suit was that the first defendant,
Ramasami Pillai, was not entitled to a share in the
properties as an heir of M. Picha Pillai, being a lunatic
when succession to these properties opened. On
behalf of the first defendant, Ramasami Pillai, who
contested the suit through his wife and guardian,
R. Muthammal, it was contended that he was :i;10t a
-,
(1) (1950) I M.L.J. 300,
732
SUPREME COURT REPORTS [196012)]
I960
lunatic (buddhi swadeenam illadavar) but only a person
of weak intellect (buddhi deechanya matra ), ahd th us,
R .. Yuthammal
(Died)
he was not excluded from inheritance. This point was
Param,.wari
the main argument in this appeal, because the two
Thayammal
Courts below reached opposite conclusions. According
v..
. to the Subordinate Judge of Tuticorin, Ramasami
Subramamaswami Pillai's plea was correct and proved. The High Court
Devasthanam
h
h
,.
. '
on the other
and,
eld that the mental de1ect m
Hidayatullah J. Ramasami Pillai amounted to lunacy, and that it
disentitled him to a share.
Connected with this above matter is the second
contention raised by Ramasami Pillai that he was
entitled to a I/9th share by virtue of an alleged
agreement stated on affidavit in Ex. D-7 by Doraiappa
Pillai on April I, 1931. We shall give the details of
this contention hereafter. The third contention raised
in this appeal and also before the High Court was that
the properties described in plaint sch. 4-A were the
subject-matter of a decree dated September 19, 1927,
in favour of M. Picha Pillai in O.S.No. 35 of 1924 filed
by him against his cousins. According to Ramasami
Pillai (first defendant), the decree was not executed for
a period of 12 years and the claim thereto was, therefore, barred under s. 48 of the Code of Civil Procedure,
and thus the Devasthanam was not entitled in this suit
to claim possession of those properties.
We shall begin with the question whether Rarnasami Pillai was excluded from inheritance by reason
of his mental condition on December 10, 1927. The
argument of the appellant is two-fold. The first is on
the fact whether Ramasami Pillai was a lunatic
within the Hindu law texts. The second is a question
of law whether this lunacy was not required to be
proved to have been congenital to disentitle Ramasarni Pillai to succeed to his father.
We shall deal
with these two questions separately.
In view of the fact that the two Courts below had
reached opposite conclusions on the fact of lunacy, we
have looked into the evidence in the case, and have
heared arguments for the appellant. We are satisfied
that the opinion of the High Court is correct in all the
circumstances of this case. The argument on behalf
•
-
-
, -
• -
-
S.O.R.
SUPREME COURT REPORTS
733
of the appellant was that in judging this issue we
z95o
should see the evidence regarding the mental condition R. Muthammal
of Ramasami Pillai antecedent and subsequent to
(Died)
December 10, 1927, the conduct of his father, relatives
Parameswari
and the other claimants of the property. It was
Thayammal
contended that Ramasami Pillai was attending school,
v.
though nothing was shown to us from which we could SuDbramatnhiaswami
infer that he had profited by the attempts to educate
evas anam
him. The appellant, however, set great store by two Hidayatullah J.
documents, Exs. D-1 and D-2, executed by his father,
Perumal Pillai, in January and April 1924. By the
first, Perumal Pillai released his claim to certain properties in favour of his four sons, mentioning therein
Ramasami Pillai without adverting to the fact that he
was a lunatic and without mentioning a guardian. By
the second, which was a will, Perumal Pillai gave
equal shares in his properties to his sons including
Ramasami Pillai, and once again without a mention of
his mental condition. It was contended that Perumal
Pillai was a Sub-Registrar who would know the
importance of such a fact and also the law that a
lunatic was not entitled to succeed. The fact that the
father in these two documents made no mention of the
mental condition of his son does not bear upon the
present. case for two reasons. The first is that the case
of Ramasami Pillai in this suit was that he was quite
sane till 1924, and that his mental condition deteriorated only after that year. The second is that the omission
by the father to mention this fact might be grounded
on love and affection in which the claim of a mentally
defective child might not have been viewed by him in
the same manner as the law does.
It was next contended that the other heirs recognised the right of Ramasami Pillai in April 1928 and
agreed to give him a l/9th share, as has been already
stated above. That too would not prove that Ramasami
Pillai was entitled, in law, to a share. The compromise
(which is also contested) might have been out of
motives of charity but might not have been due to the
fact that Ramasami Pillai's right to a share was legally
entertainable.
The evidence,
however, of Ramasami Pillai's
mental incapacity is really voluminous.
Between
734
SUPREME COURT REPORTS [1960(2)]
z96o
June ] 924 and till his death, numerous suits were filed
R. Muthammal by different members of the family, including his wife,
(Died)
his cousins, uncle and aunt, in which Ramasami Pillai
Parameswari
was always shown as a lunatic requiring the appointThayammal
ment of a next friend or a guardian-ad-litem. ln one
v..
. case only where Ramasami Pillai was the. second
Su~ama~iaswam• defendant, an appearance was entered on his behalf
evast anam
by a vakil, who contended that Ramasami Pillai was
Hidayatullah J. sane and ought to be represented in person. The
Court on that occasion appointed the Head Clerk of
the Court as his guardian, and asked him to report
about the condition of Ramasami Pillai. Ramasami
Pillai was also asked to appear in Court in person, so
that the Court might form its own opinion by
questioning him. The Head Clerk visited ){amasami
l'illai and submitted his report, Ex. P-8, in which he
described his observations. It appears that Ramasami
Pillai did not even give his name when questioned,
and appeared to be moody and silent. The relatives
felt that he was hungry and fed him; but even after
this, Ramasami Pillai did not give any answers to the
questions put to him in the presence of his wife and
others. The Head Clerk therefore reported that the
appearance of Ramasami Pillai as a gloomy and sickly
person with a vacant look and that his inability to
answer even the simple question about his name, clearly
showed that he was insane. This report was presented
to the Court in the presence of the vakil, who had filed
the vakalatnama, and on September 20, 1924, an order
(0. S. No. 35 of 1924) was recorded by the Subordinate
Judge (Ex. P-9). It was mentioned therein that the
report was not objected to by the vakil for Ramasami
Pillai, and that 1-tamasami Pillai was treated as a
lunatic. Ramasami Pillai himself did not appear.
It was contended that this enquiry as well as the
fact that in numerous litigations Ramasami Pillai had
a guardian or next friend to look after his interests
did not prove that he was insane within the meaning
of the Hindu Jaw texts·; it only proved that he was a
person incapable of looking after his interests and for
the purposes of the conduct of the suits a guardian or
next friend, as the case might be; was necessary. In
our opinion, the long and continued course of conduct
• -
-
S.C.R.
SUPREME COURT REPORTS
735
on the part of the various relatives clearly shows that
I96o
Ramasami Pillai was, in fact, a lunatic, and the reμort
R. Muthammal
of the Head Clerk given in a case long before the
(Died)
present one was ever contemplated, shows only too ParameswJri
clearly that he was, for all intents and purposes, not
Thayammal
only a person who was slightly mentally deranged but
v..
.
one who was regarded and found to be a lunatic. There Su~ram~;•aswami
being this evidence, the distinction now sought to be
evas ianam
made and which appealed to the Subordinate Judge of Hidayatullah 1.
Tuticorin, is not borne out by the evidence in the case.
·Such a long and continuous course of conduct clearly
proves the contention that Ramasami Pillai was, in
fact, mad. :Further, in Ex. D-22 dated May 20, 1928,
Ramaswami Pillai was not considered as a claimant,
and his claims could not have been overlooked by all
his relatives simply because ·they were to get an
additional l/72nd share each in the property by reason
of his exclusion. Some one of his relatives would have
felt the need for asserting the claim on his behalf, if
he himself did not do so. In view of the fact that the
preponderance of probabilities is in favour of the
decision of the High Court, we do not think that the
appellant has succeeded in establishing the distinction,
which was made in the case, between a lunatic and a
person of weak intellect on the evidence, such as it is.
This brings us to the next contention which is one
of law. It may be pointed out here that before the
Subordinate Judge, Ramasami Pillai did not raise the
contention that as a matter of law insanity must be
congenital before a person would be excluded from
inheritance.
Learned counsel for
the appellant
explained that it was futile to raise this contention in
view of the decision of the Madras High Court in
Muthusami v. Meenammal (1), in which it was ruleu
that insanity need not be congenital to create the
disability, and that insanity at the time succession
opened was enough. The point, however, appears to
have been raised in the High Court, but it was decided
agl}inst Ramasami Pillai. The soundness of this view
is questioned in this appeal.
The argument shortly is this : The text of Manu
(ix, 201) mentions many causes of exclusion from
(I) (1920) l.L.R. Mad. 464,
736
SUPREME COURT REPORTS [1960(2)]
i96o
inheritance, some of which like blindness, muteness,
idiocy and lameness, it is settled, must be congenital
· R. -~;::,~~mal to exclude a person from inheritance. It is argued that
Parameswari
the collocation of the words in the text suggests that
Thayammal
insanity like these other disabilities must also be
v.
congenital. No doubt, the word "Unmatha" comes
Subramaniaswami between the words "Jatyandhabadhirau" and" JadamuDevasthanam
kascha "; but the rulings have uniformly held that for
Hidayatullah J. madness, the test, that it should be congenital, does
not apply. The argument now raised has the support
of the opinion expressed by Dr. Sarvadhikari in his
Principles of Hindu Law Inheritance (2nd Edn.) p. 846,
where the author expounded the text according to
rules of grammar, though he was doubtful if according
to medical science, madness as opposed to idiocy is
ever congenital. The translations of the same text by
Setlur, Gharpure and Dr. Ghose do not admit this
interpretation. In Muthusami v. Meenammal (1 ), it was
pointed out also that " Unmatha" was not qualified by
the word "Jati ". Seshagiri Ayyar, J. observed that
" according to Mimamsa rules of interpretation, an
adjective qualifying one clause should not by implication qualify a different clause". The counsel on that
occasion agreed that this was the correct approach,
but relied upon "the opinion of Dr. Sarvadhikari which
was not accepted.
Learned counsel for the appellant also referred to
the opinion of Colebrooke in his Digest, Vol. II, p. 432.
Colebrooke's translation is based upon the commentary
of J agannatha Tarkapanchanana, and it is J agannatha
who made no difference between the various disabilities,
and opined that madness like blindness or muteness
must be also congenital. No doubt, much weight
must be attached to the opinion of Jagannatha who
was "one of the most learned pandits that Bengal had
ever produced ". But this translation of Colebrooke
has not been universally accepted, and is not borne
out by the original texts and commentaries on the
Mitakshara. Dr. Ghose in his Hindu Law, Vol. I,
p. 224 has expressed his doubts. The texts of Narada
XIII, 21, 22, Yajnavalkya II,.140-141 and others do
not show that the defect of madness must also be
(1) (19zo) l.L R. 43 Mad. 464.
•
-
-
•
-
•
-
S.C.R.
SUPREME COURT REPORTS
737
congenital. In Saraswati Vilasa 148, the emphasis of
z96o
congenital disability is placed on blindness and R. Muthammal
. deafness. Similarly, in Smriti Chandrika, Chap. V, 4,
(Died)
persons born blind and deaf are mentioned apart from
Parameswari
madmen and idiots. That idiots must be congenitally
Thayammal
so, is ruled by the Courts.
.
Subram:~iaswami
The cases that have come before the Courts have
Devasthanam
all been uniform, except M urarji Gokuldas v. Parvatibai (1 ), where the observation is obiter and Sanku v.
Hidayatullah J.
Puttamma (2), which was dissented from in later cases.
On the other hand, Wooma Pershad Roy v. Grish
Ohunder Prochundo (3), Deo Kishen v. Budh Prakash (4)
and other decisions have clearly held the contrary. In
two cases before the Privy Council it was assumed that
madness need rrot be congenital. It may also be noted
that when the Legislature passed the Hindu Inheritance
(Removal of Disabilities) Act XII of 1928 making the
change to madness from birth as a ground of exclusion
the law was not made ~etrospecitive, thus recognising
the correctness of the judicial exposition of the original
' texts. In this view of the matter, we do not think that
we should unsettle the law on the subject; nor has it
been made to appear to us that any different view is
open. We accordingly do not accept the contention.
The result is that Ramasami Pillai was not entitled
to succeed to M. Picha Pillai. We now come to the
next contention. It is that even if this be the position,
Ramasami Pillai was entitled to I/9th share on the
basis of an alleged arrangement evidenced by Ex. D-7
dated April 1, 1931. This document is an affidavit
which was filed by Doriappa Pillai (Defendant 8) in a
suit (0. S. No. 25 of 1930) filed by him for possession
after partition of his I/8th share on the basis of
Ex. D-22. In that suit, Ramasami Pillai was the
second defendant. Ex. P-5 is the written statement
filed on his behalf in which he repudiated that he was
excluded from inheritance by reason of his insanity.
This suit was withdrawn on April 2, 1931, with the
leave of the Court, with liberty to bring a fresh suit
(Ex. D-6). ·In the affidavit which was filed, it was
stated as follows :
{r) (1876) I L.R. l Born. 177.
(3) (1884) l.L.R. 10 Cal. 639.
94
(2) (1891) I.L.R. 14 Mad. 289.
(4) (1883) l.L.R. 5 All. 509 \F.B.).
Ig6o
R. 1'vl uthammal
(Died)
Pnrameswari
Thayanimal
v.
Subra1naniaswami
Devasthanam
H idayatull ah ] •
738
SUPREME COURT REPORTS
(1960 (2)]
" 5.
Excepting Defendant 9, myself and almost
all the Defendants agree to give to Defendant 2 an
equal share with others and thus come to some
amicable arrangement between us.
6. In view of the ninth Defendant's contentions
in the suit and in view of the fact that I have not
prayed in this suit· for a declaration of my title to
the suit properties as against him, I am ad vised that
I should withdraw the present suit for partition with
liberty to institute a fresh suit as I may be advised.
7. It is therefore just and necessary that I may be
permitted to withdraw this suit with liberty to bring
a fresh suit properly framed."
The Subordinate Judge held on this and the evidence
of D.W. 2 that this family arrangement was duly
proved, and that Defendant 10 who was present in
Court when the above statement was made, did not
choose to deny it.
The High Court rightly pointed out that the
affidavit did not show the compromise as a completed
fact, and also did not accept the word of D.W. 2. The
claimants, who are stated to have given a share to
Ramasami Pillai, have not been examined. The High
Court also noticed that no application for transfer of
the pattas was made. In view of these circumstances
which are all correct, the appellant cannot be said to
have successfully established the family arrangement,
and we do not consider it necessary to examine the
oral evidence in the case.
This brings us to the last point that Ramasami
Pillai was entitled to a share in the properties
comprised in Sch. 4-A.
M. Picha Pillai had filed 0.S.
No. 35 of 1924 against his cousins for possession of
these properties. The suit was decreed on September
19, 1927. On October 30, 1927, P. Picha Pillai (Defendant 7) and Serindia Pillai sent a notice,. Ex. P-3,
informing M. Picha Pillai that he could take possession
of the properties covered by the decree. This notice
was refused and returned to the senders. M. Picha
Pillai died soon afterwards on December 10, 1927. It
is contended that the properties thus remained in
possession of the judgment-debtors, and the decree not
•
-
'
•
•
-
-
S.C.R.
SUPREME COURT REPORTS
739
having been executed, the present suit filed. on October
18, 1939, is barred in so far as those properties are
concerned, and the Devasthanam cannot get possession
of them.
R. Muthammal
(Died)
Para1neswari
Both the Courts below have concurred in holding
Thayammal
that M. Picha Pillai must have got possession other- 5 b
v..
.
•
•
u raman1aswam1
wise than by execution of the decree, because even
Devasthanam
D.W. 2 not very friendly to the Devasthanam admitted
that M. Picha Pillai was at the time of his death in Hidayatullah J.
possession of all the suit properties. The two Courts
below also adverted to the fact that for the years,
Faslis 1338and1339 the 10th defendant paid the taxes,
and this would not happen if the heirs of M. Picha
Pillai were not in enjoyment. The fact that the patta
stood in the names of the original j~dgment-debtors
would not indicate anything, because mutations sometimes lag behind change of possession. In view of the
fact that the two Courts below have agreed on the
finding and there is evidence to support it, we see no
reason to interfere.
The question of mesne profits was not pressed,
and no other point having been argued, we hold that
the appeal has no merits. It will, accordingly, be
dismissed with costs.
Appeal dismissed.
BALLAVDAS AGARW ALA
v.
SHRIJ.C.CHAKRAVARTY
(S. K. DAS,' A. K. SARKAR and M. HIDAYATULLAH, JJ.)
Criminal Trial-Prosecution for offence under Municipal Act--
Authority to initiate prosecution Delegation of-If private citizen
can file complaint-Calcutta Municipal Act, r923 (Ben. III of r923)
SS. I2 and 537.
The appellant was convicted of selling adulterated butter
under ss. 406 and 407 read with s. 488 of the Calcutta Municipal
Act as extended to the Municipality of Howrah on a complaint
filed by the Sanitary Inspector on January z, 1954 which was
signed in token of sanction by the Health Officer of the said
municipality.
The appellant contended that the trial was
vitiated for want of a valid sanction because at the relevant time
the Health Officer of the municipality did not have any power ta
sanction the prosecution. Under the Act the power to institute
.T anitary I5·