SUBBA NAIDU ALIAS SUBBARAYULU NAIDU Vs. ETHIRAJAMMAL

JUDGEMENT

(1.) In my opinion the judgment of the learned District Judge must be reversed and he should be asked to re-hear the appeal. The appeal was filed in a suit instituted by the appellant, a minor, through his next friend, to obtain a declaration that a deed of usufructuary mortgage (Exhibit IX), executed in favour of the first defendant on the, 26th April 1902 with respect to certain property belonging to the plaintiff, by defendants Nos. 2 and 5, two of his guardians appointed by the District Judge of Madura, is not binding on him, surd for recovery of possession of the property. The mortgage was executed without the sanction of the court and it has been held that it does not bind the appellant. But the District Munsif found that of the amount of Rs. 1,179-6-4, for which Exhibit IX was executed, the appellant was liable only for Rs. 147-120 , while the District Judge, relying on further evidence admitted by him during the hearing of the appeal, has held that the minor is liable for the entire amount of the bond, that is, Rs. 1,179-6-4. The amount for which the bond was executed consists of a number of items set out in the Distrct Munsif s judgment in paragraph No. 14, beginning with the life time of the plaintiff s father, whose death took place in September 1895, down to the date of the bond, i.e., a period of about seven years. It appears that the first defendant, who is the eldest son-in-law of the plaintiff s father, spent various sums on behalf of the family from time to time, and the first defendant s case is that he thus spent out of his pocket altogether about Rs. 1,432, out of which he received Rs. 400 in the shape of rents collected by him from the plaintiff s property, and it was for the balance of Rsv 1,032 plus Rs. 50 and Rs. 100, advanced on other accounts, that Exhibit IX was executed. The District Munsif found that some of the items were advanced more than three years before the date of Exhibit IX and were thus baned. As regards one large item, i. e., of Rs. 740, spent by the first defendant for the maintenance of the; plaintiff s step-mother, the plaintiff and his sister, for the education of the plaintiff and on certain family ceremonies during the course of seven years, it did not appear in evidence how much was spent within three years of Exhibit IX and how much prior their to. He then strikes the average for each year and disallows the amount so calculated for the period beyond three years. This mode of dealing with item No. VIII has been objected to on behalf of the appellant but I do not wish to express any decided opinion on the point, as the appeal, in my opinion, ought to be re-heard, and it will then be open to the District Judge to dispose of the question on the evidence.

(2.) The District Judge holds that there was an open and current account between the first defendant and the plaintiff s father and guardian, as evidenced by Exhibit XXIII series, and therefore none of the items are barred. In the first place his finding on this point, if it is a valid finding, would not bring the case within Article No. 85. That Article deals with cases of mutual, open and current accounts where there have been reciprocal demands between the parties. It is not sufficient to bring a case within the purview of this Article that there is an open and current account or that the entries show debit and credit. Suppose one person advances money to another and the latter pays him sums of money from tarried to time towards the discharge of the debt, that would not be a case within Article No. 85. The essential requisite of this Article is that there should be reciprocal demands.

(3.) In the next place, it was not the case of the first defendant, as is to be gathered from his written statement, the issues, the District Munsif s judgment and even the grounds of appeal to the District Judge, that there was a mutual, open and current account between him and the plaintiff s father as his guardian. Apparently it was during the hearing of the appeal that it suggested itself to the District Judge, or was argued before him, that the account kept by the first defendant was of such a nature. The plaintiff was, under these circumstances entitled to complain that he was taken by surprise,