VEERABHADRA DEVASWOM Vs. KUNHI RAMAN NAMBIAR

JUDGEMENT

(1.) THE second appeal is by the 17th defendant in O.S.No.888 of 1935,on the file of the court of the District Munsiff of Kasaragod,against the decision of the learned Subordinate Judge of the same place,reversing the decision of the Trial Court.The appellant is the Executive Officer of the Veerabhadra Devaswom of Cheruvathur and the only question involved in the second appeal is a question of limitation.The Trial Court held that the suit was barred by limitation and dismissed the suit;but the lower appellate court reversed the decision and granted a decree in favour of the plaintiff -lst respondent for a portion of the plaint claim.The second appeal seeks to set aside the decision of the learned Subordinate Judge.

(2.) THE Veerabhadra Devaswom had three trustees,the trusteeship having been vested in the karnavans of three tarwads.Two of the trustee -ship having been vested in the karnavans of three tarwads.Two of the trustees appointed the plaintiff -1st respondent,who is a junior member of one of "the said two families,as Samudayi of the Devaswom under a power of attorney dated 29th August,1931.Though there was dispute in the lower courts regarding the validity of this appointment,because of the non junction of the third trustee,that point has not been seriously pressed before me.The plaintiff continued in management of the Devaswom,when two of the trustees issued a notice on 17th September,1932 terminating or cancelling the power of attorney granted to him.Thereafter,according to the plaintiff,though he received the notice,he continued in management till 27th January,1933.The suit,out of which the second appeal has arisen,was filed on 23rd September,1935 for the recovery of amounts alleged to have been spent by the plaintiff in the course of his management of the affairs of the Devaswom after adjusting payments received by him from tenants and other debtors of the Devaswom.The only contention of the defendants,with which 1 am concerned in the second appeal,is one of limitation.According to them the agency or power of attorney was terminated on 17th September,1932 and the suit which was filed on 23rd September,1935,that is more than three years from the said termination,is barred by limitation.On the other hand,the plaintiff's case is that he continued in management till 27th January,1933 and the suit filed on 23rd September,1935 is well within time.

(3.) A very early authority on this question is a Division Bench ruling of Holloway Ag.C.J.and Innes J.in Hirada Basappa v.Gadigi Muddappa(VI MHCR 142)wherein Holloway Ag.C.J.observed: "To be mutual there must be transactions on each side creating independent obligations on the other,and not merely transactions which create obligations on the one side,those on the other being merely complete or partial discharges of such obligations." Another early authority on the point is the judgment of Mookerjee J.in Ram Pershad v.Harbans Singh(VI C.L.J.158)which has already been referred to,wherein the learned Judge approved the aforesaid statement of the law by Holloway Ag.C.J.and observed: "that a shifting balance,sometimes in favour of one side,sometimes in favour of the other,is a test of mutuality,but its absence is not conclusive proof against mutuality." In another part of the same judgment Mookerjee J.observed: "In order to prove a mutual and open account current,it is sufficient to prove mutual dealings between the parties consisting of sales made,or services performed,by each party,to,or for the other,creating mutual debts or reciprocal demands " These decisions have been considered in a later Division Bench ruling of the Madras High Court in Kunhi Kuttiali v.Kunhammad(AIR 1923 Mad.278)and Schwabe C.J.speaking for the Court explained the first passage quoted above from the judgment of Mookerjee J.thus: "The meaning of that,as I understand it,is that,it you may get a balance in favour of either party,it follows that there must be mutual liabilities of both parties to each other;if the balance is always in favour of one party in the very nature or the transactions,there you have got a case where you have not separate mutual dealings." The second passage from the judgment of Mookerjee J.extracted above Schwabe C.J.explained in the following terms: "I think that is a fair statement of the principle to be applied and one has to look at each particular case and see if it is really a case of a debtor and creditor only or a case of mutual obligations which will in the ordinary way result in enforceable liabilities on either side." In The Tea Financing Syndicate Ltd.v.Chandra Kamal Bez Barns(ILR 58 Cal.649:AIR 1931 Cal.359)all the authorities were reviewed by Rankin C.J.and the learned Judge held that the presence of a shifting balance alone was not the test,but the reciprocity of dealing and the right to mutual demand formed the essential ingredients of a mutual,open and current account.