D SUBBIAH ALIAS DEVARAYAN CHETTIAR Vs. ALAGAPPA CHETTIAR

JUDGEMENT

(1.) THESE two appeals arise out of the common judgment of the learned subordinate Judge of Devakottai, disposing of two suits, O. S. No. 7 of 1952 and o. S. No. 20 of 1952. O. S. No. 7 of 1952 out of which A. S. No. 154 of 1956 arises was instituted by one Annapoorni Achi for recovery of money due to her on a deposit voucher executed by the first defendant as one of the partners of a money lending Nattukottai Chettiar firm of Palladam. She died during the pendency of the suit and her adopted son has been brought on record as the second plaintiff. Defendants 1 to 3 along with the father of Annapoorni Achi above mentioned were the partners of the Palladam firm.

(2.) THE case in the plaint was that Stridhanam and Seermural money belonging to annapoorni Ache was originally deposited with two firms and subsequently in 1921 the money came to the deposited with the Palladam firm (YPRL, firm ). Fourth defendant is the undivided son of the first defendant and the fifth defendant is the undivided son of the third defendant. Sixth defendant is the husband of annapoorni Achi, the first plaintiff. Sixth defendant was impleaded as party to the suit on the allegation that the deposit voucher dated 16-2-1921 was taken on his order. The document itself recites that the money deposited was the Stridhanam of Annapoorni Achi and it was deposited though the maral of her father Kasinathan chettiar and the money was payable to the order of the husband of the lady. Sixth defendant, though he did not file a written statement, went into the witness box and supported the case of his wife, the first plaintiff, and disclaimed any interest in the money and proclaimed his readiness to consent to a decree being passed in favour of the first plaintiff for the sum due. The main contest raised by defendants 1 to 5 who were the contesting defendants centered round three questions. The first was that the transaction was a loan and not a deposit and consequently its recovery was barred by limitation. The second was that the first plaintiff Annapoorni Achi had no right of suit in herself but the suit ought to have been brought by the sixth defendant. In support of this plea they relied on the rule that a stranger to a contract could not sue on the contract for the benefit secured to that stranger. The third defence related to a question of fact namely the guarantee alleged to have been given by the first plaintiff in devakottai for repayment of money due by her husband to the first defendant and an agreement for adjustment of such borrowings made by her husband from out of the Stridhanam amount due to her. Following up his plea it was specifically said that a sum of Rs. 4341 due to the first defendant on a promissory note executed by the husband of Annapoorni Achi had been so adjusted. The other suit, O. S. No. 20 of 1952 was instituted by the first defendant in the litigation O. S. No. 7 of 1952 (Alagappa Chettiar ). That suit was laid against the sixth defendant in the prior litigation that is the husband of Annapoorni Achi as the first defendant, Annapoorni Achi herself as the second defendant, and her adopted son as the third defendant. That suit was laid on the promissory note, Ex. B. 1, dated 14-1-1937, executed by Theivarayan Chettiar, husband of Annapoorni in favour of the plaintiff in that suit. The question in issue in that suit was really the defence raised by Annapoorni namely that she should not be made liable for any part of the sum due on the promissory note of her husband. Both the suits were by consent of parties, tried together and the learned Subordinate Judge came to the following conclusion or findings.

(3.) ACCORDING to him the transaction sued upon in O. S. No. 7 of 1952 was a deposit and not a loan. Secondly he held that the first suit, O. S. No. 7 of 1952, was not barred by limitation. On the plea raised by first defendant in O. S. No. 7 of 1952 regarding the specific contract of guarantee or adjustment between himself and Annapoorni the learned Judge disbelieved the case of the first defendant and held there was no such contract or agreement. On the question of giving a decree to Annapoorni for the money due to her, the learned Judge held that she had no right of suit as she was a stranger to the deposit transaction and dismissed the suit. Against that decree the second plaintiff in O. S. No. 7 of 1952 has preferred the first mentioned appeal, A. S. No. 154 of 1956 in forma pauperis.