Kandasami Pillai vs Muthuvenkatachala Maniagar and Others

A preliminary objection has been taken to the hearing of Appeal No. 220 of 1909 that the court is not legally constituted. By the proviso to

Section 101(2) of the Government of India Act, 1915, the Governor-General in Council is empowered to appoint persons to act as Additional

Judges of any High Court, for such period, not exceeding two years, as may be required, and this is subject to the further provision that the

maximum number of the Judges of a High Court shall be twenty. The Act which is a consolidating one reproduces in this, proviso the provisions of

the Indian High Courts Act, 1911 (1 and 2 Geo, V. Ch. 18). Reading the proviso with Section 32 of the Interpretation Act of 1889, it is admitted

that the power conferred may be exercised by the Governor-General in Council from time to time, but it is said, that as regards each High Court,

appointments can only be made for periods not exceeding two years in all, however much they may be required subsequently. That would be a

very singular provision in a permanent enactment and, if it has been intended, would certainly have been expressed differently. The ordinary Judges

who are appointed by the Crown, hold the office at the pleasure of the Crown and form the permanent strength of the Court. The object of the

measure clearly was to provide for occasions when the permanent strength of the court is unable to cope with the work for disposal, but the work

is not sufficient to justify the appointment of another permanent Judge, by enabling additional Judges to be appointed from time to time for such

fixed periods not exceeding two years as may be found necessary. It has been said to be the duty of the court ""to make such construction of a

statute as shall suppress the mischief and advance the remedy,"" Heydon''s case (1584) 3 Co. Rep. 7 and it is not necessary to strain the language

of the statute in order to do so in this case. We cannot adopt a construction which would defeat the intention of the legislature and soon render this

statutory provision inapplicable when most needed, merely because the power of appointing, additional Judges is vested in His Excellency the

Governor-General in Council and not in His Majesty, or because it is said that conceivably the power conferred might be abused; The proviso

must be read as meaning that appointments may be made from time to time for such period, not exceeding two years, as may be required from

time to time on each occasion when the power is exercised. The language and the policy of the Act are clear, and it is unnecessary to rely on the

fact that this construction was repeatedly acted on under the Act of 1911, as must have been perfectly well-known to those responsible from the

consolidating Act which reproduced its provisions. The objection therefore, assuming it to arise on the facts, affords us no ground for declining to

hear the appeal.

On the merits, we see no reason to differ from the conclusion arrived at by the District Judge. We have dealt with the facts fully in our judgment

on the main appeal in Palaniammal Vs. Muthuvenkatachala Maniagarar and Others, . The appellant in Appeal Nos. 219 and 244 of 1909 claims

under a deed of mortgage Ex. XV for Rs. 600 executed by the 1st defendant for himself and as guardian of his minor son. The money is said to

have been borrowed to pay one Umayurbagam Pillay who was 1st defendant''s agent under the power of Attorney, Ex HH. We see no reason to

differ from the findings of the District Judge based on a careful consideration of the evidence that the agent who was guilty of gross breach of duty

to his principal did not spend any moneys and that the mortgage Ex. XV executed in favour of his relation (a Vakil''s Gumastha) was not supported

by consideration. As regards the appellant in A.S. No. 220 of 1909, he has been found to have made common cause with the 21st defendant in

the interpleader suit whose interest was adverse to those of his principal the 1st defendant. The District Judge has gone fully into the conduct of the

appellant in paragraphs 67 and 68 of his judgment and we see no reason to differ from him. Owing to his breach of duty, we do not think he is

entitled to recover anything even assuming that money is due to him for work done as agent.

The appeals fail and are dismissed with costs in A.S. Nos. 219 and 220 of 1909 and without costs in A.S. No. 244 of 1909.