JUDGMENT

Ajaib Singh J:

The plaintiff in this, case seeks a declaration that the transfer of a piece of land held under Certificate of Title No. 4246 for Lot No. 926 in the Mukim of Si-Rusa in the District of Port Dickson comprising an area of 40 acres 2 roods 30 poles (hereinafter referred to as the 40 acres) effected by one PL AR Arunasalam Chettiar (deceased) in favour of the defendant on 8 March 1935 is void as against the plaintiff. He seeks a further order for a division of the 40 acres among himself, the defendant and the estate of Arunasalam Chettiar or a sale of the 40 acres by public auction and distribution of the proceeds among the three parties. The plaintiff also prays for an order that the defendant do render accounts of the income and expenditure arising out of the management of the 40 acres and to pay to the plaintiff his share.

In his statement of claim the plaintiff avers that Arunasalam Chettiar was the karta of a joint Hindu family of which the plaintiff and the defendant were coparceners. In 1934 Arunasalam Chettiar (hereinafter referred to as the karta) bought the 40 acres at a public auction from funds belonging to the joint Hindu family whereby the 40 acres became part of the family property. However as the karta was already the owner of about 100 acres of rubber estate and in order to avoid the rubber regulations which were applicable to owners of rubber estates of over 100 acres the karta transferred the 40 acres to the defendant on 27 February 1935 without any consideration whereby the defendant became the trustee of the 40 acres for the joint Hindu family. This transfer was registered on 8 March 1935. The plaintiff further avers that from the date of the transfer the karta retained control of the 40 acres and received income from it which was brought into the karta's accounts but that due to some misunderstanding between them the karta sued the defendant in Civil Suit No. 62 of 1950 for the return of the 40 acres. He was successful in the High Court as well as on appeal in the Supreme Court but upon further appeal to the Privy Council the karta's claim to the 40 acres failed on the ground that he had practised a deceit on the public administration. The 40 acres thus remained registered in the name of the defendant. The plaintiff avers that the decision of the Privy Council may or may not be binding on the karta and the defendant in so far as the karta's one-third undivided share in the 40 acres is concerned but that the decision is not binding on the plaintiff as the 40 acres belonged to the joint family of which the plaintiff was a coparcener.

In his defence the defendant denies that the 40 acres were part of the joint Hindu family property and he avers that the land had been sold to him by the karta for $7,000 on 27 February 1935 and thereafter the karta had no title whatsoever to the property. He states that the 40 acres now belong to him exclusively. The plaintiff is not a coparcener with the defendant in respect of the 40 acres and he is not entitled to any share in the land or in the income derived from the land. The defendant avers that he is not liable to render accounts to the plaintiff. The defendant further avers that the Privy Council had held that the karta was not entitled to contend that the transfer of the 40 acres to the defendant was fraudulent or ineffective and therefore the plaintiff is now prevented in law from raising the same issue again. In any event the defendant avers that the plaintiff is barred by the law of limitation from claiming any share in the land.

No evidence was adduced in this case and the parties rested their respective cases on the pleadings and the bundle of agreed documents which in fact is the appeal record in FM Civil Appeal No. 34 of 1958 arising from Civil Suit No. 62 of 1950 between the defendant as the appellant and the karta as the respondent. It was this appeal which eventually went up to the Privy Council in respect of the 40 acres.

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