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The South Indian Export Co. Ltd. Vs. T. Subbier and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1916Mad449; (1915)28MLJ696
AppellantThe South Indian Export Co. Ltd.;t.N.P. Visvanatha Aiyar and anr.
RespondentT. Subbier and ors.;The South Indian Export Co. Ltd
Cases ReferredBijoy Gopal Muherji v. Girindra Nath Mukerji
- - ' a trade and its good-will are valuable property and when they are inherited by a widow, i do not see why she should not manage that particular business as heir in the same manner as she has authority to manage, say a zamindary estate which she might have inherited from her husband. the facts in this present case seem to me clearly to show that the condition in which the deceased krishna aiyar had left his business and his affairs at the time of his death in march 1909 was such that every body connected with that business or in a position to give valuable opinion as to the necessity or otherwise of carrying on that business was strongly and unhesitatingly of the view that unless the business was carried on by the widow it was impossible to save anything out of it for her as the.....sadasiva aiyar, j.1. i have had the great advantage' of a perusal of the judgment just now delivered by rny learned brother and though i agree practically throughout both in his conclusions and reasons i think it riot inappropriate to say a few words on one or two questions of law. which were elaborately argued on both sides. on the question whether a hindu widow is entitled to carry on the trade business which she inherited from her husband their lordships of the privy council have made the following observations in the case in amarnath sah v. achan kuar i.l.r. 14 all. 420: ' on this point ' (that is, the point whether the deceased kairate's widow and heir was under a necessity to borrow money in order to ward off total insolvency). 'their lordships agree with the high court in thinking.....

Sadasiva Aiyar, J.

1. I have had the great advantage' of a perusal of the judgment just now delivered by rny learned brother and though I agree practically throughout both in his conclusions and reasons I think it riot inappropriate to say a few words on one or two questions of law. which were elaborately argued on both sides. On the question whether a Hindu widow is entitled to carry on the trade business which she inherited from her husband their Lordships of the Privy Council have made the following observations in the case in Amarnath Sah v. Achan Kuar I.L.R. 14 All. 420: ' On this point ' (that is, the point whether the deceased Kairate's widow and heir was under a necessity to borrow money in order to ward off total insolvency). 'Their Lordships agree with the High Court in thinking the effect of Hira Lal's evidence to be that that at Khairati's death the business was solvent on paper, but that there were bad debts the losses on which were never recovered, though the business struggled on for a good many years. The view of the High Court is that the widow ought to have wound up the business at once, and that not having done so, she could not allege necessity to mortgage the inheritance in order to keep the money business going. But they do not lay down any general rule for such cases, and they feel the difficulty of a decision in the entire absence of authority. Their Lordships also feel great difficulty, and they would require to know much more about the nature of the business in question, and of the condition and fluctuations of this particular business before venturing to endorse the opinion of the High Court.' A trade and its good-will are valuable property and when they are inherited by a widow, I do not see why she should not manage that particular business as heir in the same manner as she has authority to manage, say a Zamindary estate which she might have inherited from her husband. In the present case, the deceased Krishna Aiyar and his elder brother Narayana Aiyar carried on a large skin trade as if it was their family business though it does not appear that it was an ancestral business. It was really a business which Pattammal's husband adopted as his occupation in life. I an not aware of any law which obliges a widow inheriting her husband's trade business to wind up the business as soon as her husband dies. Hindu ladies in the south of India are not generally Ghosha or Pardanashin. A large proportion of Brahmin ladies are literate in the vernacular and their average business ability is not appreciably, if at all, inferior to that of the average male Hindu. The facts in this present case seem to me clearly to show that the condition in which the deceased Krishna Aiyar had left his business and his affairs at the time of his death in March 1909 was such that every body connected with that business or in a position to give valuable opinion as to the necessity or otherwise of carrying on that business was strongly and unhesitatingly of the view that unless the business was carried on by the widow it was impossible to save anything out of it for her as the heir or for the contingent reversioner the 1st defendant. The debts then amounted. to about Rs. 160,000 and the estate, if realised without forced sales was worth about Rs. 140,000 (say, just sufficient to clear the debts). This is clearly established by the evidence of the plaintiffs 3rd witness Swaminatha Aiyar. The business was no doubt subject to fluctuations but there is nothing to show that at Pattammal's death the estate had drifted into a worse position than the position bordering between bare solvency and insolvency in which it was left by her husband Mr. Krishna Iyar. The mere fact that the indebtedness to the plaintiffs (one only of the numerous creditors) was about Rs. 15,000 at Krishna Iyer's death and was Rs. 25,000 at Pattamall's death affords no criterion by which the relative positions of the estate on the two dates could be safely judged as we do not know how far the debts to other creditors which amounted to nearly a lac of rupees, at Krishna Iyer's death had been paid off or added to during Pattammal's life time. I further respectfully agree with the Trial Judge for the reasons stated by him that a Hindu widow is entitled to carry on the business left by her husband under certain stated circumstances and the circumstances of this case show that it was a proper thing for Pattammal to have so carried on her husband's business As the very nature of the business requires borrowings for capital and owing to fluctuations in price results in the case of some of the transactions in the incurring of debts on redrafts, the incurring of such business liabilities by the widow ought to be treated as debts of necessity binding on the reversioner. When the touchstone of necessity is satisfied the question whether the managing male member of a Hindu family carrying on a business has greater powers of charging the property in certain cases than a widow who succeeds to her husband's business becomes a rather academical question. That the word ' necessity' should be given a liberal interpretation even when a guardian acts on behalf of a minor has been decided in Vembu Iyer v. Srinivasa Iyengar : (1912)23MLJ638 and a Hindu widow who is the sole owner of her husband's estate (though a qualified owner) cannot have a more restricted authority than the guardian of a minor owner the guardian having no right at all in the property.

2. On my above view of the facts and the law it is perhaps unnecessary in this case to consider the other question elaborately argued in this case namely whether the next reversioner's consent to and concurrence in the widow's carrying on the trade and incurring the liabilities in the ordinary course of carrying on the trade prevent him when he suceeds as reversioner at the widow's death from questioning the validity of the debt. As however the question was strenuously argued I shall state my views very briefly. The case law oh this point is rather concerned with alienations by way of sale or mortgage made by the widow and consented to and concurred in by the next reversioner than with the incurring of debts with his consent. I think that the principle underlying the bar in one case must apply in the other, case also. In the present suit the 1st-defendant did give his consent not only to the incurring of debts but also to the creation of the charge for' these debts on the plaint' properties except the Sembium tannery purchased by Pattammal after the date of Exhibit F.

3. The conflict of views as to the legal basis on which the consenting reversioner is held bound has been very acute. In the recent Full Bench case Naohiappa Goundan v. Rangasami Goundan (1914) 28 M.L.J. 1 decided by the learned Chief Justice, Seshagiri Iyer and Kumarasami Sastri, JJ it cannot be said that any views common to all the members of the Full Bench have been formulated which are binding on a division bench. On the question of the effect of the consent and concurrence of the next reversioner, it is no doubt true ' that the view taken by me in two cases (namely that it is conclusive as to the validity of the widow's acts done with such consent and concurrence, is not accepted by my learned brothers Seshagiri Iyer, J. and Kumarasami Sastri, J, the majority of the Full Bench. Seshagiri Iyer, J says that the Judgment of the Privy Council in Bajrangi Singh v. Manokarnika Baksh Singh I.L.R. (1907) 30 A.I., is not an authority for the contention that the assent of the reversioner is anything more than presumptive evidence of justifiable alienation. Kumarasami Sastri, J says 'the effect of the decisions of the Privy Council no doubt give to the assent a high evidentiary value but they do not make it conclusive proof.' I need not say that out of the great respect which I naturally have for the opinions of my two learned brothers I would have hesitated to act upon the different opinion which (following the learned Chief Justice) I have long held on this question if it were not for the latest pronouncement of their Lordships of 'the Privy Council which is found in' Harikishen Bhagat v. Kashi Prasad Singh (1914) 28 M.L.J. 565. This decision of their Lordships is dated 2nd December 1914 after the opinions of my learned brothers in the above case namely Nachiappa Goundan v. Rangasami Goundan (1914) 28 M.L.J. 1, had been pronounced on the 20thNovember 1914. Their Lordships of the Privy Council treat the consent of the next rever;sibner: not merely as presumptive evidence of the necessity for the alienation made by the widow but as a 'stringent equity' which ''fulfils the requirements ' of the law as to proof of necessity. I shall just quote the very words of their Lordships. 'The requirement of the law ' (as to establishing necessity) ' may, however, be fulfilled by proving the consent or concurrence of the reversioners to or in transactions.' The phrase ' stringent equity' (which can be enforced against the consenting reversioner, is taken by their Lordships from the words used by Lord Hobhouse in Jiwan Singh v. Misri Lal (1895) L.R. 28 IndAp 1., during the course of the argument of the counsel in that case. I think I am bound by the opinion of their Lordships that the consent and concurrence of the reversioner is not only presumptive evidence but it is further a 'stringent equity ' binding on the reversioners so as to prevent them from contending that necessity has not been sufficiently' proved and therefore that the transaction is not valid. In this connection I might be permitted to state that the same view of the Privy Council decisions as to the effect to be given to the consent of the reversioner, seems to have been taken by Sankaran Nair, J. in the case in Rungappa Naick v. Kamti Naick I.L.R. (1907) M. 366. The learned Judge referring to the dictum of their Lordships of the Privy Council in the Collector of Masulipatam v. Cavaly Venhata Narianappa (1860) 8 M.I.A. 500, says ' on the other hand, an alienation which would not otherwise be legitimate may become so if made with the consent of the husband's kindred ' or in other words, an alienation not for necessity maybe valid in certain cases, if made with the consent of the husband's kindred. The consent by itself makes the alienation, not otherwise legitimate, valid.' It is very difficult therefore, in my opinion to hold that the consent is only presumptive and rebuttable evidence of necessity and not a thing which creates an equity against the reversioner even if necessity is negatived.

4. In the present case, not only did the 1st defendant who was the sole presumptive reversioner (and who became the sole actual reversioner on the death of the widow) consent to the incurring of the debts and the giving of the properties by the widow as security to the plaintiff (Company) but he it was that took an active part in the negotiations and induced the plaintiff company to help Pattammal to carry on the business. The facts proved in this case as showing the 1st defendant's consent and concurrence were almost the identical facts which had been proved in a similar suit brought by another creditor of Pattammal and the appeal (Appeal No. 76 of 1913) therefore was decided by Sankaran Nair and Spencer, JJ. The same facts were also alleged in that case as regards the representation by conduct made by the 1st defendant in respect of Pattammal being a major (the present 1st defendant was the 7th Defendant in that other suit). I might further add that the plaintiff in that suit has been examined as P.W. 2 in the present case. The learned Judges Sankaran Nair and Spencer, JJ in their Judgment in the above appeal state as follows: 'The plaintiff swears that the 7th defendant and certain other defendants begged him hard after Krishna Iyer's death to lend money to the widow. He says they (the present 1st defendant and others) 'told him that the creditors of Krishna Iyer were threatening to attach Krishna Iyer's properties and that they would suffer great loss if he did not help' The learned judges further state that as the 1st defendant led the Plaintiff to believe that money could be safely advanced directly to Pattammal, such representation involves also the representation that Pattammal was not a minor and that there was very little doubt that the 1st defendant must have represented to the world that Pattammal was of an age competent to enter into contracts with others, especially by his having himself taken a power of attorney and a sale deed from her and by having made her execute other bonds as a major. The learned Judges further say that it would not be open to the 1st defendant afterwards to say that Pattammal was not a minor.

5. As On the same facts and almost the same evidence those learned Judges have held that the 1st defendant had estopped himself against the creditors who lent only to Pattammal to carry on her business to deny that the loans from those others were required to discharge the debts of Krishna Aiyar or to deny that Pattammal was a major, that decision and the question of estoppel seems to be a decision on a question of law and I am prepared to follow it.

6. In the result the appeal No. 71 will be dismissed with Plaintiff's costs. Appeal No. 63 was not pressed and will also be dismissed with costs.

Napier, J.

6. There are two appeals from the judgment of the Chief Justice (then Mr. Justice Wallis) in C.S. No 90 of 1912. The plaintiffs were the South Indian Export Company who sought to have a charge declared on certain properties specified in the schedules to the plaint with consequential reliefs. The properties had been mortgaged by deposit of title deeds by one Pattammal, the widow and heir of one T. Krishna Aiyar. The defendants 1 to 8 and 10 to 12 were persons claiming or thought entitled to interests in the properties, while the 9th defendant was a mortgagee of the properties from one of the reversioners, the 1st defendant who has since been found to be the reversioner entitled. The principal appellants before us are the 1st defendant and Messrs. Shaw Wallace and Co. the 9th defendant. The learned Judge has found that the widow was in fact a minor at the time of the alienations but that the first defendant was estopped from setting up that defence. He also found that, if she was a major, she would have been justified in carrying on the business of tanning, it having been her husband's business. The appellants contend that as a minor and a Hindu widow she could not carry on the trade and alienate the properties. They argue that the advances were not made on the representation of the 1st defendant, even if he did represent the widow to be a major which they also deny. They further contend that even if the 1st defendant is estopped with reference to the period of two months during which he held a Power of Attorney from the widow to manage the business, the plaintiff company were put on notice by the proceedings which he took within six months to oppose the widow's application for succession certificate on the ground of her minority. Another contention is that even if she was entitled to carry on the trade, she was not entitled to extend it, and that loss having occurred through the extension of business the property in the hands of the 1st defendant is not liable.

7. [His Lordship goes into the evidence and finds that Pattammal' the widow was a minor.]

8. The Important question then arises as to whether the 1st defendant was in fact aware of her minority at the time of the agreement Exh.F.--[His Lordship then discusses the evidence.] On a review of the whole evidence I am satisfied that from the first he was perfectly well aware of the fact that the lady was a minor, that he deceived the Company's agent and that his action was guided by what he thought to be his own interest in the matter. After the registration of the power of attorney arrangements were perfected for carrying on the business and were embodied in an agreement Exhibit F. of the 17th of May 1909 with which of course the 1st defendant holding the Power of Attorney was fully cognizant. I shall have to refer to this letter Exhibit JJ, on another point.

9. The next stage was the cancellation by the widow of her Power of Attorney to the 1st defendant. This was on the 2nd of June 1909 (Ex. XVI). After this date Ponhusami Pillai alone acted as tier agent. We now come to the proceedings to obtain the succession certificate on which the appellants rely as putting an end to the representation if there was any. It appears that on the 15th October 1909, Pattammal applied for a succession certificate, and the 1st defendant put in a counter-petition. (Ex. H.H.) alleging that she was a minor. Judgment was given by Mr. Pinhey the District judge on the 7th of March 1910 rejecting the application on the ground of her minority. The plaintiff's solicitors have made an admission in this suit that they were aware of those proceedings (Vide Ex. VII). The admission is that ' in or shortly after the latter part of October 1909 our clients knew that there were proceedings pending between Pattammal & Visvanatha Aiyar in which he raised the question as to her age and alleged that she was a minor.' It further appears that the plaintiffs produced before that Court the agreement of the 17th of May 1909 made between them and Pattammal. The notice is, therefore clear but it is to be observed that there is no admission that the plaintiffs knew of the Judgment in the case and, what is-most important, it is clear that the 1st defendant did not himself notify the plaintiffs of either the proceedings or the result. The learned trial Judge has taken the view that ' the fact that the nearest reversioner asserted that the widow was a minor was of no probative value whatever' the plaintiff company having no means of knowing whether she was a minor or not. And it is of importance that in proceedings taken as late as 1913 the Subordinate Judge of Trichinopoly found that she was a major. I can only attribute the failure of the 1st defendant to inform the Company to one motive namely, that he did not wish the business to be stopped, but desired to be in a position to do exactly what he has done namely to allow the business to go on in the hope that it would be remunerative but in the event of the early death of the widow to be in a position to challenge the alienations.

10. The question now arises, what is the effect of this notice? Mr. Chamier contends that it is not constructive notice from outside, but a direct notice from the 1st defendant to the company. I cannot accept this contention. The learned trial Judge has held that as the 1st defendant was not in a position to make restitutio in itegram he cannot claim that the notice operated to terminate the representation. Mr. Grant has invited our attention to a number of cases on this point, and relies on passages in Spencer Bower on Actionable Misrepresentation. The proposition is stated on page 202 ' Moreover actual and personal knowledge must be proved. Constructive or imputed notice is entirely out of the question. There is absolutely no exception to this rule. Thus it is of no avail to show merely that the representee had the means of knowledge within his reach'. The knowledge must be clearly proved to have been full and complete. Partial and fragmentary information or mere suspicion will not do. The case of Frederick Bloomenthal v. James Ford (1897) A.C. 156 is an authority very much in point. There the appellant lent money to a limited company upon the terms that he should have as collateral security fully paid up shares. The Company handed certificates for 10,000 shares to the appellant the certificates stating that they were fully paid up. The Company having gone into liquidation, the appellant was placed on the list of contributories. It was held that since the company had obtained the loan by a representation that the shares were fully paid up, which the appellant believed and acted upon, the Company and the liquidator were estopped from alleging that the shares were not fully paid up. The Lord Chancellor deals with the argument put forward in the words; ' you should have inquired, you should have observed certain circumstances; and if you had done that, you would have known that ' fully paid up shares' did not mean what on their face they purported to mean,' and declines to accept this as a defence. On page 165 His Lordship uses these words. ' The evidence of the appellant goes uncon-tradicted that he did not know and had no reason to know that the representation made to him was not perfectly true.' It is to be noted that the word used is ' know ' and it seems clear that in His Lordship's view circumstances raising a doubt as to the truth of the representation are not sufficient. Lord Herschell's Judgment is also to the same effect; and the other learned Lords agree. It cannot I think, make any difference that the representation was made not by the person who originally took the benefit. In this case the liquidator was held bound, and it was put on the ground of estoppel. This is exactly the position here. The representation was made by the 1st defendant and it is he who is estopped by it. In Redgrave v. Hard (1881) 20 Ch. d. 1 Jessel M.R. states the law as follows.

If a man is induced to enter into a contract by a false representation, it is not a sufficient answer to him to say ' If you had used due diligence you would have found out that the statement was untrue, you had the means afforded you of discovering its falsity, and did not choose to avail yourself of them.' And on page 21. ' If it (the representation) is a material representation calculated to induce a person to enter into the contract, it is an inference of law that he was induced by the representation to enter into it, and in order to take away the title to be relieved from the contract on the ground that the representation was untrue, it must be shown either that he had knowledge of the facts contrary to the representation or that he stated in terms, or showed clearly by his conduct, that he did not rely on the representation.' It is to be noted that here again the language used is knowledge of the facts; not suspicion or reason to doubt. Armison v. Smith (1889) 41 Ch. 348 is a case in which certain directors made an absolutely false statement in a prospectus which they issued, but subsequently sent a circular which if examined carefully showed the falsity of the statement. The Court of Appeal held that the circular did not contain an admission of the misrepresentation, nor did it inform the allottees that they could retire and get back their moneys, and that therefore it was of no avail to the directors. Lord Halsbury states as follows on page 370 'I do not agree that the circular put any one in the position of knowing the true facts of the case. Assuming a fraud to have been committed it obviously lies on those who rely on a subsequent explanation to show that such explanation was quite clear'. Cotton L.J. uses the same language, and both he and the Lord chancellor reserve their opinion as to what would have been the position if the persons who made the representation admitted the falsity of the representation and offered to refund the money paid. II is to be noted that in the above case notice was given directly by the person who had made the false representation, but even that it was held not sufficient as there was no specific admission of the falsity. This case supports the view taken by the learned trial Judge that there being no restitutio in integrum the notice is of no avail.

11. The appellants relied on the case of Dunstan v. Paterson 26 L.J.N.S. 267. This was an action of false imprisonment against a Sheriff. The defendant pleaded that the plaintiff at the time of the arrest represented herself to be the person against whom the warrant was issued. The plaintiff admitted that that was so, but relied on the fact that at a later stage she gave notice that she was not the person. The Court held that there were two periods of imprisonment, one commencing after the date of her notice, and that as to that second imprisonment she having given notice and it must be assumed having established that she was not the person against whom the warrant had been issued, she was not estopped by her admission. This case does not assist the appellants as the false representation was definitely withdrawn by the person who had made it and the representee had not altered his own circumstances in consequence of the representation.

12. I have examined the English cases because we have the authority of the Privy Council in Sarat Chunder Dey v. Gopal Chundar Laha I.L.R. (1892) C. 296, for the proposition that the law enacted in the Indian Evidence Act does not differ from the English Law on this subject, and it seems to me clear that if we are to find Lmitations to the right of the representee to claim an estoppe), we cannot go beyond what is to be found in the English cases, there being nothing in Section 115 on the subject. On a strict reading of that section it can only be a question of fact whether a person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. The section says nothing about the representation only operating for one act done in consequence of it, nor does it provide that suspicion doubt or constructive notice will terminate the representation. As long as a person is acting upon such belief, so long does the estoppel operate.

13. For these reasons I am unable to accept the argument of Mr. Chamier that the cases above referred to would only apply to the first advance made by the plaintiff company. In my view the intention of the representation is the determining factor. The 1st defendant put forward the deceased as a major not for the purpose of getting one single advance, but with the intention that the plaintiffs should carry on business with her. He was himself engaged in a similar business; he knew that the terms of the business required a standing advance from the company; and he also knew the terms of the agreement Ex. F. He intended his representation to induce the plaintiffs to carry on business, with the widow with a standing advance of Rs. 45,000/-and he knew at the time when ha opposed her proceedings before the District Judge that her property was mortgaged to cover the standing advance the stock and the general debit of her account. The representation was therefore, a continuous one, and the plaintiff company must be deemed to have made every advance and given every credit to the widow on the faith of that representation.

14. That being so, the case falls, entirely within the decisions above referred to, and their being no withdrawal of the representation and no attempt to put the plaintiff in the position they would have been in but for the representation the 1st defendant is estopped in respect of all advances and payments made to her.

15. The next objection raised is that the widow had no right to take up this trade and mortgage the properties as no necessity has been proved, and that the trade was itself of a speculative nature. With regard to the necessity the evidence establishes that at the time of her husband's death the general liabilities of his estate were little less than the assets. This is, however, what one would expect in a trade of this nature which must be carried on with borrowed capital. The extent of the trade dealings must always be proportionate to the security available for obtaining working capital. The estate may perhaps, not be called Insolvent but if the business had been suddenly closed down, it is clear on the evidence that after realising the properties on a forced sale to pay creditors, there would practically have been nothing left for the widow. By continuing the business she could make a profit which would of course vary according to the value of the skins in the European market, and there is nothing to show that at the date of her death the estate was not as solvent as it was when she began business. The fact that she was able to pay off one large debt and build a new tannery points the other way. The amount of her debit with the plaintiff's at the date of her death roughly Rs. 25,000 is less than the standing advance of Rs. 45,000 which her husband was allowed and was continued to her. It is true that a witness speaks of the business as speculative, but he means nothing more than that the value of skins is not constant, but rises and falls in the European market a condition which is common to the whole of the exports from this country. To say that a family business of this nature is not to be continued by the widow is practically to confine trade by a widow to petty shop keeping.

16. Our attention has been called to a number of cases including well known decisions of the Privy Council on the extent to which a widow may carry on an existing business and the meaning of the word necessity: undoubtedly there are observations in some of the older cases which would debar a widow from continuing a business of this nature. I am, however, very doubt-full whether in the altered conditions of the present day, such limitations would be upheld. I have read the judgment of my learned brother sitting with the late Mr. Justice Sundara Aiyar in Vembu Aiyar v. Srinivasa Aiyangar 1 where all the older cases are examined and, as it seems to me, the doctrine of necessity is merged in that of benefit to the estate. It that is an extention of the law as hitherto understood. I can only say that I am in entire sympathy with it. It is practically the view taken by the Chief Justice of Bombay in the case Sakarabhai v. Maganial (1912) 28 M.L.J. 638 which was followed by the learned trial Judge; I entirely agree with him in adopting the reasoning of the Bombay case, and I see no reason why a different standard should be applied to widows in this Presidency.

17. A small point is taken that the widow increased the business and should not have done so. The fact is not established, the argument being due to a misunderstanding of Ex F. and a confusion between the standing advance and the amounts credited to her on the discounting of her bills on the firm in England. But even if the stricter limitations of a Hindu widow's rights were to prevail, I am of opinion that they could not avail the 1st defendant or through him the 9th defendants Just as he is estopped from denying the minority, so also he cannot be heard to raise this latter plea. His consent is established beyond doubt. Indeed his first act on her behalf was to write and ask the Company to advance money not to be utilised in the purchase of skins but to clear outside debts, (vide Ex. JJ) and the request is founded on the reason that the business was a long standing one which he did not like to give up. In the decision of the Privy Council already referred to Sarat Chundar Dey v. Gopal Ghunder Laha I.L.R. (1882) Cal 296 the widow, who held the property benami for her husband during his life, mortgaged the property after his death, her son representing her in the transaction. Their Lordships used the following words on page 308'. ' There was a distinct representation by Ahmed (that is the son) professing to act as his mother's attorney, that she was owner in possession, having a good title to create a valid mortgage affecting the lands; and it is equally clear that the transaction was concluded on the footing of that representation; and that the creditor was thereby induced to lend the money on the security of the mortgage.' In this state of things the terms of Section 115 of the Evidence Act, directly apply to the case and neither Ahmed nor his representative the plaintiff can be allowed to deny the truth of what was thereby represented, believed and acted upon'. It is in my opinion impossible to distinguish that case from this,, bearing in mind the knowledge of the 1st defendant that the carrying on of this business entailed the mortgaging of the properties. In this view I think it is unnecessary to decide whether consent by a reversioner is evidence of necessity or a complete answer as against another reversioner who actually becomes entitled on the death of the widow. But I would observe that the language of the latest decision of the Privy Council in Hari Kishen Bhagat v. Kashi Pershad Singh (1914) 28 M.L.J. 565 seems to indicate that it is something more than evidence of necessity, that it is an equity in favour of the alienee. If so, their Lordships have gone a step further than in the case of Bijoy Gopal Muherji v. Girindra Nath Mukerji (1914) 27 M.L.J. 123.

18. One point remains.

19. The account shows that three sums of Rs. 6,000/-Rs. 1,000/-and Rs. 1,000/-were paid to Ponnuswami Pillai for the purposes of the trade very shortly after the death of the widow and it is urged that these amounts should be excluded from the account. It is proved, however by Mr. Simpson that these moneys were advanced for the purpose of preparing the skins for the market (Ex. ZZ.). The account kept by Ponnuswami Pillai from the date of the death shows that these amounts were expended on the trade, and there is a large credit given to the deceased on 31st May more than two months after her death, of Rs. 29,420. This represents the value of skins of about Rs. 37,000, and it is a perfectly fair inference that the value of that Rs. 8,000 is to be found in that consignment of skins. No attempt was made to show that the money was misapplied and in those circumstances I am clearly of opinion that the Rs. 8,000, is properly chargeable to the mortgages. The amount of. Rs. 1,521, rent of the tanneries does not appear in the account filed in the suit. Mr. Simpson P.W.I. states that this amount was kept in a suspense account and should have been credited. That sum Will therefore be deducted from the amount claimed. With this exception the appeal will be dismissed with costs. Appeal 63 will also be dismissed with costs.

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