Victor Murray Coutts Trotter, C.J.
1. The question that arises in this appeal is that raised by the twelfth paragraph of the memorandum of appeal. This was a suit brought by Narasayya's widow to reclaim certain properties and choses in action as being part of her husband's estate though actually in the hands of the defendant, the plaintiff in the adoption suit. The son-in-law, to use a term that will cover him in both the suits, has admitted at page 322 of the record that he adopted a course of business which resulted in his mixing up moneys which he contends are his own with moneys which in some cases he himself says are, and in other cases which are alleged by the other side to be, moneys belonging to the estate of Narasayya. It also appears from page 316 of the record that there are the gravest reasons to suspect, as the learned Judge suspected, that the son-in-law after the death of his father-in-law had suppressed documentary evidence in the shape of account-books which might have thrown light upon the question as to whose estate these various suggested items in the account belonged to.
2. The learned judge appears not to have had his attention drawn to the authorities applicable to a case of this nature. He took the view that the plaintiff having claimed certain specific items of property was bound to give evidence with regard to each item sufficient to make a prima facie case that the particular item belonged to the estate of her deceased husband. As we understand the authorities, that is not the law. The law appears to be this, and it has been settled by a long chain of authorities both in England and in this country: where a trustee, or a person who puts himself in the same position of accountability as a trustee, such as an executor de son tort, by virtue of his intermeddling with the estate, is proved to have amalgamated moneys of the testator with his own and especially if he can reasonably be suspected of having destroyed the evidence which would otherwise be available to separate the two estates, then he is called upon to account for all the sums that he alleges to be his own and to prove his ownership in them. That was laid down in the leading case of Lupton v. White 15 Vessey 432 and the head-note is this : 'Agent, or Bailiff, confounding his principal's property with his own, charged with the whole ; except what he can prove to be his own ; and, in this instance, the case of a breach of the terms, upon which the Court dissolved an injunction, the inquiry was directed with costs.' That is clear authority for the proposition that, where there has been such an amalgamation the burden will be passed from the person in the position of a cestui que trust That has been consistently followed in the English Ciurts of Equity, and a comparatively recent application of it will be found in the case of In re Oatway. Hertslet v. Oatway (1903) 2 Ch. 356 and the doctrine is by no means unknown to India. It was followed in two cases in this Court which have been cited to us Ma galuri Garudiah v. Narayana Rungiah ILR (1881) M 359. a decision of Sir Charles Turner, C. J., and Muthuswami Aiyar, J., and more recently in a case decided by Benson and Sundara Aiyar, JJ., Burugapalli Sriramulu v. Nandigam Subbarayudu and Ors. (1911) 10 MLJ 313. In those cases the principle laid down by Lord Eldon has been fully recognised and acted upin, viz., that the onus of proof clearly rests on the person responsible for confounding the two funds and thereby rendering identification difficult on the plaintiff's part.
3. We therefore think that this case must be referred back for a finding in accordance with the view of the law that we have laid down, namely, that this man must prove that all the items enumerated in paragraph 16, sub-paragraph 4 of the judgment belong to himself, the burden being on him. There is general evidence to lead to a very strong suspicion that this man has got into his hands some considerable portion of the deceased man's estate. There is evidence that it was a large estate at one time, and there is evidence that just a few years before his death it amounted to Rs. 40,000. And there are available sources of evidence which are not before us but can be resorted to by the learned Judge in the Court below as to how much of that estate is now left in the hands of the widow. If there is a deficit after taking into account the sums of money recovered by the Receiver, then the burden will lie upon the defendant. The general principle is clear that this man must show that those items which he alleges to be his own moneys belong to him. It is no great hardship in this case, because the debts are mostly evidenced by promissory notes and it cannot be very difficult, if his case is a true one, to rebut the presumption that they are really notes taken by him in respect of moneys due to Narasayya's estate, by proving that he himself lent the money at a particular date, that it was his own money and that the negotiable security was given to him to secure a debt due to himself and to nobody else. The case must go back for a finding with regard to those items with the onus of proving that they are his cast upon the defendant. Both parties can adduce fresh evidence. Finding will be returned in three months. Ten days will be allowed for objections.
4. Appeal No. 393 of 1923 : This appeal is withdrawn and is dismissed with costs (no Vakil's fee). The respondent will also get her costs in C M.P. No. 1348 of 1923.
5. I agree.