Ammalu Kutty Amma vs Vasudevan Nail and Another

Kumara Pillai, J.—This appeal arises out of a suit by a Nair female for partition of Puthravakasam properties obtained by her and her brothers from their deceased father. Plaintiff is the Appellant. Defendants 1 and 2 are her brothers. They have another brother, Krishan Kutty Nair, who has already obtained his share of the Puthravakasam properties as per the decree in a suit for partition, O.S. No. 10 of 1108, filed by him in the District Court of Trichur. Plaintiff and her brothers had obtained properties from their father both in Cochin and in Malabar. The present suit as well as O.S. No. 10 of 1108 related only to the properties in Cochin.

In the memorandum of appeal, objections were taken by the Plaintiff to the decree of the court below in regard to four matters, and she had also prayed therein for a remand. One of those four matters was the question of costs. That and the prayer for remand were not, however, referred to at all by the Appellant''s counsel during the course of his arguments.

He pressed only the grounds relating to the three remaining matters, namely, (i) whether the properties plaint A schedule items 1 to 6 are outstanding on a lease with Defendant 2 and can be partitioned only subject to the rights he has under that lease; (ii) whether Defendant 1 is in possession of any jewels belonging to the Plaintiff and has to account to her for the value of the same and (iii) whether Defendant 1, who was managi ing the estate of the father after his death liable to pay interest the Plaintiff on her share of the collections made by him from the date of '' collection or whether he is liable to pay interest to her only from the date of suit. Defendant 1 also has filed a memorandum of objections. It relates to his liability in respect of the rent realised and other collections made by him from 1105 to 1117.

The plaint properties and other items were obtained by the Plaintiff and her brothers under a will, copy of which is Ex. A, executed by their father, Achuthan Nair, on 30-10-1100. Plaintiff''s case in regard to "A schedule items 1 to 6 is that Defendant 2, who could not have any other work; was assisting their father during his life time to cultivate A schedule items 1 to 6 and that after the father''s death in 1104 Defendant 2 has been in possession of and is cultivating those items for and on behalf of the thavazhi of Achu than Nair''s children.

She therefore prayed for partition by metes j and bounds of those items and recovery of pos- J session of her share in them. Plaintiff has also stated in the plaint that with a view to defeat and defraud her Defendants 1 and 2 colluded together and obtained from her during the pendency J of O.S. No. 10 of 1108 certain signed blank papers- 3 and fraudulently made use of them for filing a written statement in that suit containing an mission from her that their father had leased A , schedule items 1 to 6 and B schedule item 1 to 4 Defendant 2 in 1099. This admission she repudiates j as one not knowingly made by her and brought about by the fraud of Defendants 1 and 2 According to Defendant 2, he is in possession of plaint A schedule items 1 to 6 under a lease granted by Achuthan Nair even before the exe- 1 cution of the Will and those properties can be partitioned only subject to the rights he has under the said lease. If the lease is true, Defendant 2 has 1 subject to certain conditions a right of permanent occupancy in the properties under the provisions S of the Verumpattadar''s Act of 1118 and he can- j not bo dispossessed of the land except under the 1 provisions of the said Act.

In that case Plaintiff cannot get a decree in 1 this suit for recovery from Defendant 2 of the land J in respect of her share in A schedule items 1 to 6 I and will be entitled to get a decree, so far as these | items are concerned, only for partition of her -I share in respect of the lessor''s rights. That the i case of a lease of A schedule items 1 to 6 by Chatham Nair himself to Defendant 2 before the exe- J cution of the Will is not a new case fabricated by Defendants 1 and 2 during the pendency of O.8. J No. 10 of 1108 in order to defeat and defraud Plaintiff is clear from Exs. LVI and LVII, the count books of Achuthan Nair.

There are many entries in them of rent re 4(r) ceived by Achuthan Nair from Defendant 2 for A 3 schedule items 1 to 6, There was a suggestion both M in the court below and here that these entries in ''ij Achuthan Nair''s accounts might have been made 4 to defeat the Income Tax authorities. There is U.O.J reliable evidence to support this suggestion. Sojne l of the entries relate -to the year 1100, and Agri- If cul tural income was not then liable to income- m tax. In these circumstances it is difficult to be-�| lieve that the admission about this lease contained in the written statement filed by the present Plaintiff and Defendants 1 and 2 in O.S. No. 10 of 1108 (Ex. C) was false and was the result of fraud and collusion on the part of Defendants 1 and 2.

At that time Plaintiff and Defendant 1 were on the best of terms and Defendant 1 was looking after her affairs. The admission was also as much .against the interests of Defendant 1 as against the interest of the Plaintiff or of Krishnan Kutty Nair. It is therefore extremely unlikely that he would have colluded with Defendant 2 and brought into existence a false record which was as much binding on him as on the Plaintiff in order to off feat and defraud her. No independent evidence is "alL.0 forthcoming to prove that the written statement was filed in court without the knowledge and consent of her Plaintiff and making use of blank papers signed by her and entrusted with Defendant 1.

Nor was the original written statement itself caused to toe produced in this case so as to enable the. court to ascertain whether there is any basis at all for the Plaintiff''s suggestion. There is an express admission in that written statement that Defendant 2 was then in possession of plaint A schedule items 1 to 6 and B schedule item 1 under a lease granted by the deceased Achuthan Nair. There is also another circumstance tending to prove the genuineness of the lease. In 1112, long before the disputes with the Plaintiff arose, Defendant 1 had to file a suit against Defendant 2 for arrears of rent. D.W. 1, an advocate practising in the District Court of Trichur, swears that this suit was settled by a compromise brought about by the mediation of three arbitrators one of whom was himself.

Exs. IV and v. evidence the settlement and both those documents are signed by the three arbitrators. A schedule items 1 to 6 consists of both garden and paddy lands. Since the rent for these items is only paddy the Appellant''s counsel contended that it was unlikely that the garden lands would have been included in the lease. According to him, if the garden lands also were included in the lease, part of the rent would have been fixed in money. He therefore contended that even if there was a lease, since the whole rent was payable in paddy the lease could have comprised only the paddy lands and not the garden lands. This argument also cannot be accepted, for it was open to the parties to stipulate a paddy rent alone when the bulk of the properties consists of paddy lands.

The rent of garden lands could also be taken into account in fixing the amount of psukly payable as rent for both the garden and paddy lairds. The entry at page 1 of Ex. LVII extracted in line 50 of page 8 of the printed copy of the lower court''s judgment shows that paddy lands and garden lands were comprised in the lease. On the evidence discussed above we are satisfied that the finding of the court below that Defendant 2 is in possession of plaint A schedule items 1 to 6 a''s a lessee and that he is entitled to all the benefits of the Verumpattadar''s Act and it is only subject to this right of his that the said items are liable to be partitioned, is right, and has to be confirmed.

Plaint D schedule consists of five items of jewels. The Plaintiff''s case in regard to them is that they were jewels given by Achuthan Nair to her alone, that when she went to Malaya with her husband she entrusted them with Defendant 1 for safe keeping, and that she is entitled to recover them or their value from him. Defendant I''s case in regard to them is that the Plaintiff had entrusted with him only items 1 and 4 in D schedule, and that he had sold those jewels and remitted the money to the Plaintiff''s husband as requested by him and Jhe Plaintiff. Ex. LIII is a letter written by the Plaintiff to Defendant 1.

It is not possible to ascertain from it in what year that letter was written, but the Plaintiff''s advocate admitted in the court below that it must have been written by the Plaintiff in 1935 or 1936. In that letter the Plaintiff had given definite instructions to Defendant 1 to lend out on interest the money obtained by the sale of item 4 in D schedule. It is obvious from this letter that, it must have been with the consent and knowledge of the Plaintiff that Defendant 1 sold item 4. Exs. K and L are letters which appear to have been written by Defendant 1 to the Plaintiff after Ex. LIII.

In those letters he told her definitely that the only jewel of hers remaining with him was D, schedule, item 1. The Plaintiff has no independent evidence to prove the entrustment of the ether jewels to Defendant 1. According to Defendant 1, he sold item 1 also and sent the money to the Plaintiff''s husband. From Exs. XLIV and XLV it is seen that Defendant 1 sent to the Plaintiff''s husband two remittances amounting in all to Rs. 800 in 1940. The Plaintiff said when she was examined as P.W. 1 that she could not say definitely whether Defendant 1 had sent any amount to her husband.

In the court below, as well as here, it was contended that the amounts under Exs. XLIV and XLV might be amounts belonging to the Plaintiff''s husband himself and that Defendant 1 who was managing his affairs might have sent the money to him. According to the evidence of Defendant 1, the remittances, Exs. XLIV and XLV, were made with the money obtained by the sale of the Plaintiff''s jewels- Pavanmala, and Elakkithali and Nagapatom (D schedule items 1 and 4-and not with the money in his hands belonging to the Plaintiff''s husband. From paragraph 14 of trie lower court''s judgment it is seen that the Plaintiff''s husband himself was seen in court instructing the Plaintiff''s advocate.

It is significant that in spite of his presence in court the Plaintiff''s husband has not gone into the witness box to deny on oath the evidence of Defendant 1 and to state that the two remittances, Exs. XLIV XLV, were made with the money obtained by the sale- of the Plaintiff''s money belonging to him and not with the jewels. Ex. II letter written by the Plaintiff''s husband to Defendant 1 in June 1939 shows that he was then hard up for money and in debt to Defendant 1. In that letter the Plaintiff''s husband also told Defendant 1 that the Plaintiff and her children were pressing him to buy a motor-car and that the Plaintiff wanted him (Defendant 1) to send Rs. 1,000 at once for the purchase of the car.

It was also pointed out in that letter that Defendant 1 could send this amount as the money obtained by the sale of the jewels was with him and that the amount required for the purchase of the car could be made up with that amount and the interest thereon and the interest on interest. In these circumstances, there can be no doubt of the truth of the evidence of Defendant 1 that the remittances under Exs. XLIV and XLV were sent by him to the Plaintiff''s husband at the request of the latter and the Plaintiff and with the money obtained by the sale of D schedule items 1 and 2. In the plaint the Plaintiff has valued D schedule item 1 at Rs, 1,190 and D schedule item 4 at Rs. 500. It was therefore contended that Defendant 1 has not accounted for the full price of these items by the two remittances mentioned above.

The plaint was filed on 9-12-1123 M. E. corresponding to. 24-7-1948 A.D. when the price of gbjd .was very high. The jewels were sold in 1935 and 1936 when the price of gold was low and could not have come up to even fifty per cent of the price prevalent on 24-7-1948. Therefore we are unable to accept the contention that after the two remittances Defendant 1 has money with him obtained by the sale of the Plaintiff''s jewels. We agree with the court below in holding that there is no reliable evidence of the entrustment of D schedule items 2, 3 and 5 to Defendant 1 and that D" schedule items 1 and 4 which were entrusted with him have been sold by him and the money obtained by their sale sent to the Plaintiff''s husband as desired by the latter and the Plaintiff. No interference from u.-s is, therefore, called for on the second point also urged by the Appellant''s counsel.

Lastly it was contended by the Appellant''s counsel that on the Plaintiff''s share of the collections made by the Defendant 1 of the debts and Other amounts duo to the estate of the deceased Achuthan Nair, Defendant 1 is liable to pay interest to the Plaintiff from the dates of the respective collections to the date of payment to her. The lower court has allowed the Plaintiff to realise interest from Defendant 1 on these amounts only from the date of suit to the date of payment. On this matter also we see no ground for interference.

As pointed out by the court below the Plaintiff had not claimed in the plaint interest on these amounts from the dates of collection. It has also not been shown that after the collection Defendant 1 had re-invested the amounts and realised any interest himself. Except in regard to the price realised by the sale of D schedule item 4 Plaintiff had not given any direction to Defendant 1 to invest the amounts due to her share.

By its decree the lower court has directed Defendant 1 to account for the rent realised and collections made by him from 1105 onwards. In the memorandum, of objections Defendant 1 contends that the Plaintiff''s claim to the rent and other collections till 1117, i.e., till six years before the date of suit, is barred by limitation. At the time of hearing in this Court it was urged on behalf of Defendant 1 that the suit so far as this claim is concerned falls under Article 110 of the Cochin Limitation Act, corresponding tp Article 120 of the Indian Limitation Act, which prescribes for a suit for which no period of limitation is provided elsewhere in the Act a period of six years from the date of right to sue accrues, The contention on his behalf was that in respect of the rent realised and collections made each year, Plaintiff''s right to sue arose from the date of realisation or collection and that the claim in respect of the same would be barred six years after the date of realisation or collection. Reference was also made in this connection to Subramonia Iver v, Venkitadri Iyer, 1954 Ker LT109 : AIR 1954. Trav-Co 302) (A), wherein it was held that a suit by one co-sharer for a share of the profits received by another co-sharer in possession of property in excess of his own share would be governed by the residuary Article of the Travancore Limitation. Act, and that it would not be'' governed by Article of the Travancore Limitation Act corres-ponding to Article 109 of the Indian Limitation Act since the co-sharer in possession of the property could not be said to be in wrongful possession even if he was in exclusive possession, and the'' liability could not, therefore, be considered as one for mesne profits.

There was no case of agency in 1954 Ker LT'', 109 : AIR 1954 Trav-Co 302) (A); but the facts, of the present case show that in realising the rent. and making the other collections ,in respect of" which the lower court has given a decree for accounting to the Plaintiff, Defendant 1 was acting as her agent that he was realising the Plaintiff''s'' share for and on her behalf. The Plaintiff is a female and Defendant 1 is her brother, and it is also admitted that till some time''before the suit was filed the Plaintiff was living outside India, in the F.M.S, with her husband.

It was therefore quite natural for Defendant 1 to look after the Plaintiff''s alfairs during her absence, and the correspondence between the parties proves beyond the shadow of a doubt that. Defendant 1 was looking after her all''alrs with her consent. Exs. C, LVIII, LIX and LX show or. tend to show that Defendant 1 was looking after, the affairs of the Plaintiff and acting on her behalf with her consent. In this connection it is also not irrelevant to note that Defendant 1 was. managing affairs of the Plaintiff''s husband also. It is settled law that a written document is not necessary to create a contract of agency and that such a contract may be spelt out or inferred from the circumstances and conduct of the parties including the correspondence between them.

On the facts admitted and proved in this case it is clear that Defendant 1 has been acting as the agent of the Plaintiff in collecting her share of the rent and other dues. In such circum stances the proper Article applicable to the suit is At 77 of the Cochin Limitation Act, corresponding to Article 89 of the Indian Limitation Act, and not the Articles of the Cochin Limitation Act corresponding to Arts. 109 and the residuary Article of the Indian Limitation Act. A Pull Bench of the Madras High Court has pointed out in Yerukola alias Penta Jogulu (Dead) and Others Vs. Yerukola alias Penta Tatayya alias Purushottam and Others, that if the facts be that the rents and profits were received with the consent of all concened, by the various co-sharers in possession pending final settlement by division each of such persons might be considered as agent for himself and for his co-owners, and in such a case Article 89 of the In-'' dian Limitation Act would apply.

The Lahore High Court has also held in, But Chand v. Ganpat Rai AIR 1929 Lah 407 that when one divided, brother has recovered the out standing originally due to the joint family under'' an implied contract of agency between him and his other brother, the suit brought by the other'' brother for his share of the collections is governed by Article 89 of the Indian Limitation Act. Article 77 of the Cochin Limitation Act, (corresponding to Article 89 of the Indian Limitation Act) reads'''' as follows:

Description of suits.

By a principal against his agent for movable property received by the latter and... not accounted for.

Period of Limitation.

Three years.

Time from which period begins to run.

When the account is during the continuance of the agency de-manded and refused, or where no such demand is made, when the agency terminates In-the1 present case there has been no termination of the agency of Defendant 1 till the suit was filed. Ex. LV is a letter sent by an advocate, D.W. 1, on behalf of the Plaintiff to. Defendant 1 suggesting a partition of the properties and settlement of accounts. The letter was sent on 28-10-1120. It is seen from the evidence of D.W. 1 that Defendant 1 acceded to his suggestion and that there was also some mediation for partition under Ills aegis.

But the mediation failed and then the Plaintiff filed the suit. Even if Ex. LV is construed as a demand for rendition of accounts, it is clear that there was no demand for rendition before the date of that letter, i.e., 28-10-1120, and that demand itself was not refused by Defendant 1 before the. suit was filed. The contention that the Plaintiff''s claim for her share of the rent and other collections from 1105 to 1117 is barred by limitation cannot, therefore, be accepted.

In the result the decree of the court below is confirmed and the Plaintiff''s appeal as well as the memorandum of objections filed by Defendant are dismissed without costs.