NARAYANAN Vs. GANGADHARAN

JUDGEMENT

(1.) These appeals are directed against the judgements in O.S. Nos. 347, 349, 351 and 353 of 1983 on the file of the Court of Subordinate Judge of Palghat. Defendants in the respective suits are the appellants in these cases. Plaintiff in all the suits is the same person and is the brother of the defendants in the suits.

(2.) The relief sought for in all the suits is cover on the strength of title. The facts leading to these appeals may be summarised as follows : The plaintiff and the defendants are sons of one Chippukutty. The defendant in O.S. No. 349 of 1983 is the eldest. According to the plaintiff from his early youth onwards, the plaintiff had been working in various places and ultimately he was employed in Saudi Arabia and had saved considerable income from his employment. The eldest brother Narayanan who is the defendant in O.S. No. 349 of 1983 is a teacher working in his native place. The plaintiff had been sending all the money saved by him to Narayanan by cheque and money orders and also had paid cash when he came to the native place occasionally. The plaintiff requested him to accumulate the money sent by him and to invest in landed properties in his name. Narayanan agreed to do it and a sum of Rs. 85,000/- was entrusted to Narayanan for the purpose of acquiring landed properties. Narayanan had deposited the money in the Koduvayoor Service Co-operative Bank. Thereafter Narayanan entered into an agreement with the widow and children of one Gopala Iyer for purchasing the suit properties. Pursuant to this Narayanan purchased the properties by separate documents in his name and in the names of his brothers including the plaintiff. Narayanan had paid the amounts of consideration out of the funds sent by the plaintiff for the purpose of acquiring landed property in his name. Expenses for execution of the documents and registration were also met out of the funds sent by the plaintiff. However, Narayanan and other brothers did not inform him about the acquisition made in the name of his brothers, and he came to know of the fact only when he came on leave, to his native place in the year 1981. The plaintiffs case is that when he complained to Narayanan and the other brothers of having taken the assignment deeds in their names, all of them agreed that when the plaintiff returns to India, they would give all the properties back to him executing necessary documents. They also agreed to account the profits derived from the properties. In Feb. 1982 the plaintiff resigned his job in Saudi Arabia and came back to his native place. He demanded his brothers to give back his properties as had been promised by them. Pursuant to this, Anandan, one of the brothers of the plaintiff, conveyed the properties purchased in his name to the plaintiff, but the other brothers including Narayanan did not convey the properties to the plaintiff or account for the profits. Therefore, on 18-2-1983 the plaintiff demanded his brothers including Narayanan by registered lawyer notice to execute documents conveying the properties purchased in their names with his funds to him. To this Narayanan sent a reply denying the liability to convey the property to the plaintiff. The plaintiff averred that the money entrusted by the plaintiff with Narayanan for the purpose of acquiring landed properties is a trust property. The amounts were entrusted with the defendant Narayanan on the strength of his faith in Narayanan for specific purpose of acquiring landed properties in the name of the plaintiff and therefore Narayanan had a fiduciary capacity. Misusing the fiduciary capacity and utilising the trust money, Narayanan has purchased the properties in his name and in the names of the other brothers as well with a view to deceiving the plaintiff. The other brothers are also constructive trustees in respect of the properties purchased in their names and they are all bound to account for the profits and to surrender possession of the properties purchased in their names to the plaintiff.

(3.) The defendants resisted the claim of the plaintiff. The entrustment of money to Narayanan for acquiring landed property in the name of the plaintiff was denied. According to them the suit was barred by limitation. They also contended that the properties were purchased out of the funds of the defendants themselves. Narayanan, the eldest brother and the defendant in O.S. No. 349 of 1983 further contended that he spent a sum of Rs. 9051/- for purchasing the property in his name. In his written statement he admitted that an amount of Rs. 58,000/- was received by him from the plaintiff. He also stated in his written statement that the plaintiff came to India for his marriage in April, 1979 and an amount of Rs. 22,000/was spent by him for his marriage. He purchased a property for the plaintiff by registered assignment deed No. 950 of 1979 for a sum of Rs. 12,000/-. According to him, the plaintiff is liable to pay to him a sum of Rs. 9,000/- and he reserved his right to institute appropriate proceedings for recovery of the said amount. The defendants also contended that there was no trust or constructive trust created as averred in the plaint.