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K. Marudanayakam Pillai Vs. Subramanian Chettiar - Court Judgment

LegalCrystal Citation
SubjectCivil;Family
CourtChennai
Decided On
Reported inAIR1935Mad425; 158Ind.Cas.216; (1935)68MLJ643
AppellantK. Marudanayakam Pillai
RespondentSubramanian Chettiar
Cases ReferredLalit Mohan Pal Roy v. Dayamoyi Roy Chowdhurani
Excerpt:
- - ). it is there laid down very clearly that, if the plaintiff proceeds against a female owner in whose hands any estate lies in which she has but a limited interest and intends to make that estate liable for the debt on which he is suing, he must frame his suit in a proper manner, that is to say, give an indication in his plaint that it is the estate as well as the person of the female defendant against whom he is proceeding. further there is oral evidence that at the time each of these loans was contracted the creditor went to the appellant and made enquiries of him and satisfied himself that the money was required for the purposes of the estate and that it was necessary for the defendant to take the loan from him......to us more probable that, in making this specific reference to the defendant's properties in his plaint, the plaintiff did give an indication, though perhaps not so clear a one as he might have done, that he intended to make the estate liable.4. there is also some support for this view from the terms of the decree itself. the decree was in favour of the plaintiff for the sum claimed and granted this concession to the defendant that the amount need not be paid until four months had elapsed from the date of the decree. it was however provided in the interests of the plaintiff that the plaintiff should be at liberty 'to attach immovables and also claim rateable distribution from realisation under other decrees, if any, within the time granted to defendant to pay.' this again is not.....
Judgment:

King, J.

1. This appeal arises out of execution proceedings taken in O.S. No. 43 of 1930 in the Court of the Subordinate Judge of Mayavaram. That was a suit filed by a creditor against a Hindu widow in respect of two promissory notes, Exs. A and B, executed by her in April, 1928 and April, 1929, respectively for Rs. 3,000 and Rs. 2,000. In due course the creditor obtained his decree and applied for execution against the estate of the widow's husband which was then in her possession. In his execution application, the second respondent was the receiver in O.S. No. 7 of 1931. That was a suit filed by the nearest reversioner against the widow for the appointment of a receiver. The Subordinate Judge held that it was open to the creditor to proceed against the estate of the debtor's husband by an order passed in March, 1932. Subsequently in about July, 1932 the widow died. There was no long therefore any necessity for the continuance of the receiver in the suit, and it is the reversioner who now appears as the appellant in this appeal.

2. The first question which arose for decision before us was whether on the frame of the suit it was possible for the respondent-creditor to be permitted to proceed against the estate in the possession of the widow. We have been referred to numerous decisions on this point the conclusions of which are not altogether unanimous, but the conclusive authority must be the latest pronouncement of the Privy Council reported in Lalit Mohan Pal Roy v. Dayamoyi Roy Chowdhurani (1926) 52 M.L.J. 426 (P.C.). It is there laid down very clearly that, if the plaintiff proceeds against a female owner in whose hands any estate lies in which she has but a limited interest and intends to make that estate liable for the debt on which he is suing, he must frame his suit in a proper manner, that is to say, give an indication in his plaint that it is the estate as well as the person of the female defendant against whom he is proceeding. We have therefore to examine the records in the present case, and particularly the plaint, in order to see whether the respondent has given any such indication. There is no clear and express statement in the plaint that he wishes any decree to be passed binding the estate in the hands of the defendant; but we find in the concluding paragraph 8 the following prayer:

The plaintiff therefore prays that the Court may be pleased to pass a decree directing payment to him of the amount detailed below, with subsequent interest thereon according to the contract rate from the date of the plaint up to the date of realisation and all the costs of the suit with subsequent interest, on the liability of the defendant's properties.

3. It is argued for the appellant that the expression 'defendant's properties' may possibly mean the properties in which she has an absolute right, though there is no evidence in this case that any such properties exist, or, in the alternative, it may mean her life interest in the estate in question. But if the latter is the real meaning of the phrase, there seems to be no purpose served in the use of the phrase. It is of course obvious, when any plaintiff brings any suit against any defendant, that any property possessed by that defendant in which that defendant has an absolute right must be available to be proceeded against if a decree is granted, and it seems to us more probable that, in making this specific reference to the defendant's properties in his plaint, the plaintiff did give an indication, though perhaps not so clear a one as he might have done, that he intended to make the estate liable.

4. There is also some support for this view from the terms of the decree itself. The decree was in favour of the plaintiff for the sum claimed and granted this concession to the defendant that the amount need not be paid until four months had elapsed from the date of the decree. It was however provided in the interests of the plaintiff that the plaintiff should be at liberty 'to attach immovables and also claim rateable distribution from realisation under other decrees, if any, within the time granted to defendant to pay.' This again is not conclusive. But it seems to us an indication that what the plaintiff was really attacking was not so much the defendant as a person as the estate which the defendant was representing and, in the absence of all evidence to suggest that the defendant possessed any absolute right to any property whatever, we think that the immoveables referred to in the decree are those lands comprised within the estate which has now descended to the appellant. We think therefore that, applying the law as laid down in Lalit Mohan Pal Roy v. Dayamoyi Roy Chowdhurani (1926) 52 M.L.J. 426 (P.C.), there are enough indications in the plaint and the decree in this case to show that the plaintiff did indicate by the frame of his suit that he was proceeding against the estate.

5. It has then to be decided whether in point of fact the debts on which the plaintiff sued are or are not binding upon the estate. The first promissory note, Ex. A, was for Rs. 3,000 of which Rs. 2,000 is said to have been borrowed for 'family expenses' and Rs. 1,000 was in renewal of a prior promissory note, Ex. A-1. Ex. A-1 was executed by the defendant, the widow, in 1926 for Rs. 1,700 and was itself in renewal of Ex. A-2, which she had executed in November, 1923, for Rs. 2,100 the consideration being there expressed as required for 'estate expenses'. Ex. B, was executed in April 1929, as already mentioned and the consideration was Rs. 2,000 required for 'family expenses and the payment of Government kist.' It will be seen from an examination of these promissory notes that there is no clear indication or specific recital that the amounts borrowed under them were actually required for the administration of the estate, unless the expression 'estate expenses' in Ex. A-2, be held to be equivalent to this. But there is one very significant fact which applies to three out of the four promissory notes, Ex. A-1, A-2 and B, and that is that they were attested by the appellant himself, who at the time of the execution of all these three promissory notes, and indeed at the time of the execution of Ex. A also, was not only the nearest reversioner to the estate but in actual management of the estate. Further there is oral evidence that at the time each of these loans was contracted the creditor went to the appellant and made enquiries of him and satisfied himself that the money was required for the purposes of the estate and that it was necessary for the defendant to take the loan from him. This evidence has not been contradicted by any evidence on the other side, and we feel strongly that in the circumstances of this case it was incumbent upon the appellant to have given evidence against the respondent and to have explained what exactly the significance of his attestations was and why exactly he consented as manager of the estate to the incurring of these debts when according to his present argument, there was ample cash available to meet all the requirements of the defendant. It is true that attestation by itself is not conclusive test against the appellant, and it is true that there are some indications from a cursory examination of some of the accounts to support his case that cash must have been available. But we consider that, when he has refused to enter the box and when he has refused to justify his action in permitting the defendant to incur fresh loans, when, according to him ample cash was available, the significance of these actions tells very strongly against him. The respondent has done all that he could be reasonably expected to do in the way of precaution before advancing this money; he has applied to the man who unites in his own person the capacity of nearest reversioner and manager of the estate, and we think it comes with very ill grace from the appellant at this stage after he has sanctioned all the proceedings upon which the suit was based, to suggest that they are not binding upon the estate, now that he has succeeded to it.

6. We accordingly think that there are no grounds at all to interfere with the order of the learned Subordinate Judge and dismiss this appeal with costs.


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