DR S MUNISWAMI NAIDU Vs. GTHANDAVARAYA MUDALIAR

JUDGEMENT

(1.) This is an appeal by the defendants against a decree directing certain accounts to be taken and awarding to the plaintiff one-third share of the profits which on such taking of accounts may be ascertained to have been earned in connexion with a certain venture. About the end of 1924, a contract was taken in the name of defendant 1 for the construction of a portion of the Shoranur-Nilambur Railway. The defendant 2 is defendant 1's son-in-law and was, at the time the contract was taken, employed in the service of the railway company itself. It was the plaintiff's case that on account of this circumstance the contract was taken in defendant 1's name but it was intended for defendant 2's benefit. Defendant 2 denied this, but the lower Court has upheld the plaintiff's contention on this point. This finding has not been assailed before us. Having taken this contract for the construction of the railway line, it is the plaintiff's case that defendants 1 and 2 availed themselves of his services in connexion with that work and the terms of the arrangement as finally settled are stated in Ex. A as follows: You should be my substitute at the place of work, look after the work and finish it. As soon as the final bill is made, after deducting all the expenses I agree to pay you one third of the profits.

(2.) This document dated 14 January 1925, was signed only by defendant 1. But it was the plaintiff's case that the arrangement with him was entered into by both defendants 1 and 2, that defendant 2 could not sign it because he still continued in the railway company's service and therefore wanted to make it appear that it was defendant 1's concern. Defendant 2 admits that the terms were settled by him and also that Ex. A is in his handwriting, but he would make it appear that he wrote it at Trichinopoly and sent it to Angadipuram where the plaintiff was. In the circumstances of the case and the probabilities appearing from the evidence, the lower Court rightly came to the conclusion that the arrangement must have been come to in the presence of all the three persons at Angadipuram. It would therefore follow that it is a contract between the plaintiff on the one side and defendant 1 and 2 on the other. The learned Advocate-General contended that as Ex. A is signed only by defendant 1, no oral evidence could be adduced to show that defendant 2 was also a party to the arrangement or was bound by it. This argument is opposed to the rule laid down by a Division Bench of this Court in Venkatasubbiah Chetty V/s. Govindarajulu Naidu (1908) 31 Mad 45. Our attention was drawn to an observation of Beaman, J., in Laxmi Bai V/s. Keshav 1916 18 Bom L.R. 134, that the wide generalisation adopted in this Madras case "ignores the logic of the principle" as attempted to be shown by the learned Judge in an earlier portion of the judgment. But even that learned Judge has not put the matter higher than that and we do not feel satisfied that the principle of the decision in Venkatasubbiah Chetty V/s. Govindarajulu Naidu (1908) 31 Mad 45, ought not to be followed. By way of analogy, the learned Advocate- General relied upon the case in Sornalinga Mudali V/s. Pachai Naicker 1914 38 Mad 680. That decision is not analogous. All that was there laid down was that a person who has himself executed a document cannot be allowed to set up a contemporaneous oral agreement that he should not be held liable on that document.

(3.) The main argument in the appeal before us related to the question raised by issue 1, namely, whether the action was premature. The facts relevant to this question are set out in paragraph 54 of the lower Court's judgment. The position taken up by defendant 1 in his written statement which was substantially adopted by defendant 2 was that it is only after the final bills are passed and paid that the plaintiff could make any claim at all. There are no words in Ex. A corresponding to the italicised words. The words are final bill anavudan which may more accurately be translated as as soon as the final bills are ready . In this case, the final bill was prepared by the railway company in October 1927, but as the contractor took exception to the various items therein it was not passed as such and the disputes between the contractor and the railway company had to be settled by the Court. O.S. No. 13 of 1929 was accordingly instituted by the contractor against the railway company in 1929 and the appeal therefrom was decided by this Court in September 1934.