RAJARAM MUDALIAR Vs. KOTHANDAPANI MUDALIAR

JUDGEMENT

(1.) This is an appeal from the decree of the District Judge of Chingleput dated 21 December 1933 reversing on appeal the decree of the District Munsif of Poonamalle dated 7 October 1932 in O.S. No. 321 of 1930 and dismissing the suit. The suit was one based on the following allegations. The plaintiff became an orphan in her eighth year and was under the protection of her elder brother who died in 1924. Thereupon, her brother's widow was protecting her for some time and when she wanted to go to her parent's house she sold the house described in the plaint schedule to the plaintiff in September 1925, defendant 1 who is the sister's husband of the plaintiff being shown as her guardian in the deed. One of the provisions in the deed was that the plaintiff's deceased brother's debts were to be paid by the plaintiff and the remainder utilised for the purpose of the plaintiff, in particular to meet the expenses of her marriage. This took place when the plaintiff was about 15 years old.

(2.) The next year, that is to say, in 1926, defendant 1 sold the plaint property to defendant 2 for Rs. 1,200 though there was no necessity for the sale. Out of the consideration for the sale deed, Rs. 600 odd was utilised for discharging the debts of the plaintiff's deceased brother which were no doubt binding on the property. The balance of Rs. 543-8-0 was paid in cash to defendant 1 by the vendee defendant 2, who took security in respect of the same from defendant 1. Out of this amount of Rs. 543-8-0 not a single pie was utilised for the benefit of the plaintiff. Defendant 2 knowing that defendant 1 had no right to the sale proceeds bought the property and paid the money and further made a nominal sale afterwards to defendant 3 in order to defraud the plaintiff. The plaintiff instituted the suit when she was 19 years old and she claimed to recover the balance of the sale proceeds, namely Rs. 543-8-0, together with interest at 12 per cent, per annum and also a charge on the plaint property for the amount claimed. Defendant 1 contended that he bad spent more than the amount received by him for the benefit of the minor including the expenses connected with her marriage, and that therefore nothing is due by him. Defendants 2 and 3 adopted this contention of defendant 1 and contended further that the plaintiff was not entitled to get a charge on the suit property and that she could only enforce the security bond taken by defendant 2 and recover only the amount of Rs. 400 specified in the deed of 1925. They denied their liability to pay any interest.

(3.) The first issue in the suit was whether defendant 1 had spent the amount of Rs. 543.8-0 for purposes binding on the plaintiff. This issue was found in the negative by the trial Court, though the trial Court was of opinion that as defendant 1 had maintained the plaintiff she would not be entitled to the entire amount of Rs. 543 but only to Rs. 400. The trial Court also found that the plaintiff was not entitled to interest and that she was not entitled to a charge on the plaint property. In the judgment the trial Court hold that the plaintiff was entitled to recover Rs. 400 from defendant 1 and from the property tendered as security under Ex. 3. In the decree however nothing was said about the plaintiff's right to recover the amount by enforcing the security bond referred to, apparently because the bond could not be enforced in the suit as the plaintiff was not a party to it and the person who executed the bond was not a party to the suit. Appeals were preferred from the decree of the trial Court by defendant 1 as well as by the husband of the plaintiff who succeeded her as heir on the plaintiff's death. In dealing with these appeals the lower appellate Court was of opinion that the following questions arose for decision, namely: (1) Whether defendant 1 spent the whole of the Rs. 543-8-0 for purposes binding on plaintiff 1; (2) whether plaintiff 2 is entitled to the interest claimed; (3) whether plaintiff 2 is entitled to a charge on the properties sold to defendant 2 for the said sum of Rs. 543-8-0 and interest thereon; and (4) whether in the absence of a prayer for a personal decree against defendant 1, such a decree could be passed against him in this suit.