C. ABDUL BASITH SAHIB Vs. SHANMUGHASUNDARAM AND ORS.

JUDGEMENT

(1.) THIS Second Appeal is preferred against the Decree and Judgment of the learned Subordinate Judge of Vellore in O.S. No. 101 of 1946 and confirmed by the learned District Judge of Vellore in A.S. No. 377 of 1950.

(2.) THE facts are -Subramania Mudaliar, the father of the plaintiff, and Ponnuswami Mudaliar constituted an undivided Hindu joint family owning considerable properties. This Subramania Mudaliar was the Village Munsif of Veppur and he was also running a Mandi business at Vellore. On 16th December, 1926, Subramania Mudaliar executed the promissory note Exhibit B -2 for Rs. 20,000 in favour of Abdul Hakim Sahib. Inasmuch as this promissory note was engrossed upon a printed form usually employed by money -lenders on a large scale like Abdul Hakim Sahib, it does not recite the purpose for which the moneys were borrowed. There is no dispute, however, that this promissory note is fully supported by consideration. Towards this promissory note debt Rs. 5,000 was repaid on 17th July, 1927 and another sum of Rs. 5,000 on 25th April, 1928, along with a sum of Rs. 2,097 -8 -0 paid and credited towards interest. This Subramania Mudaliar died on 3rd May, 1929. On 24th June, 1929, Ponnuswami Mudaliar who had become the manager of the joint family borrowed a further sum of Rs. 10,000 from Abdul Hakim Sahib and executed a fresh promissory note Exhibit B -3 in renewal of Exhibit B -2 and extinguishing that debt, and a second promissory note Exhibit B -4 for a fresh loan of Rs. 10,000. This Exhibit B -4, like Exhibit B -2, is on a printed form and does not mention the purpose for which the loan had been taken. There is no dispute in the case of Exhibit B -4 that it is fully supported by consideration like Exhibit B -2.

(3.) BY 1933 the affairs of Ponnuswami Mudaliar's family had not run smooth and not to put too fine a point on it the family had come to look upon this Ponnuswami Mudaliar as an utterly useless joint family steward. Therefore the joint family has thought up a device for preserving the share of Ponnuswami Mudaliar as well as the shares of the other members of the coparcenary, making provision for the discharge of joint family debts which were binding on all the members of the coparcenary as well as those debts contracted by Ponnuswami Mudaliar and not binding on the coparcenary. This device took the form of a document styled as a trust deed (Exhibit B -8). Ponnuswami Mudaliar executed this trust deed in favour of one Balakrishna Mudaliar. Ponnuswami Mudaliar is described in Exhibit B -8 as the ' appointer and author of the trust'. His wife, Mangalakshmi Ammal and his minor son, Saminathan, the 3rd defendant are described as the beneficiaries, while Balakrishna Mudaliar is described as the trustee. The properties of the family are described in Schedule A and it is recited that they are ancestral properties acquired by the common ancestor, Amirthalinga Mudaliar. After stating that himself and his uncle Subramania Mudaliar's sons constitute a joint family, Ponnuswami Mudaliar, the author of the trust, in his capacity and position as a member of the joint family, declares that he is entitled to a fourth share in the joint family and ancestral properties and deploring that he had been indiscreet, contracted various debts on his responsibility and for his own purposes and independent of the joint family and wanting to safeguard the interests of the minor members of the family and to save them from further liability declares the 'trust' and vests his ¼ share in the properties in Balakrishna Mudaliar for benefitting his wife, Mangalakshmi Animal and his minor son Saminathan. Next follows a direction given to the trustee to discharge the debts of the family amounting to Rs. 38,486. In the trustee is vested the right, title and interest of Ponnuswami in all properties set forth in the schedule i.e., ¼ share and the trustee is directed to take steps as a prudent man will do to discharge the liabilities from the income of the properties or by sale of such of the properties as may be necessary with the co -operation of the author of the trust. There is a specific direction that, if and when necessary, both the author of the trust and the trustee shall join in the execution of documents, acting also on behalf of the minor members of the family. The trustee is to make to the author of the trust a suitable provision for out -of -pocket expenses not exceeding Rs. 20 per month till all the liabilities are discharged and Rs. 35 per month thereafter and the trust deed is declared irrevocable and to be in force until V.P. Saminatha Mudaliar, one of its beneficiaries, continues to be a minor.