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Natesa Nattar and ors. Vs. Manicka Nattar and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1938Mad398; (1938)1MLJ181
AppellantNatesa Nattar and ors.
RespondentManicka Nattar and anr.
Excerpt:
- .....lost sight of and no evidence seems to have been directed to the question. had the point been properly taken - and we must hold on the pleadings here that it has not been - the question of burden of proof might probably arise, on which we express no opinion. then the question remains, will any good purpose be served by our merely declaring that the plaintiff is entitled to subrogation? in the absence of a finding that the widow has a right of recourse, such a declaration would be futile. on this short ground the suit fails and it is unnecessary to deal with the question of limitation. 5. the result is that the lower appellate court's decree dismissing the suit is confirmed (though on a different ground) and the letters patent appeal is allowed. in the circumstances, we direct each party.....
Judgment:

Venkatasubba Rao, J.

1. This is a Letters Patent Appeal from the judgment of Cornish, J. The facts so far as they are material to the question before us may be briefly stated. The plaintiff obtained a decree against the fifth defendant, the mother of defendants 1 to 4 on the foot of a promissory note executed by her. Defendants 1 to 4 were minors and the suit was brought and the decree was obtained against the mother alone. In execution of that decree the plaintiff, alleging that the promissory note was executed in respect of a debt binding upon the minors, attached their property. A claim petition was filed on their behalf, which was allowed. The plaintiff thereupon filed the suit, out of which the present appeal arises, for getting rid of the adverse order made against him on the claim petition. Subsequently, he was allowed to amend his plaint by the addition of a paragraph in which he alleged that he was entitled to be subrogated to the fifth defendant's right.

2. The District Munsif has found that there were dealings between the fifth defendant's husband and the plaintiff, that they were continued by the widow after her husband's death for the benefit of the estate and that it was in respect of the balance due on such dealings that the promissory note sued on, was executed by the fifth defendant. This finding has been affirmed by the learned Subordinate Judge, who, agreeing with the Trial Court, has further held that the right of subrogation claimed by the plaintiff has been made out. But both the Courts have concurred in dismissing the suit on the ground that it is barred by limitation. Cornish, J., differing from the lower Courts on the question of limitation, has on certain grounds made an order remanding the suit for re-trial; whether those grounds are right or not, it is unnecessary to discuss in the view we have taken.

3. Whether from the finding that the debt was incurred for a proper purpose it necessarily follows that it was binding upon the minor's estate, is also a question that need not be considered cf. Muthuswami v. Annamalai A.I.R. 1937 Mad. 1. Let it be assumed that the debt and the decree passed thereon were binding upon the estate; there can be no doubt then that a creditor of the widow can claim to be subrogated to her right against the estate of the minors. This right of subrogation arises from the principle, that the widow herself has a right of recourse against the estate, and that a creditor of hers may be put in her place against the assets, that is to say, that he has a right to the benefit of the indemnity or lien which the widow has got against the estate. This is a corollary to the doctrine that a trustee, who has properly accounted, has a right of recourse against the cestui qui trust. But where the trustee himself has wronged the estate, he can have no right and ex hypothesi his creditor can have none. In an action by a trustee to be reimbursed for any particular debt he has paid or an obligation he has incurred, it would be a defence open to the cestui qui trust, that on a general account being taken, the trustee would not be entitled to the relief claimed. Where the trustee himself has no right of recourse, his creditor, who claims no more than that he should be put in his place, can obviously get nothing whatsoever. As observed by Jessel, M.R., where the trustee has taken money out of the assets more than sufficient to pay the debts, the title of the creditor, so to speak, is a title to get nothing, because nothing is due to the trustee In re Johnson: Shearman v. Robinson (1880) 15 Ch. D. 548. See also the judgment of Venkataramana Rao, J., in Muthuswami v. Annamalai A.I.R. 1937 Mad. 1 already referred to.

4. Turning now to the pleadings, they are utterly defective, the plaint not even containing the necessary averment. The ingredients of the subrogation claimed appear to have been lost sight of and no evidence seems to have been directed to the question. Had the point been properly taken - and we must hold on the pleadings here that it has not been - the question of burden of proof might probably arise, on which we express no opinion. Then the question remains, will any good purpose be served by our merely declaring that the plaintiff is entitled to subrogation? In the absence of a finding that the widow has a right of recourse, such a declaration would be futile. On this short ground the suit fails and it is unnecessary to deal with the question of limitation.

5. The result is that the lower appellate Court's decree dismissing the suit is confirmed (though on a different ground) and the Letters Patent Appeal is allowed. In the circumstances, we direct each party to bear his own costs throughout.

ORDER

6. The plaintiff is directed to bring back into Court Rs. 15 the court-fee of which he obtained a refund under the-remand order of Cornish, J.


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