Madras High Court
T.S. Swaminatha Odayar, Lately A Minor ... vs T.S. Gopalaswami Odayar And Ors. on 9 May, 1938
Equivalent citations: (1938)2MLJ704, AIR 1939 MADRAS 81
JUDGMENT Venkatasubba Rao, J.
1. For a proper understanding, of the contentions raised, it is necessary first to' follow closely thq pedigree given below and Secondly to glance at some of the main conclusions arrived at the previous stages pithis unfortunate and protracted litigation.
(1) SEPPURUMAL ODAYAR.
| ___________________________________________________________________ | | | (2) Sinnu Odayar (3) Subramania Odayar (4) Ramu Odayar (died) | | | (5)Sendalangara ____________________ (11) Samu Odayar (died) | | | (8) Kuppu (9) Muthu | | Odayar Odayar | | (died) (died) | (6)Adopted son | | | Sivavadivelu (10) Balasubra- No issue. | Odayar mania Odayar. | (died) | | | (7)Ramabhadra | Odayar (Plaintiff). | ___________________________________________________________________ | | | | | (12) Ayyadurai (13) Singara (14) Sivaswami (15) Sivavadi- (16) Gopala-
Odayar (died) velu Odayar Odayar (died) velu Odayar swami
| (died) Odayar
| adopted by (Deft. 1)
| No. 5. |
(25) Widow (26) Vijaya-
Purnananthachi raghunatha
____________________ (Deft. 9). Odayar
| | (Deft. 2).
(17) Bala (18) Bala
guruswami krishna
Odayar Odayar
(Deft. 3) (Deft. 4)
| |
| (22) Ayyadurai
| (Deft. 8).
________________________________
| | |
(19)Ven (20) Swami (21) Male
kata- nathan child
raman (Deft. 6) (Deft. 7).
(Deft. 5). (adopted by
Singaravelu
Odayar).
______________________________
| |
(23)Somasundara Odayar V (20) Adopted son
(died) Swaminathan
| (Deft. 6).
(24)Widow Gowri Achi
(Deft. 10).
2. It will be well to mention at the outset that when the present partition suit (out of which these appeals including the memoranda of objections arise) was commenced two decades back, the family with which we are concerned was possessed of considerable wealth; but its position has during the pendency of this litigation so declined, that its members, all but the sixth defendant, have either been obliged to be adjudicated insolvents or to enter into arrangements with their creditors. The result is, that the parties, excepting the sixth defendant (the appellant) who is still solvent, have ceased to possess any personal interest, the rights of the plaintiff and the third defendant having passed to the Official Receiver of West Tanjore, of the fourth defendant, to the Official Assignee of Madras, and of defendants 1 and 2, to trustees appointed under a composition deed. They have all been brought on the record, but it will be convenient to this judgment to refer to the original parties and not to their representatives.
3. From the pedigree above, it will be seen that the family consisted of three main branches: those of Sinnu, Subramania and Ramu. In 1895 an arrangement was entered into (by means of a deed marked Ex. A) consequent upon certain disputes that arose in the family. Balasubramania (No. 10 in the pedigree) separated from the remainder of the family, his share having been ascertained and allotted to him. It was agreed that the other members should continue to live jointly, their shares, however, having been defined on a basis agreed to by the parties, widely different however, from those they would be entitled to, under the law. One of the disputes that was set at rest by the deed, related to the status of Sivavadivelu (No. 6 in the pedigree) the plaintiff's father. He claimed to be the adopted son of Sendalangara and under the family arrangement that claim was recognised; but his share was fixed (and this is important) as though there had been no adoption and he continued to occupy his natural place in the family as Samu Odayar's son.
4. Then the next event of importance happened in the year 1917, when Singaravelu (No. 13 in the pedigree) probably the most prominent member of the family then, adopted Swaminatha (the 6th defendant and the appellant before us) the natural born son of Balaguruswami. But for this adoption, as the pedigree will show, Singaravelu's branch would upon his death become extinct and its effect therefore would be to diminish the quantum of the share of defendants 1 and 2 in the family property. The adoption of Swaminatha. was followed by a notice issued a week later (that is, on 13th May, 1917)... It was sent by three persons: (1) Singaravelu acting for himself and the minor 6th defendant, (2) Balaguruswami the 3rd defendant, and(3)Balakrishna the 4th defendant, and was addressed to the 1st and 2nd defendants and the plaintiff. That notice amounted to a declaration on the part of those that sent it, of their intention to divide from the rest of the family. Within a fortnight thereafter (that is, on 31st May, 1917) Singaravelu died. These three events which quickly followed each other, that is, the 6th defendant's adoption, the issuing of the notice and the death of Singaravelu, led, as might be expected, to dissensions and disputes among the parties. The next important event which intensified the ill-feeling between the parties, was the granting of certain leases, to which reference will be made, by the 3rd defendant on the 26th July, 1919. The result of it was, that the present suit was filed in August, 1919, and on an application made immediately, a receiver was appointed on the 26th April, 1920, who took charge of the properties on the 1st June of that year and remained in possession till 1931. The institution of the suit was preceded by a scramble for possession in certain magisterial proceedings, to which we do not propose to refer here in any detail.
5. In the suit, several contentions were raised. To begin with, the plaintiff (who, it may be remarked, had not even been born in 1895) repudiated the validity of the family arrangement made in that year, attacked the allotment under which his father was given only a fifth share, and claimed, in virtue of his representing one of the two main surviving branches, a half share in the family property. Another contention related to the adoption of the 6th defendant, which defendants 1 and 2 attacked. A further issue was raised, namely, granting that the plaintiff was bound by the deed of 1895,did it alter the status of the family into one of severance? Then finally, the question was raised whether the leases granted by the 3rd defendant were binding upon the other members of the family. The Subordinate Judge who delivered his preliminary judgment on the 25th October, 1924, found that the arrangement of 1895 was binding upon the plaintiff, that it effected a disruption of the joint family, that the 6th defendant was validly adopted by Singaravelu and that the leases granted by the 3rd defendant were fraudulent and nominal. Pursuant to his findings, as to the binding character of the family arrangement and its legal effect, he held, adopting the allotment agreed to under the deed of 1895,'that (1) the plaintiff, (2) the 1st and 2nd defendants, (3) the 3rd and 4th defendants together with their male issue, (4) the 6th defendant, and (5) the 9th defendant Sivaswami's widow as representing his branch, were entitled each to a fifth share in the family estate. The parties at the trial ranged themselves mainly into three groups represented by (1) the plaintiff, (2) defendants 1 and 2, and (3) defendants 3 to 8. The effect of the notice issued before the suit to which reference has been made, was to sever the group of defendants 3 to 8 from the other two groups. The institution of the suit produced the further result of dividing the plaintiff from each of the two remaining groups. In other words, the combined effect of the notice and the filing of the suit was to split the family into the three groups mentioned above, each becoming divided in status from the remaining two.
6. The learned trial Judge in his decree treated the 6th defendant as having become divided from the other members of his sub-group and accordingly allotted to him, as above mentioned, a separate.1/5 th share; but in the directions he gave as to accounting, he treated the entire group as a single entity, without recognising the 6th defendant's status as a separated member, making the whole sub-group liable as one unit for certain amounts.
7. Appeals were filed against the Subordinate Judge's judgment. The High Court in 1930 confirmed his findings on all the main issues excepting one. The learned Chief Justice and Curgenven, J. (who heard the appeals) held that the plaintiff was bound by the deed of 1895, that the 6th defendant became Singaravelu's son by adoption and that the leases granted by the 3rd defendant were fraudulent and nominal. But differing from the trial Judge, they held that the legal effect of the deed mentioned above was not to produce a disruption of the joint family and gave effect to that view, by negativing the claim to a share of Sivaswami's widow (the 9th defendant) and dividing the 1/5th share allotted to her by the trial Court among the other members of Ramu's main branch. Vide Ramabhadra Odayar v. Gopalaszvami Odayar (1930) 59 M.L.J. 782 : I.L.R. 54 Mad. 269 where this case has been reported. It must be mentioned here that during the pendency of the appeals in the High Court, the plaintiff and the 3rd and 4th defendants were adjudicated insolvents; but what concerns us in this connection is the insolvency of the 3rd and the 4th defendants. In the decree passed by the High Court, by reason of their adjudication the 3rd defendant was separated from the 4th and they were allotted distinct shares. One further matter, to which we may conveniently here refer, is the fact that till the 3rd defendant's adjudication and for sometime thereafter, it was he that represented the minor 6th defendant, his natural born son; but from the 28th April, 1926, Meenakshi, the 3rd defendant's wife, acted for the minor as his guardian ad litem in all the subsequent proceedings. The shares as varied by the High Court were as follows:
Plaintiff ... 1/5th. Defendants 1 to 2 ... 4/15ths. Defendant 6 ... 4/15ths. Defendant 3 and his sons ... 2/15ths} Defendant 4 and his son ... 2/15ths} 4/15ths.
8. It remains to add that there was an appeal filed to His Majesty in Council by the 9th defendant, whose claim to a share was, as observed above, negatived by the High Court. The Judicial Committee dismissed her appeal in 1936, upholding the High Court's view of the legal effect of the family settlement of 1895. Vide Purnananthachi v. Gopala-swami Odayar (1936) 71 M.L.J. 554 : L.R. 63 I.A. 436 (P.C.) where this decision has been reported. In the meantime, in pursuance of the High Court's decree, the case was remitted to the lower Court with a view to a final partition decree being passed. The Subordinate Judge went into various matters recorded findings on them and in accordance therewith passed a final decree on ,the 26th September, 1932. The 6th defendant has filed the present appeal, impeaching that decree in various respects and several other parties have filed crossappeals.
9. We have so far briefly set forth by way of introduction the previous history of this litigation and noted some material dates, with a view to make the contentions raised now intelligible. The first and the most important of them is that raised on behalf of the 6th defendant (the appellant), for whom it is contended, that he became severed from the other members of his sub-family, when certain written statements in the case were filed. The importance of this contention lies in this: by reason of the finding that the leases granted by the third defendant were sham and dishonest, his group consisting of defendants 3 to 8 was collectively held responsible for such a large sum as Rs. 1,84,000 odd. This subsidiary group consists of three branches, those of the third, the fourth and the sixth defendants. If it could be shown that during the period when the third defendant incurred this liability, the sixth defendant had become separated in estate, the latter could with success contend that no portion of it should be thrown upon him. It may be mentioned that the fourth defendant puts forward a similar contention and urges that on the date of the written statements, and by reason of them, he also became severed from the third. Some question has been raised as to what the effect of the finding is, whether the Court should be deemed to have held that the leases are fraudulent or merely nominal, the suggestion being that in the former case, the transactions being affected by fraud, would in no event (that is to say, whether or not there was a severance), be binding upon the other members of the sub-family. But we do not think this argument need detain us. We have been referred to the relevant passages in the judgments both of the Sub-Court and of the High Court, and there can be no doubt that what was decided on the former occasion, was, that the leases were sham and that it was the 3rd defendant, that retained effective control over the lands, through the pretended leases. The lands no doubt ostensibly passed under the leases to certain third parties, who, however, by reason of the findings, must now be held to be mere dummies or the creatures of the third defendant. The leases were granted, as already mentioned, in July, 1919, and were to enure for a period of five years. The receiver that was appointed in the suit in 1920, was merely permitted to collect from the nominal lessees the rents reserved and was not allowed to take physical possession of the lands. The complaint was that the lands had been leased for unduly low rents, and by the preliminary judgment passed, the sub-group in question was held accountable for Rs. 1,84,000 odd (the sum mentioned above), that is, the difference between what might be described as proper or normal rents on the one hand and the stipulated rents under the bogus lease deeds on the other. The leases having been granted on the eve of the action, it will be seen that the entire liability was incurred under this heading during the pendency of this litigation. We are now concerned with three written statements: those filed by the third defendant's branch, the fourth defendant's, branch and the sixth defendant, all bearing the date, the 6th of March, 1920. The major portion of the liability, the dates given above will show, was incurred subsequent to this date and it would therefore be in the interests of the fourth and the sixth defendants to contend, as mentioned above, that on the date of, and by reason of, those written statements, they became separated in interest from the third defendant.
10. This brings us to the question referred to above, namely, did the written statements, as contended by the fourth and sixth defendants, effect a severance of the joint status as among the members inter se of this sub-family? Now, there are these doctrines of Hindu law which have been established by authority. First, there may be a division of rights leading to a disruption of the joint status, although the physical division of the property may be postponed Appovier's case. (1866) 11 M.I.A. 75 From a definition or fixation of shares, an intention to divide may be legitimately inferred, as according to the true constitution of a Hindu family, no member, while it remains undivided can predicate of the property that he has a definite share and the act of fixing or defining the shares is inconsistent with, and repugnant to, this conception. This, we take it, is the meaning of the following observation of Sir Shadi Lal in Alluri Venkatapathi Raju's case (1936) 71 M.L.J. 558 : L.R. 1 I.A.55:
It is a settled rule that when the members of a family hold the family estate in defined shares, they cannot be held to be joint in estate.
11. But the question in each case must be one of intention, whether in defining the shares, the parties intended to effect an immediate division vide the observations of Sir W. Colvile in Baboo Doorga Pershad v. Mussumat Kuttdun Koonwar (1873) L.R. 1 I.A. 55. That the intention is the decisive factor, appears clearly from the judgment delivered by Sir John Edge in Palani Ammal's case (1924) 48 M.L.J. 83 : L.R. 52 I.L.R 48 Mad. 254 (P.C.). His Lordship observes:
But the mere fact that the shares of the coparceners have been ascertained does not by itself necessarily lead to an inference that the family had separated. There may be reasons other than a contemplated immediate separation for ascertaining what the shares of the coparceners on a separation would be.
(The italicised portion is important.)
12.The recent decision of the Privy Council (to which reference has already been made), which negatived the contention of the ninth defendant, puts the matter beyond doubt. His Lordship SirShadi Lal held, construing thedeedof 1895, that although it defined and fixed the shares, it did not effect a separation of interests in praesenti. It was held, having regard to the intention of the parties, that there was no immediate severance of status but that it was postponed to a future date, Purna-nanthachi v. Gopalaswami Odayar (1936) 71 M.L.J. 554 : L.R. 63 I.A. 436 (P.C.). Secondly, there may be a division of rights disrupting the whole family, resulting from an agreement among all the members; or, there may be a severance limited to such member alone that separates; the severance following either from an agreement on his part with the remaining members or from his individual volition. Even where there is such partial severance, produced in either way, there may be a division of rights without there being a physical division, Bal Krishna v. Ram Krishna (1931) 61 M.L.J. 362 : L.R. 58 I.A. 220 : I.L.R. 53 All. 300 (P.C.). and Kawal Nain v. Budh Singh (1917) 33 M.L.J. 42 L.R. 44 I.A. 159 : I.L.R. 39 All. 496 (P.C.). Thirdly, in the case of a separation resulting from individual volition, it is immaterial, as the very statement shows, whether the co-sharers assent; but the separating member must give intimation to them, of his unequivocal desire for separation, either by conduct or by words. The institution of a suit for partition by a member, being one of the most effective modes of asserting his right to separate, leads to his separation from the joint family, from the commencement of the action, although a decree may be necessary for working out the result of the severance Kawal Nain v. Budh Singh (1917) 33 M.L.J. 42 L.R. 44 I.A. 159 : I.L.R. 39 All. 496 (P.C.). Fourthly, the general presumption, in favour of every Hindu family being joint, unless the contrary is proved, does not continue, if it is established that one member has separated with reference to the others. This rule applies whether his separation has been brought by an agreement as in Balabux v. Rukhmabai (1903) L.R. 30 I.A. 130 Cal 725 (P.C.) and Jatti v. Banwari Lal (1923) 45 M.L.J. 355 : L.R. 50 I.A. 192 : I.L.R. 4 Lah. 350 (P.C.) or is the result of the communication by him to his co-sharers of his individual decision, as in Bal Krishna v. Ram Krishna (1931) 61 M.L.J. 362 : L.R. 58 I.A. 220 I.L.R. 53 All. 300 (P.C.). The suggestion made at the Bar that in the latter class of cases this rule does not apply, is opposed to the clear trend of the decisions of the Judicial Committee. Among the cases which refer to this onus of proof, is Bal Krishna v. Ram Krishna (1931) 61 M.L.J. 362 : L.R. 58 I.A. 220 at 225 : I.L.R 53 All. 300 (P.C.) already referred to. There, the judgment shows that the separation that was found, was one that resulted from individual decision or the unilateral act on the part of the separating member, as is borne out by the following passage:
It has been concurrently found by both Courts in India that he did so intend, and that his intention was communicated to the other co-sharers, and there is ample evidence upon which this conclusion could be based.
13. It is in a case of this sort that Sir George Lowndes, delivering the judgment of the Judicial Committee, reaffirmed the rule as to the onus of proof as above stated. Fifthly, it follows from the above rule, that there is no presumption, when one coparcener separates from the others, that the latter remain united; an agreement amongst the remaining members to remain joint must be proved like any other fact per Lord Davey in Balahux v. Rukhmabai (1903) L.R. 30 I.A. 130 Cal. 725 (P.C.); per Lord Dunedin in Jatti v. Banwari Lal (1933) 45 M.L.J. 355 : L.R. 50 I.A. 192 : I.L.R. 1937 4 Lah. 350 (P.C.), and per Sir Shadi Lal in Alluri Venkatapathi Raju v. Dantuluri Venkatanarasimha Raju (1936) 71 M.L.J. 558 : L.R. 50 63 I.A. 397 : I.L.R. 1937 Mad. 1 (P.C.). But it is equally clear that the separation of one does not automatically involve the separation of the others per Sir George Lowndes in Bal Krishna v. Ram Krishna (1931) 61 M.L.J. 362 : L.R. 58 I.A. 220 at 225 : I.L.R. 53 All. 300 (P.C.) and per Sir John Edge in Palani Ammal's case (1924) 48 M.L.J. 83 : L.R. 52 I.A. 83 I.L.R. 48 Mad. 254 (P.C.).
14. In the light of these principles, let us examine whether by reason of the written statements referred to above, there has been a severance of rights among the members inter seoi the subfamily in question. As observed already, the combined effect of the notice of May, 1917, and the institution of the suit was to split this family as a whole into three distinct groups, each separated from the remaining two. As a severance in status can result from the filing of a plaint, it stands to reason that the filing of a written statement can produce a similar result, for, the instituting of a suit is, as mentioned above, but an instance of the application of the rule that a partition of rights can be brought about by an intimation of an unequivocal desire to separate. Thus, if upon a proper construction of a written statement it contains an expression of such a fixed desire to sever, there is no reason why it should not effect a separation in the same manner as a plaint in a partition suit does. The question then is, on a proper reading of the written statements relied upon, can they be held to contain a clear and unambiguous indication of a resolve to separate? One of the most important questions raised in the suit was that relating to the alleged adoption of the 6th defendant by Singaravelu, and defendants 1 and 2, as mentioned above, were vitally interested in repudiating it. In the disputes that preceded the action, it is not denied that the adoption was impugned both by the plaintiff and the branch of defendants 1 and 2. In the plaint, however, this status of the 6th defendant was recognised, for, in truth the plaintiff stood neither to gain nor lose by the adoption, the persons whom it affected being defendants 1 and 2 alone. In their written statements, it may be mentioned, they repeated their denial of the adoption. But this does not really matter, for, defendants 3 to 8 had ample notice of the fact that the adoption was going to be questioned. It is essential to bear these facts in mind when construing the passages so strongly relied on. Turning to the plaint first, the share claimed by the plaintiff is one-half, in which event he concedes to the 6th defendant an one-sixth share; in the alternative, he claims for himself one-fourth, allotting on this basis, a similar one-fourth to the 6th defendant also. Then the plaintiff in the relief portion goes on to pray:
That the shares of the plaintiff and of defendants 1 to 8 be determined.
15. There are other prayers which show that what the plaintiff was demanding was that he should be put in possession of his own share. What is contended is that the plaintiff is asking for a general partition, and for the purpose of the argument this may be conceded. Turning now to the written statement filed on 6th March, 1920, by the sub-family consisting of defendants 3, 5 and 7 we find that the shares are set out in paragraph 13. There a separate share is claimed on behalf of the 6th defendant in other words, there is an implied assertion that the 6th defendant's status is that of an adopted son. Then, passing to paragraph 25, which is said to contain the crucial passage we find in it the following averment:
The demand for partition mentioned in paragraph 20 of the plaint is not true. However, these defendants have no objection to the joint family properties and liabilities, as they exist at present, being divided and the parties allotted their respective shares as set forth above, subject to their liabilities. We have always been willing to have this done.
16. This, Mr. Radhakrishnayya strongly contends, amounts to a group declaration on the part of defendants 3 to 8 of their definite desire to separate. The written statement filed on the same date by defendants 4 and 8 need not detain us, as it does no more than adopt in its entirety, the statement filed by the 3rd defendant and his sons. So does the 6th defendant's statement also adopt it, which was filed on his behalf by the 3rd. This last written statement contains the following further allegation:
This defendant was duly adopted on 6th May, 1917by the late T.S. Singaravelu Odayar.... By the said adoption this defendnnt as his adopted son has become entitled to a fourth share in the joint family properties.
17. It is contended that there is an unambiguous intimation of a desire to separate on the part of each of the three sub-branches. With this contention we are totally unable to agree. In the first place, the desire expressed is not to effect an immediate severance, the parties contemplating a division in future to be made by the Court. Secondly, what is expressed is not a fixed and unalterable desire to separate, the expression used being "The defendants have no objection to the family being divided". Does this convey a fixed determination to separate? Is there a clear, definite, unequivocal intimation of such a desire? On the contrary, the plain meaning of the words is that the parties leave it to the Court to effect or not, as its option, an inter se division. We must therefore disallow this contention.
18. Then Mr. Radhakrishnayya advances an alternative contention, that from the three written statements taken together, ought to be inferred an agreement to separate. This argument is mainly based upon his contention that the shares have been defined and fixed. Granting that this has been done, what is the consensus which these three statements evidence? What is asserted is, that "the parties have no objection" to a division being made on the basis of the declared shares. Supposing that the Court does not uphold the adoption and treat the 6th defendant as belonging to his natural branch what then? The agreement is thus conditional on the Court ultimately accepting the shares as enumerated by themselves. The words are perfectly explicit - not that that a partition absolute and definite is desired but a partition on an uncertain and asserted basis. Nor is this all. The shares have not been defined with a view to a severance to be effected in praesenti and the words of Sir John Edge in Palani Animal's case1 may be appropriately again quoted here:
There may be reasons other than a contemplated immediate separation for ascertaining what the shares of the coparceners on a; separation would be.
19. In order to put forward the 6th defendant's adoption, it was necessary to state what his share would be, and for specifying his share, the shares of all the others had to be mentioned, The object therefore of the parties in enumerating the shares was not to produce an immediate division, but to safeguard, their rights, by putting forward, in as clear a manner as possible, their claim based on the 6th defendant's adoption. Further, as Mr. yenkatarama Sastri rightly contends, how can a two-sided or a three-sided agreement result from unilateral declarations, each of which, taken by itself, is wanting in definiteness and is thus inadequate? We must therefore disagree with this alternative contention also.
20. In the result, we must hold, that there was no division in status between the 6th defendant and the other members of this group until the date of the preliminary decree made in the suit. Similarly, we must hold that the 3rd and the 4th defendants became divided inter se, only on the date when the High Court decree was passed.
21. Having disposed of the most important legal contention put forward, we now proceed to deal with the other grounds urged. By the preliminary decree, an enquiry was directed, from Singaravelu's death, as being roughly the date of the disruption of the joint status. The main lines of accounting were decided by that decree, which also determined that (l) the plaintiff, (2) defendants 1 and 2 together, and (3) defendants 3. to 8; collectively, were accountable to the general estate for certain monies. As already stated, the liability of the, last mentioned group in relation to, the other parties has not been disputed here. From our finding that they rernained united till the date of the preliminary decree, it further follows that as between the members of the group inter se, each is liable in proportion to his share. These remarks are specially made with reference to the adjudged liability of this group for the income of the lands covered by the bogus lease deeds. It is now contended in appeal that the Subordinate Judge, who passed the final decree, adopted a wrong mode for ascertaining the actual amount due. In our opinion, this contention is well-founded. He had to find what the difference was, between the actual yield of the lands, and what the receiver in fact realised from the nominal lessees. As one might expect, direct evidence was wanting and the question was one of approximation or the nearest possible estimate. There were two methods open to the learned Judge, and the simple point to decide is, which of those two was the sounder one? Certain commissioners were appointed to enquire into the probable yield and they placed before the Court some theoretical figures. There were data of a different kind, which the accounts maintained by the receiver furnished. As already mentioned, the lands were allowed to be in the possession of the nominal lessees, who paid the stipulated rents to the receiver appointed in the action. After the five year period for which the leases were granted was over, the receiver took possession and let the same lands in due course of administration. The accounting period in respect of these lands covered seven years, that is, from 1917 when Singaravelu died to 1924, when the leases expired. The receiver's subsequent possession of the self-same lands was of the same duration, that is, from 1924 to 1931. For this last mentioned period, indubitable evidence of the actual yield was furnished by the receiver's accounts. The question is, was the learned Judge justified in preferring the admittedly speculative figures of the Commissioners to the actual figures of the receiver? True, everything will be presumed as against a wrongdoer, but it does not follow that between two sets of available evidence, the Court will prefer that which is admittedly inferior. Moreover, on the previous occasion, it was by reason of the disparity between the stipulated rents and those realised by the receiver subsequently that first, the trial Court, and then the High Court condemned the leases as nominal. This being so, it stands to reason that the figures disclosed by the audited accounts of the receiver (see paragraph 76 of the judgment under appeal) available here for four years, should be adopted. He was an officer of Court and his administration at any rate in this respect has not been impeached. However, even while adopting his accounts, we are prepared to give effect to the presumption above referred to. The rent reserved under the bogus leases (we refer here to the rent in kind only) is about 10,000 kalams of paddy. According to the Commissioners' figures, the yield would be upwards of 17,000 kalams. According to the receiver's accounts it ranged from 15,000 kalams per year to 8,000 odd kalams. We have decided to work out the average figure based on the receiver's accounts, bnt subject to this qualification (on the principle that every thing will be presumed as against a wrongdoer), that the stipulated yield will be substituted for the actual yield, in those years where the latter happens to be less than the former. This in our opinion would be both reasonable and just. According to the learned Subordinate Judge, the amount for which defendants 3 to 8 are liable is Rs. 1,84,057-3-7 (cf. the foot-note at page 128 of the judgment). For this figure must be substituted the reduced sum of Rs. 90,470 (the figure agreed to by all the parties), arrived at in the manner stated above. The 3rd, the 4th and the sixth defendants will be each liable in respect of this amount in accordance with his share as found. The sixth defendant alone is the appellant, but under Order 41, Rule 4, Civil Procedure Code, the decree as will be seen, is varied in favour of the entire group consisting of defendants 3 to 8.
22. It is represented on behalf of the plaintiff and defendants 1 and 2, that adopting the basis of accounting referred to above, we should reduce the amounts for which they have been held accountable by the lower Court. They have not questioned the amounts by filing separate appeals and we cannot comply with their request.
23. Here we must notice a contention which was urged in respect of this liability. Mr. Gopalaswami Aiyangar, who has argued this part of the appeal for the sixth defendant contends thus: this liability has arisen from the third defendant having received or retained more than what this subfamily was entitled to. By way of illustration, let us suppose that the entire yield was Rs. 15,000. According to the shares now determined, the plaintiff and defendants 1 and 2 would be entitled to Rs. 7,000 and defendants 3 to 8 to Rs. 8,000. Now, in respect of the Rs. 7,OO0 that sum should be deemed to be a debt due by this branch to the other two branches In the case of a debt (he goes, on to argue) it is the duty of the manager to show that it is of such a character as to be binding upon the entire family (in this case the sub-family consisting of defendants 3 to 8); only when that, is shown, provision must be made for its payment from the joint family; property available for partition, otherwise the managing member alone should be made to bear ,it. This, in short, is the learned Counsel's argument, which we must say, in the, case of debts, is perfectly sound. But the facts here, preclude the application of that doctrine. When they are analysed, it will be seen that no question of any debt does arise. Even taking the present Subordinate Judge's final figures as correct (the figures as revised by us make the case still stronger), the amount retained by the third defendant was less than the 8/15ths share to which this sub-group was entitled. That this is the result of the figures is not disputed and we must hold therefore that the principle for which the learned Counsel contends, does not apply. In general, the accounts to be taken at a partition is simply an enquiry into the existing assets. For mere misspending, the manager is not liable nor even for extravagance or waste, unless it amounts to actual misappropriation. It has therefore been held that in the absence of fraud or other improper conduct, the only account the manager is liable to render is as to the existing state of the property divisible, and the enquiry directed by the Court must be in the manner usually adopted for the discovery of what in fact the family property consists of" (Mayne's Hindu Law, 9th Edition, paragraph 470.)
24. No misappropriation or fraud or similar misconduct is here alleged against the third defendant and this contention must therefore be over-ruled.
25. Then the next contention relates to Rs. 7,150 for which this group was held liable on account of certain buildings leased (p. 126of the judgment). Here again, the Subordinate Judge has fallen into an error. The leases of these buildings are not among those impeached as sham or bogus. The period of accountability here is from 1917 to 1920. The learned Judge preferred here also the Commissioner's speculative figures to the amounts actually stipulated as rents under the leases granted.' The, bona fides of these leases have not been attacked and no ground has been suggested for discarding the evidence furnished by them. We must therefore substitute Rs. 4,967-8-0 (see the review order in the present Documents Book, p. 264) for Rs. 7,150 awarded by the decree under appeal (see p. 126 of the judgment).
26. The next contention relates to a sum of Rs. 23,602-8-0 for which defendants 3 to 8 were held liable on account of certain leases taken by the third defendant in 1923 (Fasli 1333). The facts are these. During the pendency of the suit several parties leased from the receiver under orders of Court.portions of the family estate. The leases in question were obtained by the third defendant before the passing of the final decree; that is, before the joint status of this sub-family was disrupted'. The Judge's observation in paragraph 105 of the judgment (at is admitted) is wrong, that the third defendant executed the leases both on his own behalf and on behalf of defendants 4 and 5; but that really does not matter. The question is, are the defendants 4 and 6 liable, as the learned Judge has held, for the amount payable under the leases? The facts connected with this matter are such as to bring into play the doctrine contended for by Mr. Gopalaswami Aiyangar, which we have already noticed. The taking of the leases amounted to the incurring of a liability. As though he were a stranger, the third defendant obtained leases from the receiver and for the rent his liability was that of a stranger-debtor. Thus, the rule that applies is, that relating to debts and not to receipt of, or participation in, the income. The question then is, has the debt been shown to be of such a nature that it binds the entire sub-family? In other words, has it been made out that provision should be made for its payment from the family funds (that is, of the sub-family) before partition? As between the manager and the other members, there is a duty cast on him to prove that the debt was incurred for the benefit of the family. Not only is such proof wanting here, but there is evidence to show that the taking of the leases was a personal act of the third defendant, which far from benefiting the family, was calculated to injure it. The receiver's report made at the time shows that the third defendant paid "ruinous" "inflated and abnormal" rents with the indirect object, namely, "of driving out the plaintiff and defendants 1 and 2". The learned Judge has held that this sum of Rs, 23,602-8-0 should be borne by the third, fourth and sixth defendants in proportion to their shares. This, for the reasons already stated, is wrong and we must hold that the third defendant is solely liable for this sum.
27. The next objection relates to certain sums amounting to Rs. 50,089-8-0. While this litigation was pending, the Court made orders from time to time directing payments to be made from the funds in the hands of the receiver, either to the parties or on their behalf.
28. There were three suits 10, 12 and 26 of 1920 - where third parties had obtained decrees by consent against the third, fourth and sixth defendants. The decree-holders sought to execute the decrees, but by that time the third and fourth defendants had become insolvents. Then on the application made on the sixth defendant's behalf, the Court directed payments to be made to the creditors, from the family funds in the receiver's custody. These, as in the case of other similar payments, were made subject to adjustments at the final partition. There can be no shadow of doubt that both under the law and in justice, these amounts should be debited against all the members of this sub-group; but strangely enough the Subordinate Judge, on the curious ground that the payments were made at the sixth defendant's instance (he was then a minor), has made him solely liable for these sums. The fact that the third and fourth defendants had by then been adjudicated insolvents, makes no difference whatsoever vide the decision of the Privy Council reported in Sat Narain v. Sri Kishan Das (1936) 71 M.L.J. 812 : L.R. 63 I.A. 384 : I.L.R. 17 Lah. 644 (P.C.) for, before a partition is effected, provision should be made for payment of the family debts. We must therefore, without hesitation, set aside the lower Court's direction and order that this amount should be borne by the third, fourth and sixth defendants according to their shares. The sums which go to make up the Rs. 50,089-8-0 are the following:
Rs. 9,457 .. .. .. p. 146 of the judgment. Rs. 2,900 .. (out of Rs. 4,000) item 1, p. 147 do. Rs. 1,500 .. (out of Rs. 8,976-9-5) item 3, p. 147 do. Rs. 7,500 .. .. .. item 14, p. 148 do. Rs. 7,500 .. .. .. item 15, p. 148 do. Rs. 11,820 .. (out of Rs. 15,320) item 28, p. 148 do. To these sums must be added Rs. 6,275 and Rs. 3,137-8-0' which by reason of the orders made by the Judge in relation
29. To defendants 33 and 35, must be held to have been paid by the sixth and fourth defendants, respectively (paragraph 47 of the judgment).
30. The next objection relates to the concern known as the National High School, Mannargudi. The trial Judge in his preliminary judgment found that the whole family wag entitled to a half share in the premises of the National High School... and in the properties attached lo it and in the right, of management of the School. (Paragraph 94.)
31. The other moiety belongs to one Ramadurai Aiyar's family. On the previous occasion, it was contended in appeal, for the sixth defendant before the High Court, that certain debts had been incurred by Singaravelu in the course of management and that the trial judge ought to have given a direction that those debts should be borne by all the members of the family. Dealing with this, the learned Chief Justice observes:
Mr. Varadachari (who appeared for defendants 1 and 2) does not contend that all the members of the family are not liable for those debts, but argues that the point was never put forward and that we have no materials here to guide us. With those observations I entirely agree. All that we can do, it seems to me, is to say that the matter is left open as we have no materials here to enable us to say what debts are binding and what they amount to.
32. Among the points formulated on the present occasion by the Subordinate Judge for decision, there were two (points 1(a) and 14, pages 108 and 110) that specially related to this contention. They directly raise the questions: (1) What were the amounts spent by the third defendant and Singaravelu? and (2) For what amount is each sharer liable? Having raised these points, the Subordinate Judge in paragraph 64 of his judgment declined to deal with them, on the ground, that the High Court had been requested to make a direction in that matter but had refused to do so. (See also paragraph 37 of the lower Court's judgment.) We are not prepared to construe the High Court's judgment in this way. it is elementary that provision should be made for payment of family debts before a family partition is made. When the learned Chief Justice observed that the matter was left open, all that he could have meant was, that he was not going to give a decision then and there. The appeal on that occasion was from the preliminary decree, and there were several matters to be gone into, as everybody knew, before the final partition decree could be made. Moreover, it would be intolerable after all this expense and delay, to drive the parties to a further suit for the purpose of this liability being determined. It may not be worth the while of the parties to have this case sent back for obtaining the decision of the lower Court on what is, in view of the magnitude of this case, a comparatively trifling matter. However, if they do not reach a decision as to the amount payable by each sharer, we direct that the lower Court shall, after taking evidence, return a finding in one month from the re-opening of the High Court on point 1(a) referred to above. Objections, if any, must be preferred in ten days.
33. The next contention relates to the refusal of the learned Judge to hold the first defendant liable for certain kalams of paddy (paragraph 66 of the judgment). The matter arises in this way. The Subordinate Judge on the former occasion held defendants 3 to 8 accountable for 3,500 kalams of paddy; the High Court in appeal, differing from the Subordinate Judge, set aside his finding and in doing so, the learned Chief Justice observed:
The evidence tracing its possession to the third defendant is in my view vague and having regard to the undoubted fact that the three villages in which the paddy was stored were in the possession of the first defendant, I do not agree that with safety that defendants 3 to 8 cannot be held accountable for it. (Page 302 of the Privy Council Pleadings Book.)
34. When the case went back to the trial Court, the Judge was requested to find that the first defendant was liable. It is not disputed that he cannot be held accountable on such material as now exists. In the lower Court, defendants 3 to 8 did no more than rely upon the observation of the learned Chief Justice quoted above; but that does not carry them far. If they had offered to adduce evidence and had been prevented from doing so, they would have had a legitimate ground of complaint; but they did not adopt this course and we cannot hold in the circumstances that the Subordinate Judge is wrong.
35. The next objection affects certain stranger defendants impleaded in the suit. Two properties in their possession were claimed on the ground that they belonged to the family and the lower Court gave a decision in its favour, which on appeal on the previous occasion was confirmed by the High Court. The parties so impleaded were defendants 26 and 27. The former died and the 28th defendant was brought on the record as his legal representative. The properties claimed were item C-5 a specific moiety in a certain village and item C-7, an entire village. C-5 has been held to belong to the family and as to C-7, the finding is that the family and the stranger defendants own it in two equal moieties. The question was raised whether these defendants were liable for subsequent profits, that is to say, for the profits which accrued due during the pendency of the suit. The lower Court has awarded Rs. 28,600 as the profits payable 'for the period from fasli 1330 to fasli 1340 (1920 to 1930), to be divided among the members of the family according to the shares declared. The appellant contends that a larger amount ought to have been granted, his objection relating both to the Judge's estimate of the yield and the rate fixed for the paddy. It is argued that the lower Court has taken a somewhat lenient view in regard to the respondents. That may be so, but the question was at the best, one of estimate, depending upon various uncertain factors, and after going through the judgment carefully, we are not prepared to differ from the learned Judge's conclusion. The appeal against these respondents is dismissed but without costs.
36. In this connection the memorandum of objections filed by the twenty-seventh defendant (why the 28th has not joined, does not appear) remains to be considered. He contends that the lower Court acted in excess of its jurisdiction in embodying in its final decree the direction as to the payment of profits. The argument has been put in more than one way. First, it is suggested that there was no claim for mesne profits in the suit. A glance at the pleadings and the subsequent proceedings to which we shall presently refer, will show that there is no substance in this contention. It is sufficient for this purpose to refer to the written statements alone. In paragraph 10 of the original statement filed by them, defendants 26 and 27 allege "they are not bound to surrender the same with profit to the plaintiff." In paragraph 16 again, they object, "the income claimed by the plaintiff from us is not valid". In a further statement, filed four years later, it is repeated in paragraph 5 that the claim to profits is not maintainable. So much for the pleadings; turning now to their conduct during the progress of the suit that shows also the same consciousness on their part. In 1922, that is, long before the passing of the preliminary decree, the Court was requested on behalf of the family (by means of two applications I.A. Nos. 626 and 627 of 1922) to direct the receiver to take possession of the two items mentioned above (C-5 and a half of C-7) and to collect the mesne profits that accrued due. The petitions were strenuously opposed and the defendants in question filed on 6th December, 1922, a counter-affidavit (which has not been printed but a certified copy thereof has been produced and shown to us), and the allegations made in it are extremely important. They say that the claim of the family relates to the two villages mentioned above, and allege that they have a valid defence in respect of each of them. Then they go on to assert that before the issues raised in the suit are disposed of, the Court has no jurisdiction to direct them either to deliver the villages or to pay the mesne profits. Then they add the significant sentence:
Mesne profits have to be ascertained later on if and when the plaintiff succeeds in the suit.
37. On this, the Judge disallowed the petitions, observing first:
There is no reason to dispossess defendants 27 and 28 of the property in their possession or to direct them to pay its profits to the receiver before deciding the dispute about the ownership of the said property. (Vide Order dated 19th December, 1922, in I.A. No. 625 not printed.)
38. Secondly:
The Receiver cannot file a regular suit against them as they are already parties to the suit. (Vide Order dated 12th March, 1923, in I.A. No. 627.)
39. These proceedings show beyond a shadow of doubt, that they not only recognised the existence of the claim but invited the Court to deal with it at a later stage.
It is then contended that the final decree for mesne profits, not having been preceded by any preliminary decree relating to them, is incompetent. This contention is in our opinion untenable. The present suit, as the learned Judge rightly observes, is neither a simple suit for partition nor a simple suit for possession. The respondent has not been able to point to any statutory requirement which the lower Court can be said to have transgressed, and it is difficult to see how any question of jurisdiction can arise. Order 20, Rule 12, Civil Procedure Code, provides for two decrees in respect of subsequent mesne profits; preliminary and final; but that rule relates to suits for possession pure and simple. Suits (a) for partition and (b) separate possession of a share of property, are governed by Order 20, Rule 18; but under that provision, the Court has discretion to pass either a single decree or two decrees. The rule enacts that only where "the partition or separation cannot be conveniently made without further enquiry", a preliminary decree may be passed, which by necessary implication directs the passing of a final decree at a later stage. Other specific provisions no doubt there are, but they relate to administration suits, partnership suits and suits for accounts between principals and agents. Thus, it will be seen that the Code has not expressly laid down any procedure in regard to composite actions, such as the present one is.
40. Now, let us turn to the course which the lower Court has pursued, in order to see, whether any principle of law or of justice has been infringed. As already observed, the preliminary judgment delivered in 1924 disposed of the question of title, it having been held that C-5 belongs solely to the family and C-7 is owned in two equal moieties by the family and the defendants in question. The decree that was drawn up contained a declaration to this effect. That being a preliminary decree, it embodied, as might be expected, various declarations and appointed a Commissioner to divide the properties. It was then open to the Court to have gone into the question of the liability for mesne profits; but was it incumbent upon it to have done so? It will be recalled that the Judge, invited to do so by the defendants themselves, had already decided that that question ought to be gone into at the passing of the final decree. Then when the stage arrived for the passing of that decree, numerous and complicated were the questions raised, and, the Judge in dealing with them has shown great care and circumspection. As his final order will show, he dealt with the matters in controversy in fragments and pronounced various orders from time to time between the 6th July, 1931 and the 26th September, 1932. On the first mentioned date, he dealt with the division and disposal of the properties. The learned Judge allotted item C-5 to the third defendant (a member of the family) and directed item C-7 to be divided in two equal halves between the fourth defendant (another member) and defendants 27 and 28. This happened, as already stated, on the 6th July, 1931. Then on the 17th August, the Judge formulated certain points for decision, of which point No. 10 related to the claim in question for mesne profits. Meanwhile, an application was made on behalf of the family for the delivery of the lands covered by C-5 which the Judge granted, and delivery was accordingly given on the 22nd February, 1931. As to the moiety of C-7, the defendants, before a formal order could be made, surrendered possession. Then in due course, point No. 10 referred to above was gone into, fully considered and the Judge delivered his order on the 26th September, 1932.
41. The question resolves itself into, was there any necessity, in respect of these defendants, to pass two decrees for mesne profits; preliminary and final? As we have shown, the procedure adopted has been so elaborate, that no sort of prejudice has been caused to them. As observed in Raja Peary Mohan v. Manohar (1923) 38 C.L.j. 255, the cases mentioned in Order 20 of the Code are mere illustrations of preliminary decrees and are not intended to be exhaustive (page 260). Ordinarily, the learned Judges say, there should be in certain classes of cases a preliminary and final decree; but there are exceptions to this rule and the case before them was an instance in point.
42. It is then contended, the preliminary decree of 1924 being silent on the question of mesne profits, the Court was precluded at a later stage from going into it. That such a contention cannot prevail, has been held in several decisions, with which we agree. Hussain Sahib v. Hammad Saheb A.I.R. 1923 mad. 43, Ramaswami Aiyar v. Subramania Aiyar (1922) 43 M.L.J. 406 : I.L.R. 46 Mad. 47 and Ramanathan Chetty v. Alagappa Chetty (1929) 59 M.L.J. 102 : I.L.R. 53 Mad. 378. As observed in the second of the cases referred to above by Sadasiva Aiyar, J. (with whom Napier, J., concurred), in all adjudications which are not intended to be final, there is, and ought always to be, an implied reservation of leave to all parties, to apply for further directions, necessary for a complete disposal of the litigation.
43. There is a decision of the Judicial Committee, which may be usefully cited in this connection. The Subordinate Judge had there before him a case consisting of two parts: a question. of title and an incidental question of accounting. Their Lordships point out, that it was for the obvious advantage of the parties, and they proposed (as here), that the first part should be decided and the second reserved for decision. Accordingly, the Court decided the first question and reserved the second for further investigation. That procedure was attacked as having been illegal. Their Lordships in that connection observe:
If the Code forbade the parties and the Court so to arrange the disposal of a law suit, it would be a very startling thing. It is not pretended that the Code contains any such prohibition. Neither can it be pretended that the Court did not do justice in giving a decision on the leading part of the case at a time when it was not possible to decide on the subsidiary part.
44. Then follows a further observation equally important here:
Even if the Court had erred in form, it was in form only, not misleading or injuring anybody ; and to treat such an error, as a bar to the proceedings reserved for further decision, is a serious miscarriage of justice Maulvi Muhammad Abdul Majid v. Muhammad Abdul Aziz (1896) L.R. 24 I.A. 22 : I.L.R. 19 All. 155 (P.C.)
45. Every word in these extracts applies to the facts before us.
46. A similar question arose in a case to which one of us was a party. The lower Court there, instead of awarding mesne profits by the decree itself, directed that the enquiry should be postponed to the stage of execution. It was observed in the course of the judgment:
While deploring this practice, we must still ask ourselves, is it a question of complete want of competency, or, of erroneous exercise of jurisdiction? The distinction between absence of jurisdiction and irregular exercise of jurisdiction has been frequently pointed out. If the Court fails to conform to the provisions of Order 20, Rule 12, it is impossible to hold that the defect, is one of inherent incompetency. Kemgam Swamy v. Vaddadi Subbamma (1929) 57 M.L.J. 728 at 730 at 730 : I.L.R. 53 Mad. 838.
47. Therefore we are clearly of the opinion that the Court acted rightly in dealing with the case in two parts as it did, and granting that there was any error, it was one of form and not of substance.
48. There is yet another ground on which the lower Court's decision can be supported. That no person can be permitted to blow hot and cold, is a well-known doctrine. The decision of the Judicial Committee in Sadasiva v. Ramalinga (1875) L.R. 2 I.A. 219 gave effect to this principle in circumstances similar to the present. That case related to a claim made in execution to profits' not awarded by the decree itself. There were, however, certain proceedings which resulted in the execution of security bonds by the defendant who undertook to pay subsequent mesne profits. Their Lordships held that upon the general principle of estoppel, the respondent could not be heard to say that the mesne profits were not payable under the decree, and there might arise cases, where the questions raised should be determined by proceedings quite contrary to the ordinary cursus curiae.
49. The facts of the present case are even stronger. Not only did the defendants invite the Court to hold that the enquiry was to be postponed to a future date, with which contention the learned Judge agreed; what is more, he granted them, as already observed, immunity from, being sued on the ground that a separate suit would not lie against them.
50. Thus, the ground of want of jurisdiction completely fails and we must hold that the lower Court was justified in granting mesne profits. The memorandum of objections fails and is dismissed with costs to be apportioned between (1) the plaintiff, (2) defendants 1 and 2, (3) the third defendant's branch, (4) the fourth defendant's branch, and (5) the sixth defendant in accordance with their declared shares. The costs will be taxed in the usual course.
51. Lastly, it is contended that the lower Court's decree is wrong in regard to the direction it contains as to the maintenance payable to the tenth defendant. By the preliminary decree passed in 1924 her maintenance was fixed at Rs. 125 a month, and the question, from what date it was payable, was left to be determined by the final decree to be passed. The clause in the decree relating to this may be quoted:
The tenth defendant is entitled during her life to maintenance at the rate of Rs. 125 a month from the sixth defendant's estate. The provision for the tenth defendant's residence and what properties ought to be charged with her maintenance and from what date the tenth defendant is entitled to claim maintenance will be determined in the final decree.
52. This direction was confirmed in appeal by the High Court on the previous occasion. The Judge has now held that the maintenance is payable from the 25th March, 1920, when she filed her written statement.
53. What is argued in the appeal is, that in regard to the arrears now declared payable, there is no reason to hold the sixth defendant alone liable. The argument is thus put: It has now been held that till the date of the preliminary decree the joint status of defendants 3 to8 continued; this being so, it follows under the Hindu law that for the maintenance that became payable prior to the date of that decree, all the members of the sub-family would be liable. We cannot, it seems to us, enquire whether this contention is sound or not. The terms of the preliminary decree above quoted preclude us, in our opinion, from going into this question. On two points the direction is quite explicit; first as regards the rate, second as regards the person liable. The decree says in terms, that it is the sixth defendant's estate that is liable for the maintenance. We must therefore disallow this contention.
54. It remains to be mentioned (as this case is likely to go to the Privy Council) that the eighteenth respondent, the fifth defendant's son who was impleaded as a party to the appeal in virtue of our order dated 16th March, 1937, contends that our decree should contain no provision which would operate to his prejudice. We are not prepared to agree with this contention.
55. In the result, the lower Court's decree is modified as indicated in the various paragraphs above. We understand that the result of our judgment will be to vary the directions of the lower Court in regard to the charges created by its final decree (vide para. 4, pp. 88 and 89 of the pleadings Book). The parties will bring in a scheme specifying in what manner the decree should be varied in this respect. The sums as now found due by us to the various parties will carry interest in the manner provided for in the lower Court's decree.
56. Their Lordships gave the necessary directions for costs.
* * * *
57. After the return of the finding of the lower Court upon the issue referred by this Court for trial, the Court (Venkatasubba Rao and Abdur Rahman, JJ.) made the following 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 JUDGMENT 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.