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TMI Blog1947 (7) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... , a final decree was passed in a mortgage suit, which was original Suit No. 5 of 1921 on the file of the Subordinate Judge of Karonad at Madura, in favour of the appellants or their predecessors-in-title against the predecessor-in title of the respondent. For convenience, the parties interested from time to time in the mortgage decree will in this part of this judgment be referred to as the decree-holders and the person interested in the equity of redemption as the judgment-debtor. Execution proceeding No. 79 of 1933 was taken out to enforce the final decree and certain of the mortgage properties wore advertised for sale, but before a sale had been effected the Act was passed in March 1938. On 8-7-1938, the judgment-debtor made execution application No. 237 of 1938 to the said Subordinate Judge, which was instituted E.A. No. 237 of 1988 in E.P. No. 79 of 1933 in O.S. No. 5 of 1921, and was expressed to be made under Sections 20, 19 and 8 of the Act, and Sections 47 and 151, Civil P.C. The relief prayed was that the execution proceedings in E.P. No. 79 of 1933 and the auction sale then pending be stayed until the disposal of the question of the extent of liability of the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order dismissing I. A. No. 861 of 1938, in view of his finding in E.A. so. 237 of 1938. The reasons for making this further application I.A. No. 361 of 1938 are not disclosed by the record but, presumably, the advisers of the judgment-debtor thought that it might be held that two applications to the Court were necessary, one under Section 19 to the Court which passed the decree, and another under Section 20 to the Court executing the decree, as would be the case if the two Courts were different. The danger of limitation running under the proviso to Section 20 had to be considered. But, as in the pre-sent case the two Courts were the same, and it is clear that both the Subordinate Judge and the High Court in considering whether the judgment-debtor was an agriculturist within the meaning of, the Act were treating execution application No. 237 of 1938 as properly raising questions under Sections 8 and 19 of the Act as well as under Section 20, Application No. 361 of 1938 appears to have been redundant. 6. The judgment-debtor presented an appeal from the order of 9-2-1989, made in I.A. No. 361 of 1938, and that appeal came before the High Court of Madras at the same time as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court made under the section, no appeal was competent. The Court relied to some extent on the decision of this Board in Rangoon Botatoung Co., Ltd. V. The Collector, Rangoon ('12) 40 Cal. 21. That case, however, has been explained in later decisions of the Board as depending on the fact that the proceedings were from beginning to end ostensibly and actually arbitration proceedings. Their Lordships are not in agreement with the view of the Pull Bench of the High Court of Madras. The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal : see Secretary of State v. Chelikani Rama Rao ('16) 43 I.A. 192 and Hem Singh v. Basant Das ('36) 63 I.A. 180. 8. The question therefore to be considered in the present case is whether a right of appeal from the orders in question was conferred by the Civil Procedure Code. The order of 9th February 1939 was not made in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce by the High Court. That Court in allowing the appeal from the Subordinate Judge was no doubt influenced by such documents and they are in fact of substantial importance in considering the merits of the case. 11. The relevance of this matter is apparent is the consideration of the documents the interpretation of which is all important in the decision of this case. A few words of introduction are necessary to their consideration. 12. It appears that in the year 1843 there was litigation in the Madras Adalat Court in regard to the succession to the Ramnad Zamindari after the death of the late zamindar between his widow Parvathavardhani Naohiar and his mother Muthu Veerayi Nachiar who set up rival claims to the estate, the latter being plaintiff in the suit and the former one of the defendants. This Suit was eventually compromised upon certain terms. The Subordinate Judge had before him a document which is described as a certified copy of the special vakalat given by one of the parties to her pleader to compromise the suit. This document embodied the terms of compromise and in the absence of better evidence was no doubt admissible in evidence. The learned Judge had also before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all other properties remaining in her possession. 8. For the manovarti melchilavu (the monthly private and personal expenses) of the plaintiff, she shall enjoy the six sivuthettu pangus, belonging to the zamindari, in Darmasanam Kaunivayal village, Sivaganga zamin dari segaram, with powers of alienation such as gift, exchange, sale, etc. 13. There is nothing else in the razinama Which appears to be relevant. 14. It is this document which the respondent adduces as conclusive evidence that the four villages in question were freely dedicated to charity, that neither the plaintiff in the 1843 suit nor he, as claiming through her had any beneficial interest therein, with the consequence already stated that he established his right to be doomed an agriculturist within the Act. This 13 the contention which the High Court has upheld. 15. Their Lordships cannot take the same view of the document. It must be observed that the origin of the charity is not to be found in it. That is clear from the reference to the chatram which she is running at Ramnad. It cannot be inferred that the four villages had at an earlier date been dedicated to charity. All that can be gleaned from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is desirable to make some observations upon other aspects of the case. 17. The dispute being whether or not the respondent had a beneficial interest in the four villages, it is a strange course of events which leads to his repudiation of the view normally favourable to him. For he denies such a benefit with a view to a different advantage. This places an opponent, who would assert just that which the respondent might be expected to assert and would be in the beat position to prove, in a position of peculiar difficulty. The exact nature of this charity has been discussed but not decided in other proceedings and it was said in Appeal No. 128 of 1922 See 12 A.I.R. 1925 Mad. 1230 at p. 1232 [Ed.] in the course, of a judgment in the High Court at Madras: Unless and until it is found in a regular suit instituted by someone interested in the Trust that the whole income is devoted to charity, the decree in the present suit must provide that the maintenance should be a charge on the surplus funds if any derived from these villages and the lower Court's decree must be amended in so far as it directed a charge on the villages themselves. The suit, in which this appeal has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice-President of the District Board Madura wrote an endorsement which contained these words: ...the present trustee M. Muthoduraiswami Thevar seems to have been doing his best for the choultry in spite of the several inconveniences caused him by Kolanda Nachiar, his aunt. He will however it is hoped repair the second portions of the building, as 1, here seems to be a good balance in favour of the ahoultry. This statement, assuming it to be admissible evidence against the respondent, is conclusive that there was a charity but it is of little significance upon the question whether after the needs of the charity have been satisfied the surplus belongs to him. 19. Their Lordships have thought it proper to refer to these matters, because, the High Court having taken a different view of the construction of the razinama, it would not be right to assume that it is free from ambiguity. But they do not find in the transactions or conduct of the parties whether more or less contemporaneous with the deed anything which would lead them to depart from the meaning which they themselves attach to it. They must conclude therefore that the respondent has not established that he is an agricu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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