N.V. SWAMINATHA IYER Vs. N.R. KRISHNAMURTHY AND ORS.

JUDGEMENT

(1.) The Defendant in a suit for accounts has filed this second appeal against the final decree in the suit, having failed in both the Courts below in his attempt to ward off the liability determined on the taking of accounts. He is the junior paternal uncle of the Plaintiffs and had been executor under their paternal grandfather's (his own father's) Will, and the accounting claimed is in respect of the Defendant's management of the estate bequeathed to them by their grandfather. Vasudeva Iyer, the paternal grandfather of the Plaintiffs and the father of the Defendant, had five sons, the Defendant being the youngest of them; and under his Will, dated 12th of January 1940, he provided for the devolution of his properties all his self acquisitions. The reasonableness of the provisions of the Will has never been in question, the testator making bequests of his properties to some only of his sons and his grandchildren by his eldest son bearing in mind their relative needs and the demands on his bounty. As he found the Plaintiffs' father, his eldest son Ramaswami, wayward and unreliable, he made no bequest in his favour, but gave legacy to his children. By the Will he provided that the properties specified by him in A schedule to the Will should be taken by his eldest son Ramaswami's sons, Krishnamurthi then aged 18, minor Balasubramaniam, aged 12, minor Panchapakesan then aged 6, minor Jayasundaram, aged 6 months and other male children that may be born to Ramaswamy. From the A schedule properties, Ramaswami's daughters Visalakshi,Subadra, Sarala and other female children that may be born were to be married and their customary presents met. He appointed his two sons,Vaidyanathan and Swamina -than (the Defendants herein) as guardians and executors of the minor children of Ramaswami. The Will provided that the guardians and executors shall manage the properties and carry out the instructions in the Will in respect of the said properties till the sons of Ramaswami attain proper age to assume management of the properties. The testator died on the 19th of March 1941 and Vaidyanathan, the second son of the testator, declined to undertake executorship and guardianship. The Defendant assumed executorship and management of the properties under the Will. No male children was born to Ramaswami after the Will and Panchapakesan, the third son of Ramaswami who was aged about 6 in 1940, died in September 1944. Plaintiffs are the only and surviving named male legatees under the Will. The youngest of Ramaswami's son Jayasundaram, the third Plaintiff, became a major in 1957, and thereupon the Plaintiffs called upon the Defendant for possession of their properties and an account of the income from the estate. There was exchange of notices between the parties and ultimately in April 1958, the Defendant surrendered possession to the Plaintiffs of the entire immovable properties bequeathed by Vasudeva to his grandchildren. But he rendered no account of the income as demanded, and thereupon the suit out of which the present second appeal arises was instituted on 18th November 1958. The plaint specified the A schedule properties in the Will bequeathed by Vasudeva to his grandchildren and referred to the Plaintiffs having taken possession of the properties without prejudice to their claim for accounting. The Defendant was called upon to render accounts and produce the lease documents, vouchers, records, etc., from the commencement of his management in respect of the estate and assets of the Plaintiffs. A decree for such amount as may be ascertained on taking of such accounts was prayed for. In the plaint the propriety of certain investment by the Defendant of the moneys belonging to the estate in the Vasudeva Funds, a banking concern of which the Defendant was the managing Director was questioned. It was alleged that this concern had been formed by the Defendant for his own profit and later became a defunct one.

(2.) The Defendant put forward various defences to the claim for accounts. Inter alia he contended that he had been managing the properties as carefully as a man of ordinary prudence would manage till the Plaintiffs took possession of the properties, that even before the third Plaintiff became a major the Defendant had been repeatedly requesting the Plaintiffs to take over the management, and that he had been taking instructions from the Plaintiffs' father as advised by the Plaintiffs in regard to the management of the properties. Ultimately on a consent endorsement on the plaint a preliminary decree for rendition of accounts was passed in the following terms, on 11th April 1959:

(3.) That Defendant do file a statement of accounts before the Commissioner and the Plaintiffs do file a statement of surcharge and falsification;