MALLIGAI SUNDARAM AMMAL Vs. KRISHNASWAMY REDDIAR

JUDGEMENT

(1.) THIS is a plaintiff's appeal against the dismissal of O. S. No. 27 of 1949, on the tile of the Subordi nate Judge of Tiruchitapalli and the facts and cir cumstances which have given rise to this appeal are as follows: the plaintiff and the second defendant are two of the children of one Arunachala pillai, a substantial and wealthy businessman owning properties in Tiruchirapalli district and carrying on business on a large scale in Ceylon. He had two, other children, namely, a daughter named Sitalakshmi Ammal who is elder to the plaintiff and Thangavelu who is younger than the second defendant. The plaintiffs husband, who is examined as P. W. 3, in comparison with the affluence of avunachala is somewhat in inaigent circumstances, and it is the case of both the parties that ho was living in his ancestral house in Chimmkadai St. , Tiruchirapalli, where his avocation was to help Aru-nachala in the management of his business by purchasing goods and sending them to Ceylon whereas Arunachala as already stated was trading. It is also in evidence that P. W. 3 was handling the monies of arunachala which were left in his hands for the purpose of trade. We have also the undisputed fact that the other daughter Sitalakshmi Ammal was in fairly affluent circumstances in any event richer than the plaintiff. The second defendant is younger in age to the plaintiff and during the time he was pursuing his studies in a college in Tiruchirapalli was residing with the plaintiff and her husband in the same manner as the younger brother Thangavelu did later on.

(2.) THE plaintiff's case is that her father intended to make a gift of Rs. 15,000 to her and directed P. W. 3 to lend that amount out of the monies in his hands to the first defendant who also was a trader in Ceylon and was the owner of estates there. At the time of the suit it was admitted that the second defendant and krishhaswami Reddiar, the first defendant, were partners in business in Ceylon. The promissory note Ex. B-l produced in Court by the first defendant during the course of the trial, dated 6-2-1946 was executed in favour of the plaintiff for a consideration of Rs. 15. 000. It was executed in the house of the plaintiff wherefrom money was also paid as consideration. There is no dispute that cash was not paid to the first defendant in consideration of the execution of the promissory, note. It is also admitted that the promissory note continued to remain in the possession of the plaintiff till 30-3-1947 when she handed it over to the second defendant who was proceeding to Ceylon for the purpose, according to the plaintiff, of collecting money from the first defend nt. The plaintiff, however, alleges that since nothing was done for about two years, lawyer's notices Ext. A-l and A-3 to the first and second defendants respectively were sent on' 10-1-1949 setting nut the fact that the money due under the promissory not had not been paid. Not having received a reply or payment in response to that notice, the suit was filed on 4-2-1949 for the principal and interest due under the note.

(3.) THE case put forward on behalf of both the defendants was that the plaintiff was a benamidar and had no beneficial interest in the monies lent and therefore, the suit was not maintainable. It was also alleged that as the first defendant collected the amount due from, the second defendant the suit should he dismissed. On the side of the plaintiff, three witnesses were examined oi whcm the piainlitj was P. W. 1, her husband was P. W. 3 and one Pala-njyandi Pillai who was present at the time of execu-tion of Ex. B-l was P. W. 2. On the side of the defendants both of them were examined as D. Ws. 1 and 2 respectively. The mother of the plaintiff and the 2nd defendant was D. W. 3. The learned Subordinate 'judge after a survey of the circumstances and probabilities of the case came to the conclusion that the plaintiff had no beneficial interest in the money and therefore dismissed the suit.