BODI VENKATASWAMI AND ORS. Vs. ADADA MAHALAKSHMI AND ANR.

JUDGEMENT

(1.) DEFENDANTS I to 4 have preferred this second appeal from the appellate decree of the District Judge of Vizagapatam declaring the title of the plaintiff and granting her an injunction in respect of a plot of land of the extent of about 12 cents and a palmyra hedge situate therein in the village of Jannavaram in the Vizianagaram zamindari. The litigation which concerns property of a trifling value has had a long and sinuous course coming, as it does, for the fifth time for adjudication by a judicial tribunal. The melwaram in the land vests in the Zamindar of Vizianagaram within the limits of whose estate the property is situate. The Court of Wards had been in management of the Vizianagaram Zamindari during the period with which we are concerned in this case. The District Munsif who first tried the suit dismissed it on 26th October, 1943, on the ground that the plaintiff had not proved her title to the plot in question or her possession of it within 12 years of suit. The plaintiff appealed to the Subordinate Judge of Vizagapatam who, instead of deciding the question of disputed title between the plaintiff and defendants 1 to 4 each of whom claimed only a kudiwaram interest in the land, held quite unnecessarily, that the presence of the Court of Wards in charge of the Vizianagaram zamindari before the Court was necessary in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit and remanded the suit to the District Munsif for disposal after making the Court of Wards a party. The judgment of the Subordinate Judge was delivered on 2nd August, 1944 and the unfortunate plaintiff was obliged to apply and did apply to make the Court of Wards a party defendant to the suit. The application was ordered on 18th September, 1944 and the Court of Wards was impleaded as the fifth defendant. Then started fresh trouble for the plaintiff. The Court of Wards promptly filed a written statement that it was not a necessary party to the suit and that the suit itself was not maintainable in law as the statutory notice of two months had not been given to it as required by Section 49(1) of the Madras Court of Wards Act (I of 1902). At the fresh hearing after remand certain documents including the Survey and Settlement Register of the village of Jannavaram were filed and a fresh issue was framed as to the maintainability of the suit without the notice required by Section 49 of Madras Act I of 1902. The District Munsiff found in favour of the plaintiff's title and granted the declaration and injunction sought by her. Defendants I to 4 preferred an appeal to the District Court of Vizagapatam which affirmed the decision of the District Munsiff. Hence this second appeal.

(2.) TWO questions were argued by Mr. E. Venkatesam, the learned Counsel for the appellants. First he contended that the suit should have been dismissed for want of the notice required by Section 49 of the Madras Court of Wards Act. He contended that two months' previous notice was a condition precedent to the maintainability of the suit and the Court had no jurisdiction to entertain or decide the suit without such notice. He contended that the plaintiff in the present case should have given the Court of Wards two months' notice, waited for the expiry of the two months and then applied to the trial Court for impleading the Court of Wards as a party. The same contention was urged beford the learned District Judge who held that, though -the Court of Wards through its advocate waived all objections on the ground of want of notice, there could be no waiver of the statutory notice of two months which was a peremptory and fundamental pre -requisite of every suit against the Court of Wards. He relied on the decisions of this Court interpreting the analogous provisions of Section 80, Civil Procedure Code, namely, The Government of the Province of Madras v. Vellayan Chettiar, (1944) 2 M.L.J. 65 and Chidambaram Chettiar v. Municipal Council, Karaikudi and the Province of Madras A.S. No. 126 of 1941 (unreported). In the former case it was held by Leach, C.J. and Shahabuddin, J., that Section 80, Civil Procedure Code, was express, explicit and mandatory and admitted of no exceptions. If the notice required by that section was not given, the Court had no jurisdiction to try the suit. In the latter case it was held by Leach, C.J. and Lakshmana Rao, J., following the decision in Madhav Rao Anand Rao v. The Collector of Kolaba, (1890) 6 Bom. Printed Judgments, p. 386 that the giving of notice under Section 80, Civil Procedure Code, was necessary even when the Provincial Government was added as a party to a suit already instituted pursuant to an order of Court directing the addition of the Government as a party. The District Judge, though he purported to follow the above decisions, nevertheless held that the prior order of the Subordinate Judge directing the Court of Wards to be added as a party to the suit operated as res judicata and the objection to the maintainability of the suit for want of the statutory notice was no longer available to the defendants after the order of remand. I confess my inability to understand this reasoning of the District Judge. I consider, however, that the learned District Judge went wrong on the question of waiver and that the decisions of this Court relied upon by him have been superseded by a recent pronouncement of the Judicial Committee.

(3.) THE appeal to the Privy Council was from the decision of this Court in Government of the Province of Madras v. Vellayan Chettiar, (1944) 2 M.L.J. 65, and the case squarely raised the question whether the view of this High Court or the contrary view of the other High Courts on the points of waiver and estoppel was correct. The report of the argument before the Judicial Committee shows that all the relevant cases on the topic were cited before the Board. Lord Simonds who delivered the judgment of the Hoard distinguished the prior decision of the Board delivered by Lord Sumner in. Bhagchand Dagadusa v. Secretary of State for India, (1927) 53 M.L.J. 81 :, I.L.R. 51 Bom 725 (P.C.) in this way: