G.F.F. FOULKES Vs. A.S. SUPPAN CHETTIAR

JUDGEMENT

(1.) THESE two appeals arise out of a suit, O. Section No. 67 of 1943, instituted in the Court of the Subordinate Judge of Madura by two plaintiffs on behalf of themselves and on behalf of the other creditors of the estate of one Robert Foulkes deceased, for an administration of his estate and inter alia to declare certain alienations effected by defendant 1 as the administrator of the said estate in favour of defendants 3 to 7 invalid and not binding upon the plaintiffs and the other creditors of the estate, and for directions for the proper disposal of the properties comprised in the said estate, and, alternatively, to direct defendant 1, in any event, to make good to the plaintiffs, the loss of Rs. 1,32,268 -9 -8 with subsequent interest thereon, occasioned by reason of his acts of devastavit. The learned Subordinate Judge granted a decree personally against defendant 1 for rendition of accounts of the assets and income of the estate of Robert Foulkes (deceased) from 14 -13 -1938 and directing the amount due on taking accounts to be paid by defendant 1 in satisfaction of the debts due to the plaintiffs and the other creditors of the estate, if any, in rateable distribution. The suit was dismissed against all the other defendants. Appeal suit No 266 of 1945 is by defendant l and appeal suit No. 546 of 1945 is by the plaintiffs.

(2.) THE main facts leading up to the suit are not in dispute and may be briefly stated. One Robert Fischer died on 29 -11 -1908 leaving behind him his last will and testament, dated 10 -3 -1908, and considerable properties which he disposed of by the said will. Letters of administration with the will annexed were granted to four persons, among whom defendant 1 was one, as executors named in the said will. Under the said will, Fischer bequeathed a life interest in certain properties to his wife Sybil Fisher and the remainder over to Robert Foulkes, one of the executors under the will. By an indenture, dated 24 -4 -1913, Robert Foulkes took on lease the said properties for a period of ten years and on the same day executed in favour of the trustees under the will, a mortgage whereby he assigned to the other trustees the reversionary right to which he was entitled under the will to secure payment of the rent and other moneys due and payable under the indenture of lease upto a maximum limit of one lakh of rupees. In pursuance of a covenant for renewal contained in the indenture of 1913, another lease was granted to him on 12 -9 -1923, for a further period of ten years commencing from 1 -9 -1922 and it was agreed that the mortgage of 1913 would cover also payment of rent reserved under the renewed lease. On 26.6 -1926, Robert Foulkes executed in favour of one Rao Sahib Alagannan Chettiar a deed of mortgage for Rs. 1,25,000, in respect of properties covered by the mortgage to the trustees of Robert Fischer's estate. On 21 -9 -1932, he executed a promissory note infavour of the same Chettiar for Rs. 20,000. He died on 24 -9 -1935 leaving a will, dated 30 -5 -1917, in and by which he bequeathed all the properties to his wife Isabel Foulkes. The will could not take effect as the wife had predeceased the testator. Defendant 1 who was a brother of the deceased Robert Foulkea applied to the District Court of Madura in O. P. No. 53 of 1935, for grant of letters of administration to the estate of the deceased. His petition was allowed on 31 -3 -1936 and on 7 -4 -1936, letters of administration were duly issued to him.

(3.) AS Alagannan Ohettiar felt that he might not obtain satisfaction of hia claim from a sale of the item in that suit, he brought another suit (O. Section No. 35 of 1938) on the file of the Sub -Court, Madura, praying for a mortgage decree in respect of all the three items of the hypotheca and for a personal decree against the other properties belonging to the estate of Robert Foulkes, in the event of the mortgaged properties proving insufficient. On 26 -12 -1939, a preliminary decree for sale was passed for a sum of Rs. 2,65,445 -0. -7and the date of payment was fixed as 30.4.1940. It was of course provided in this decree that any amount which the plaintiff decree -holder may realise in O. Section No. 35 of 1937 should be given credit towards the amount due under it. On 6 -8 -1940, Alagannan Chettiar died and the plaintiffs in the present suit were brought there in on re -oord as his legal representatives, and the final decree was passed on 7 -12 -1940. In the other suit, namely, O. Section No. 35 of 1937 also, a final decree was passed at the instance of the plaintiffs on 1 -8 -1941. There were sales of the mortgaged items in execution of the decrees in both the suits. On 18 -6 -1942, the item covered by the decree in O. Section No. 35 of 1937 was sold in court auction and purchased by the plaintiffs for Rs. 2,01,700 cut of which they deposited into Court the amount payable to the plaintiff -decree -holder in that suit in respect of the mortgage of 1913. On 21 -12 -1942, the sale was duly confirmed. In execution of the decree in the second suit, the plaintiffs purchased the other two items and their sale was confirmed on 23 -3 -1942.