R M G SUBRAMANIA AIYAR Vs. ULAGALUMPERUMAL SETHURAYAR

JUDGEMENT

(1.) The only question for determination in this appeal is whether the appellant is entitled to a decree against the estate of Urkad to which the 3 respondent has been held entitled to succeed.

(2.) The appellant advanced a loan of Rs. 5,000 to the first respondent who executed a promissory note (Ex. A) for the amount. The sum was borrowed for the purpose of paying the peishkush which fell due in respect of the Zamindari when it was under the management of the first respondent as receiver appointed by the Court during the pendency of a succession suit relating to the Zamindari. That suit (O.S. No. 93 of 1929 in the lower court) was instituted by the 3 respondent as the widow of the late Zamindar for recovery of the estate from the first respondent who had taken possession thereof asserting title thereto as the step-brother of the deceased. The suit ended in a decree in favour of the third respondent and the first respondent preferred an appeal to this Court. During the pendency of the appeal the second respondent was appointed as receiver to manage the estate and he continued in such management until the third respondent having finally succeeded in the litigation took possession of the Zamindari. The appellant brought the suit out of which this appeal arises for recovery of the amount of principal and interest due under the promissory note from the first respondent personally and from the assets of the estate in the hands of the 2nd respondent who was the receiver at the time. The latter having since been discharged from the receivership and the widow having taken possession of the Zamindari as the successful claimant as aforesaid she was brought on record as the 3 respondent in this appeal and a, decree is now sought against the estate in her hands. The Court below passed a decree against the first respondent personally and against the assets of the estate to the extent to which he (the first respondent) has a right of indemnity as receiver against that estate. Not satisfied with a decree in this form, the appellant has brought this appeal claiming payment out of the estate irrespective of the first respondent's indemnity and the question is whether the claim is sustainable.

(3.) The promissory note which has been marked as Ex. A is in the following terms: Promissory note executed on the 3 June, 1930, corresponding to the 21 Vaikasi of 1105 Andu in favour of R.M.K. Subramaniya Aiyar Avergal, son of R. M. Ganapathi Aiyar Avergal, who is keeping hundiyal shop at Tinnevelly Bridge Railway Station, Tinnevelly Taluk, by the son of Zamindar Avergal, Kotilinga Sethu Rayar, and the Zamindar of Oorkadu and the present receiver of the said Zamin. vie., U. K. Ulagalum Perumal Sethu Rayar Avergal, Kshatrapathi Avergal, residing in Oorkadu Cusba, Oorkadu Zamin, Ambasamudram Taluk, is as follows: For payment of Zamin peishkush urgently due to the Government, the sum borrowed on this date in cash from you, is Rs. 5,000, I shall on demand pay you or order in cash the same together with interest thereon at 1 per cent. per mensem, and get back this note. U.K.C Sethu Rayar, Kshatrapathy, 3-6-1930.