Sankaran vs Raman Kutti and Others

Plaintiff and defendants Nos. 1 and 2 are brothers. Third defendant is their father. All four form an undivided family of Tiyans following the

Makkattayam rule of inheritance. A kanom was granted by a land owner in the name of the first defendant. On redeoming the kanom, the landlord

paid into Court the amount of the kanom, together with compensation for trees and a house on the land redeemed. The decree in the suit (Original

Suit No. 29 of 1892) directed that all the money should be paid to first defendant, as the kanom was in his name, ''unless defendants Nos. 2, 3 and

5'' (the present second and third defendants and plaintiff) ''sue to establish their right to it.''

The plaintiff alleged that the kanom and the trees, for which compensation was paid, were joint family property, but that the house was his own

solo property, having boon built solely with his own funds. He sued-for a declaration of bis right to recover his one-fourth share of the money

deposited for the kanom and as compensation tor the treos, and for a declaration of his right to the whole of tho money deposited as compensation

for the house.

The third defendant supported tho plaintiff''s claim. The first defendant claimed the whole of the money as his own on the ground that the kanom

was not joint family property, but his own acquisition. The second defendant alleged that all the property was joint family property. The District

Munsif found that the suit for a bare declaration was not sustainable with reference to Section 42 of the Specific Belief Act, and also that plaintiff

without suing for partition could not sue for a declaration of his right to a share of the joint family property, nor for a declaration of his sole right to

the compensation for the house since the latter had become merged in the family property. He there-foro dismissed the suit. The Subordinate

Judge reversed this decree and remanded the suit for trial on the merits, holding that the plaintiff could maintain the suit as framed. Against this

order of remand the first defendant appealed to the High Court and the appeal was heard by Mr. Justice PARKER sitting alone. He held that the

passing of the decree in Original Suit No. 29 of 1892 gave the plaintiff no cause of action for a declaratory suit, though it was open to plaintiff to

sue first defendant for the value of the house, if the latter belonged to the plaintiff, and also that plaintiff could sue for his share of the family

property, but not for his share of a particular part of it. He, therefore, set aside the order of the Subordinare Judge and restored that of the District

Munsif.

Against this order the plaintiff now appeals u/s 15 of the Letters Patent.

A preliminary objection is raised that, as Mr. Justice PARKElVs order was passed u/s 588, Civil Procedure Code, such order is final under the

last clause of that Section, and is not open to appeal.

We have no doubt but that the objection is valid. Section 588, Civil Procedure Code, is by Section 632 of the same Code declared to be

applicable to the High Court, and the right of appeal given by Section 15 of the Letters Patont against an order of a single Judge of the High Court

is subject to the limitations prescribed by the Code of Civil Procedure, Achaya v. Ratnavelu ILR 9 Mad. 253 .

It is however contended that Section 588 only empowered Mr. Justice PARKER to determine whether the order of the Subordinate Judge in

remanding the suit was right or wrong, but did not give him jurisdiction to go further and pass a decree in the suit, as he did when he restored the

District Munsif''s decree dismissing the suit, and in support of this contention it is pointed out that had Mr. Justice PARKER merely decided that

the Subordinate Judge''s remand was wrong, and remanded the suit to him for disposal according to law, instead of himself restoring the District

Munsif''s decree, then the plaintiff'' would have been ontitled to a second appeal to a Division Bench of two Judges of this Court in the evont of the

Subordinate Judge dismissing his appeal; whereas by the procedure adopted by Mr. Justice PARKER, the plaintiff is obliged to abide finally by the

opinion of a single Judge of this Court on a point of law instead of being entitled to have the point decided by a Bench of at least two Judges. Such

a result maybe to some extent anomalous; but the existence of an anomaly does not justify us in overruling the provisions of the law. That the Court

when hearing an appeal u/s 588, Civil Procedure Code, against an order of remand u/s 562, Civil Procedure Code, may deal with the correctness

of the lower Court''s decisions on the preliminary point, and may, if it sees fit, pass a final decree in the suit instead of merely remanding the suit to

the lower Appellate Court, has been decided by the High Courts of Calcutta and Allahabad in Loki Mahto v. Aghoree Ajail Lall ILR 5 Cal. 144

and Hasan Alli. Siraj Husain ILR 16 All. 252 respectively, and this appears to be also the view taken by the Full Bench of the Bombay High Court

in Bhau Bala v. Bapaji Bapuji ILR 14 Bom. 14 and by the Full Bench of the Allahabad High Court in Badam v. Imrat ILR 3 All. 675 SPANKIE,

J., dissenting, It has also been so decided by a Bench of this Court in Rothandaramasami Naidu v. Krishnasami Naicken Letters Patent Appeal

No. 35 of 1894 unreported. We see no sufficient reason for dissenting from these authorities.

The result is that the order now appealed against must be regarded as having been legally passed u/s 588, Civil Procedure Code. Such an order

is not open to appeal under the Letters Patent. We must, therefore, dismiss this appeal with costs.