DEWAN BAHADUR G NARAYANASWAMI CHETTY Vs. CRAMASWAMI CHETTY

JUDGEMENT

(1.) The plaintiff files this suit to enforce an equitable mortgage created in his favour by the 1 defendant. The suit is brought against the two defendants, who are brothers-in-law, in their capacity as executors with probate of the will of Andalammal who died in January 1913. The 1 defendant borrowed from the plaintiff four sums of money, namely, Rs. 400, Rs. 1,200, Rs. 1,800 and Rs. 500 on the 26 of August, the 18 of October, the 5 of December, 1917, and the 9 of March, 1918, respectively. In respect of each of these sums, the 1 defendant executed a promissory note without describing himself as the executor of Andalammal. The plaintiff's case is that the 1 defendant represented to him that monies were required for the estate of the testatrix and deposited the title deeds of the suit house which belonged to her, intentding to create an equitable mortgage.

(2.) The pleas raised are these, firstly, that no mortgage was created, but the plaintiff, having obtained the title deeds in another connection, has fraudulently put forward this claim; secondly, that the monies were advanced to the 1 defendant personally and not in his capacity as executor, and thirdly, that the mortgage, having been made by only one of the two executors, is not binding upon the estate. I shall deal with these pleas in the order I have mentioned. It is impossible to take any serious notice of the first plea. The plaintiff keeps regular books of accounts and his day books for the years 1917 and 1918 have been filed. Not the slightest suspicion attaches to them and each of the four entries relating to the loans specifically mentions that the advance was made on the security of the property. In the first instance, only the day books were produced, but in cross-examination of the plaintiff, it was elicited that he maintained also rough chittah books. I thereupon directed him to have them produced and they were brought to Court after the luncheon interval. They confirmed and corroborated in every particular the entries in the regular day books and I must say that it is difficult to conceive of a more reckless plea than the books were fabricated for the purposes of this case.

(3.) Is there any substance in the second plea, that the 1 defendant entered into these transactions in his individual capacity? The plaintiff states on oath that this man represented to him that legacies had to be paid and repairs to the house had to be executed. The 1st defendant made a further representation at that time that the other executor was dead. The plaintiff then made enquiries of Mr. Vinayaka Mudaliar, retired Assistant Commissioner of Police, with whom the 1 defendant was associated in the management of a certain temple at Mylapore and the plaintiff was satisfied that the 1 defendant required monies and advanced the same to him. In the first place, among the documents deposited with the plaintiff, is the probate of the will. It is absurd to ask me to believe that the plaintiff, into whose hands was put this probate, could for a moment regard the 1 defendant as the owner of the property. Then, it is an important circumstance that, under the will, the disbursements to be made, including the sums to be paid as legacies, amounted to Rs. 3,800, whereas, the main item of property left by Andalammal was the suit house valued at Rs. 3,000. It is thus obvious that the provisions of the will could not be carried out, without the executors either selling the house or raising money upon its security. The plaintiff deposes that when the first sum of Rs. 400 and the last sum of Rs. 500 were advanced, it was represented to him that the amounts were required for repairing and improving the house. When the other two sums were lent, he was told that they were required for paying off the legacies mentioned in the will. It is admitted that the house was in need of repairs and, as a matter of fact, it is now said that repairs were executed, but it was the 2nd defendant who advanced the monies for the purpose. On the face of the will, there could be also no question that monies were really needed for payment of the legacies specified in it. 1 find no reason for disbelieving the plaintiff's evidence and I accept it as true. I am satisfied that he advanced monies to the 1st defendant on the representation made to him that they were required for the purposes of the estate. I am also satisfied that the 1 defendant borrowed these monies and mortgaged the property in his capacity as executor.