Murray Coutts Trotter, Kt., C.J.
1. I have had the advantage of reading the judgment prepared by my learned brother in this case and I entirely agree in the result. I only desire to say one thing in this connection. There seems to me to be a grave defect in the method of pleading and still more in the method of drawing up the issues which appears to be finding favour in these Courts. It is a settled rule of English pleading that any charge involving anything of the nature of fraud should be set out specifically with particulars where necessary. For instance, if breaches of trust are alleged on the part of a trustee it is essential that they shall be particularised in precise detail such as sums of money or other items of trust property alleged to have been misappropriated. Besides that safeguard we have the system in this country of having issues settled before the trial which is supposed to extract from the pleadings the matters which are really in dispute between the parties and to reduce them to a series of short propositions. That is not part of the English system. It is inherited from the Scottish system of jurisprudence. Not being familiar with that system 1 can express no opinion as to its merits or demerits in the country of its birth. But I do know this in a general way that a Scottish Judge who is settling issues treats it as a very serious matter and reduces his issues to a high degree of precision and exactitude even when full pleadings are demanded. In India I am afraid the system of settling issues is so perfunctory that the issues are really worse than useless as a guidance to the Trial Judge. That, at any rate, was in the main my experience during the eight years in which I sat day by day on the Original Side. Sometimes the issues were vitiated by the fact that when one got into the case it was quite obvious that they put the onus on the wrong party; sometimes they were so vague as to be a less guide to what really was to be tried even than the pleadings. I could not take a better example than the seventh issue settled in this case which runs as follows:
Have the trustees been guilty of any, and, if so, what breaches of trust, misfeasance, malfeasance and non-feasance in respect of the trust estate?
2. That opens the door to allow the defendants to bring any sort of charge at the trial, unspecified and unparticularised, and gives the plaintiff whose conduct is impugned, no sort of notion what charge and how many charges, all obviously of a very grave nature, he has to meet. I remember asking a very experienced and eminent County Court Judge in England whether he did not find difficulty from the absence of regular pleadings in the County Courts such as one would find in the High Court. He said:
No. I find that the parties know perfectly well what they have come to have decided and at the time their case is opened their advocates know exactly what matters to direct my attention to.
3. Whether that be correct or not, of course I am not in a position to say; but of this, I am quite certain that, if one is to act on that principle not only issues but pleadings may just as well be abolished to-morrow. That, I think, is not right especially in India because I think the litigant ought to know at any rate. in general terms what case he has got to meet, and especially in cases where there are allegations of fraud and breaches of trust. I think that those matters ought to be particularised to a point at which he knows not merely generally but in detail what he has to meet. I would personally suggest that issues settled as they are now settled by a Judge who knows nothing about the case and usually signs the issues drafted by counsel who know little more are worse than useless and have a fictitious importance which they do not deserve. I would far sooner see attempts made by better instruction in the Law College and above all in the Chambers where the budding practitioner learns his business in the art of pleading with sufficient definiteness to make it clear exactly what the Court is called upon to try. In every jury trial in England a junior counsel for the plaintiff before the case is opened summarises the pleadings giving the substance of them and concludes in these words: 'On that issue is joined and those are the issues which you have to try;' and a good junior will make it clear to the jury what exactly the issues are raised by the pleadings and takes a good deal of trouble to see that his summary is correct and omits nothing material. But, of course, with the laxity of pleadings which obtains in this country it is very difficult, it is almost impossible that the issues settled on those pleadings should not partake of the same laxity. The remedy appears to me to teach the budding practitioner to plead properly and definitely. It should not be difficult to teach a young man how to plead. There is a very good work by Dr. Blake Odgers in England and for the student it is not really necessary to go to the larger work by Bullen and Leake except for proper forms of pleading particular classes of cases. Two books on pleading have appeared in this country, one by Sir Cecil Walsh, K.C., who recently retired from the Allahabad High Court, and the other a bigger book which I looked through at the time but the name of the author of which I regret to say I have forgotten. Of course, at one time English pleadings were overlaid with technicalities and plaintiffs were often non-suited for some purely technical slip in the pleading and had to amend it and start all over again, all that after witnesses have been summoned, briefs delivered and everything was ready for trial. That state of things was put an end to by the Judicature Acts and I think the present state of pleading in England, though it leaves room for making it quite easy to distinguish between the work of a neat and slipshod pleader, really does enable the Judge to know exactly what the points at issue between the parties are, If a pleading is vague and leaves it obscure as to what precisely is the case intended to be set up, it is quite easy for the opposite party to take out summons for further and better particulars of this or the other paragraph of the statement of claim or. defence and hundreds of such summonses are disposed of after hearing counsel by the Masters every day in Chambers. It is the rarest thing in the world to have applications for particulars of allegations in pleadings in an Indian Court. I think that what happens is that the juniors in charge of the cases trust to the settlement of issues to bring definiteness into the case, a hope in which in my experience they have often been grievously disappointed and of course at that stage the leaders probably would not even have considered the case at all which may not come up for trial for months. Most Indian pleadings are overlaid with pleading the evidence in support of the particular facts alleged. That is useless cumbering of them but as a rule it does not do much harm. But in cases where there are allegations of fraud or kindred allegations more particulars are absolutely essential and I should like to see the Indian student and the young budding advocate put through a real course of proper instruction in the art of pleading. That would bear fruit in time if it is properly carried out. And I think it must be taught in the first instance by English professors or English barristers who worked under and know the English system. I am not gainsaying that in the hands of experienced advocates at the trial the opening of the case of the parties gets rid of a lot of verbiage and focusses the attention of the Court on what is really material and really necessary. Rut in my opinion it is almost impossible to gather it from the issues even with the assistance of the pleadings which I must honestly confess I think are less loose and vague in their terms than the majority of issues framed to-day. The Indian system of pleading we have adopted is of course taken from the English system of jurisprudence just as the framing of the issues is taken from the Scottish system as I have pointed out; but unfortunately particularity and preciseness which are characteristic of all the very ably drawn English pleadings are entirely absent from Indian pleadings for the most part. There are no doubt some well-drawn pleadings in India but almost invariably these are very often cases in which a summons has been taken out by the opposite party to compel the pleader on the other side to re-draft his pleadings in a more specific form. I think it would be well worth while to have a committee of legal teachers and a few practitioners to go into this matter and consider what suggestions could be fruitfully made to bring about a better state of things. I think the present is a case in which vague pleadings and vague issues might have led to serious embarrassment or even to a miscarriage of justice.
Pakenham Walsh, J.
This is an appeal by the 1st plaintiff against two parts of the decree in C.S. No. 595 of 1925. The suit arose in the following circumstance: The appellant is the adopted son of one Ratnavelu Chetti who was a Dubash in Best and Co. This Ratnavelu Chetti was a wealthy gentleman and on the 18th May, 1919, he executed a deed of trust setting apart certain moveable and immoveable properties for certain charities and for allowances to some of his relations. Effect was given to the deed of trust from July, 1919 and the founder died in February, 1922. His adopted son, the appellant, succeeded his father as President of the Trust Board. Owing to the fall in value of the trust properties, the trustees found themselves unable to meet the sums payable under the trust deed from the income of the trust properties. They passed a resolution in March, 1923, to cut down the allowances proportionately all round. This being objected to by some of the beneficiaries, an application was made on the Original Side asking for directions for the abatement of the provisions contained in the trust deed. Waller, J., ordered that a suit should be filed and consequently this suit was filed by the trustees. The materially contesting defendants were defendants 11, 12 and 18. Of these the 11th defendant is the sister's son of the founder of the trust. He is really responsible for any serious opposition to the suit scheme but he has not appeared in this Court to oppose the appeal. A Commissioner was appointed by the Court to go into the accounts and submit his report. His first report was dated the 15th March, 1927 and a further report was called for to take accounts as to what a building known as 'Kilton' cost for construction and how much of the total cost had been taken out of the trust funds. We are not concerned in this appeal with the matter of 'Kilton.' The decree states in paragraph 2 that the Commissioner's two reports be and are hereby confirmed, but with regard to the two matters on which this appeal is preferred and which are dealt with in paragraphs 4 and 5 of the decree, the Commissioner gives no decision on the first and on the second his report does not support the order passed in the decree.
4. The first is a matter of payment of Rs. 3,150 to the 1st plaintiff between February, 1922 and April, 1923. According to the deed of trust, during the minority of the 1st plaintiff the sum of Rs 350 per mensem was to be paid to the wife of the founder which to be for her own maintenance and that of the first plaintiff and for the education of the latter. After the first plaintiff attained majority, the founder's widow was to get Rs. 250 per mensem and the 1st plaintiff Rs. 350 per mensem. The 11th defendant objected that the 1st plaintiff did not attain his majority until the 7th April, 1923, whereas the trustees had been paying him at the rate of Rs. 350 per mensem from February, 1922 to April, 1923, as if he had attained majority. The 11th defendant, who, as stated above, has been the person really raising objections to. the suit, made no clear statement on the point in his written statement. He merely states in paragraph 10 that the allegations in paragraph 9 of the plaint are not quite correct. Paragraph 9 of the plaint states that, after the death of the founder, expenditure was considerably increased by the founder's wife and his adopted son becoming entitled to the monthly allowances of Rs. 250 and Rs. 350 respectively. All that the 11th defendant does in paragraph 10 of his written statement is to recapitulate the exact terms of the trust deed. He does not state definitely that the 1st plaintiff had not attained majority or at what age he actually did attain majority. In the written statement filed by the 12th and 18th defendants, there is a definite statement that the 1st plaintiff became entitled to a monthly allowance of Rs. 350 only on the 7th April, 1923, when he attained majority. There was no specific issue framed on the point and the only issue by which this matter can be said to be covered is the general issue No. 7:
Have the trustees been guilty of any, and, if so, what breaches of trust, misfeasance, malfeasance and non-feasance in respect of the trust cstale?
5. The matters that were referred to the Commissioner were to take the following accounts, namely, (a) an account of the properties of the trust estate, and (b;) an account of the income that the said properties will fetch if proper and reasonable care is exercised. Before the Commissioner, the 11th defendant led evidence as to the minority of the 1st plaintiff. The 1st plaintiff's advocate seems very properly to have objected on the ground that it was not a question referred to the Commissioner. The Commissioner, (while he took some evidence), probably in view of the fact that he was not asked to report on this matter, merely states:
If the Honourable Court accepts the defendants' contentions, the receipt of this item of money by the 1st plaintiff would be unauthorised.
6. No evidence was led on the matter before the learned Judge whose only reference to it in the judgment is as follows:
The next question is as regards the sum of Rs. 3,150 which was collected by the trustees after the death of Ratnavelu Chetti and taken by the 1st plaintiff in his personal capacity as and for his allowance. So far us this is concerned, it is clear that he was not entitled to any allowance until he attained majority. The 1st plaintiff has not shown how he was entitled to this allowance. He will therefore bring back Rs. 3,150.
7. In our opinion, the learned Judge has thrown the onus on the wrong side in this matter. It was for those who attacked the administration of the trustees to show that they had committed misfeasance in this respect. As noted above, the question was not one referred to the Commissioner and objection was taken by the 1st plaintiff to his enquiring into it. The Commissioner gave no opinion on the matter and as no evidence on it was led before the learned judge, there is properly speaking no evidence on the point and therefore the alleged misfeasance has not been proved. The learned advocate for the appellant has, however, taken us through the evidence adduced on the point before the Commissioner and in our opinion the evidence on the 1st plaintiff's side is much superior to that adduced by the 11th defendant. The 11th defendant was the only witness examined to prove that the 1st plaintiff was not a major when his adoptive lather died. Now the 1st plaintiff's adoptive father together with the 11th defendant had filed a suit in 1922 of which the plaint is Exhibit E. The date of the plaint is unfortunately not given in the printed portion extracted and the date put in the index, 15th July, 1917, is obviously wrong for the suit was only one of 1922. In Exhibit H the present 1st plaintiff was the 5th defendant and while, in the case of other defendants who were minors, the fact is distinctly stated and their guardian named, the present 1st plaintiff is not described by his adoptive father, (the 1st plaintiff in that suit), or by the present 11th defendant, (the 2nd plaintiff in that suit), as a minor. This suit was, as regards his adopted son, a formal one by Ratnavelu and it is not alleged that there was any adverse interest between the plaintiffs in that suit and the present 1st plaintiff. When the 1 lth defendant was cross-examined on this point before the Commissioner, he had no explanation to give and said he did not know whether the averment in the plaint was right or wrong and that he signed it because Ratnavelu Chetti asked him to sign it. On the other side, the 11th defendant relied on Exhibit IV. This purports to be a copy of a Transfer Certificate given when the 1st plaintiff left the Lutheran Mission
8. Secondary School at Purasawalkam and the entry relied on in it is 'date of birth as per Admission Register, 7th April, 1905.' In the first place, the document itself has not been properly-proved. It is professedly a copy of the Transfer Certificate. The 11th defendant, as D.W. I says, he did not get it from the Headmaster but from1 the 7th defendant. The latter is not called nor is the Headmaster called. Even if Exhibit IV be accepted as a correct copy coming from proper custody, it would not be evidence on the point of date of birth because it is a copy of a copy. It is the Admission Register alone which would be evidence of the date of birth. As a matter of fact, Exhibit IV possesses very suspicious features. We find in it purporting to be part of the document 'No. 61 of 1922-23.' These certificates have got to be given at the time the boy leaves the school for another school. How this number 61 of 1922-23 could appear on a certificate that the boy left on 30th April, 1915 has not been explained. Another suspicious feature is that the pupil's name is given there as R. Rathnasabapathy. The 1st plaintiff had admittedly not been adopted at the time he left the school. His name was then Manickam, and his initial should have been 'M.' and it was only after his adoption that he would get the initial 'R.' of his adoptive father Ratnavelu. The 11th defendant filed Exhibit II alleged to be a copy of a will executed by Ratnavelu Chetti on the 3rd February, 1922, in which the 1st plaintiff is described as a minor. Notice was served on the plaintiff's vakil for the production of this will before the Commissioner but he refused to produce it on two grounds: (1), as noted above that this matter of the 1st plaintiff's majority was not referred for enquiry to the Commissioner, and (2) that the pleader did not represent the 1st plaintiff in his personal capacity but as a trustee. This is all the evidence about 1st plaintiff's minority. Not only was there no specific issue raised on the point but, assuming that such an issue was raised, the onus has been thrown on the wrong party. From a strictly legal point of view, there is no evidence at all and so the contention of 1st plaintiff's minority fails. Even if the evidence tendered before the Commissioner be taken into account the evidence afforded by Exhibit H is much better than that of Exhibit IV which is really not admissible at all and Exhibit H is certainly as good evidence as Exhibit II. We therefore find that the 1st plaintiff is not liable to restore the sum of Rs. 3,150.
9. As regards the second matter appealed against, this is dealt with in paragraph 5 of the decree. It concerns a sum of Rs. 10,713-8-0 expended for the repairs of the property known as 'Rathna Villa,' which the appellant has been ordered to restore. As stated by the learned Judge, the trustees met and refused to allow a claim which the 1st plaintiff had made with regard to this expenditure, vide Ex. Z. The learned Judge then proceeds:
The further question however arises as to whether this sum of Rs. 10,713-8-0 which is now in dispute and which was claimed as having been spent for repairs was money taken out of the trust funds or money taken out of the private funds of Rathnavelu Chetti. On this part of the case the onus is on the 1st plaintiff, who claims this sum, to show that it was taken out of the private funds of Rathnavelu Chetti. it finds ail entry in Exhibit G-l which is the trust account book. I am not' satisfied on the evidence before me that it has been proved that this amount which finds a place in Exhibit G-l was really spent out of the private funds of Rathnavelu Chetti.
10. The accounts, however, filed and exhibited prove clearly that the expenditure must have been out of the private funds. The Commissioner's report contains nothing to the contrary and the only reference in the report itself to this sum is where it is merely quoted as a criterion for what would be reasonable expenditure on repairs and whitewashing of buildings. Turning to the accounts, Exhibit AA shows that the total receipts of the trust fund were Rs. 78,473-0-10 and the total expenditure was Rs. 1,10,378-6-8. Of this, the trustees disallowed a sum of Rs. 10,713-13-8'on account of improvements to 'Rathna Villa' thus reducing the net expenditure to Rs. 99,664-9-0. Deducting from this the amount collected Rs. 78,473-0-10, the balance due to the founder's estate is Rs. 21,191-8-2. These are the accounts which the Commissioner has found correct. It is obvious therefore that this amount of Rs. 10,713-13-8 which the 1st plaintiff spent for the repairs to 'Rathna Villa' must have been taken out of the private estate of Ratnavelu Chetti, because even after disallowing it from the expenditure, there was still a sum of Rs. 20,000 and odd due to the estate. In other words, 1st plaintiff could not possibly have got the money out ?of the trust. He therefore is clearly not bound to make it good. The appeal must be allowed on this point also.
11. In the result, the appeal is allowed throughout. The costs will be as follows: The costs of respondents 25 and 26 to come out of the Trust Estate (Rs. 425). The 11th respondent to pay Rs. 350 as and for the costs of the appellant and the balance of the taxed costs to be recovered by the appellant from the Trust Estate. The respondent or each set of respondents who have appeared by their advocates other than the 11th respondent to be paid Rs. 50 each out of the Trust Estate.