NATESA AYYAR Vs. MANGALATHAMMAL

JUDGEMENT

(1.) The defendant in this suit is the appellant here. One Venkataramier had two sons Natesa Aiyar, the defendant, and the plaintiffs husband Viswanathier, a younger brother of the defendant. Viswanathier left the family and went away to Ammapet and set up a coffee shop. He disappeared about 1913 or 1917; it is not quite clear which year. He had in 1912 taken a mortgage bond in his favour from one Pachayyappa Chetti. In 1919 his father sued the mortgagor on the ground that the bond was joint family property and that he was the family manager. Neither the mortgagee nor the present plaintiff nor her minor sons were made parties and the mortgagor raised no objection and he got a decree in his favour. Under this decree he was to receive the money after giving proper security. In 1929 certain moneys were realized towards the decree and were brought into Court. Venkataramier by that time was dead. His eldest son as his legal representative applied to draw the money. The widow of the younger son, who is the plaintiff, came forward and said that it was the separate property of her husband and that she was entitled to it. The suit was brought on 31 July 1930 impleading the only surviving son and not the mortgagor. The suit was for a bare declaration that the money belonged to her. Both the Courts found on the facts that the mortgage bond was the self-acquired property of her husband and gave her the declaration required. Against his the defendant has preferred this second appeal.

(2.) The first objection is that the suit for a mere declaration without consequential relief asking for the payment of the money is not sustainable. This objection I consider to be good. If the plaintiff had asked for the relief as against the mortgagor the suit would be barred and as against the defendant there is no privity of contract of a legally recognizable nature in the case: vide the decision in Ramaswami Naidu V/s. Muthusami Pillai AIR 1919 Mad 957. Sadasivaier, J. at p. 938 states: I shall try to illustrate what I mean by a simple example: B owes money to A; A dies; there is a dispute between C and D, each claiming to be the sole heir of A; B pays the money to C. Can D sustain an action for money had and received against C even if he establishes against C that he is the rightful heir and not C? I am clearly of opinion that he cannot do so, his only remedy being against the debtor B.

(3.) The case is on all fours with Mt. Sewi Bai V/s. Wasu Ram, AIR 1929 Lah 290. In that case the husband of the plaintiff, who had separated from his father, died in 1918 leaving certain debts due to him. The father thereafter commenced disposing of these debts without the knowledge or consent of the plaintiff who alone was the legal representative of her husband and transferred inter alia a debt to his son-in- law. The plaintiff instituted the suit for the recovery of the amount against the principal debtor as well as defendant 1 who was alleged to have realized it. It was held that as regards the principal debtor the plaintiff's suit was clearly time barred and her claim against defendant 1 could not succeed in the circumstances of the case merely because the debt is alleged to have been paid to him: Ramaswami Naidu V/s. Muthusami Pillai AIR 1919 Mad 957 is quoted with approval where it was held that there must be what might be called some privity of a legally recognizable nature such as some knowledge of particular facts in the man who received the money or some mistake or ignorance of facts on the part of the man who paid the money or some relation of trust and confidence between them on which the Court could fasten as creating the relation of principal and agent (though by fiction) between the plaintiff and the defendant.