H. MUHAMED SULTAN Vs. R.J. MOHAMED YAKUB

JUDGEMENT

(1.) THE plaintiff having failed in both the Courts below has come up with this second appeal. The suit is to direct the defendant for rendition of accounts in respect of the moneys said to have been received by him from and on behalf of the plaintiff from 1946 till date of suit and to pay the plaintiff such amount as may be determined by the Court. Tentatively, the plaint is valued at Rs. 5,100. Both the Courts below held that the plaintiff had failed to establish any liability on the part of the defendant to render accounts.

(2.) THE facts are these : The defendant is the maternal uncle of the plaintiff. The plaintiff lost his father when he was just a lad of three years. The plaintiff's mother died within 3 years thereafter. The plaintiff has five sisters, one of whom is married by one Abdul Razack. The said Abdul Razack was looking after the properties of the plaintiff. The defendant is doing mundy business at Erode. The plaintiff's case is that in about 1946, the defendant suggested to him to transfer all his cash with him, so that he could invest the cash at favourable terms for the benefit of the plaintiff for the purpose of augmenting the income, that the plaintiff agreed with the suggestion and made over certain amounts to the defendant in 1946, that subsequently in 1949, bigger amounts were transferred to the management of the defendant, that the defendant took up complete management of the plaintiff's affairs, collected rent from the properties of the plaintiff and credited the income to his account and met expenses, that in 1949, the defendant employed the plaintiff in his mundy business on a salary of Rs. 150 per month and that the salary and bonus due to the plaintiff were credited in the plaintiff's account from time to time and the plaintiff was being maintained and fed by the defendant himself in his house. The plaintiff further alleged that he reposed complete confidence and trust in the defendant, his maternal uncle, that in June, 1957, when the plaintiff got married, large presents were received which also were entrusted with the defendant and that the defendant was thus acting in a fiduciary capacity in respect of the affairs of the plaintiff and of his assets in the position of a trustee. The plaintiff further alleged that in 1958, misunderstandings arose between him and the defendant, that with a view to defraud him the defendant attempted to make false and fraudulent entries in his accounts and that thereupon he set the criminal law in motion which ended in conviction by the Sub -Magistrate, Erode. The conviction was confirmed by the Sub -Divisional Magistrate, Erode, but was set aside by this Court in revision.

(3.) THE defendant denied that he managed the plaintiff's affairs and contended that Abdul Razack, brother -in -law of the plaintiff managed the plaintiff's properties and collected rent, that he employed the plaintiff who was in indigent circumstances, that the relationship between him and the plaintiff was that of master and servant or that of employer and employee and that there was no fiduciary relationship. He denied liability to render accounts and contended that even if any amount was due to the plaintiff, the proper suit to be filed was one for recovery of a definite amount and not one for rendition of accounts.