A VARADARAJULU CHETTY Vs. ARAJAMMA

JUDGEMENT

(1.) The appellant, 1st defendant, is one of the two executors who took out the Probate, Exhibit A, and accepted the office of executor. The testator s name is Purushothama Chetty. The plaintiff is the other executor who took out Probate A third executor, Nalam Venkataratnam, is an insolvent and it does not appear that he joined in the Probate. The learned trial Judge held the 1st defendant liable to account to the estate in respect of a sum of Rs. 8,500 (eight thousand five hundred rupees) which belonged to the estate and which he lent out to the third executor. The Judge directed the 1st defendant to file the necessary accounts and also gave the usual further directions. The first contention in appeal (if I understood it right) is that one executor cannot file an action at common law, according to English practice, against another executor, that the present action is an action of devastavit, which is a common law action, and hence that this suit must be dismissed.

(2.) The short answer is that there are no forms of action within one of which every suit must be brought in Indian Courts and that the records show that this action was brought on behalf of the estate for establishing all necessary reliefs for the benefit of the estate.

(3.) Then it is contended that the 1st defendant was entitled to lend the money without security to Nalam Venkataratnam. A perusal of the testator s Will clearly shows that this contention also is untenable.