N P NALLAPERUMAL CHETTI Vs. YALLIYAPPA CHETTI

JUDGEMENT

(1.) These appeals arise out of a suit filed by the plaintiffs, the 1 plaintiff claiming to be the legatee under the Will of his grandfather, for an account of the estate and for possession. He also wanted damages for misfeasance and malfeasance of the executors. The executors are defendants Nos. 1 and 5. The lower Court passed a decree in plaintiff's favour. The 1st defendant's case was that the 5 defendant was managing the estate till his disappearance in 1915 and that his management was merely formal, i.e., he merely signed in the deposit account and the receipts Exs. IV and IV (a). The 5 defendant was admittedly not heard of for 5 or 6 years before the suit and he is not heard of even now. His son has been impleaded as being a member of the undivided family. The 5 defendant is ex parte. The 6 defendant's mother and guardian in her written statement denied that the 5 defendant (her husband) ever took part in the management of the estate. Upon this issues were raised and the case went to trial. It was found that the 5 defendant did take part in the management of the estate, that he put in monies and collected monies and that he also sold an item of property in which the testator had a third share. Out of the monies which belonged to the estate and which were invested, there was a claim in the plaint for Rs. 40,000 against the 7 defendant. This represented monies belonging to the estate which had been invested. The Subordinate Judge passed a decree for Rs. 40,000 with interest at 6 per cent. per annum In Appeal No. 120 of 1925 we held that the amount in deposit with 7 defendant was not Rs. 40,000 but Rs. 37,100 on the date of the plaint and we modified the decree by allowing Rs. 37,100 with interest as stated above. That money has been paid into Court and there is no question of any loss to the estate so far as that money is concerned except as regards interest which is the subject-matter of the Appeal No. 957. The Subordinate Judge found that there was one more item for which the defendants were accountable and this was a sum of Re. 3 000 proved to have been collected by the 5 defendant. He allowed that sum with interest at 9 per cent. per annum. As regards that sum it is not disputed before us that that sum was collected by the 5 defendant as that is proved beyond all doubt by the account books filed What is argued is that the Court should not have allowed Rs. 3,000 and interest but that an account should have been directed to be taken and the 5 defendant given an opportunity of proving certain expenses which he had incurred for the estate and which he was entitled to credit for. When the case was closed the 6 defendant put in a petition saying that certain accounts which showed dealings by 5 defendant with the estate were found behind some vessels in the house and wanted admission of these books, The Subordinate Judge, in our opinion, rightly rejected the petition. The question raised in Appeal No. 4C7 by Mr. Padmanabha Ayyangar is that the Judge ought to have passed, a preliminary decree and then sent the case for taking accounts, and he refers to the Privy Council decision in Hurronath Roy Bahadoor V/s. Krishna Coomar Bukshi 13 I.A. 123 : 14 C. 147 : 4 Sar. P.C.J. 751 (P.C.), and to Mohesh Chunder Bose V/s. Radha Kishen Bhattacharjee 6 C.L.J. 580 : 12 C.W.N. 28, Degumber Mozoomdar v. Kali Nath Roy 7 C. 654 : 9 C.L.R. 265, Raghunath V/s. Ganpatji 27 A. 374 : A.W.N. (1905) 3, Ayeshabai V/s. Ebrahim Haji Jacob 32 C. 364 : 10 Bom. L.R. 117, Thirukumaresan Chetti v. Subbaraya Chetti 20 M. 313, and Ram Dass V/s. Bhagwat Dass1 A.L.J. 347 : A.W.N. (1905) 1 in support of his view. He also refers in this connection to Order XX, Rule 16, Schedule I of the Civil Procedure Code and Rules 120 to 136 of the Civil Rules of Practice (Mofussil). There can be little doubt on these authorities that ordinarily in a case for an account, even though the defendant may deny his accountability, the proper course is to pass a preliminary decree and send the case for taking accounts. But we do not think that it follows that in every case irrespective of other considerations, the Court is bound to send the case for taking accounts. Their Lordships of the Privy Council in dealing with this point make a reservation. At page 133 Page of 13 I.A.-[Ed.] they state: Their Lordships are not expressing an opinion that in a suit for account it may not appear at the hearing that the issue is so simple and so clearly raised, and met by evidence as to be ready for decision at that time. But the general rule is the other way". Order XX, Rule 16, also does not make it imperative to pass a preliminary decree apart from any other consideration. All that Rule 16 says is that a preliminary decree may be passed where it is necessary in order to ascertain the amount of money due to or from any party, that an account should be taken. In the present case we have the fact that so far as the liability of the defendants is concerned, it is Rs. 40,000 which was claimed and ultimately decreed, not having been disputed by the 7 defendant except as to Rs. 3,000 and odd which he says was not deposited. His solvency was not disputed arid he has paid the sum due into Court The only question between the executors and the plaintiff was whether the Rs. 3,000 was collected. As regards a sum about Rs. 780 which was got by the sale of the village, that there was a sale-deed and that the amount was received is not disputed. The plaintiff will be entitled to a half of that amount. As regards the Rs. 3,000 as we have said before, it is proved beyond all doubt that and it is not denied before us that that sum was collected by the 5 defendant. Therefore, when the case came up for disposal, there was the Rs. 3,000 proved to have been collected and no denial in the written statement that the amount was ever collected. No statement was made that any expenses incurred, nor did the 6th defendant ask the Judge at that stage to allow the expenses he had incurred in connection with that item. The petition to file account-books said to have been discovered behind some brass vessels was rightly rejected. It, therefore comes, in our opinion, in the category of cases which the Privy Council describes as cases where the facts are so simple that the taking of accounts will be unnecessarily lengthening the proceedings without any benefit to the parties. It may be more complicated if in Appeal No. 257 the appellants insist on the usual procedure being adopted by reason of other items being charged. But their Counsel does not want the case to be sent back for a preliminary decree being passed which will only mean unnecessary lengthening of the proceedings without any material benefit to anybody.

(2.) Appeal No. 212 is filed by the 1 defendant. But in view of the fact that the plaintiffs who are appellants in Appeal No. 257 do not object to a decree making the 6 defendant liable in the first instance for monies collected the further point raised needs no consideration.

(3.) Then we come to Appeal No. 257 filed by the plaintiffs. Their Advocate confines, his case to two points (1) that the Subordinate Judge was wrong in giving interest at 6 per cent. on the Rs. 37,000 which was in the firm at the date of the plaint and he must have given 9 per cent. and (2) that in making the 6 defendant liable in respect of plaintiff's share of the village sold by the 5 defendant, Rs. 390 should have been awarded and not Rs. 360. So far as the deposit with the 7 defendant is concerned the 1 plaintiff repudiated the terms under which it was made, on the ground that the arrangement during his minority does bind him. The arrangement was that the amount should, be paid to both the 1 defendant and the 7th defendant who it was said were acting in plaintiff's behalf at the time of his marriage. The right of the 1 plaintiff to recover the sum is now disputed. The question of interest between the date of plaint and the decree is a matter in the discretion of the Court, and the Subordinate Judge allowed 6 per cent. It is not quite clear that if he had been given the tavanai rate of interest which fluctuates, he would have got very much more than Rs. 8 or 8 1/2 per cent. Interest has been given at 6 per cent. on the principal and interest due at the rate of the plaint and a large portion of Rs. 37,000 represents accrued interest. In these circumstances we do not think that there is any ground for interfering with the discretion of the Subordinate Judge who gave 6 per cent. on the total of Rs. 37,000.