THIRUNAVUKKARASU PANDARAM Vs. PURUSHOTHAM LAKSHMIDAS AND CO

JUDGEMENT

(1.) Defendants 1 and 2 are the appellants. They are the sons of one Sundaralinga deceased who was a merchant trading in various places. Defendant 8 is impleaded as executor under the will of the father of defendants 1 and 2 and he continued the business of Sundaralinga. The suit is for the recovery of Rs 1,500 due on dealings with respect to the trade of Sundaralinga conducted after his death by the executor, defendant 3. Defendant 3 besides being executor is also the son-in-law of Suudaraliaga. He along with another was appointed executor under the will Ex. A dated 13 September 1922 The will directed the executors to continue the business of Sundaralinga for the purpose of realization of the outstandings due to the deceased; and in the course of such conduct of the business the suit debt was incurred. This was the case of the plaintiffs Defendants 1 and 2 questioned the truth of the transactions and their binding nature on them. The first Court dismissed the suit finding against the truth of the transactions. In appeal this finding was reversed and a decree was given in favour of the plaintiffs against the properties of defendants 1 and 2.

(2.) In second appeal very interesting questions of law were argued by Mr. Somayya on behalf of the appellants but none of these points were taken in either of the Courts below. His first argument was that in a suit like the present one the plaintiff's remedy is to proceed personally against the executor and that they can get relief against the estate of she deceased only if the executor has the right to enforce his indemnity against she estate and that unless the latter point is found in favour of the plaintiffs, no decree could be given in their favour against the estate. For this purpose it is argued that the case should be remanded to the lower Court as was done in Ammalu Ammal V/s. Namagiri Ammal 1918 Mad. 800. where in a case like the present in the last paragraph of his judgment Kumaraswami Sastri, J., remanded the suit to the lower Court to decide the question whether the executrix has lost her right to reimbursement out of the estate in respect of the sum of Rs. 3,500 borrowed by her on the promissory note sued on. It was suggested that such a course should be followed in this case also and that the only decree that the plaintiffs could get at present is a personal decree against the executor.

(3.) I was taken through the law bearing on the subject both according to the English and Indian decisions. Respondents learned Counsel says that the question should not be allowed to be raised in second appeal for the first time. It is clear that the question was not raised in any of the Courts below nor has it been raised even in the memorandum of grounds of the second appeal. Assuming that it may be permitted to be raised, I am of opinion that the question does not arise for decision in this case having regard to the observations of Kumaraswami Sastri, J., in Ammalu Ammal V/s. Namagiri Ammal 1918 Mad. 800 at p 636, where the learned Judge after discussing the case law summarizes the conclusions under seven heads. Under the third head he says: Creditors cannot have any direct remedy against the testator's estate or proceed in execution, against the assets except in cases where a specific charge is validly created or the debts are incurred in pursuance of directions to carry on a trade or business or where a specific trust is created for a specific purpose and debts are incurred in the due carrying out of the trust.