VEERASAMI PILLAI Vs. VSTNCHIDAMBARAM CHETTIAR

JUDGEMENT

(1.) This case, has been in a state of confusion from the outset and it is only at the very last moment of it that our attention is drawn to a point that I am not sure we did find for ourselves and which would have rendered about two-thirds of the argument unnecessary. I do not blame the Bars they had to pick out the facts from a tangled mess of documents and oral evidence. The judgment of the learned Judge is so confused that it is almost impossible to discover what he did find and what he did not. However in the view we take of this case, it is unnecessary to scrutinize the findings of fact of the learned Judge, because, to all intents and purposes, we may accept them. The facts are quite simple. The plaintiff is a Natttukottai Chetti who lives somewhere in the Ramnad District and has a branch business conduted in his absence by an agent at Palni. During most of the material time in the suit that agent was the 4 defendant. A debt had been incurred by the 1 and 2nd defendants in the suit to his predecessor-in-agency and two promissory-notes had been given, Exs. A and A-1, dated the 12th. January 1912 and 29 January 1912. Those promissory notes were for Rs. 900 and 100 respectively. After the 4 defendant had taken up his position as agent in succession to the other man, a very curious transaction took place. The 1st defendant, on the 4 October 1913, executed a sale deed transferring a certain piece of property to his mother-in-law for an expressed consideration of Rs. 2,000 ; and three days later, on the, 7 October, the same piece of property was mortgaged by the mother-in-law to the plaintiff through the agent, the transaction being carried out on the spot by the agent. The consideration for the mortgage was expressed to be the discharging of the debts evidenced on the promissory notes and a fresh advance of Rs. 403 which, according to the evidence, was actually made. The position apparently was that the original debtor, the 1st defendant (because the 2nd defendant is only a member of the family brought in under Hindu Law) was 4 well-to-do man and there would be no difficulty in getting the money. The position of the old woman was that, beyond this little bit of property, which came to her from the 1 defendant in circumstances that are not beyond suspicion, she had nothing else in the world and apparently her husband was as impecunious as she was. Undoubtedly the transaction was one which the principal would be very likely to look at with very great suspicion ; and, accordingly, when the principal, as, in due course of time he did, visted Palni, he took his agent very much to task for exchanging a good security against a very solvent man for a very risky mortgage on a piece of land entirely problematical in value and said to be of much less value than a reasonably safe margin would demand. So there we have the agent at this stage treated as guilty of a breach of duty ; and it may be that, had he then and there sued his agent for neglect and breach of duty, he would have been able to prove that the property was not worth as much as the debt, and he would have got damages from the agent for his taking Ex. B instead of preserving the liability on Exs. A and A (1). But that cause of action is gone and hopelessly time-barred.

(2.) There is another suggested cause of action and that is a very curious one. When the 4 defendant was taken to task for releasing the 1 and 2nd defendants he said: O; that is all right. They quite acknowledge their liability continues and to show you that that is so, I will gat you a fresh promissory-note executed by the 1 defendant.

(3.) That he did and that promissory note figures in the case as Ex. H. Exhibit H has had a touring existence in various law Courts and the last pronouncement upon it was by the learned Subordinate Judge in this case who pronounded it to be a forgery, the theory being that the agent being frightened because of his misdeeds in regard to Exs. A and A-1 and B being found out sought to appease his principal by forging a promissory-note purporting to be executed by the original debtor the 1st, defendant. The Subordinate Judge went into the matter at enormous length, but he entirely overlooked the point which cropped up at the end of the hearing here which renders the cause of action in our view untenable. The cause of action is this: You represented to me that 1 was in possession of a new document on which I can sue you, the 1 and 2nd defendant, without, recourse at all to the old promissory-notes.