RAMASWAMI CHETTIAR MINOR BY NEXT FRIEND S R M S A ANNAMALAI CHETTIAR AND ROYA KANNIAPPA MUDALIAR Vs. PMAVELLAYAPPA CHETTIAR

JUDGEMENT

(1.) It is a tribute to the learned Counsel who have appeared before me that my mind has fluctuated a good deal during the course of their arguments. Rightly or wrongly my mind is now stabilised. There are before me two applications. Both applications are made in a suit for partition entitled C.S. No. 762 of 1926 relating to a joint family known as the P.M.A. Firm. In that suit a preliminary decree was passed on the 22nd November, 1928. By that preliminary decree it was ordered and decreed that the suit be and thereby was referred to a Commissioner to take the following accounts: (a) an account of the property, credit and effects of the said joint family (inclusive of the assets, profits and liabilities of the said P.M.A. Firm belonging to the said joint family) as on the institution of the suit, (b) an account of the debts and liabilities of the said family outstanding, and (c) an account of all moneys of the joint family which have come into the hands of both or either of the defendants 1 and 3 herein not on the ground of wilful default, but in the ordinary course of management of the said family, and to make an enquiry whether the compromise set up by the defendants 11 to 13 herein is true,, valid and binding on the plaintiff or any members of the family herein.

(2.) The joint family referred to therein as the P.M.A. Firm is, I am told, one of the leading families of the class to which they belong. I am told that they took an active part in relation to the conduct of a Saivite temple at Elamayankottur. It is alleged that they were in possession of funds amounting to Rs. 1,38,000. It is alleged that that fund was a trust fund. It is alleged that the family itself regarded that money as the money of the deity. Those being the allegations an application taken out on the 17 September, 1929, was made to me asking for the following relief: (a) Why the amount standing in the accounts of the P.M.A. Firm, Madras, (a) the credit of Sri Elamayankottur Deivanayagaswami should not be declared to be a trust fund payable by the Receivers of the estate Messrs. Fraser and Ross, in full, (b) Why the said Receivers should not be directed to retain out of the realisations made by them a sum sufficient to pay in full the said amount, (c) Why costs of the application should not come out of the estate, and (d) Why such further or other order should not be passed as may be necessary in the interests of justice and in the circumstances of the case.

(3.) That application was made in this partition suit by two persons who were described as worshippers at the temple in question. When that application came before me I expressed some surprise that persons, strangers to the suit, should try to come in and make an application of this sort. I was told by Mr. T. M. Krishnaswami Aiyar, who appeared on behalf of the applicants, that he rested his application on Order 31, Rule 5 of the Original Side Rules of this High Court. Rule 5 provides as follows: If it appears to the Court that there are outstanding debts or liabilities of the family, and that the same cannot then be ascertained, the Court may direct an account to be taken thereof, and may, in its discretion, direct notice to be given to all persons having claims against the family, or its property by advertisement in the newspapers or otherwise, to bring their claims into Court before a fixed day.