ABDUL RAZACK Vs. MAHAMMAD RAHAMATULLAH

JUDGEMENT

(1.) This appeal and the Civil Revision Petition arise out of the same order passed by the Subordinate Judge of Cuddapnh in I.A. No. 55 of 1954 in O.S. No. 2 of 1149 dated 16-9-1954 giving certain directions regarding the mode of taking accounts. The suit was filed by the six plaintiffs for a declaration of their title to and for possession of the plaint schedule properties consisting of two items of land, a house, vacant sites and five buses, and for an account from the first defendant in regard to his management of immovable properties and collections from the bus service from May 1942 upto the date of the suit. The first plaintiff is the son of one Abdul Nabi. The other plaintiffs are first plaintiffs sisters. Abdul Nabi, the 1st defendant and late Ameen Saheb were three brothers. Abdul Nabi died in 1930 when the plaintiffs were minors leaving a house, vacant sites and lands shown in the plaint A schedule and considerable cash to the extent of Rs. 12,000.00. He had also forest and abkari contracts. It is alleged that he entrusted all his property to his elder brother, Ameen Saheb, with a direction to protect the plain-tiffs and manage the properties and deliver them to the first plaintiff after he attained majority. After the plaintiffs fathers death, both Ameen Saheb and the first defendant took upon the management of the properties on plaintiffs behalf. The first defendant was looking after the lands and contract business on behalf of the plaintiffs, while Ameen Saheb looked to the management of the rest of the properties. In so far as it is relevant, it may be stated that Ameen Saheb purchased five motor buses described in the B schedule of the plaint and conducted bus service from Cuddapah to Nell ore and Proddatur to Nellore under the name of "Amin Motor Service". In this motor service, one P. T. Gopalacharlu was also a partner with Ameen Saheb till 5-4- 1942 when he relinquished his interest and executed a receipt. On 15-4-1942 Ameen Saheb executed a will whereby all the properties belonging to the plaintiffs father including the buses in question were delivered to the first plaintiff and he died a few days afterwards. But as the first plaintiff was young and inexperienced to carry on the management of the lands and bus service himself, the first defendant undertook to manage the bus service on a fixed salary of Rs. 50.00 per month and executed a letter dated 5-5-1942 agreeing to render proper accounts to the first plaintiff. The buses in the B schedule were put in possession of the first defendant, who was also managing the plaintiffs lands by leasing them to tenants and collecting rents thereof., It was averred that the first defendant had fraudulently got transferred the patta for item I of the plaint A schedule in his name and had not been rendering accounts of the collections in the bus service. It is also stated that in anticipation of the plaintiffs suit, the first defendant was trying to nominally transfer the C certificates and G permits of the buses in question in favour of his friends Khader Mohideen and others. Subsequent to the filing of the suit, the plaintiffs amended the plaint by alleging that they had come to understand that the said buses have been nominally transferred at first in favour of the 2nd defendant and then in favour of the third defendants company of which the second defendants brother was the managing Director. The said alienations were said to be nominal and intended to defeat the plaintiffs claim. Inasmuch as the Interlocutory Application, I.A. No. 56 of 1954 relates only to the question of buses and does not deal with other matters dealt with by the preliminary decree, we will confine ourselves only to the averments in respect of these buses. The first defendant contended that these buses belonged to him, that he is the owner and had title and possession of the same and was running them on his own account, that the sale was not fraudulent or nominal, and that it was a genuine sale. Defendants 2 and 3 also supported the first defendant and said that they had paid consideration and that the sales were genuine. These contentions were, however, negatived. It was held that the defendants had no title or proprietary rights in these buses, that these buses belonged to the minors and that the first defendant had come by way of managing the same on behalf of the plaintiffs after the death of their father, and paternal uncle, Ameen Saheb, and that the transfer was not bona fide but fraudulent. In The result, the learned Subordinate Judge passed a preliminary decree on 23-9-1919 in favour of the plaintiffs holding all the allegations made by them proved.

(2.) Against the judgment and decree of the Subordinate Judge, appeals Nos. 816 of 1949 and 154 of 1950 were filed in the High Court of Judicature, Madras. Appeal No. 816 of 1949 was filed by the first defendant, and the other by defendants 2 and 3 being appeal No. 154 of 1950. In so far as the lands are concerned, they are not relevant for the purposes of this appeal; and in so far as the preliminary decree related to the buses, the defendants in these appeals challenged the finding. Subba Rao, J. (as he then was) dismissed these appeals on 22-1-1954 and confirmed the decree with certain directions to which we shall refer presently. Against this judgment of Subba Rao, J., a Letters Patent Appeal was filed being L.P.A. 46 of 1954 which came up before the Honble The Chief Justice and one of us. But this appeal was also dismissed on 21-1-1959. After these appeals were deposed of, a commissioner was directed to take accounts and during the course of the accounting, it was urged by the plaintiffs that not only the accounts relating to the three buses viz., M.D.D. 22; M.D.D. 39 and M.D.D 68 but also the accounts with respect to the three buses which were purchased and substituted for them after the preliminary decree was passed, should be taken. The respondents before us, however, contended that the enquiry must be confined to the directions given in The preliminary decree and if any buses have been purchased from out of the income, accounting in respect of those buses cannot be within the four corners of those directions. This contention seemed to have found favour with the learned Subordinate Judge who held that the accounts must be confined to the running of the three buses specified in the preliminary decree and no more.

(3.) The learned advocate for the appellant Sri P. "Ramachandra Reddy, urges before us that these directions are not in accordance with law. The basis of his argument is that the first defendant, being in a fiduciary capacity, is liable to render an account, not only of all the incomes earned from the specific buses but also in respect of acts of his in relation to those buses, and is liable to render an account for the profits made directly or indirectly and consequently all those who had notice of the fiduciary capacity of the first defendant and who intermeddled with the minors property and their estate such as the respondents against whom there was a categorical finding that they had purchased these buses nominally with full knowledge that the buses belonged to the minors. Before Subba Rao, J., the respondents herein contended that there was no prayer in the plaint against them and that the Subordinate Judge was wrong in giving a decree against them. In The High Court, however, the plaintiffs had filed an application for amendment of the plaint. That application was allowed by Subba Rao, J., who consequently held that the finding of the Subordinate. Judge on the evidence that the defendants 2 and 3 were running the buses from the data of their purchase under a secret arrangement between the parties could not be disturbed and the deletion from the decree of the direction for rendition of accounts passed against defendants 2 and 3 also could not likewise be disturbed. He further held that defendants 2 and 3 were not bona fide purchasers without knowledge of the plaintiffs rights to the buses. In this view the learned Judge dismissed the appeals. But in doing so, ho made the; following observations : "It is said that there was a change in the routes, that one bus was sold and that the buses became useless after some time. The applicants can take out an application for suitable directions in final decree proceedings." In the Letters Patent Appeal, the scope of the argument was confined, only to the amendment, but the Bench did not accept it with the result the liability to render accounts by defendants 2 and 3 (respondents herein) had become final and cannot now be challenged. The only question is what is the scope and liability of the respondents in rendering an account in respect of the profits of the buses. The relevant clauses of the preliminary decree are Clauses 3, 7 and 8 which are in the fallowing terms: (3) that the defendants do put plaintiffs 1 to 3, 5 and 6 in possession of the motor buses M.D.D, 22, M.D.D. 39 and M.D.D. 68 specified in schedule B hereunder or pay them their value as determined in The final decree proceedings. (7) that defendants 2 and 3 do render an account to plaintiffs 1 to 3, 5 and 6 in respect of the profits of the motor buses M.D.D. 22. M.D.D. 30 and M.D.D. 68, from the date of suit viz., 23-7-1945; (8) that the plaintiffs be and are at liberty to take separate proceeding for the appointment of a commissioner to take an account regarding the value of the motor buses specified in schedule B hereunder and the income derived therefrom by the respective defendants. ***** In the Interlocutory Application filed by the appellants, it was contended that from The income derived by the running of the three buses specified therein the respondents have purchased, three other buses, which were M.D.D. Nos. 279, 460 and 278 with a seating capacity of 26, 38 and 25 respectively, that these buses have been substituted by the respondents in the place of the suit buses on the same routes that the substitutions seemed to have been done by the respondents with the object of making it appear as though the suit buses did not run for some period, that the respondents were therefore liable to make good to them these three substituted buses as well as the income derived therefrom on the routes nominally transferred to them by the first defendant which wag estimated at more than Rs. 8,11,200.00 and as well as restore to the appellants the buses M.D.D. Nos. 22, 39 and 68 in the condition in which, they were on the date of transfer or their value on that date, and that they were further liable to deliver The buses, M.D.D, Nos. 279, 460 and 278 which were purchased out o[ the income derived from the suit buses. The Subordinate Judge held that the petitioners (appellants) claim was untenable when they seek an account in respect of The other buses substituted in the place of their buses after their buses, had ceased to ply on the route for some reason or the other, that their right to an account was restricted to their own buses and this right could not be extended to other buses by which right they have come to ply on the routes on which the petitioners" buses were originally plying and that the petitioners (appellants herein) were therefore not entitled to seek any account of The income; or profits of the buses M.D.D. 278, MDD 279 and, MDD 260 or of any other buses. It was his, view that the claim of the petitioners clearly appeared to be fantastic when they seek to claim title and recover The buses MDD 278, MDD 279 and MDD 260 on the ground that these buses being "improvements" and alleged to have been acquired from the income of their buses, MDD 22, MDD 39 and MDD 68.