Vedakannu Nadar vs Gnanayya Nadar

Venkatasubba Rao, J.—This Civil Revision Petition has been referred to a Bench on the ground that it raises an important question of law.

The question turns upon the construction of Article 28 of the Second Schedule to the Provincial Small Cause Courts Act. Under that article"" a suit

for a legacy, or for the whole or a share of a residue bequeathed by a testator, or for the whole or a share of the property of an intestate"" is

excepted from the cognisance of a Provincial Small Cause Court. The plaintiff sues for the recovery of certain jewels as the heir of the deceased

wife. He alleges that upon her death in the house of her brother the defendant, the latter wrongfully took possession of her jewClause That the

plaintiff has succeeded to his wife''s property is not disputed by the defendant; in other words, the case raises no question of a disputed succession.

In our opinion, on a proper construction of the relevant words, there must be a claim made by an heir as such, which claim is resisted by another

person advancing a similar claim; otherwise the article does not apply. This follows, as the various decisions on the point have held, from the very

use of the word ''intestate'' in the section. The matter has been put clearly by Banerji and Richards, JJ., who observe that the article contemplates a

suit between rival claimants to the property of an intestate Chhedi v. Gulabo I.L.R.(1905) All. 622. The authorities on the point have been fully

considered by a Bench of the Calcutta High Court which has adopted the same view Tika Sahu v. Chirkat Sahu 19 C.W.N 614 and it is

unnecessary to refer to the same authorities again. As pointed out in that decision, in no previous case has a different view prevailed. The lower

Court in holding that the article in question does not apply to the present suit, has thus come to a correct conclusion.

But Mr. Sridharan, the learned Counsel for the defendant-petitioner, contends that the lower Court''s view is wrong and relies in support of his

contention, upon two cases of our Court S. Samu Asari Vs. Kullappan Asari''s wife Anachi Ammal, and Rethinaswami v. Natarajan AIR 1933

Mad. 346. The first of them was decided by Ramesam, J., and the second is also a decision of a single Judge (Pakenham Walsh, J.) who follows

the earlier decision. We are unable to follow these cases, for, as a question of construction, we are inclined to agree that the view taken by the

Calcutta and the Allahabad High Courts is right. As to Bonda Chinnayya and Another Vs. Pottula Achammah, the present question did not arise

there and there is no more than a passing observation on which the petitioner can rely.

The object of the relevant part of the article seems to be to remove from the cognisance of a Small Cause Court, matters involving disputed

succession, for, they may raise complicated questions. A reference to the earlier part of the section strengthens this view. A suit for legacy or a

residue, as is evident from the provisions of the Succession Act, may raise intricate questions of law and a Small Cause Court is not expected to

deal with such questions.

In the result, the Civil Revision Petition is dismissed, but we make no order as to costs.