SIVARAMA PILLAI Vs. AUNDY PILLAI

JUDGEMENT

(1.) These appeals arise from the third preliminary decree passed in an administration suit (O.S. No. 18 of 1112) on the file of the Parur District Court. The present decree was passed on 27.9.1946, the two earlier preliminary decrees having been passed respectively on 13.1.1941 and 10.1.1945. Issue No. 7 raised for trail is the issue now dealt with. It reads whether any amounts are payable by defendants 1, 2 and 7 to the estate of the deceased as damages or as amounts collected by them during the period of their management" The Court found that there was no proof on the side of the Plaintiff to establish the liability of these defendants except for an amount of Rs. 2,800 for which Defendant 7 alone has been made liable. The plaintiffs have preferred A.S. No. 650 against this decision and claim that in addition to the amount of Rs. 2800 for which defendant 7 has been made liable defendants 1, 2 and 7 ought to have been made liable for all outstandings due to Chidambarom Pillai when he died, for the profits of the business conducted after his death, for the rents and profits of his immovable properties till the date the administrator appointed by the Court to manage the estate assumed charge and for the value of the movables Chidambarom Pillai died possessed of including the stock in trade. Chidambarom Pillai died on 31.10.1107 and the administrator took charge on 1.3.1122. The plaintiffs' appeal is valued at Rs. 22400 and the claim is that the three named defendants should be jointly and severally made liable to the plaintiffs at least to that extent. Defendant 7 has preferred A.S. 57 against the decree making him liable in the amount of Rs. 2,800.

(2.) The Court had in its previous decisions found that as executors and managers appointed under Chidambarom Pillai's last Will and Testament these defendants (1, 2 and 7) were liable to account for all the heads of claims mentioned above. The Court's present task was only to assess the quantum of their liability, if any. We feel constrained to observe that the Court has thoroughly misdirected itself in discharging that task. The Court wrongly thought that it was for the plaintiffs to establish by definite evidence the extent of the liability of the executors and clean forgot that it was the first duty of an accounting party, whether an agent, a trustee, a receiver, or an executor to be constantly ready with his accounts. The lamentable fact about the whole case is the defendants who took charge of assets of the deceased when he died and who were admittedly managing his estate for over four years have not cared to produce any books of account to show that the outstandings were, how the business was run, or what the rents and profits of the properties were or how they were dealt with during all these years. Ext. B the release deed under which defendant 2 renounced his management and executorship and entrusted those functions to defendants 1 and 7 shows that no account books were handed over to them at that time. Defendants 1 and 7 acted improperly in taking over management without making defendant 2 render a proper account. The explanation offered for non production of the accounts that the 1st plaintiff himself had destroyed or sold them away for paper value hardly commends itself to us as true. The lower Court has itself not accepted the explanation. Admittedly Chidambarom Pillai was running a flourishing trade and he was maintaining regular accounts. That trade was continued for at least a year or two after his death. Necessarily those who were running the trade after Chidambarom Pillai's death must also have been maintaining accounts. A statement which defendant I filed during the course of the proceedings shows that Chidambarom Pillai had to realise very nearly Rs, 20,000 from various individuals and institutions. That statement also shows that the profits of the properties came to not less than Rs. 1800 and 453 paras of paddy a year. Of the outstandings due, one item in respect of which an amount of Rs. 2450 or thereabouts was due was the subject of a proceeding under the Debt Relief Act. By the time the administrator came on the scene the outstandings due to the trade must have become barred unless they were duly collected. There is no evidence what has become of them or how the trade goods were disposed of. Even on the modest estimate regarding outstandings and annual income given by defendant 1 the plaintiffs' 1/5 share in them would exceed the amount they have claimed in the present appeal. If the figures mentioned in the statement the plaintiffs gave are accepted they would become entitled to more than twice the amount claimed. As pointed out by the lower Court the plaintiffs' figures in the plaint regarding these matters were not disputed in the suit. As per a statement their Advocate filed in Court on 7.11.1120 the profits of the trade and outstandings collected amounted to not less than Rs. 29,000 and 4800 paras of paddy. Their claim in the appeal amounts to a little over Rs. 3000 whereas if we accept their figures they would become entitled to very nearly Rs. 6000 and 1000 paras of paddy. In the court it was contended on hie behalf that as the defendants had failed to render any account with respect to the period they were in management they must at least be made liable for the amounts admitted by the 1st defendant in his statement. But the argument was however summarily turned down by the Court who stated "that there is no proof of realisation of any amount by defendants 1, 2 and 7 except what is admitted by the 5th defendant in Ext. XIV deposition." This we are afraid betrays ignorance of the law to be applied in circumstances similar to the present. That the account books of Chidambarom Pillai's trade went in the hands of defendant 2 admits of no doubt. Defendant 1 and defendant 7 on the one hand and defendant 2 on the other are not agreed whether the latter handed over to the former. The fact however remains that no account books whether existing when Chidambarom Pillai was alive or those maintained after his death are produced in the case or is any satisfactory explanation for their non production forthcoming.

(3.) The law to be applied in situations like this, is, if we may say so with respect, clearly and succinctly stated by Justice Sir Asutosh Mookerjee, Kt., and Mr. Justice Panton in the case reported in Debendra Narayan Singh v. Narendra Narayan Singh (1920) 57 I.C.. 636. The relevant portion of the judgment can usefully be reproduced here:-