035-NLR-NLR-V-13-KANTAIYER-v.-RAMU.pdf
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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wood Benton.
KANTAIYEB v. BAMUD. 0., Jaffna, 1,334.
Decision in an action under section 247, Civil Procedure Code, that minorwas not guardian's legitimate son—Subsequent application byguardian for letters of administration to minor's alleged mother'sestate—May administrator re-open the question of minor’s legiti-macy?—Res judicata—Civil Procedure Code, s. 207.
Id an action under section 247, Civil Procedure Code, to which therespondents were parties, the appellant, as guardian of his minoreon B,was unsuccessfulinclaiming certainlands asproperty
belongingto B by inheritance from bis (appellant's)wifeC.
Subsequently the appellant obtained letters of administration toC’s estate, and conveyed the lands to B as C’s son and heir.
On objection taken by respondents, it was held that the decisionin the action under section 247, Civil Procedure Code, that B wasnot appellant’s son by C was no bar to the appellant raising thequestionof B’s legitimacyinthe testamentaryproceedings,asthe
appellantdid not appear inthesame capacity inboth the cases.-
A
PPEAL from a judgment of the District Judge of Jaffna-{B. N. Thaine, Esq.)-
One Sapapathy, as judgment-creditor in C- B., Point Pedro,7,896, seized certain lands as belonging to the judgment-debtors,the first and second respondents to the present appeal.
The appellant, as natural guardian of hjs minor son Velupillai,claimed the lands on behalf of Valupillai. The claim was upheld.Thereupon Sapapathy instituted C. B., Point Pedro, 8,511, undersection 247, Civil Procedure Code, to have the lands declared to beseized and sold in execution of his writ 7,896. The Court held thatVelupillai was not entitled to the lands, on the ground that he wasnot a son of Walinachi, who was admitted to be the original owner.Thereupon the appellant took out letters of administration to theestate of Walinachi in the present case and conveyed the estate toVelupil'-ai, and filed his final account accordingly. The first andsecond respondents filed their objection to the final account- being*passed, on the ground that the property had been conveyed toVelupillai, who was not the son of the intestate, but the illegitimateson of the appellant by one Meehachi- They further contendedthat the question of Velupillai’s legitimacy was finally decidedbetween the parties in C. B.. Point Pedro, 8,511. The learned
6—N. X 86163 (5/49)
Nov. 23,1909
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Nov* 83,1909 District Judge held that the decision in C. R., Point Pedro. 8,511.Kantaiyer estopped the administrator from re-opening the question of Veiu*v. Bamu pillai’s legitimacy.
The administrator appealed.
Ranagasabai, for the appellant.
Wadsworth, for the respondent.
Cur. adv. vult.
November 28, 1909. Wood Renton J.—
The short question raised by this appeal is whether a finding bythe Court of Requests of Point Pedro in case No. 8,511 of thatCourt that one Velupilai was the illegitimate son of the appellantby a woman Meenachi, and not his legitimate son by his deceasedwife Walinachi, of whose estate he is now administrator, bars theappellant, by way of res judicata, from re-opening the issue ofVelupillai’s legitimacy in the present proceedings.
In C. R., Point Pedro, 8,511, one Sapapathy, a judgment-creditor,had seized land alleged to belong to his judgment-debtors, Ramuand his wife Theywanai a sister of Walinachi. Velupillai and theappellant, as his guardian, claimed the land on the ground thatVelupillai was Walinachi’s legitimate son. The Court of Requestsset aside the claim, holding that Velupillai was illegitimate. Againstthat decision there was apparently no appeal. The real parties inthat case were on the one hand Ramu and Theywanai, and on theother Velupillai and the appellant in his personal capacity. Thevalue of the land brought the claim within the jurisdiction of theCourt of Requests; and it was not disputed by Mr. Ranagasabai,on the argument of the appeal, that that Court had a right todetermine the issue of Velupillai’s legitimacy, for the purpose ofdisposing of the particular claim with which it had there to deal.Subsequently to the decision in C. R., Point Pedro, 8,511, theappellant obtained letters of administration to Walinachi’s estatein testamentary case, D. C., Jaffna, 1,834, conveyed the wholeestate to Velupillai, and filed his final account. Ramu and They-wanai filed objections to the account, alleging, infer alia, that thejudgment in C. R., Point Pedro, 8,511, operated as res judicataagainst Velupillai and the appellant. The learned District Judgeupheld this objection. I have come with regret—for the appellantdeserves no sympathy—to the conclusion that this decision is wrong.The parties in D* C., Jaffna, 1,384, are personally the same as thereal contestants in C. R., Point Pedro, 8,511. The legitimacy ofVelupillai is in issue in both cases. The District Court of Jaffnahas undoubted jurisdiction over the subject-matter of this suit.Mr. Ranagasabai argued that, inasmuch as the Court of Requestscould not have entertained the testamentary suit, or adjudicatedon the title to the whole estate, it was not a . Court of competent
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jurisdiction to decide the issue of legitimacy for the purpose of the Nov- S3,1909present proceedings. I cannot agree. The Indian cases cited by WoodMr. Kanagasabai in support of this contention, of which Dinkar Renton J.Ballal Chakrader v. Harishridar Apte 1 and Misir Raghobardial v. Kaniaiyr-Sheo Baksh Singh 3 may be taken as examples, turn on the terms of •• Bamusection 13 of the Indian Act X. of 1877, which finds no analogy inour local Statute Law. The only point that has given me difficultyis as to whether the issue of Velupillai’s legitimacy can be held tocome within the words “ right to relief ” in the explanation tosection 207 of the Civil Procedure Code. It clearly comes withinthe following words of the Explanation, since it could be “ set up orput in issue between the parties ” to the Court of Bequests action.
Keeping in view the very comprehensive terms in which section 207and its Explanation are couched, and the manifest intention of theLegislature, in using that language, to prevent multiplicity of suitsover the same subject-matter or issues, I think that where, as inC. B., Point Pedro, 8,511, the fact of legitimacy is asserted ordenied as a ground for the acceptance or rejection of a claim, it mayfairly be said that a “ right to relief '' has been set up or put inissue between the parties. But here the appellant does not appearin the same capacity as in C- B., Point Pedro, 8,511. There heclaimed as guardian of Velupillai. Here he has filed his final accountas administrator of Walinachi.
The appeal must be allowed with costs of the appeal, costs in theDistrict Court to abide the event. The case will go back for trial.
Hutchinson C.J.—
I agree that the appeal should be allowed on the ground that theappellant, the administrator of Walinachi’s estate, was not a partyto the action in the Court of Bequests.
Appeal allowed; ease remitted.
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1 [1889) I. L. R. 14 Rom. 206.
* {1882) I. L. R. 9 Cal. 439