S.K.M. MUHAMMAD ROWTHER, MANAGING PARTNER OF S.K.M. MUHAMMAD ROWTHER AND BROTHER Vs. SENTHATHI KALAI PANDIA CHINNATHAMBIAR AND OTHERS

JUDGEMENT

(1.) This appeal has a chequered history. It arises out of a claim by a creditor of the late Zamindar of Sivagiri, Varagunarama Pandian. Sivagiri estate was taken over by the Government under the Abolition Act (Madras Act XXVI of 1948) in the year 1951. The appellant who has a cloth shop at Srivilliputtur had supplied cloths on credit to the Zamindar (1) for the purpose of the marriage of his daughter, Duraichi Ammal and (2) for presentation to the deity Sri Vinayagar on the occasion of the Kumbabhishekam Ceremony and during the Panguni Uttiram festival at the temple in Sivagiri. There can be little doubt and indeed this matter has not been controverted before us that the purposes for which cloths were purchased were proper ones. The appellant filed his application for payment out of the amount due to him out of the compensation amount paid by the Government. Even earlier, he had obtained a decree against the Zamindar personally in O.S. No. 7 of 1939 on the file of the Sub Court, Tirunelveli. The Tribunal originally accepted his claim but when the matter came up to this Court by way of appeal in S.T.A. No. 44 of 1955, the order of the Tribunal was set aside with a direction to reconsider the matter to see whether the debt evidenced by the decree would be one binding on the assets of the Zamin Estate so as to sustain a claim under S. 45 (3) of the Abolition Act. The Estates Abolition Tribunal, Tirunelveli, on remand has come to the conclusion that none of the purchases made nor the amounts borrowed will be binding on the assets of the Zamindar and that, therefore, the creditor was entitled to be paid only out of the resultant share of the Zamindar in the compensation amount and that he could not be deemed to be a creditor of the Estate. The Tribunal reached this conclusion on the finding that the purchases by the late Zamindar were for his personal benefit made according to his own whims and fancies and that they could not be deemed to be for the benefit or necessity of the Estate. This conclusion was sought to be based on two reasons one of which was that the Zamindari daughter was not married immediately after the purchase of saris and so there was no justifiable occasion for the purchase at the expense of the family. The second reason was that the temple for whose Kumbabhishekam cloths were purchased from the appellant's shop was a public one with sufficient resources which could enable it to obtain the necessary cloths. Yet another reason was that the income of the Zamindar amounted to nearly three lakhs of rupees per year and that there was, therefore, no need for the Zamindar to purchase cloths on credit. We are unable to agree with the Tribunal that the purchases made by the Zamindar can be regarded as only for the personal benefit. With his position as Zamindar he was certainty entitled to make presentations to the deity on the occasion of the Kumbabhishekam Ceremony in the temple in his Zamin. Similarly small presentation of cloths on other festive occasions to the deity in the temple will also be within his powers. The purpose itself is a highly meritorious one and the occasions on which such presents were made are considered very sacred by Hindus; the action of Zamindar was quite consistent with the dignity of his position. Indeed such charities are expected to be done by rich persons. We cannot agree with the Tribunal that time lag between the date of the purchase of saries for the daughter's marriage and the actual date of the marriage would prevent the purchase from being one for necessity. It not unoften happens that saries are purchased in anticipation of the celebration of marriages; sometimes it happens that they get postponed for one reason or another. There is no suggestion in the present case that the purchase was not made for the benefit of the daughter of the Zamindar. The cost of saries amounted to only Rs. 169 and it cannot be said that the amount was in excess of the powers of an ordinary manager in a joint Hindu family. As regards the other reason that the Zamindar could have met these obligations out the income from the estate, is without substance. Purchase of necessary articles on credit is a normal thing with the affluent and almost a habit with some. It cannot be said that such purchases will not be binding on the Zamindar. The Zamindar himself might have expected to pay off the amounts due out of his future income; but the income stopped to come in on the Zamin being taken over. Mr. Natesan who appears for the respondents, has, however sought to support the conclusion reached by the Tribunal on another line of argument namely, that as the liability in the case could not support a charge on the Estate, the creditor would not be entitled to payment out of compensation amount. That however is not the proper way of approach. The question is one of the authority of the Zamindar to contract a debt for the purposes mentioned and not one of judging whether an alienation of property under these circumstances could be justified. S. 45(3) of the Abolition Act says:

(2.) In Navaneethakrishnaswami Devastanam v/s. Rukmani & Co. (1955) 2 M.L.J. 339=68 L.W. 588, a Bench of this Court had to consider the meaning of the phrase "out of the assets of the impartible estate" occurring in the above Sec. and it came to the conclusion that if the debt can bind the Estate under Sec. 4 of the Impartible Estates Act, it would come within the operation of S. 45 (3) of the Abolition Act. S. 4 (1) of the Impartible Estates Act can now be usefully referred to. It runs: