Back
MADRAS HIGH COURT
GOVINDA MENON
S.N.Pachamuthu Nadar
Versus
Naga Pillai and others -
Civil Revn. Petn. No. 274 of 1949
Decided On : 10 March, 1950
The plaintiffs, as legal representatives of a creditor, filed a suit for administration of the estate of Robert Foulkes and inter alia to declare certain alienations effected by defendant 1 as the administrator of the said estate in favour of defendants 3 to 7 invalid and not binding upon the plaintiffs and the other creditors of the estate. The plaintiffs alleged that the alienations were made without making any provision for their claim and that defendants 3 to 7 were parties and privies to the devastavit by defendant 1 in the matter of these alienations and had all acted in collusion and conspiracy to defeat the plaintiffs claims. The learned Subordinate Judge granted a decree personally against defendant 1 for rendition of accounts of the assets and income of the estate from 14-12-1938 and directing the amount due on taking accounts to be paid by defendant 1 in satisfaction of the debts due to the plaintiffs and the other creditors of the estate, if any, in rateable distribution. The suit was dismissed against all the other defendants. Both the plaintiffs and defendant 1 preferred appeals. The High Court held that the alienations in favour of defendants 3 to 7 were for proper and adequate consideration and that the sales were not nominal transactions and that they were not vitiated by fraud or other similar defect. The Court further held that the creditors who had received excess payments in the distribution consequent on the several alienations in favour of defendants 3 to 6 should refund the excess amounts which they must be deemed to have received.
Fact of the Case:
The plaintiffs, as legal representatives of a creditor, filed a suit for administration of the estate of Robert Foulkes and inter alia to declare certain alienations effected by defendant 1 as the administrator of the said estate in favour of defendants 3 to 7 invalid and not binding upon the plaintiffs and the other creditors of the estate. The plaintiffs alleged that the alienations were made without making any provision for their claim and that defendants 3 to 7 were parties and privies to the devastavit by defendant 1 in the matter of these alienations and had all acted in collusion and conspiracy to defeat the plaintiffs claims.
Finding of the Court:
The High Court held that the alienations in favour of defendants 3 to 7 were for proper and adequate consideration and that the sales were not nominal transactions and that they were not vitiated by fraud or other similar defect. The Court further held that the creditors who had received excess payments in the distribution consequent on the several alienations in favour of defendants 3 to 6 should refund the excess amounts which they must be deemed to have received.
Issues: Whether the alienations in favour of defendants 3 to 7 were for proper and adequate consideration and that the sales were not nominal transactions and that they were not vitiated by fraud or other similar defect.
Ratio Decidendi: The High Court held that the alienations in favour of defendants 3 to 7 were for proper and adequate consideration and that the sales were not nominal transactions and that they were not vitiated by fraud or other similar defect. The Court further held that the creditors who had received excess payments in the distribution consequent on the several alienations in favour of defendants 3 to 6 should refund the excess amounts which they must be deemed to have received.
Final Decision: The High Court held that the alienations in favour of defendants 3 to 7 were for proper and adequate consideration and that the sales were not nominal transactions and that they were not vitiated by fraud or other similar defect. The Court further held that the creditors who had received excess payments in the distribution consequent on the several alienations in favour of defendants 3 to 6 should refund the excess amounts which they must be deemed to have received.
Order.:-Original Petition No. 49 of 1948 on the file of the District Court of East Tanjore is an application for leave to sue in forma pauperis by some relators of a temple seeking to recover property on behalf of the temple and for possession to be delivered over to the defaulting trustees who had not taken steps to get the property from the alienees. The point was raised as to whether the petitioners respondents could sue in that capacity unless it is shown that the entire body of people who claim to be worshippers of this temple are paupers. The learned Judge has found that individually the petitioners are paupers and therefore granted the application to sue in forma pauperis. Mr. G. R. Jagadisa Aiyar for the petitioner in this Court relies upon a decision of Rajamannar J. as he then was in Vellingiri Naicken v. Sree Patteswaraswami Devastanam, 1949-1 M.L.J. 558 : (a. I. R. (36) 1949 Mad. 714). The learned Judge there had to consider the case where some members of a village community sought leave to sue in forma pauperis to recover lands on behalf of the village community claiming that they are communal lands. Bajamannar J. held that unless it is shown that the entire body of villagers are paupers, any member claiming to be a villager cannot file a suit as a pauper for the recovery of communal lands. I am in respectful agreement with the conclusion arrived at there. But the circumstances and the facts here are quite different. The petitioners-respondents are relators and in their individual capacity they are entitled, as of right, to bring a suit for the recovery of temple properties possession of which has to be given over to the trustees who had defaulted in filing the suit. It is an individual right and if the petitioners respondents are individually paupers they are entitled to file the suit in forma pauperis. The question whether other worshippers of the temple are multimillionaires, or could pay the court-fee, would not disentitle the petitioners-respondents from filing the suit. I am therefore of opinion, that the lower Court is right in allowing the application to be registered as a suit and no question of jurisdiction arises. The civil revision petition is therefore dismissed with costs.
Revision dismissed.
AIR (38) 1951 MADRAS 296 [C. N. 78.] "G.F.F. Foulkes v. Suppan Chettiar"
MADRAS HIGH COURT
Coram : 2 RAJAMANNAR, C.J. AND BALAKRISHNA AYYAR, J. ( Division Bench )
G.F.F. Foulkes and others - Appellants v. A.S. Suppan Chettiar and another - Respondents.
Appeals Nos. 256 and 546 of 1945, D/- 22 -7 -1949.
(A) Civil P.C. (5 of 1908), O.1, R.8 - CIVIL PROCEDURE - Permission to sue in representative capacity obtained - Effect.
Where the plaintiffs applied for an order under O. 1,. R. 8 and obtained such an order, it is impossible thereafter for them to contend that the suit was not brought by them in a representative capacity. (Para 10)
Anno. C. P. C., O. 1, R. 8, N. 10.
(B) Civil P.C. (5 of 1908), O.1, R.8 - CIVIL PROCEDURE - ABATEMENT - Suit under - Death of one of plaintiffs - Abatement.
When a suit is brought by several persons in a representative capacity, and if one of them dies, the suit does not abate, because, the right to represent others of a class is not right which ipso facto survives to the legal representatives of the deceased party. The source of that right is the order of the Court permitting the party to represent others. In such a contingency, namely, the death of one of the parties to whom originally permission was granted to institute a suit in a representative capacity, it is for the Court to decide whether the suit can be allowed to be continued by the surviving person or persons or whether other persons should ha joined. The proper procedure, in a case like this, is for the remaining person or persons to apply to the Court for directions and it is for the Court to decide whether it will permit the remaining person or persons to whom the original sanction was given to continue to prosecu
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
