S A RAJAMIER Vs. MRMASUBRAMANIAM CHETTIAR

JUDGEMENT

(1.) This suit is based upon three documents, Exs. B, B-1 and B-2 executed in 1895 and 1896 respectively. These documents evidence loans taken by the late Rajah of Ramand (hereinafter called the Rajah) from the plaintiff's father and hypothecate certain jewels which had previously been pledged to defendant 4, Annamalai Chetti, certain allowances reserved for the Rajah under the trust-deed, Ex. Q executed by him on 12 July 1895 in favour of defendant 3 and in one case certain furniture. The Rajah has become heavily indebted and consequently executed the deed of trust, Ex. Q in order to secure the estate, namely the zamindari of Ramnad, for his minor son, defendant 1. Under this deed he handed over the whole of the zamindari to defendant 3 in trust and provided inter alia for the payment of his debts then existing and for payment of certain allowances to himself and to other members of his family. The allowances to the Raja consisted of a monthly payment of Rs. 5,500 and an annual payment of Rs. 10,000 for Dasara and these allowances were to be paid by the trustee out of the rents, income and. profits of the estate. After executing this trust-deed the Rajah borrowed further sums of money under the plaint documents, Ex. B series. Subsequently the trustee entered into an arrangement with the plaintiff under Ex. E on 16 January 1899 and undertook to secure the debts due to the plaintiff, not only those under Ex. B series, but also those incurred prior to Ex. Q by a mortgage of the zamindari. This arrangement was approved by the Rajah in Ex. C-l and accordingly a mortgage-deed, Ex. N, was executed on 6 July 1899. The plaintiff brought a suit on Ex. N in 1900 and in 1902 defendant 1 brought a suit to set aside that mortgage and another mortgage executed by the trustee to the Rajah.

(2.) These suits went on appeal to the High Court: the judgment is reported in Subramaniam Chettiar V/s. Rajeswara Dorai [1909] 32 Mad. 490 and finally to the Privy Council Subramaniam Chettiar V/s. Rajeswara Dorai A.I.R. 1915 P.C. 33. It was then held that Ex. N was not a valid mortgage and was not binding on the estate of defendant 1 so far as the debts incurred after the date of the trust-deed were concerned. After the dismissal of his suit in the first Court the plaintiff filed the present suit on 15 April 1905 and has obtained a decree. A number of appeals have been filed against that decree, but the main appeal is No. 26 of 1918 filed by defendant 1, and in his appeal memorandum he deals with practically the whole of the case. Various objections to the decree have been put forward and I propose to deal with them in the order in which the learned vakil for the appellant has argued them.

(3.) Objection is taken in the first place to the consideration for Ex. B series. Tour items (Rs. 8,000, Rs. 4,000, and Rs. 15,000 and Rs 15,000 respectively), are objected to. These sums formed part of the consideration for the suit documents and apart from the recital in the documents by the Rajah that debts did exist we have the further fact that at the time of the mortgage-deed Ex. N, he again admitted liability for all these sums. Against this, the appellant relies on certain statements in the deposition of the Rajah in O.S. No. 60 of 1897 and also on his deposition in 1903, Ex. Y-l. The accounts produced by the plaintiff are in accordance with his claim and defendant 1 has failed to produce the estate accounts which according to him would disprove the case. Although the Rajah did state in his deposition that these sums were not actually money borrowed by him, yet in another part of his deposition he stated that all the sums included in the documents were due by him. On this somewhat discrepant evidence the appellant's case relies, and certainly in so far as the items of Rs. 8,000 and Rs. 4000 and the 2nd item of Rs. 15,000 are concerned his case is very weak. The 3 item of Rs. 15,000 is said to have been a time-barred debt due by the Rajah's father. This debt was apparently not paid when the estate was under the management of the Court of Wards after the Raja's father's death, but it does not follow that the amount was not really due. The Raja's agreement to pay the barred debt of his father is not illegal, for the whole estate in his hands would have been liable for his father's debt. There was, therefore, a moral obligation to pay the amount and even if there was no fresh consideration at the time of the acknowledgment of the debt the debt-would not be illegal. It is also very possible that the repayment of this debt formed part of the consideration for advancing the new loan. In these circumstances I must agree with the learned Subordinate Judge that full consideration for Ex. B series has been proved.