KOKA SIVANANDA SASTRY Vs. SAMASTHANAM CHOULTRY PITTKAPURAM

JUDGEMENT

(1.) The second defendant has preferred this appeal against the judgment of the Principal Subordinate Judge, Kakinada in O.S. No. 69 of 1960 decreeing the suit filed by the plaintiff, the Samasthanam Choultry, Pithapuram, against himself (second defendant) and the first defendant, Sri Raja Rao Venkata Kumara Mahipathi Surya Rao Bahadur, for recovery of Rs. 10,401 with interest thereon and costs, from the second defendant in the first instance failing which from the first defendant.

(2.) The Samasthanam Choultry, Pithapuram represented by the Special Assistant Commissioner, Hindu Religious and Charitable Endowments (Administration) Department filed the suit under the following circumstances: The first defendant was the holder of the estate and hereditary trustee of the Samasthanam Choultry and the appellant (defendant 2) was his Diwan and also his power-of-attorney agent. Both before and after the abolition of the first defendant's estates, the appellant was managing the estates, and the Samasthanam Choultry under a general power-of-attorney. The Samasthanam was also taken over by the Government for management as the second defendant was mismanaging the affairs of the institution. On 11th March, 1957, when the second defendant handed over charge of this Samasthanam Choultry, a sum of Rs. 29,985-7-6 was found to the credit of the choultry. The second defendant on that date acknowledged this amount under Exhibit A-l as being due to the choultry, and made a part payment of Rs. 1,000 towards the sum found due to the choultry and promised to pay the balance before 25th March, 1957. He made two subsequent payments Rs. 8,000 on 25th March, 1957, and Rs. 12,000 on 28th March, 1957, leaving a balance of Rs. 8,985-7-6, and itwasfor recovery ofthis balance together with interest that action was laid against the first defendant, the trustee and his power-of-attorney agent who was in management of the plaintiff choultry.

(3.) The first defendant contended inter alia that he was living in Madras since a long time and besides he was afflicted with paralysis and as such he was not personally aware of the management of the plaintiff-choultry, and that the second defendant who was in sole management of the choultry is alone liable to pay the suit amount. It was also his case that the second defendant misappropriated the funds of the plaintiff-choultry using them for his own purposes and since he (D-2) had also given a personal undertaking, the amount is recoverable only from him. The second defendant (appellant) generally demurred to the averments in the plaint and contended that he is not liable to pay the amount found due to the plaintiff-choultry as he was only an agent managing the properties of the institution under the general power-of-attorney executed in his favour, that the power-of-attorney was subsequently cancelled and a fresh power-of-attorney was executed in favour of the first defendant's son (the first defendant's son has now been brought on record as the legal representative of the first defendant after the death of his father Vide orders of the Deputy Registrar, dated 1st August, 1967, in G.M.P. No. 6339 of 1965, which was also cancelled and executed again in favour of the second defendant for management of the properties of the first defendant. In short, his defence is that whatever he did while he managed the Samasthanam Choultry, it was only in his capacity as the power-of-attorney agent and not in his individual capacity and therefore he is not personally liable for the suit amount, and that there is no cause of action so far as he is concerned.