Thandayuthapani Chetty vs Alagar Chettiar and Another

Anantakrishna Ayyar, J.—One Alagar Chettiar obtained a money decree against Nallu Boyan and Tirupathi Boy an and in execution of that

decree he sought to attach the money due under a usufructuary mortgage executed by Suppayya Goundar in the name of Thayammal, wife of Nallu

Boyan, on the allegations that the said mortgage though standing in the name of Thayammal was really for the benefit of Nallu Boyan, that there

was a personal covenant to pay in the document, and that under the Madras decisions the decree-holder was entitled in execution of a Small

Cause decree through process issued by the Small Cause Court to attach the money debt thus due. Thandhayuthapani Chetti, who is the petitioner

before me, claiming to be the assignee of the rights under the usufructuary mortgage under Ex. 2, dated 11th October 1928, objected to the

procedure taken by the decree-holder. The plea of the decree-holder with reference to the assignment was that the othi in the name of Thayammal

was taken in her name benami for Nallu Boyan, her husband, and that the assignment by Thayammal to Than-dayuthapani was not binding on the

decree-holder. The learned Subordinate Judge of Dindigul exercising small cause powers held that under the rulings of the Madras High Court

reported in Nataraja Iyer v. South Indian Bank of Tinnevelly [1914] 37 Mad. 51, C. Peethikayil Namad v. Othenam Nambiyar [1914] 26 I.C.

508 and Ramaswami Mooppan v. Srinivasa Iyer [1916] 39 Mad. 389 the amount of money debt due under the said usufructuary mortgage could

be attached by the Small Cause Court under Order 21, Rule 46. Then the next question arose whether a Small Cause Court could proceed to

inquire into the allegation whether the othi deed was taken benami in the name of Thayammal but the debt really belonged to her husband and into

the other allegations of the decree-holder. The learned Subordinate Judge answered this question in the following terms:

As under the rulings of the Madras High Court the othi debt evidenced by Ex. 1 is liable to be attached on the small cause side, the questions

whether that othi was really benami for defendant 1 and whether the assignment is valid cannot be shirked. I therefore direct that the said questions

may be inquired into in this petition itself. The parties may adduce necessary evidence. Adjourned to 14th February 1929.

The present revision petition has been filed by Thandayuthapani Chetti the assignee under Ex. 2, against that order

The learned advocate for the petitioner pressed before me the point that the Small Cause Court has no jurisdiction to enquire into the question,

who really is the owner of certain rights secured under an othi document. He argued that the rights created by othi deeds are really rights in

immovable properties which could not be adjudicated by Small Cause Courts; and he contended that, unless the preliminary question as to who is

the owner of the othi rights be determined, the subsequent question, on which alone the Madras High Court have held against him, would not arise.

I am unable to accept this contention. As I understand the Madras rulings relied on by the Subordinate Judge, it is open to the decree-holder, in

cases where there are personal covenants in othi deeds for the payment of money-debts to attach the money-debts evidenced by such deeds as

simple money debts. The Small Cause Court has been held to have jurisdiction to do so. If there is no objection to that being done by the Small

Cause Courts, because the document by which the money debt was secured is an othi document, then it would seem to follow that consistently

with that line of cases, the Court could also hold an inquiry as to who is the real owner of the money so secured. It therefore seems to me that the

learned Subordinate Judge was right in his opinion that, when the other question as to the liability of such moneys to be attached by Small Cause

Courts has bean decided by the Madras High Court in favour of the decree-holder, the Small Cause Court should not shirk the inquiry as to who

is the real owner of the money. I hold that the learned Subordinate Judge was right in his view and accordingly dismiss the revision petition with

costs.