AMMALU AMMA Vs. NARAYANAN NAIR

JUDGEMENT

(1.) Themain question raised and argued in this second appeal is of some difficulty and altogether out of the common The suit from which the second appeal has arisen was instituted by respondent 1 as plaintiff for the purpose of recovering from the tarwad of which he. was also a member and all the other members of which were made parties defendants in the action, defendant 1 being the, karnavan for the time being, the debts alleged to be due by the tarwad to one Theyyassan Nair, the former karnavan. The debts are said to consist of 21 items The plaintiff claims to be entitled to recover those items on the ground of his having succeeded thereto under the will of Theyyassan Nair made in of about the year 1913 Theyyassan Nair died on 3 October 1916, and the suit was instituted in or about September 1919. The learned Subordinate Judge in the trial Court practically held that the debts were not proved and further that the claim was barred by the law of limitation and dismissed the plaintiff's action. The learned Judge hi the lower appellate Court, reversing the judgment of the trial Court, has granted a decree in favour of the plaintiff 1. Some of the defendants have preferred this second appeal on behalf of the tarwad to which they belong.

(2.) The first point which falls to be observed is that the case was conceived, framed, put into Court and argued till; now as on the footing of loans made by Theyyassan Nair in his personal capacity to himself as karnavan of the tarwad. Even before us it was the same view of the case that has been presented and pressed. If the suit should be regarded as one for the recovery of a loan or some loans, it must be regarded as based on a contract, that is a promise by the borrower to repay to the lender the amount borrowed with some interest or not, as the case may be. According to the true principles of the law of contracts there must at least be two persons to conclude a contract, the promisor and the promisee and there is great difficulty in understanding the case laid on the basis of a contract concluded by a person with him-self. It must be in recognition of this difficulty, it would seem, that in the case of agents of principals who, :advance moneys or incur expenses in the course of that agency on behalf; of their principals the law gives them the right to indemnity and also a right of retainer. Similarly, in the case of trustees advancing their own money or incurring expenses in the due execution of the trust the law gives them the right of reimbursement. The same thing has been recognized in the case of guardians of minors and practically in the case of all persons acting in a fiduciary character. It would, therefore, no doubt, have been possible for Theyyssan Nair or the plaintiff here to have instituted a suit properly framed for reimbursement of moneys properly advanced or expended in the course of the management of the family tarwad. Though undoubtedly such a suit would lie, the very basis of such a suit must generally be that there was necessity for these advances to be made or expenses to be incurred; that such amounts were really advanced; that on the state of the accounts so much is still due and payable to him. and the amount due would have to be determined with reference to the balance as shown in the account. Such a suit would, therefore, mainly be based on a rendering of the accounts by the person who wishes to charge the other party for reimbursement to him of moneys properly advanced or incurred.

(3.) The learned Subordinate Judge seems to have had this clearly in view, because we find he has referred to it in one of the paragraphs of his judgments But this unfortunately is not such a suit. Probably, for reasons which are not very difficult to guess, this suit was not framed in that manner, nor was it so presented at any stage. No doubt, there is nothing at all in the plaint to show that it cannot be regarded as a suit for reimbursement of such moneys. But how can such a claim be established? It can be established only by the rendering of proper accounts and showing that as the result of the account-taking the plaintiff or the person through whom he claims is entitled to reimbursement of the particular amount. In this case it is in evidence that though certain accounts were kept by the deceased Theyassan Nair in the form of what are, called Kurippus and though the plaintiff admits that they came into his custody after Theyassan Nair's death he has not produced them. His own statement is that he has not even looked into them, and it is clear that in his evidence he has not been able to give even secondary evidence of its contents. The explanation that he has sought to give is that they have been eaten by white ants, the usual explanation generally attempted to be given by all litigants who fail to produce and prove proper account books in Court. However, whatever the reason may be, the fact is that the plaintiff's claim has not been sought to be established as a claim for reimbursement on the basis of any such accounts.