T NAGARATHNAMMAL Vs. PNAMASIVAYA MUDALI

JUDGEMENT

(1.) This is a suit against the executors of the late A. Sabapathi Mudaliar who obtained a grant of administration to the estate of the late Tiruvengada Mudaliar who was a relation of his during the minority of the three daughters of Tiruvengada Mudaliar. The plaintiff charges that Sabapathi Mudaliar both when and after obtaining this administration set up that the estate of the late Tiruvengada Mudaliar was indebted to him in the sum of Rs. 8,000 and that subsequently Sabapathy Mudaliar made over to his own creditors three mortgages roughly for Rs. 9,000 which were outstanding in favour of Tiruvengada Mudaliar at the time of his death and the plaint alleges these transfers were illegal and inoperative.

(2.) A good deal of evidence was given as to the administration of this estate by Sabapathi Mudaliar and, in my opinion, some of that evidence went to show that there was no such debt at all ever due to Sabapathy Mudaliar and that it was found by Mr. Justice Subramania Iyer in a suit filed by a transferee of one of these mortgages from Sabapathi Mudaliar. However, it is not necessary to go into that question now.

(3.) I may say that if this plaint had definitely alleged that Sabapathy Mudaliar had converted the money of the estate to his own use during his administration then I should hold on the principle as laid down in Hollet's Trusts 1 Ch. 49 and in accordance with the decisions in the case of Yakub Ebrahim Sayani V/s. Bai Rahimatbai 10 Bom. L.R. 346 and Baroda Proshad Banerji V/s. Gajendra Nath Banerji 13 C.W.N. 557 : 9 C.L.J. 383 : 1 Ind. Cas. 289 that the monies so converted must be considered to be still in the hands of Sabapathy Mudaliar so that unless the suit was barred he could be made to account for them also. And following those cases I should be of opinion that Art. 120 of the Limitation Act applies to this case and that he could be sued within six years of the termination of his administration to recover sums so misappropriated; no matter whether he had misappropriated them more than 6 years before the date of the suit or not.