P.R. LAKSHIMI ACHI (DIED) AND ANOTHER Vs. AK. A. CT. U. CT. ALAGAPPA CHETTIAR AND OTHERS

JUDGEMENT

(1.) The appellant -plaintiff is the daughter of one A. K. A. CT. V. Venkatachalam Chettiar of Kottaiyur. She had a brother by name Natesan alias Chidambaram Chettiar, whose sons are the defendants in the suit and the respondents herein. Venkatachalam Chettiar and Chidambaram Chettiar belonged to a very rich Nattukottai Chettiar family and they were doing banking business in Burma, Malaya, and other places with Kottaiyur as headquarters. Venkatachalam Chettiar was the manager of the family and he was looking after the Family affairs as well as the firm's affairs till his death sometimes in 1928 or 1929. After his death Chidambaram Chettiar, his son, was managing the affairs of the family and the business. Somasundaram Chettiar, the husband of the plaintiff was the sister's son of Venkatachalam Chettiar. It is stated that Somasundaram Chettiar was not very rich. When plaintiff's father expressed his desire to marry the plaintiff with Somasundaram Chettiar, the plaintiff's mother did not agree for the proposed alliance. The plaintiff's father promised that he would set apart Rs. 5000 as austhi fund as per the custom among the Nattukottai Chettiar community and that be would keep the said amount invested in his business, improve and augment the same as a trustee and pay back the amount with the accretions whenever demanded. The plaintiff was given in marriage to the said Somasundaram Chettiar and the marriage was performed on or about 19th December 1913. At that time the plaintiff was very young. The amount set apart to the credit of the plaintiff was invested in the business of Venkatachalam Chettiar. Some time in 1924 A. K. A. CT. V. Venkatachalam Chettiar firm at Wakhma, which was a joint family firm of Venkatachalam Chettiar and his undivided brothers, was partitioned and a sum of Rs. 91,000 was got by Venkatachalam Chettiar as his share. By that time the plaintiff had become major and at the instance of the plaintiff and her mother the aggregate augmented sushi amount which was calculated in the sum of Rs. 18.500 was credited in the name of the plaintiff in the A. K. A. CT. V. Venkatachalam Chettiar firm, Wakema on 10th February 1924 and thereafter the amount was sent to A. K. A. CT. V. Venkatachalam Chettiar firm at Rangoon. Later this amount was transferred through the Chartered Bank to A. K. A. CT. V. firm at Kualalampur. On 21st February 1927 the amount with interest was calculated at $ 15,050 equivalent to Rs. 22,575 and this was credited in the name of the plaintiff in the Kualalampur firm. The plaintiff's father was acting as a trustee of the plaintiff in respect of the money and was improving the fund. After the death of Venkatachalam Chettiar, the defendant's father as family manager who inherited the business was managing the fund acting as a trustee. Chidambaram Chettiar the defendants' father had admitted that the austhi amount was due to the plaintiff in the Estate Duty office at Kualalampur and the Income -tax Department. After the death of Chidambaram Chettiar some 12 or 13 years before the suit the defendant got the properties and the business and they also acted as trustees of the monies of the plaintiff. On 20th November 1961 the plaintiff sent a notice to the defendants demanding the account and the payment of the amount due to her. Though an interim reply was received from the agent of the defendants that the amount due to the plaintiff would be ascertained from his principal and a reply sent, no further reply was received from the defendants. This in short is the case of the plaintiff. On these allegations she filed the suit out of which this appeal arises for rendition of accounts. Defendants denied this claim of the plaintiff. They stated that the defendants did not enter into any agreement to keep the money as trustees on behalf of the plaintiff, that they had no personal knowledge with regard to the same and that there was so agreement between the plaintiff and that defendants at any time to improve the monies as trustee for the plaintiff. There is no kailethu letter or vaddi chittai issued to the plaintiff during the time of Venkatachalam Chettiar in older to show that any deposit amount or austhi fund belonging to the plaintiff was set apart or kept in the business of Venkatachalam Chettiar. The defendants explained the credit entry of Rs. 18,500 in the name of the plaintiff in A. K. A. CT. V. firm of Wakena and the transfer of the same to Rangoon as amounts kept nominally in the name of plaintiff by Venkatachalam Chettiar and that mere entries in the accounts would not give any right to the plaintiff to claim the same as her money. They also stated that later on when the amount was transferred to Kualalumpur at the instance of Venkatachalam Chettiar himself the monies were, entered into as (capital amount) or additional capital. Defendants denied any knowledge of any admission by Venkatachalam Chettiar before the Income -tax Department or the Estate Duty Officer acknowledging plaintiff's right to any money. There was no setting apart of any amount and no accountable relationship existed between the plaintiff and the defendants and also between the plaintiff and either Venkatachalam Chettiar or Chidambaram Chettiar. On these pleadings a number of issues were framed.

(2.) The trial Court, after a consideration of the oral and documentary evidence, came to the conclusion that except the credit entries in the Rangoon and Kualalampur firms there is no evidence to show that any cash was deposited in the firm to the credit of the plaintiff and that the money was kept by Venkatachalam Chettiar as a trustee for the plaintiff. The entry in the account book itself is not sufficient proof that the amount has been set apart. The trial Court also held that there is no evidence to show this the defendants father Chidambaram Chettiar agreed to court continue as trustee after the death of Venkatachalam Chettiar and that the defendants cannot also be said to be trustees of the plaintiff after the death of Chidambaram Chettiar. Therefore, there is no accountable relationship between the plaintiff and the defendants. The trial court also considered that the promise of the plaintiff's father and the gifting of austhi food in pursuance of the promise had not been established and there was a long delay in claiming this amount from the defendants. On these findings the trial Court dismissed the suit.

(3.) The Oral evidence in this case is that of the plaintiff and the Kariyesthan of the defendants' family. Before considering oral evidence, we may as well straightaway go into the documentary evidence available in this case. At page 247 of Number two ledger of Wakema firm, we find under the heading a credit entry in the name of Karaikudi Peri Lakshmi a sum of Rs. 18, 500/ - with a description that interest in payable at 12 months rest.