Decided on April 22,1970

S.GANAPATHI Respondents


- (1.) THIS Letters Patent appeal is directed against the order of Gokulakrishnan J. in proceedings arising under the Indian Lunacy Act, 1912. The relative facts may briefly be stated for a proper appreciation of the various aspects arising in this appeal. One Balakrishna Pillai died long ago possessed of properties leaving behind him two widows Meenakshi and Sornathachi and a daughter Visalakshi. Sornathachi dies in 1944 and Meenakshi died earlier. Visalakshi was a person of unsound mind. Her husband predeceased her. Her husband's brother on Natarajan applied for himself being appointed as the lunatic's guardian and manager under the Lunacy act. This was in O. P. No. 69 of 1944 on the file of the District Court, Tiruchirapalli. He was removed by court as such guardian on 9th June 1955 and in his place, kumaravelu, the lunatic's mother's brother's grandson the appellant here, was appointed as the manager of the lunatic's estate. At this stage one Devasenathipathi claiming himself to be the adopted son of balakrishnan set up title to the estate of the lunatic and filed a suit impleading the lunatic represented by the appellant. He was successful in the trial court but on appeal by the appellant to this court, the suit was dismissed. a further appeal under the Letters Patent to this court (L. P. A. No. 68 of 1960) was also dismissed. Devasenathipathi filed an application S. C. P. 6 of 1965 for leave to appeal to the supreme Court as against the judgment in L. P. A. No. 68 of 1960. While this application was pending, the lunatic died. Devasenathipathi. ignored the appellant, who was by then actively participating in the proceedings as the manager of the lunatic and purporting to be her relation did not consider him as the heir of the lunatic notwithstanding his alleged distant relationship set up by him. On the other hand. Devasenathipathi sought to implead one Ganapathi the first respondent before us as the only heir and legal representative of the deceased Visalakshi. This was not seriously objected to be the appellant. Ganapathi was described as Balakrishnan's sister's grandson. During the pendency of this application to implead the first respondent as the heir of the lunatic one Thangavelu interfered and claimed that he was nearer heir to the lunatic in the agnatic line and sought in S. C. M. P. 256 of 1965 in S. C. P 6 of 1965 for himself being brought on record in the leave to appeal petition. A report was called for by this court on the claims projected by Thangavelu, the report not being in favour of Thangavelu. This court impleaded Ganapathi as the heir of visalakshi by the order dated 9th February 1967. The learned Judges observed as follows: "the only question, therefore, for consideration in this petition is whether the petitioner (Thangavelu Pillai) is still entitled to urge that he is the legal representative of deceased Visalakshi and therefore he should be allowed to contest the Supreme Court petition. It is the case of the petitioner that if he is not made a party, the first and the third respondents herein would effect a compromise and share the estate in dispute between themselves. Though there may be some force in this contention we feel that he is not barred from instituting an independent suit against both the first and the third respondents to establish his claim to the estate. The law is well settled that any decision or finding given in a proceeding under Order xxii, Rule 5, C. P. Code should be limited only for the purpose of carrying on the appeal and it cannot have the effect of conferring any right either to heirship or to the property. The decision rendered herein will not operate as res judicata in a subsequent suit. In Appaji Reddiar v. Thailammal, ILR 56 Mad 689 = AIR 1933 Mad 417, it was held that an order under O. XXII, Rule 5, C. P. Code was not a final adjudication of the rights of the parties and did not come within the meaning of the word 'judgment' .
(2.) THUS while negativing the claim of Thangavelu and recognising Ganapathi as the heir of the lunatic it was made clear that such order as only provisional and the rights of parties were left open to be agitated in independent civil proceedings. This is indeed the purport of Order XXII, Rule 5, C. P. Code. It is to be noted that the appellant stood by the these proceedings and elected not to put forward any semblance of right to heirship of whatever nature. Ultimately, the application for leave to appeal to the Supreme Court was also dismissed. Thereafter Ganapathi, the respondent. filed I. A. 76 of 1968 on the file of the district Court, Tiruchirapalli (out of which the present proceedings arise) under Ss. 60, 80 and 82 of the Lunacy Act, 1912, read with S. 151, C. P. Code to direct the appellant to hand over possession of all the properties belonging to the lunatic on the foot that he was the heir of Visalakshi entitled to the same. The appellant opposed the application factually and legally. He set up a will of Swarnathachi of the year 1943 and virtually claimed title to the estate under it. His legal plea was that the court had no power to pass any order. The learned District Judge negatived the pleas and directed the delivery of the estate to the first respondent. On appeal Gokulakrishnan J. agreed with him. The present Letters Patent appeal is as against the said order of Gokulakrishnan J.
(3.) MR. Sundaram Aiyar, learned counsel for the appellant submits that the District court became functus officio on the death of the lunatic and no orders can be made and for a greater reason, an order for delivery of the estate as prayed for cannot be made. Reliance has been placed on the decision in David v. Thiagaraja, (1969) 82 Mad LW 597. The factual contention raised before the first court was not pressed but it was stated that as a full enquiry as to the relative merits of heirship was not undertaken by the learned District Judge of Tiruchirapalli, the matter requires rescrutiny and the order of this court on appeal is therefore not correct. Mr. P. Sivaramakrishniah for the first respondent contending contra states that the court is not helpless in such circumstances and the estate cannot be left in dubio in the hands of a quondam manager without appropriate orders being passed in the matter of the delivery of the estate in his hands to the rightful heir of the lunatic. His case is that the finding of the court in the above Supreme Court petition though tentative is prima facie acceptance of the first respondent's claim as the heir of Visalakshi and that therefore the direction to the appellant to hand over the estate is well founded.;

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