S.V.S. Nelliappa Pillai vs Sethuramalingam Pillai and Others

Alfred Henry Lionel Leach, C.J.—The appellant financed an appeal filed by one Avudayappa Pillai in a suit which Avudayappa Pillai had

instituted to recover a half share in certain immovable properties situated in Tinnevelly which he claimed formed part of the joint family estate. It

was held that the properties in suit were the separate properties of Baliah Pillai, the deceased brother of Avudayappa Pillai. The suit was dismissed

by the trial Judge, the Subordinate Judge of Tinnevelly, and an appeal was filed to the District Court. During its pendency Avudayappa Pillai died

and the appellant in this Letters Patent Appeal applied to be brought on the record in his place under the provisions of Order 22, Rule 10 of the

Code of Civil Procedure. He claimed that he had acquired a half of Avudayappa Pillai''s interest in the suit.properties by virtue of a deed dated the

12th of February, 1934. The District Judge allowed the application, but on an appeal to this Court his decision was overruled by Abdur Rahman,

J., from whose judgment this Letters Patent Appeal has been filed. The learned Judge,held that the document on which the appellant relied did not

operate to give him a present interest in Avudayappa Pillai''s share in the suit properties. He considered that the case fell within the decision of the

Privy Council in Basant Singh v. Mahabir Prasad (1913) 25 M.L.J. 301 : L.R. 40 IndAp 86 : ILR 35 All. 273 . The decision of the appeal turns

on the effect to be given to Clause 5 of the deed. The clause reads as follows:

You should render help to me pecuniarily and prefer an appeal, etc., in the Tinnevelly District Court against O.S. No 22 of 1936 of Tinnevelly

Sub-Court on my behalf, and conduct necessary proceedings in the High Court thereon if necessary. In connection therewith you might engage

vakils you like, give vakalat and pay them fees, etc., appoint agents and conduct all proceedings. In respect of other properties in this District

which are not included in the above suit and wherein I should get a share, that is, in respect of shops and lands purchased by Eswaran Pillai in the

name of his wife Sitalakshmi Animal out of a portion of the money brought from Colombo and belonging to us, you should get my share by

conducting proceedings or by a suit according to your discretion. Similarly, you should, on my behalf conduct all necessary proceedings for getting

my share in the pangus, in the soda mill, cash shop, license shop, outstandings, cash amounts pertaining to the immovable properties and shops at

Colombo, and get a share peacefully or by conducting proceedings as you like. You should spend money as you like in respect of all that, and

keep accounts yourself. I should, without raising any objection, accept the accounts which may be given by you in respect thereof. The said

amounts would bear interest at one per cent, per mensem. You should adjust and take the said principal amounts with interest at one per cent, per

mensem out of the properties which I may get for my share. The remaining properties should be divided in equal halves and one half should be

taken by you as compensation for your trouble. The remaining one half should be delivered to my possession. You are entitled to join as party and

conduct proceedings in the above suits.

On the same day on which this agreement was executed Avudayappa Pillai executed a power of attorney in favour of the appellant in order to

enable the appellant to conduct the appeal on hrs behalf and collect the properties awarded to him in the event of the appeal being successful.

I am unable to read into Clause 5, a transfer of a half share in Avudayappa Pillai''s interest. There are no words there implying transfer, and

when the document is read as a whole, what it amounts to is that in the event of the appeal being successful and the appellant being able to collect

the properties belonging to Avudayappa Pillai, he was to divide them and give one moiety to Avudayappa Pillai and retain the other moiety for

himself. The words ""on my behalf"", which are used twice in the clause, indicate that the appellant was merely acting on behalf of Avudayappa Pillai

and not in his own behalf. The words ""one half should be taken by you as compensation for your trouble"", are definitely opposed to any idea of a

present interest. Therefore I am of the opinion that the reading of Abdur Rahman, J., of this clause is correct. The statement ""you are entitled to

join as party and conduct proceedings in the above suits"" amounts to nothing if the document does not confer upon the appellant an absolute

transfer of a half share, and I hold that it does not.

In Basant Singh v. Mahabir Prasad (1913) 25 M.L.J. 301 : L.R. 40 IndAp 86 : ILR 35 All. 273 , the agreement said that the financier ""will be a

co-sharer of one half share"" and ""that in case of success he will be entitled to proprietary possession of the share entered in paragraph 1 of this

document."" The Judicial Committee said that these provisions did not confer upon the financier a then present right to possession of a share in the

property which was the subject-matter of the suit. By the agreement it was contracted that till the suit was successful the financier should be merely

a partner or co-owner in a certain undivided fraction of the property. There was no personal grant or assignment to him of any separate share or

fraction of the property divided or undivided. At best the contract only amounted to this that in a certain future event he should become entitled to

the proprietary possession of a certain undivided fraction of it, and then have the right to have that fraction partitioned. That seems to me to be the

position here and I agree with Abdur Rahman, J., that Basant Singh v. Mahabir Prasad (1913) 25 M.L.J. 301 : L.R. 40 IndAp 86 : ILR 35 All.

273 has direct application.

I would dismiss the appeal with costs.

Krishnaswami Aiyangar, J.

The language of the agreement is by no means as clear as one might wish. I. was at first impressed with the argument of the learned advocate for

the appellant that a definite right to have the property divided was conferred by this document and there remained nothing further to be done by

Avudayapp''a Pillai for the appellant getting that right. But at the same time I find that there are no words of transfer capable of conferring an

immediate right on the appellant. Though the sentence ""you are entitled to join as party and conduct proceedings in the above suits"" might be

regarded as indicating the creation of a present right in the, appellant, effect cannot be given to it when the entire document is read as we must read

it in the circumstances in which the parties were placed. I therefore agree that the appeal must be dismissed.