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Visvanatha Pandara Sannadhi Alias Sundara Pandara Sannadhi Vs. South India Bank, Ltd., Tinnevelly, Through Its Authorised Agent S. Subbaiyavier and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in42Ind.Cas.609
AppellantVisvanatha Pandara Sannadhi Alias Sundara Pandara Sannadhi;south India Bank, Ltd. Tinnevelly, Throug
RespondentSouth India Bank, Ltd., Tinnevelly, Through Its Authorised Agent S. Subbaiyavier and ors.;visvanatha
Cases ReferredSwaminatha Aiyar v. Srinivasa
Excerpt:
execution - attachment of debts due to judgment-debtor--suit by purchaser--evidence to identify debt, admissibility of limitation act (ix of 1908), schedule i, article 116--money bond--registered deed executed on same day providing for payment of debt-limitation-trust--trustee of temple, whether personally liable for debt. - .....of all the trustees and represents the temple as well.2. to go back to the claim in the suit, the suit was instituted in june 1910. a number of defences were raised. it was pleaded that the 1st defendant was not personally liable, that the debt was not properly identified and that the claim was barred by limitation.3. the subordinate judge held that the suit was in time, but that the 1st defendant was personally liable and not the devastanam. both the plaintiff and the 1st defendant preferred separate appeals. both of them wanted that the liability should be laid on the trust.4. on the first occasion when the appeal was heard, we found that mr. t. rangachariar appeared for the 1st defendant in his individual capacity as well as in his capacity of representing the trust......
Judgment:

1. The plaintiff obtained a decree against one Nataraja Aiyar in Original Suit No 30 of 1908 on the file of the Court of the Subordinate Judge of Tinnevelly. Certain debts due to Nataraja Aiyar were attached and brought to sale. Plaintiff became the purchaser. One of the debts thus purchased was due on a bond executed by the 1st defendant. He was at the time of the bond (16th June 1904) the Srishta Adhinakarta of the Devastanam. In order to understand the position of the 1st defendant, it is necessary td state that a large number of families in Jaffna are the hereditary trustees of the Devastanam. They appoint one among themselves as the principal manager or 'the Srishta Adhinakarta'. Transactions connected with the temple are entered into by him. There can be no question that he acts as the representative of all the trustees and represents the temple as well.

2. To go back to the claim in the suit, the suit was instituted in June 1910. A number of defences were raised. It was pleaded that the 1st defendant was not personally liable, that the debt was not properly identified and that the claim was barred by limitation.

3. The Subordinate Judge held that the suit was in time, but that the 1st defendant was personally liable and not the Devastanam. Both the plaintiff and the 1st defendant preferred separate appeals. Both of them wanted that the liability should be laid on the trust.

4. On the first occasion when the appeal was heard, we found that Mr. T. Rangachariar appeared for the 1st defendant in his individual capacity as well as in his capacity of representing the trust. Although we felt no doubt that the learned Vakil was trying to, advance the claims of both the interests dispassionately, we thought it desirable that the trust should be separately represented. Consequently, with his consent, the Devastanam is now separately represented by Mr. T. Narasimha Aiyangar.

5. The arguments on behalf of the 1st defendant may first be dealt with. The first contention that there is no evidence of a bond having been given for the debt comes too late. It was not raised in the Court below and it is not in the grounds of appeal to this Court. Further there is reliable evidence that a bond was executed.

6. The second contention of the learned Vakil is that in execution of the decree in Original Suit No. 30 of 1908 on the file of the Court of the Subordinate Judge of Tinnevelly what was attached' was 21 Ind. Cas. 936 (1914) M. W. N. 118: 16 Bom. L. R. 156. a claim for Rs. 12,000, (1899) 2 Ch. 309on a registered bond, 9 Ind. Cas. 729: (1911) 1 M. W. N. 133. executed by the 1st and 2nd defendants. It was argued that this description in no way tallies with the claim now put forward. After the attachment, a list of the properties to be sold was prepared. That was Exhibit B. In that the debt is mentioned as on a bond for Rs. 8,000 and the date is given as the 16th of June 1904. The mistakes as to execution by the two defendants and about registration are repeated. The contention for the appellant is that the plaintiff is only entitled to what he purchased or purported to purchase, and that as there are material discrepancies between the plaint claim and the claim as indicated in the attachment proceedings, plaintiff should be non-suited. Raja Thakur Barmha v. Jiban Ram Marwari ***(1) was relied on for this proposition. In that case, evidence was sought to be adduced to contradict a plain statement in the order of attachment. In the present case, the evidence let in only tends to explain certain discrepancies. What the Courts have to find out in such cases is whether the claim agrees substantially with the subject-matter of the purchase. A reasonable amount of certainty is all that can be expected having regard to the knowledge of, and the circumstances of the plaintiff. The principle enunciated by Lindley, M. R., in Cowen v. Truefitt Limited (1899) 2 Ch. 309. applies to this case. Vide also Palaniappa Tevan v. Sahdagopa Mudaliar 9 Ind. Cas. 729. We hold that the subject-matter of the suit is identical with what was purchased by the plaintiff.

7. We might deal with the question of limitation before considering the liability of the 1st defendant. Mr. T. Narasimha Aiyangar contended that the evidence shows that there was a stipulation that if one of the instalments was not paid, the whole was to become payable. The evidence of the 8th witness for the plaintiff is absolutely worthless. We do not attach any weight to the deposition of the 1st defendant. He is interested in saying that the claim is barred. He did not allege the bar of limitation in his reply notice. The further question is whether, the suit is not governed by the three years' rule under Article 67 of the Limitation Act. The Subordinate Judge has found that a sum of Rs. 3,000 was paid on two different occasions. In all likelihood, there was authority to make these payments, but the plaint does not say that limitation has been saved by these payments. The defendants rightly contend that they had no opportunities of showing that the payments were unauthorised. We do not, therefore, base our judgment on these payments, We think Exhibit A extends the period to six years. A perusal of that document shows that it was a consolidated agreement by, which the 1st defendant undertook to discharge the debts due to Nataraja Aiyar in a particular manner. One of the debts to be paid off was the plaint one. The document was executed on the same date on which the plaint bond was signed. We think the Subordinate Judge is right in his view that the bond sued on and Exhibit A formed part of the same transaction. As Exhibit A was registered and as it was in carrying out the terms of that document that default was made, in our opinion, Article 116 applies to this case and the suit is in time. See Tricomdas Cooverji Bhoja v. Gopinathji Thakur 39 Ind. Cas. 156: 32 M. L. J. 357: (1917) M. W. N. 363: 19 Bom. L. R. 450: 44 I. A. 65.

8. The main contention related to the 1st defendant's personal liability. The history of the transaction is this. In 1878, one Sattanatha, the then managing trustee, borrowed money. His successor Kailasanatha Pandaram borrowed from the same creditor in 1881. Sattanatha again became manager and he executed a document for Rs. 4,000 in 1897. The present 1st defendant succeeded him in 1904. He found that the old debts were subsisting. He himself borrowed on a promissory note Rs. 1,000 as soon as he entered office. He gave a consolidated document for Rs. 8,000 in June 1904. There is evidence that the monies borrowed by his predecessors were utilised for temple purposes. At any rate, a succeeding trustee should not be held responsible for antecedent mismanagement. Applying the principle of Hunoomanpersaud Panday v. Musammat Babooee Munraj Koonweree 6 M. I. A. 393: 1 Sar. P. C. J. 552., which the Judicial Committee have repeatedly extended to religious endowments [vide Konwar Doorganath Roy v. Ram Chunder Sen 4 I. A.S 52, we must hold that the 1st defendant was justified in charging the temple with the debts incurred by his predecessors. At any rate, it is clear that he did not intend to hold himself personally liable for those debts. The debt borrowed by him personally stands on a different footing. There is evidence that the income of the temple is more than sufficient to meet its current expenses. He has not disclosed all the circumstances in his evidence which led him to borrow. Prima facie, the promissory note executed by him makes him personally liable. For these reasons, we are not satisfied that he is not personally liable to the plaintiff for the debt contracted by him after he became the managing trustee. The principle of Swaminatha Aiyar v. Srinivasa, Aiyar (1917) M. W. N. 278. is applicable to this case. We are not now concerned with the equities that he may have against the Devastanam for reimbursement. We think sufficient grounds have not been shown for charging the Devastanam with liability in the first instance for the debt contracted by the 1st defendant.

9. We must, therefore, modify the decree of the Subordinate Judge, by directing that out of the sum decreed, the temple shall pay Rs. 5,968-7-5 on account of the amount of money borrowed by the predecessors of the 1st defendant, and that the 1st defendant shall pay the balance to the plaintiff. It has been brought to our notice that when execution was applied for, the first defendant undertook to pay 10 per cent, per annum interest on the amount decreed from 28th February 1912. This undertaking cannot bind the temple; but the first defendant is bound by it. Consequently he must pay the additional 4 per cent, interest from the 28th February 1912 upto this date. Interest will be at 6 per cent, per annum from this date.

10. As regards costs, we do not think that the temple should be made to pay the whole of it. If the 1st defendant had given before the Subordinate Judge the evidence which he has now given, he might not have been held personally liable for the whole amount. Under the circumstances, we think he should pay one half of the costs of the plaintiff in this and in the Court below. The temple will pay the other half. We fix the Commissioner's fee at Rs. 150. This fee and the other costs of the commission shall be solely paid by the 1st defendant. The expenses of engaging a Vakil for the 28th respondent shall be paid by the temple and the 1st defendant in the proportion already indicated.


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