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T.S. Swaminatha Odayar, Lately a Minor by Guardian Meenakshi Achi but Now Declared a Major and Guardian on Record Discharged Vs. T.S. Gopalaswami Odayar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1938)2MLJ704
AppellantT.S. Swaminatha Odayar, Lately a Minor by Guardian Meenakshi Achi but Now Declared a Major and Guard
RespondentT.S. Gopalaswami Odayar and ors.
Excerpt:
- - the learned judge's observation to the contrary is clearly wrong. 4,400 a moiety of the decree amount, and that ramadurai aiyar was to be liable for a like sum, which represented the other moiety. in pursuance of a separate order made by us, shamanna aiyar, the clerk of the school who maintained the accounts, was examined, and his evidence makes it perfectly clear that the sum covered by the decree was borrowed and expended for the purposes of the school. it is satisfactory to note that these decrees have been now fully satisfied;.....in pursuance of the above order and the court delivered the followingvenkatasubba rao, j.1. the learned judge has now returned a finding on the matter on which he was directed to hold an enquiry. it relates to the amounts spent by the group consisting of defendants 3 to 8 in respect of the management of the national high school, mannargudi and the adjustments that have to be made in the final account. the learned judge has set out in paragraph 5 of his order the items that were in dispute. as to the first item his finding is against the group mentioned above. this part of the finding has not been questioned by mr. v. radhakrishnayya in his argument before us.2. as to the second item, the learned judge holds that it has been proved that the amount covered by it was spent by the 3rd.....
Judgment:
ORDER

1. The point to decide is whether the amount in question was borrowed and expended on behalf of the family. The books of the institution containing the necessary entries were in the High Court. The claimant therefore in support of his claim relied upon the entries as they appeared in the printed book marked Ex. II. It seems to us that we are not in a position to pronounce judgment in the appeal we are hearing without taking additional evidence. In pursuance of our direction the clerk who maintained the accounts has appeared and his evidence has to be recorded. The evidence is for the purpose of showing that the sum in question was borrowed and expended for the school.

2. The case again came on for hearing after the additional evidence was taken in pursuance of the above order and the Court delivered the following

Venkatasubba Rao, J.

1. The learned Judge has now returned a finding on the matter on which he was directed to hold an enquiry. It relates to the amounts spent by the group consisting of defendants 3 to 8 in respect of the management of the National High School, Mannargudi and the adjustments that have to be made in the final account. The learned Judge has set out in paragraph 5 of his order the items that were in dispute. As to the first item his finding is against the group mentioned above. This part of the finding has not been questioned by Mr. V. Radhakrishnayya in his argument before us.

2. As to the second item, the learned Judge holds that it has been proved that the amount covered by it was spent by the 3rd defendant (paragraph 7 of his order). The only question then is, are the other branches liable to contribute in proportion to their shares? The person that actually incurred the expense was, as already stated, the 3rd defendant. During the period in question, as appears from the main judgment, the group, of which the 3rd defendant was a member consisted of defendants 3 to 8. The judgment proceeded upon the ground that these defendants had not become divided in interest inter se. The learned Judge's observation to the contrary is clearly wrong. For the very large amount for which the 3rd defendant rendered himself responsible, the entire group was held liable, on the ground that there had been no inter se division in status. This being so, the only question is, are the other branches of the family liable for the amount or not? It being found that the expense was properly incurred the liability is a. common family liability and the other branches are equally liable for the amount. It follows from this that the sum in question must be borne by the parties in proportion to their shares as declared by the main judgment, and an order is made accordingly.

3. The next amount is that covered by paragraph 8 of the lower Court's order. It relates to the decree passed in O.S No. 57 of 1921. That was a decree obtained by one Kannappa Chetty against the third defendant and the stranger trustee Ramadurai Aiyar since deceased. There was a compromise decree passed in the suit and it recited that the third defendant paid Rs. 4,400 a moiety of the decree amount, and that Ramadurai Aiyar was to be liable for a like sum, which represented the other moiety. The point to decide is, was this decree passed in respect of monies properly borrowed on account of the institution in question? There was an appeal pending here relating to the school and the requisite account books remained in this Court. Owing to this fact, the claimant at the enquiry in question in the Court below contended himself with filing the printed book (Ex. II) which contained the relevant entries, and to this course no objection was taken there. While hearing the appeal we thought it necessary that the original account book and the original entries should be formally proved. In pursuance of a separate order made by us, Shamanna Aiyar, the clerk of the school who maintained the accounts, was examined, and his evidence makes it perfectly clear that the sum covered by the decree was borrowed and expended for the purposes of the school. The learned Judge, however, did not have this evidence before him and as formal proof was wanting, he was constrained to negative the claim. We must hold that the amount under this head must be borne by all the parties in proportion to their shares as declared by the main judgment.

4. As to the last claim dealt with by the learned Judge (paragraph 9 of his order), it is agreed by all the parties concerned that the finding is correct. There is a reference in the lower Court's order to an appeal pending in the High Court, subject to the result of which the finding was recorded. That appeal has been disposed of, and the qualification in the order has therefore become unnecessary. Paragraph 11 of the lower Court's order contains the necessary declaration but there is no reason why the liability should be limited to Rs. 11,981-5-0 mentioned there. It is agreed that the liability to be apportioned is the entire liability under the decree excluding the costs in the appellate Court. With this modification the lower Court's finding under this head is confirmed.

5. Then remains the subject-matter of C.M.P. No. 5202 of 1937. This relates to certain sums the sixth defendant paid subsequent to our main judgment, amounting in the aggregate to Rs. 27,461-8-0. These sums stand upon the same footing as those that went to make up Rs. 50,089-8-0 dealt with under that judgment. The sixth defendant, by having subsequently paid the amounts in question, has completely discharged the three decrees to which we made reference in the judgment, namely, O.S. Nos. 10, 12 and 26 of 1920. If the principle adopted in the main judgment is correct, the sum of Rs. 27,461-8-0, the subject of the present claim, must be borne by the parties in the same manner and in the same proportion as the amount of Rs. 50,089-8-0 dealt with, as already stated, by that judgment, and a direction to this effect is accordingly made. It is satisfactory to note that these decrees have been now fully satisfied; it has been possible to make the necessary adjustment in respect of the sums now claimed, although the payments were made subsequent to our main judgment, by reason of the fact that the final partition decree has not yet been made.


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