S NARAYANAN CHETTI Vs. SRAMASAWMI CHETTIAR

JUDGEMENT

(1.) In this case the defendants have contended in the first place that the suit is barred by limitation on the face of the plaint. No such point was raised or considered at the trial. As regards the 1 defendant, admitting he was an agent, it is said that the plaint shows that the accounts were demanded from and refused by him more than three years before the institution of the. suit so as to bring the case within Art. 89 of the Indian Limitation Act of 1877. It is, however, not at all clear that there was any demand for an account by the principals and refusal to account by the 1 defendant. Then it is farther argued that the plaint in. effect avers that the 1 defendant renounced the agency and so determined it, and that it is for the plaintiffs to show that the determination was within three years of the suit, but we do not think that the plaint contains any distinct averment of termination by the plaintiffs so as to put this burden on them. As regards the other defendants. Nos. 2 to 4, we find that no case for an account was made out against them. As regards the amount for which the 1 defendant is accountable, the plaintiffs 1 witness and other witnesses state that he admitted having Rs. 2,000 in his hands on the occasion of the funeral of the father of the 2nd defendant. The first witness also states that a notice in respect of this was sent to the 1st defendant and that Exhibit C (1) is the registered receipt. The 1 defendant has not come forward to contradict this, or to explain to what the latter related. The evidence of some of the other witnesses for the plaintiffs and one of the defence witnesses goes to show that he must have received not less than the sum in which he has been held accountable by the Subordinate Judge. We, therefore, hold the 1 defendant alone liable for the amount. As no demand and refusal have been shown no interest will be allowed up to the date of suit.

(2.) As regards the form of the decree, we do not think it convenient in the circumstances of the present case to appoint a Receiver, and we direct the plaint to be amended by inserting a prayer for possession, and modifying the decree by awarding possession to the plaintiffs on behalf of all the Telugu Chetties for whom they sue, including the defendants in the suit.

(3.) Defendants Nos. 2 to 4 will bear their own costs here and below. The costs of the plaintiff in the lower Court will be paid by the 1 defendant. In this Court the plaintiffs and the 1 defendant will bear their own costs. The decree will be modified accordingly. The memorandum of objections is dismissed with costs.