IN RE: D. MUTHUKUMARASWAMY ALIAS RAJAKUMAR BY POWER OF ATTORNEY AGENT M.S. DAKSHINAMOORTHY Vs. STATE
HIGH COURT OF MADRAS
In Re: D. Muthukumaraswamy Alias Rajakumar By Power Of Attorney Agent M.S. Dakshinamoorthy
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K.S.PALANISWAMI, J. -
(1.) THIS is an application under Order 3, Rule 1 of the Original Side Rules for leave to institute an originating summons in this Court. Sadasiva Mudaliar, applicant's grandfather, owned certain properties in Nilgiris District. He executed two indentures, one on 19th June, 1955 and another on 7th March, 1962 conveying different portions of his properties constituting the applicant as the beneficiary for his life time with remainder over to the children of the applicant to be born. The applicant wants to dispose of a portion of the property in which he has got life interest for the purpose of prosecuting his studies abroad. For this purpose, he wants the leave of the Court. He has filed affidavits of the intending purchasers who have expressed their willingness to purchase the property for a certain price. As the property is situated outside the jurisdiction of this Court, the office returned the originating summons and asked the applicant to apply for leave of the Court. It is in these circumstances that the applicant has taken out this application.
(2.) THE question is whether the originating summons itself is competent, as the property, in respect of which permission is sought for, is wholly situated outside the jurisdiction of this Court. The applicant has not impleaded any party as defendant. I called upon the learned Counsel for the applicant to satisfy me that even though no portion of this property is situated with in the jurisdiction of this Court, the originating summons can be entertained by this Court. Mr. Ramaswami Reddiar the applicant's Counsel, stated that he was unable to find any direct authority. But he cited the Full Bench decision in Velliappa Chettiar v. Govinda Dass : AIR 1929 Mad 721 which, according to him, is almost near to the point. That case is hardly, relevant. There, the point decided was whether a suit by a purchaser of lands situated outside the jurisdiction of this Court for specific performance of a contract made within the jurisdiction of this Court by parties resident therein is cognisable by the High Court in its ordinary original civil jurisdiction. On a review of the case law, the Full Bench answered the question in the affirmative. The view taken was that the suit is not a suit for land within the meaning of Clause 12 of the Letters Patent, Madras.
(3.) THAT an originating summons is a suit within the meaning of Clause 12 of the Letters Patent, Madras, is not and cannot be disputed - -Vide Rajan v. Pankajammal : AIR 1941 Mad 194 , 'where the reason is stated thus: There are two decisions of the Calcutta High Court, Provos Chandra v. Ashuthosh Mukherjee I.L.R.(1929) Cal 979, and Sewdayal Ramjeedass v. Official Trustee of Bengal I.L.R.(1931) Cal. 768, which support the appellant's contention that this is in reality a suit for land, and there is another decision of the same High Court, Vedabala Debee v. Official Trustee of Bengal I.L.R.(1935) Cal. 1062, to the opposite effect. Proceedings pursuant to the issue of a summons under Order 45 constitute a suit. There is a plaint and a written Statement. Rule 5 of the Order says that the plaint when accepted shall be filed and numbered as an ordinary suit and entered in the register of suits, but after the serial number the letter 'O.S.' shall be placed to distinguish it from plaints filed in ordinary suits.
In the same decision one of the questions that arose was whether an originating summons can be instituted in respect of a property situated outside the limits of the Madras City. The Bench consisting of Leach, C.J., and Horwill, J., felt that the case involved substantial questions of law not only by reason of the aforesaid question but also on account of the various other matters which arose for consideration. There, the testator appointed A and B as executors and bequeathed his ancestral property to A. In a dispute between the executors and the testator's widow and daughter, the latter applied for Letters of Administration with a copy of the will annexed. The executors did not oppose the grant and renounced their claim as executors. The widow and daughter took out an originating summons for direction of the Court alleging that A had lost his right to his legacy as a result of his renunciation. A, who was in possession of the testator's ancestral property, opposed the summons on various grounds, one of them being that the proceedings constituted a suit within the meaning of Clause 12 of the Letters Patent and that the High Court had no jurisdiction since the properties comprised in the legacy were situate outside the limits of Madras City. The Bench found that the controversies involved substantial questions of law, the questions being (1) whether the renunciation signed by A deprived him of the legacy ; (2) whether any final adjudication could be given since A was in possession of the ancestral properties ; and (3) whether the suit was entertainable by the High Court, though the property was situated outside the City of Madras. In that view, the learned Judges dismissed the originating summons directing the plaintiff to seek relief in a properly framed suit.;
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