i 1 l l l • I I (Kunara.Pillai,J and Joseph,J). .;;_ _ No •. 4 of 1954. -- --------------- J u d g me n t. -------·------- (Delivered ~y Joseph,J.) the lst plaiHti_f_f -and one Joseph and two daughters, the prelisinary decree from This appeal arises j a suit for rar.ti'tion of the estate o.f one .Anthony !"lho ' 8 on 5-1-1_112 !,._. · By his fir-st m2rriage he had two sons. 13 9 in died iunjelechi whc pre-deceased him and the 9th defendant. After the deat-~- of his first wife he married the 1st defend.ant and :)efenr::ants .2 and 3 are the sons and Defen- dants 4 to 7 the daughters by- the second marriage. The 8th defendant is the son of Kunj elechi deceased and_ the -, 10th defend@~nt :..s the 1st plaintiff's ·wife. \ These partie, ·, ·were implead.ed e.s they were lege.tees under the Will of \ Anthony. Acco:rc.ing to the last Will and testament of the./ I deceased the assets ~ere to be divided among the 1st defendant nd his four sons after payment of certain lega·cies and c.e"~,ts specified in the Hill. The immoveable; properties ·to be divided a.re items 1 to 53 in schedule .... B schedule cor::::-rises rno,;,eable properties left by the deceased 2-nd ~ schedule, the amounts due to the estote. 'I'he plaintiff claimed to shores on the allegation, that his brother ,Icseph had assigned his slre to him. Accord- ing to the plai.tiff the lst defendant us managing all the properties of the deceased e,1en during his life time and at the tiL:e of his death, she L2.0 11itl1 her a surn of" Rs.14000 as accumulated income of the prcrerties. This was also inclvded among the assets tc be partitioned. The plaintiff also sought for settlement of accounts of the income which had accrued after Anthony's death and which was in the possession of the 1st defendant as exe- cutrix under the \fill, Ext.III. Besides his share, the plaintiffalso claimed a. sum of Rs.8034-10-5 as amount due to hire from deceased . 4..nthony. Defendants 1, s, Sand . I • .l 10 filed written statements. In view of the limi borate- 3 ly the contentions of all the contesting defendan!s. All the defendants except the ·1st defendant have acquiesced in the decree passed by the trial court. The main con- tent;ions of the lst defendant were that she had no management till the death of her husband, th2.t the income of the properties was not kept by her and that she had discharged several debts binding on the estate. Io of such debts were amounts due to the 3rd defendant's wife Mariama and the 2nd defendant's wife Thresiama, being the income from their properties which Anthony ha6· taken. She claimed to have discharged these and several ~cope of the appeal it is unnecessary to other debts. She claimed credit for these payments. , The court below upheld the lst defendant's case that she had no marwger.-;.ent of the properties till the time of ntiony's death and that she was not liable to account for the profits till that date. The two pa.yments alleged, to have been made by her to her daughters-in-law were found against. There were certain negotiations for partition before the institution of the suit and some _ mediators attempted a cH 0.'ision. They had divided the imo veable properties into several schedules and by consent of par- ties,·_the properties in schedules A and B ere taken by the plaintiff soon after the institution of the suit. £n g So far as the imoveble properties are concerned the parties agreed to abide by the division by the mediators and an order ,-ms passed by the court below on 6-12-1121, ratifying the said arrangement. The trial court passed a preliminary decree declar- ing that items 1 to 53 in schedule •~ of the plaint were the immoveable properties available for partition. In respect of moveables, the plaint claim was disallowed in respect of certain items specified in the decree. As :• -3- • ' collected by the 1st defendant as execu;lx had included among the partj_ble assets, ti:e Jria1 court specified certain payD1er.i.tS made by the lst defendant as binding on the estate and she was made accountable for the balance. Te points.raised by the appellant mainly relate to two debts alleged to have been paid by her which were disallowed by the decree. The details regard- ing these may be stated when considering the same. The first point raised on behalf of the appellant is that she is entitled to credit for the sums paid to --. • ! the amount • • also to be kiariamama and Thresiamma. These are described as items l4 and l6 respectively in schedule. C of her 'i:rritten statement. Of ~hese item 14 is a sum of Rs.450 due to -. ) Mariamua as incc:::::.e of her properties and a sum of Rs.318- 12-0 as interest thereon. as stated earlier Mariamma is the wife of the 3rd defendant. She was a rich heiress and she got one-half of the properties of her father who had only two daughters. Ext.119 is the deed of partition between Na.riamma and her sister whereunder she got cocoa... - nut gardens and paddy fields and the evidence is that the annual incc:we of these properties amounted to about 75000cocoanuts and 400 paras of paddy. Ext.XVI is an account igygs3ag . of the incomne of these properties. After the death of Anthony the 1st defendant executed a promissory note Ext.XVII in favour of Nariamma on 25-1- 1119 for a -sum of Rs .450C. It is this amount which is stated to have been repaid by the 1st defendant with the income she received as executrix. The plaint1f's case on this point is that the 1st defendant was all along max managing these properties, that Anthony had nothing to do with it and that the estate was not answerable for the claim. The trial court upheld the plaintiff's case and disallowec5 the 1st defendant's claim. There was a similar claim regarding the income of the properties of hresiam ,) wife of the 2nd defendant. She was married in Makarom 1114 and the dowry paid was a sum of Rs.5000. Ext. XVIII \ -4- is the account relating to this. ,• • Ets.P and D arflt sale I deeds for properties purchased with the dowry amount. Of these Ext.P is a sale deed dated 21-5-1115 for Rs.17CC ! and Ext.D dated 31-9-1116 for Rs.3790-Anas 3. According' to Ext.XVIII, the accrued income from these properties on 27-1-1119 as Rs.2050-7-3. On 1-1-1120 the 1st defendant executed a promissory note Et.XI in favour of Ihersiamma for Rs.2200 and this debt is alleged to hage been paid by her with the income of the estate on 30-12-1120. The contention of the nlaintiff regarding this item is sailar to the previous one. The main question whic~ therefore arises for decision is whether the income of te properties of Mariamma and The siamma was collected a:_-_d spent by Anthcny or the 1st defendant. If Anthony tock eg the income, the estate is answerable for the same. In considering this question reference has to be made to t::.:.e plaintiff's ca.se that during the latter part of his life Anthony was unable to manage his proper- ties and that the 1st defendant was managing all his properties. This case was found against by the trial court. In the .n.2ture of the evidence in the case it is difficult to ur:old the conclusion reached by the lower regarding pent of the debts to Mariamma and Thresiane court,/ The ls defendant filed several documents to substantiate her case that Anthony was managing the proper ties of his daughters-in-law. Exts.98 to 111 are the relevant documer-'-ts. The learned Subordinate Judge does not appear to have paid proper attention to these docu- ments. Ext.98 is an envelope on which Anthony has made a note in his own hand-writing that the contents were Mariamma's notes and receipts. Ext.98 is a similar envelope on which Anthonv has made a note that the con- to tents ccnsistec: of \fariamma' s notices etc. Ext.100 is a notice received by Mariarmma from V.T.K. state in respect of a property which belonged to the said estate and which had been originally demised in favour of a > stranger. Anthony has made a note on it that the notice - 5- 3 relates to a property obtained by t::ariamma in partition, that rene-wal fee in respect of the same had been paid. in 1113 a11d that subseg_uent renewal had not become due. This entry appears to be the draft of the reply to the notice. As the notice was one dated 25-11-1117 Anthony must have written this on a later date, which shows that even one year before his death he was looking after :Mariarnma's prcperties. Ext.101 is a schedule of Mariamma's properties in which she had mortgage rights. Ext.102 is a letter to the lst defendant from her \ brother rele.ti ,,g to a property which belonged to Mariarnu, 1 , Anthony has zaade a note at the bottom on 22-6-l117 to the effect tha a reply was sent to bis brother-in-law on the 22nd. Ext6.103 is draft of the reply referred to in Ext.102 an'.i this also contains a marginal note in Anthony's hand.-writing. Ext.103A is draft of a letter sent by Anthony to his brother-in-law regarding the same property. Ext.104 is a receipt taken from one Varkey on payent of a sum of money due to him from Mariamma under the partition deed in her family. Anthony has made a note on the back of it in his own handwriting explaining the nature of the document. Ext.105 is a letter from a stranger to Anthony regarding certain amount due from him to Mariamma and esking for time for repayment. TI::.is is a debt referred to as itern 20 in schedule 3 of Ext.ll the partition deed in llariamma Is I - family. Tis shows that deceased Anthony had sent a registered notice in Makarom 1117 for collection of the arount due to Mariamma. Ets.17 and 1CG are letter from Anthony to the Vicar of a Church C.emanding r/ayment of a debt to ariamma. 'The debt itself _is item 27 in schedule cf Kt.ll9. We hae referred only to those documents which admittedly contain Anthony's handwriting. These show that Anthony was taking an active part in tle management of the properties of 1-1ariar;1.ma. As stated earlier most of these are of the ye2,rs 1116 and 1117. ,-. -o- The explanatio:-: offered by the plaintiff is that these being correspor..dence with strangers, Anthony may have A attended to the same instead of leaving it to his wife. These however do not consist of corresrondence alone. Some of these such as xts. and are notes made by Anthony in his own hand-writing on the ~Jc.ck of en,;elopes' stating that the contents related to Eariamma1s proper- ties. Certai circumstance s were also relied on by the plaintiff to sl:ow that if the incon:e lrnc been collected and used by nCony he would have given some document to his daughters-i:-la especially as he executed promissory notes in favour of all creditors including close relat- ives. 5ts.7I, XV), XI and II are such promissory notes. The fact that these ilems did not find a place in a book Ext.I.III wherein he had noted his debts was also relied on. Anthony being dead it is not possible · to ascertc:in ;,..ir-:- he did not execute any document to his daughters-in-la or enter these in Ext.XIII. A possible exaplanticn is that these amounts were entered in accounts writ.ten by one E.K.Joseph who was looking after Anthony's properties and writing the accounts relating to the same. Again, since Anthony was· managing his own proper- ties till the end it is difficult to hold that he le;ft it to his wife to manage the properties of his daughters- in-law. It has also to be stated that this is a point on which the plaintiff could not give reliable evidence as T he was not staying with Anthony or the 1st defendant during this period. Gn the other hand there is oral - .·- .f evidence supJ)Orting the 1st defendant's case. D..6 is Mr.T.A. Verghese, a son-in-law of Anthony and the 1st defendant. He is an I.c.s. Officer still in service and there is evidence in the case to show that his advice was sought by ai:( the parties in several matters. He has deposed that the properties of Mriamma and Thresiamma -/ went iuto the common pool and that Anthony was in financial difficulties even though he owned several immoveable properties. He further stated that his infor-·/ mation that the income was not treated separately from the personal income of Anthony was obtained fror:1 the 1st· plaintiff and the lst defendant. le believe his testimcnt in full. Defendants 2 and 3 have also deposed in support • of the case of their mother the 1st defendant. Their evidence is t.zt their father was managing these proper- ties and taking the income. The 2nd defendant deposed that Anthony hi.:'.:lself bad told him so. The 3rd defendant stated that his father was collecting the income of Marianm1a1 s pro:;:erties and that the only occasion on which he received money out of such income was in lll7 when he required h.s.350 to go to Bezwada. Ee added that there was no need to take a docrunent from his father singe proper acccunts were being kept. The promissory note was taken fror is mother after his father's death as he was in the arr.:y and as he thought that nobody would be answerable for the amount if anything happened to his mother also. e have already stated that the 1st plain- tiff was not i a position to have any direct knowledge about this matter. Even though Defendants 2 and 3 are parties to the suit we are not prepared to say that they should be disbelieved on that ground. The documentary evir::'ence refe.rred to earlier fully supports their version. Coming ta the ebt due to Thresiam1a; reference may be made to Exts.110 and 111, letters sent by .:1.nthony to Thresiamma's father regarding disposition of her dowry amount. Ia Ext.llO dated 13-5-1ll4 he suggested that the amount should be deposited in her father's Bank as the rate of interest was higher thm.:. was available in the Balks at Ernaiulam. I Ext.lll dated 20-4-lll5 he asked for return of 16G Rupees for purchasing a property for 'Thre siamma and her husband. {ll the reasons which weighed with us for holding that .nthony was looking \. after Mariamnia's properties and taking the income thereof, -8- apply to Thresiamma's properties also. We therefore hold that the income of these properties ·was t2ken and utilised. __, by Anthony and that the estate is answerable for the same~ The 1st defendant :ts therefore entitled to credit for the amounts paid by her to Mariamua and Thresiamma. The next point relates to the appellant's claim for credit of Rs.GCCO in addition to what has been decreed. This clnim aris-ss out of a chitty transaction. ie do not consider that th.is point merits elaborate discussion as this was not raised in the written statement. The 1st defendant appended various schedules to her written statement but she omitted to include this in any of these. If her case reg2.rding this is true, she is entitled to deduct Rs.600C from the amount due to the 1st plaintiff. In that case there is no explanation for not referring to this as she had questioned a small portion of the amount claimed by the 1st plaintiff from the estate. During the course of the argument we pointed out this omission in the pleadings srd Shri Venkiteswara Iyer learned counsel I for the aprells.nt then filed an application for amendment ' of the written statement. We do not think there is any justification for allowing the application. According to t '• a settlement cf the dispute prepared schedules regarding i claims and cou:.-:.ter-claims. It is admitted that this claim was not :raised before them. The snit was hotly contested in te court below and it is unlikely that the .. 1st defendant ho was careful enough to mention even trivial cl:=i ms could have overlooked this subst,mtial sum of Rs.:iOCC. ·r11e evidence as it stands also does not support the neu plea. .According to the 1st defendant her husband had ar, unprized ticket in a kuri conducted by a church. The plaintiff's wife also had a ticket,which she prized and the prize money was received by Anthony wh< in turn assigned his unprized ticket to the plaintiff the lst defensnt the mediators who attempted to effect # --9- under Ext.89. According to the lst defendant the subscriptions for both these tickets were paid by Anthony till the termination of the kuri. The lst defendant has not produced receipts to substantiate that subscriptions were thus paid 'Jy Anthony in respect of both the tickets. Ext.J is a letter given by Anthony to the plaintiff regarding the uri transaction. This also does not support this claim. If Anthony really had to get Rs.6OGG under this heac he is not likely to have omitted to refer to it in Ext.J. Further discussion is Ulmece ss:c,.ry as the application for amendment is refused. Tis point is therefore decided against the appellant. The third point raised is that the plaintiff who took the properties in schedules A and was liable to pay Rs.lOCO to the 1st defendant and a similar sum to the 2nd defendant ±r equalisation of shares and that he should have been, made liable for interest thereon from the be ginning cf 1122 as he took possession of all the properties schedules and B as per the order dated 6-12-1121. The 1st defendant's case is that the 1st plaintiff should be made liable for interest on Rs.2000 from the begi::__:_:..ing of 1122 -or at any rate from the date of the preliui=.ary decree. This is a point which may be left for decision to the court below at the time of passing the fial decree. The appellant is allowed to raise this in the court below and the same will be considered when. passing the final decree. We do not therefore propose to decide this claim at this stage. The last roint raised relates to the declaration in the decree-~ in respect of a sum of Rs.4875 being proceeds of the sale of a property under Ext.C and a sum of Rs.100 being the value of a school building. These are included 2.mong the partible assets. The point raised is that the liability of the ls defendant in respect of these amounts does arise until all accounts -10- are settled and that it is incorrect to treat these as partible assets. All that the lower court means is that these are items to be taken into account when passing the final decree. The question of 1iabi4-ity of the lst defendant arises only in case she is finally J held accountable for any amount. The at:idi t=--.onal plaintiffs have filed a meu.orandum of cross-objecticns. The main ground relates to the dis- . allowance of tl"::.e claim in respect of the sun of Rs .14000 alleged to hae been in the lst defendant's possession at the tine c Anthony's death as accumulated income of the properties. The lower court has given valid_grounds for disallowing this claim. Anthony had to borrow even small amounts.ring his last sg years and it is unlike- i ly that he wcud have done so if the sum of Rs.loG was available. Since Anthony was in management till his death the clai is not sustainable even if any portion pf the income as available witch the lst defendant at the time of his death since it ·was open for Anthony to give the same ts the lst defendant. Another point • relates to the value of the school building dismantled by the 1st defendant. The lower court has awarded only a sum of Rs.l as against Rs.IGO claimed under this head. There ~s no satisfactory evidence in the case to support the plaintiff's claim. We do not think any modification is necessary under this head. The last point in the neuorandv.m of objections relates to the i direction regarding costs. The court below directed the plaintiff and the lst defendant to bear their respective costs. We consider that the court below has exercised proper discretion in this matter and that interference is not called for. The memorandum of cross-objections must therefore be dismissed. In the result the appeal is allowed to this extent viz., that in addition to the amounts given credit to by -11- the court below, the lst defendant is given credit for the sum of Rs.4678 paid to Mariamma on 30-3-1120 and the • a • 7 0 sum of Rs.2266 paid to Th4rsiamma on 3- -112%. These amounts will also be taken into account at the time of passing the final decree. The appeal is dismissed in other respects. Proportionate costs are allowed in the appeal. The memorandum of cross-objections is dismissed with costs. + November 1958. - =-, see