N.V. Swaminatha Iyer vs N.R. Krishnamurthy and Others

Natesan, J.—The Defendant in a suit for accounts has filed this second appeal against the final decree in the suit, having failed in both the Courts below in his attempt to ward off the liability determined on the taking of accounts. He is the junior paternal uncle of the Plaintiffs and had been executor under their paternal grandfather''s (his own father''s) Will, and the accounting claimed is in respect of the Defendant''s management of the estate bequeathed to them by their grandfather. Vasudeva Iyer, the paternal grandfather of the Plaintiffs and the father of the Defendant, had five sons, the Defendant being the youngest of them; and under his Will, dated 12th of January 1940, he provided for the devolution of his properties all his self acquisitions. The reasonableness of the provisions of the Will has never been in question, the testator making bequests of his properties to some only of his sons and his grandchildren by his eldest son bearing in mind their relative needs and the demands on his bounty. As he found the Plaintiffs'' father, his eldest son Ramaswami, wayward and unreliable, he made no bequest in his favour, but gave legacy to his children. By the Will he provided that the properties specified by him in A schedule to the Will should be taken by his eldest son Ramaswami''s sons, Krishnamurthi then aged 18, minor Balasubramaniam, aged 12, minor Panchapakesan then aged 6, minor Jayasundaram, aged 6 months and other male children that may be born to Ramaswamy. From the A schedule properties, Ramaswami''s daughters Visalakshi,Subadra, Sarala and other female children that may be born were to be married and their customary presents met. He appointed his two sons,Vaidyanathan and Swamina-than (the Defendants herein) as guardians and executors of the minor children of Ramaswami. The Will provided that the guardians and executors shall manage the properties and carry out the instructions in the Will in respect of the said properties till the sons of Ramaswami attain proper age to assume management of the properties. The testator died on the 19th of March 1941 and Vaidyanathan, the second son of the testator, declined to undertake executorship and guardianship. The Defendant assumed executorship and management of the properties under the Will. No male children was born to Ramaswami after the Will and Panchapakesan, the third son of Ramaswami who was aged about 6 in 1940, died in September 1944. Plaintiffs are the only and surviving named male legatees under the Will. The youngest of Rama-swami''s son Jayasundaram, the third Plaintiff, became a major in 1957, and thereupon the Plaintiffs called upon the Defendant for possession of their properties and an account of the income from the estate. There was exchange of notices between the parties and ultimately in April 1958, the Defendant surrendered possession to the Plaintiffs of the entire immovable properties bequeathed by Vasudeva to his grandchildren. But he rendered no account of the income as demanded, and thereupon the suit out of which the present second appeal arises was instituted on 18th November 1958. The plaint specified the A schedule properties in the Will bequeathed by Vasudeva to his grandchildren and referred to the Plaintiffs having taken possession of the properties without prejudice to their claim for accounting. The Defendant was called upon to render accounts and produce the lease documents, vouchers, records, etc., from the commencement of his management in respect of the estate and assets of the Plaintiffs. A decree for such amount as may be ascertained on taking of such accounts was prayed for. In the plaint the propriety of certain investment by the Defendant of the moneys belonging to the estate in the Vasudeva Funds, a banking concern of which the Defendant was the managing Director was questioned. It was alleged that this concern had been formed by the Defendant for his own profit and later became a defunct one.

The Defendant put forward various defences to the claim for accounts. Inter alia he contended that he had been managing the properties as carefully as a man of ordinary prudence would manage till the Plaintiffs took possession of the properties, that even before the third Plaintiff became a major the Defendant had been repeatedly requesting the Plaintiffs to take over the management, and that he had been taking instructions from the Plaintiffs'' father as advised by the Plaintiffs in regard to the management of the properties. Ultimately on a consent endorsement on the plaint a preliminary decree for rendition of accounts was passed in the following terms, on 11th April 1959:

That the Defendant do render accounts from the year 1941, till date in respect of the Defendant''s management of the estate and assets of the Plaintiffs;

That a Commissioner be appointed to take accounts;

That Defendant do file a statement of accounts before the Commissioner and the Plaintiffs do file a statement of surcharge and falsification;

That the questions of irregularity and fraud and the propriety of investment in Vasudeva Funds be raised before the Commissioner and be decided by the Court at the final decree stage; and

That the costs of the suit be provided for in the final decree.

There was no dispute as to the properties regarding the management of which accounts had to be rendered. On the report of the Commissioner, appointed for taking accounts the learned Subordinate Judge, Tiruchirap-palli, found the Defendant liable for an amount of Rs. 10,368-7-0 as on the date of the plaint and passed a decree for the said amount with interest thereon at 6 per cent from the date of plaint. This included a sum of Rs. 4,316--5--9 stated to have been invested in the Vasudeva Funds.

An appeal from the above decree was presented in the District Court, Tiruchirappalli, on the 19th June 1961 and therein inter alia a ground was taken that the trial Court

failed to see that one of the legatees, minor Panchapakesan, being dead in September 1943, the lower Court erred in passing a decree including his share also especially when his heir had not appeared on the record and claimed.

It is this ground taken for the first time on appeal from the final decree that has since assumed considerable importance and become the pivot of the defence After filing the appeal, the Defendant on 12th July 1961 issued a notice to the Plaintiffs (marked as exhibit B-292 in appeal) whereby the Plaintiffs were called upon to deliver back to the Defendant, a l/4th share in the suit properties making a division of the same by metes and bounds within 15 days from the receipt of the notice. Damages were claimed in respect of his l/4th share at Rs. 500 per year. The basis of the claim as set out in the notice is that on the death of Panchapakesan in 1941, when aged 10, his mother Rajammal became the heir and entitled to take possession of the l/4th share of Panchapakesan and manage the same, that she failed to make any claim as heir of Panohapakesan and that the Defendant himself had ever since been in possession of the l/4th share adversely, thereby becoming entitled to the said l/4th share prescribing title to the same. The Defendant averred in the notice that on threat of legal action by the Plaintiffs for non-delivery of their shares in the properties as the properties were undivided, he had delivered the entire properties including the share of Panchapa-kesan he had himself become entitled to, just to avoid Civil action for possession. This was promptly replied on behalf of the Plaintiffs by their Counsel in the reply notice exhibit B-291, dated 21st July 1961. It was inter alia pointed out in the notice and that the Defendant could not forget that he had surrendered the estate even before the suit was filed, and that he did not put forward the claim that he now made, but had submitted to a decree for rendition of accounts. It was also pointed out that he was, therefore, barred from making the unfounded claims.

When the appeal was taken up for hearing, Counsel for the Plaintiff sought leave to amend the plaint with reference to the new point taken up in appeal. The Plaintiff were granted leave to amend the plaint and the plaint was amended, the Plaintiffs under the amendment pleading that the testator by his Will intended to confer a joint estate with rights of survivorship subject to fluctuations, on his grandsons, and that in any event their mother Rajammal on the death of Panchapakesan relinquished all her rights, title and interest in the suit properties in favour of the Plaintiffs. The Plaintiffs relied upon a registered release deed, dated 2nd December 1961 executed by Rajammal in confirmation of the alleged oral release made earlier. The Defendant filed his additional written statement and therein he elaborated his defences. The claim of the legatees to the properties as joint tenants was refuted and it was pointed out that Rajammal ought to have claimed Panchapakesan''s share within twelve years of the death of Panchapakesan under Article 123 of the Limitation Act. The Defendant contended that even assuming that the relinquishment was true, the Plaintiffs ought to have claimed Panchapakesan''s share in the properties within twelve years of his death, as the Defendant ceased to be executor in respect of the share on the death of Panchapakesan. Acquisition of title by prescription and adverse possession was set out. On the additional pleadings the learned District Judge raised the following three additional issues:

Whether the oral relinquishment by Rajammal is true and valid?

Whether the Will by Vasudeva Iyer creates a joint tenancy in favour of the legatees? and

Whether the suit in respect of the share of Panchapakesan is barred by time.

In the view that the scope of further evidence with reference to the above issues was very limited, he recorded some additional evidence on the additional issues. On behalf of the Plaintiffs Rajammal was examined to prove the case of her release. The material document marked in evidence at the appellate stage are the notices exchanged between the parties pending the appeal and the registered deed of release executed by Rajammal in favour of the Plaintiffs, exhibit A-36, dated 2nd December 1961. Exhibit A-36 refers to a release already made and purports to be confirmatory of the oral release. There was a further clause that by way of abundant caution, by the document itself she was relinquishing in favour of the Plaintiffs all her share in the suit properties and benefits therefrom. The learned District Judge rejected the case of the oral release as an after thought and devoid of merits. However he found that the document itself would operate as a release, the Plaintiffs and their mother being co-owners in respect of the suit properties. He found that by reason of the release deed there was an enlargement of the shares of the Plaintiffs. The title under the release was found in favour of the Plaintiffs only as an alternative one for the learned District Judge agreed with the contention of the Plaintiffs that the legatees under the Will took the legacy as members of a joint family, and that therefore, on the death of Panchapakesan his share devolved by survivorship on the Plaintiffs. There was, therefore, no question according to the learned District Judge of Panchapakesan''s share being held by anybody else or being prescribed against. Coming to the question of limitation, the learned District Judge was of the view that the legacy was deliverable to the grandsons only after all of them attained majority. The third Plaintiff became a major only in 1957. Hence according to the learned District Judge limitation would start for the purpose of Article 123 only from 1957. He dealt also with the plea of adverse possession of Panchapakesan''s share by the Defendant. It was pointed out that till the notices passed between the parties, the Defendant was looking to the Plaintiffs alone as the absolute owners of the properties and had surrendered possession of the properties to them in April 1958. He had further claimed that he was entitled to be in possession as executor till all the sisters of the Plaintiffs got married, and that there could be no doubt that he was in possession of the entire properties on behalf of the Plaintiffs till he surrendered possession in April 1958. If at all his possession was adverse to anyone, the adverse possession would ensure only to the benefit of the Plaintiffs. Coming to the actual liabilities on the merits, the Defendant pressed, only, the finding as regards the propriety of the investment in Vasudeva Funds. The learned District Judge, found on the evidence that the transactions was highly imprudent and that the Defendant had renewed the deposit with Vasudeva Funds even after he was called upon by the Plaintiffs to return the amount.

The findings of the learned District Judge on the additional issues have been the subject of strong criticism and comments before me. The principal points made on behalf of the Defendant may be summed up thus. The legatees under the Will took the estate as tenants in common: the gift being to a class and immediate, not being subject to any intermediate life estate though possession was postponed to their attaining proper age, the period of distribution or delivery of the estate was at the death of the testator as the eldest of the sons was a major even on the date of the Will. The date of distribution in such a case, a case of gift to a class, was when a member of the class attained proper age. So limitation for the purpose of Article 123 would commence at the latest on the expiry of one year after the death of the testator, and viewed thus the claim was barred by limitation. As regards the release, once the oral release is found against, the registered deed of release would be of no avail. On the death of Panchapakesan, his mother Rajammal as his heir became entitled to possession of his share and on her failure to claim and assume possession of her share in the estate, her right got extinguished after the lapse of 12 years. Assuming that her registered release deed could itself be looked upon as releasing her rights therein, on the date of the document she had no right in the properties. It had become extinguished years before and could not, therefore, enlarge the Plaintiffs'' right. Learned Counsel would contend that the claim to the corpus being barred by limitation, there could be no claim for an account of the profits in the corpus. It is claimed for the Defendant that as he had been holding the estate of Rajammal without recognising her title thereto, he had prescribed title to the same by adverse possession.

Now to examine the contentions: the material part of the Will which requires consideration runs as follows:

My eldest son Ramaswami''s sons, Krishnamurthi aged 18, minor sons, 12 years old Balasubramaniam, 6 years old Panchapakesan and 6 months old Jayasundaram, and sons to be born hereafter shall take equally the properties described in the A schedule herein.... Till the sons of the aforesaid Ramaswami reach the proper age to take up the responsibility, I appoint my second son Vaidyanathan, and my 5th son Swaminathan to be the guardians of the minors and executors for managing the aforesaid properties and for carrying out the provisions contained therein. In respect of the A schedule properties herein neither my eldest son Ramaswami nor his wife nor anybody else shall have any manner of right or claim.

It is difficult to construe that under this Will the sons of Ramaswami take the properties as members of a joint family with rights of survivorship. I may at once state that learned Counsel for the Plaintiffs frankly does not seek to maintain this view of the lower Appellate Court. The grandfather distributes his properties among some only of his sons and his grandsons by his eldest son disinheriting his eldest son. The Will provides that these grandsons by the disinherited son then born and to be born shall take the properties equally. The testator was not just partitioning his properties between the members of the joint family. He was picking and choosing who were to take his properties. It is well known that the principle of joint tenancy is unknown to Hindu Law except in the case of the joint property of an undivided Hindu family governed by the Mithakshara Law and when property is gifted to more than one in the absence of anything in the grant to the contrary, the presumption is that the donees take as tenants in common--see Bahu Rani and Anr. v. Rajendra Baksh Singh ILR (1933) Luck. 121 (PC). Mayne''s Hindu Law eleventh edition, page 347 and Yethirajulu Naidu v. Mukunthu Naidu ILR (1905) Mad. 374. Here apart from vesting the properties in executors and guardians while disinheriting their father, the testator used the aptest expression one can think of, for conveying his intention that the legatees should hold the properties as tenants in common. It is a gift to a class, but the testator has provided that the legatees shall take the properties equally. The shares were determined and got fixed when the time of distribution of or vesting in possession arrived. This is suffcient to destroy the theory that the testator intended that his grandsons should take the property as members of a joint family leaving out their father. Clearly on the death of Panchapakesan his share devolved on his heir and did not survive in his brothers.

The learned District Judge reasons that if the testator had lived up to 1957 and Ramaswami had not brought forth any other son, it might have so happened that at that time all the legatees would be majors and in that case there would have been no question of deferment of possession. The legatees would have straightaway taken possession and there would be no opportunity for the executors to assume management of the estate. Therefore, according to the learned District Judge Section 111 of the Indian Succession Act cannot in terms apply to the facts of the present case. I am afraid that this reasoning makes no point. Section 111 which applies to Hindus runs thus:

Where a bequest is made simply to a described class of persons, the thing bequeathed shall go only to such as are alive at the testator''s death.

Exception--If property is bequeathed to a class of persons described as standing to a particular degree of kindred to a specified individual, but their possession of it is deferred until a time later than the death of the testator by reason of a prior bequest or otherwise the property shall at that time go to such of them as are then alive, and to the representatives of any of them who have died since the death of the testator.

We have to construe the Will as it is and not in the light of subsequent events or mere possibilities. The intention of the testator has to be ascertained from the terms of the Will and the surrounding circumstances at the time of execution. Here the Will specifies that the gift is to the grandsons named and grandsons that may be born. Certainly it is to a class of persons standing in a particular degree or kindred to the testator. He defers possession till they came up of proper age. Disposition of property in favour of unborn persons is not invalid, if disposition did not offend against the rules contained in Sections 112 to 117 of the Indian Succession Act. A gift to a class must be distinguished from a gift to an individual belonging to a class. A gift to a class implies an intention to benefit those who constitute the class and to exclude all others; and a gift to a class may comprise also named individuals and others to come in provided all belong to the class. Only when the gift is specifically to certain named persons, it can be said that it is not a gift to a class, even though the named persons belong to a class. In the case of a gift to individuals and not to a class, subsequent births in the class to which they belong will not affect the interests taken by the legatees. The interest taken by a member in a class is liable to fluctuation and the share increases or decreases according as there are deaths or births among the members of the class before the death of the testator. Where the members of the class take as tenants in common, if after the death of the testator and before the date of distribution a member of the class should die, there will not be increase in the share; his interest will devolve on his representatives. But if there should be additions to the class before the period of distribution, the newcomer will share in the legacy and there will be decrease in the share. It has also to be noted that the vesting in interest is not delayed by a direction that the executor should have control over the properties and make over the shares to the legatees on their attaining proper age. In T.B. Sri Rangi Vs. Asia Bai, one Kamakshi bequeathed her properties to the children of her grandson Rangaswami by her daughter Lakshmi Yesodai being the only daughter of Rangaswami alive at the time of the execution of the Will, and children male and female who may be born to Rangaswami thereafter on their attaining majority. The learned Judge Ramachandra Ayyar J., (as he then was) with reference to the Will observed;

It is clear that the Will is in favour of a class of persons represented by Yasoda who was then in existence, viz., the children born and to be born of Rangaswami. They were the direct objects of the gift. There is no provision in the will vesting in any person a limited estate between the date of the death of the testatrix and the distribution of the legacy. The vesting of the property would take place in the children of Rangaswami immediately on the death of the testatrix.

The date of distribution is however postponed to their attaining the age of majority. As Yasoda was the eldest of the children the earliest date for distribution would be when Yasoda attained the age of 18 years in 1939. Though Yasoda is named in the Will, the intention of the testatrix is to leave the properties not to her as an individual but to a class of persons of which she was the representative, viz., the children of Rangaswami born and to be born.

The members of the class would fluctuate in the passing of time. Therefore it should be ascertained from the Will as to the point of time at which the class is to be ascertained.

Emphasising that the date of distribution and vesting in possession was when the eldest of them attained the age of 18, the learned Judge proceeded to hold (at page 479):

On the Will Exhibit A-48 in the present case it is evident that the gift is to a class of persons one of whom alone was alive at the date of the Will. The period when that class is to be ascertained is the period of distribution, namely, when Yasoda attained the age of 18 the earliest time when possession was to be given. Therefore, all those children that were in existence on the date when Yasoda attained majority would be entitled to a share in the legacy.

Yasoda attained majority in 1939 and by then three more children besides Sundararaja had been born and therefore all the five children would be entitled to share in the distribution of the legacy.

The learned Judge refers to a decision in Kuppuswami Mudaliar v. Ranganatha Mudaliar (1937) 46 LW 660. In that decision the period of distribution of the estate was postponed till the proper time Yuktha Kalam and it was observed that the word proper time must mean at the proper age, that is to say, on majority. In A. Narayanan and Another Vs. Commissioner of Income Tax, the decision in T.B. Sri Rangi Vs. Asia Bai, was not applied; but it was on the construction of the particular terms of the Will in the case. The principle is thus set out:

The bequest by Chockalinga is certainly in favour of a class of heirs, namely, his grandchildren born of his divided son Annamalai. Where there is a bequest to a class under the Will, the essential thing to be determined first, is the point of time when the class has to be ascertained. The normal rule is that the date of death of the testator crystalises the class of legatees and those who come within the class and are capable of taking on that date obtain the benefit; the subsequent expansion of the class cannot diminish that benefit. But if on a proper construction of the Will the ascertainment of the class is deferred to a later date, namely, a date subsequent to the date of the death, those who become members of the class within the extended period are admitted to the benefits of the bequest.

Learned Counsel for the Appellant drew my attention to another line of cases; Paru Kutti v. Vasudevan ILR (1945) Mad. 323 and Husenbhoy v. Ahmed bhoy ILR (1901) 26 Bom 319. On the strength of these decisions it has been pointed out that where property is bequeathed to a person absolutely and the Will directs that it should not be handed over to a legatee until he has attained certain age beyond majority the direction must be ignored, unless the Will confers an interest in the property upon some other person in the intervening period, and that if no such interest is conferred the legatee would be entitled on attaining majority to be placed in possession of the legacy. Learned Counsel for the Plaintiffs did not dispute the proposition. It would follow, therefore that the date of distribution of the estate among the legatee would be at the latest when one of the legatees first attained majority. It cannot be postponed till the youngest of them becomes a major. It is quite a different thing for the executor to act as guardian and hold the property for a minor legatee as testamentary guardian of the minor. But that is not postponing vesting in possession of the property. It is as a corollary to this, in the case of a class gift as in this case, it may be said that the other rule of construction is evolved, the rule that the members of the class gets ascertained at the distribution, and that members born in the class, after cannot claim shares. As termed in Halsbury''s Laws of England, volume XXXIX, Simonds edition, page 1035, et seq it is a rule of convenience. To provide for shares to those born after the period of distribution will be to read the Will as containing an inconsistent provision for redistribution after the legacy has vested absolutely and in possession. In the present case fortunately there are no complications, as no male child was born to Ramaswami after the death of the testator or even before after the date of the Will. All the legatees as it has turned out are named individuals and alive when the testator died. But that is only an accident and cannot control the interpretation of the Will or the effect to be given to its terms. We have this, however, that in the present case the vesting in possession, is not postponed. The eldest of the sons, Krishnamurthi, was a major at any rate when the Will came into force on the death of the testator and was entitled to assume possession of his share. The members of the class got ascertained on the death of the testator itself, and the estate vested in them even then in possession. The rule applicable is set out thus in volume XXXIX Halsbury''s Laws of England, Simonds edition at page 1037, paragraph 1558:

The second rule of convenience deals with the determination of the date of distribution where the gift is of the corpus of property, and is postponed by reason of the conditions attached to it, as where payment is to be made on the attainment by the donee of a specified age, or on his or her marriage, or in other cases, it appears, where such conditions are of a nature personal to the donees. The rule is as follows: where the postponement of enjoyment is due to conditions attached to the gift, the date of distribution is considered to be reached as soon as the conditions are so far performed that some one member of the class would be entitled to the enjoyment of his share, if the class were then not susceptible of increase, and the class is then closed. Thus, where there is an immediate gift to a class, to be paid on the members attaining a specified age, the date of distribution is the death of the testator, if any member of the class has then attained that age, and, if not, at the time of the first occasion when a member attains that age.

This Court has adopted this principle in T.B. Sri Rangi Vs. Asia Bai, It follows that the shares vested in the legatees in possession on the death of the testator. May be by reason of the minority of some and the executor being their guardian they could claim their shares from the executor within three years after becoming majors. But where the claim is for the legacy or share, the article of limitation applicable against the Defendant executor would be Article 123. Under Article 123 for a legacy or for a share of a residue bequeathed by a testator, or for a distributive share of the property of intestate, the limitation commences when the legacy or share is payable or deliverable.

Panchapakesan''s share having become vested in him in possession, on his death in 1944,his mother Rajammal as heir could have, even then claimed delivery of his share. Panchapakesan was a minor at the time of his death, and the executor was himself the guardian. But when Rajammal succeeded him as his heir, there was no bar to her securing possession of the share to which she became entitled to a one-fourth share in the A schedule properties in the Will of the grandfather Vasudeva., The grandsons taking the legacy as tenants in common, Rajammal had a fourth share in the legacy. But she has not joined in the suit, and the Plaintiffs now state that Rajammal had orally relinquished her interests in the properties shortly after the death of Panchapakesan in favour of the Plaintiffs. The oral relinquishment has been found against and it is a pure question of fact. The Plaintiffs have relied upon the release deed exhibit A-36 as itself capable of making them owners of her share in the properties, itself operating as a release of Rajammal''s share. The deed contains not only words confirmatory of the original release but also purports as a matter of caution to relinquish her share in the suit properties. Now there can be no confirmation if in fact there has been no earlier release. In Neelakantan Damodaran Namboori and Another Vs. Velayudhan Pillai Narayana Pillai and Another, it was observed by the Supreme Court:

The document, therefore, in terms confirms the pre-existing rights of the Appellants and as we hold that they had no pre-existing rights, the document did not convey any interest to them.

If, as contended for the Defendant Rajammal''s share got extinguished by limitation long prior to the release, then there was nothing for the release to operate on; the release cannot bring about any conveyance as there was nothing to convey. The present suit is no doubt a suit for accounts; but it is an account of the profits from the properties bequeathed. If the right to the corpus itself had become extinguished, there could be no claim for the income therefrom. Under Article 123 of the Limitation Act where the claim is for a legacy or for a share of a residue bequeathed by a testator, or for a distributive share of the property of an intestate, the limitation commences when the legacy or share becomes payable or deliverable. It was not seriously argued for the Plaintiffs that the Defendant was an express trustee for Panchapakesan or his representative; nor was it contended that on expiration of the period allowed under Article 123 the claim would not get extinguished u/s 28 of the Limitation Act. The fact that Rajammal was a tenant in common with her surviving sons in respect of the properties cannot make any difference. They were all each entitled to a definite share in the properties and the cause of action in such a case is not a joint one: see Alla Pichai Rowthan v. Pappathiammal (1918) 36 M.L.J. 184. Rajammal could have within the period of limitation brought her suit for her share in the properties bequeathed and there was nothing that prevented her claiming her share. It follows that even in 1957, Rajammal''s right in the properties had become extinguished. The release deed exhibit A-36 of the year 1961, will not, therefore, entitle the Plaintiffs to claim either her share in the properties or an account of the income from her share of the properties.

Logically the result of the above conclusion would be to bar the Plaintiffs from claiming an account of the income from Panchapakesan''s share of the suit properties. For the Defendant it is contended that if an account is taken crediting the Plaintiff''s with the amounts paid in respect of Panchapakesan''s share of the income towards the 3/4th share, the present liability would practically disappear. The contention comes to this, that the Defendant himself was a co-owner with the planitiffs having a 4th share in the properties and accounting ought to be taken on that basis and that if so taken it may be the Plaintiffs have been overpaid. It is this aspect of the matter that now calls for careful consideration.

The first thing that should strike one when examining this plea is, whether this is not going behind the preliminary decree. The Plaintiffs had called for an account of the management of the entirety of the suit properties as if they owned and were entitled to the whole of the properties. The Defendant had surrendered possession of the entirety of the properties on their claim to possession of the properties. There was no demur on the part of the Defendant that they were entitled only to a 3/4 th share in the properties and he had become owner of Panchapakesan''s share in the properties by the extinguishment of Rajammal''s rights therein and that he was bound to account only for 3/4 th share of the income. The preliminary decree passed by consent has provided for taking of accounts of the Defendant''s management of the entire properties as properties of the Plaintiff''s estate. Now the Defendant would in effect have it that he was a co-owner with the Plaintiffs with a fourth share and the accounting must be on that basis. The liability settled by the preliminary decree providing for taking of accounts proceeds on the basis that the Plaintiffs owned the entire properties and the Defendant had no rights in them, but was only managing the properties for them with liability to account for the management. Order XX Rule 16 (Code of Civil Procedure) provides--

Where it is necessary, in order to ascertain the amount of money due to or from any party, that an account should be taken, the Court shall, before passing its final decree, pass a preliminary decree directing such accounts to be taken as it thinks fit.

At that stage a question that would fall for determination is whether the Defendant is liable to account to the Plaintiffs whether there is an accountable relationship between the parties. For purposes of convenience when the very question of the extent and scope of liability may depend on a scrutiny of accounts, the preliminary decree may reserve the relevant issues for consideration at a later stage. It has been so done in this case with reference to the investment in the Vasudeva Funds of a portion of the income from the estate. But this is an item of accounting. There has been no reservation of the defence now raised as no such defence was thought of before. The only plea in defence was that accounts had been rendered. Now Section 97 CPC provides:

Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

But what is prohibited as above is exactly what has been permitted to be done in the present case. It is nobody''s case that the Plaintiff consented to a variation of the preliminary decree if the new defence is made good. The Defendant in his appeal memorandum to the lower Court against the final decree took a ground that would go to the root of the matter, questioning the extent of his liability. Such a plea was not taken even at the taking of accounts. Pending the first appeal notices had been exchanged between the parties, the Defendant for the first time putting forward the defence, and the plantiffs had repudiated the new move as going against the preliminary decree. The District Court allowed the new ground to be raised and framed additional issues for determination. I find nothing in the record to show that the Plaintiffs have consented to that course. No doubt when called upon to meet the new ground they applied for amendment of the plaint. Certainly this is not consenting to the re-opening of the preliminary decree if the determination of the additional issues involved the same. In the view that the learned District Judge ultimately took of the additional issues it was not necessary to go behind the preliminary decree. But in the view I am taking on the additional issues it may be that the preliminary decree has to be varied and the liability of the Defendant limited, treating him as a co-sharer entitled to a l/4th share in the suit properties. The question is: can such a variation be permitted when the preliminary decree itself is not challenged? To permit such a variation would be in my view on the facts of this case to go against the teeth of Section 97 CPC Code. No circumstances have been made out for reviewing or modifying the preliminary decree, assuming it can be done at this stage, and in this manner; but that is what in effect I am asked to do and the learned District Judge was called upon to do. Learned Counsel for the Respondents before me is, therefore, perfectly justified in supporting the decree of the Courts below relying upon the bar of Section 97 Code of Civil Procedure. I am unable to appreciate the contention that the effect of finding the additional issues in favour of the Defendant would not result in variation of the preliminary decree. To say so is to overlook, that what is now questioned is not the legality or regularity of any particular act of management by the Defendant of the estate. What is now claimed is, that the Defendant himself is part owner of the estate and that the claim for an account as adumbrated of the entire income from the properties and accepted in the preliminary decree cannot be had. It is manifest that this is a plea in defence which ought to have been taken in the written statement. The test is to see whether at the time of the final decree proceedings the Defendant could have contended before the Commissioner and the Court in the face of the preliminary decree, that he was liable to account only for 3/4 th of the income from the properties as he was entitled to the remaining 1/4 th income. The objection is not in the taking of accounts; the objection is to the taking of accounts provided for in the preliminary decree. Section 97 CPC embodies one aspect of the general principle of res judicata. Section 97 clarifies the position that any person aggrieved by a preliminary decree must appeal against the preliminary decree and if he failed to appeal against such a decree, the correctness of the decree cannot be challenged in the appeal against the final decree. The preliminary decree must be taken to have been correctly passed and binding on the parties and providing the basis for further steps in the suit, in the present case the taking of account of the Defendant''s management of the suit properties and for a decree for the sum ascertained on the taking of accounts. The appeal against the final decree has necessarily, therefore, to be limited to the points arising from the proceedings subsequent to the preliminary decree and the legality and correctness of these further proceedings will have to be examined only on the basis that the preliminary decree is correct and beyond challenge. If for any reason the preliminary decree is voidable, that will be a matter for appropriate steps in that regard. The conclusion inevitably following from the prehminary decree and matter that must be deemed to have been decided by the preliminary decree cannot be the subject of challenge on appeal from the final decree or even earlier at the stage of the passing of the final decree. An appeal is no doubt a continuation of the proceedings in the suit and the suit in the present case is now only for the first time in appeal. But Section 97 CPC is a bar to questioning matters which are concluded by the preliminary decree. To permit the present plea in my view, would be to derogate from and jeopardise the finality of the preliminary decree and furstrate the very purpose sought to be achieved by the introduction of Section 97 of the Code of 1908. By the new defence the very foundation of the prehminary decree passed on consent is sought to be assailed and the challenge is as much on facts as on law. In my view, the Plaintiffs can properly contend that the Defendant cannot now be permitted to challenge their right to the whole of the income and his liability to account for the management of the income from the entirety of the properties. It is unfortunate that this aspect of the matter has not been the subject of any discussion in the lower appellate Court and things have proceeded as if there had been no prior final judicial determination in the suit of the scope of the liability to account by the Defendant. But the decision in the second appeal need not be rested on this.

There is another answer which the Plaintiffs have to the new defence and this is found in the findings of the lower appellate Court itself. Learned Counsel for the Plaintiffs pointed out that even assuming that Rajammal was entitled to call for severance and separate possession of her estate on the death of Panchapakesan in 1944, the possession thereafter of Panchapakesan''s share was not with the Defendant in his own right; but the possession was that of the Plaintiffs through the agency of the Defendant. They would contend that the Defendant had been in management of even this 1/4 th share only for and on behalf of the Plaintiffs in the belief that the Plaintiff''s were entitled to the same. It is said, rightly or wrongly, the parties appear to have proceeded in the view that on the death of Panchapakesan Plaintiffs became exclusively entitled to the estate and further the estate could be distributed only on the youngest of the legatees attaining majority, that is, in 1957. To summarise the arguments: The Defendant right through from 1944 was holding the whole estate on behalf of the Plaintiffs as the sole surviving beneficiaries. He never held or treated himself as tenant in common in respect of the 1/4 share in the estate. It may be that the claim of Rajammal against the Defendant for the 1/4 share would be barred under Article 123, but while time was running against Rajammal to extinguish her rights under Article 123, the Plaintiffs were prescribing title to the same, through the Defendant. The Defendant was holding the l/4th share also for the Plaintiffs and he held against Rajammal not for himself but for the Plaintiffs as part of their legacy. Factually neither the Plaintiffs nor the Defendant at any time during the material period had any idea that Rajammal had in law become owner of Panchapakesan''s share. The Defendant had surrendered possession of the entirety of the properties to the Plaintiffs without demur in April 1958. He has not made out his case that it was under some coercion or force that he was compelled to surrender possession of the entirety of the properties notwithstanding his claim to a 4th share therein. In his memorandum of appeal he has stated that he was entitled to be in possession of the properties till all the sisters of the Plaintiffs have got married. The learned District Judge remarks that it cannot be doubted that the Defendant was in possession of the entirety of the properties on behalf of the Plaintiffs till he surrendered possession in 1958. The account books maintained by him which have been exhibited in this case show that he never thought he was entitled to a 4th share in the income from the properties. When he rendered account before the commissioner clearly he made no distinction or made no claim that he was entitled to appropriate and had been appropriating in his own right a fourth share in the income from the properties. To examine this approach: for a moment I thought whether I should not remit the matter to the lower appellate Court for appropriate findings in the context of the present discussion. But I find apart from the fact that the lower appellate Court has recorded the necessary inference as to the character of the Defendant''s possession of the share during the material time, the evidence is all one way and there is no possibility even of a different inference. Throughout the period of his management the Defendant has been treating the Plaintiffs as persons entitled to the entirety of the properties, may be in the erroneous view that Panchapakesan''s share survived to them. In the notice exhibit A-22 issued by the Defendant on the 6th of March 1958, to the three Plaintiffs, he states:

But I have been managing the said properties (the A scheduled properties in the will of his father Vasudeva Iyer, dated 12th January 1940) since the death of the testator on your behalf, collecting the income, investing the same and making you payments therefrom from time to time.... Now, all the three of you who are entitled to the properties under the will have become majors and are bound to take over and manage the properties yourselves and relieve me of the responsibilities of management of your estate.... In view of the above I declare my readiness and willingness to hand over the estate immediately to all the three of you subject to the conditions and terms laid under the will with regard to the marriages of your two unmarried sisters, Sow. Sarala and Sow. Suganya for which hereafter you alone will be responsible.

In the plaint an account of the income and outgoings in respect of the entire estate was claimed and in his written statement the Defendant admitted that he had been managing the properties as carefully as a man of ordinary prudence would do in respect of such properties if they were his own and had duly delivered the properties to the Plaintiffs in April 1958. The defence in the main was that he had rendered full accounts for his management and there was no account due from him to the Plaintiffs as on date and, therefore, the suit for accounts had to be dismissed. Taking of accounts before the Commissioner proceeded on the admitted basis of the Defendant having been in possession of the entirety of the suit properties on behalf of the Plaintiffs. The objection to the Commissioner''s report filed by the Defendant proceeded on the same basis. The Defendant had been making payments from time to time either to the Plaintiffs or their sisters or their father on their request. The amounts had been paid either in cash or by way of withdrawal slips on the savings Bank account with Vasudeva Funds in the names of the Plaintiffs but with the Defendant as their guardian and executor. Exhibits B-107 to B-113 are counterfoils of the withdrawal slips from November 1945. A possible plea on behalf of the Plaintiffs, could have been that there was an acknowledgment of liability u/s 19 of the Limitation Act by the Defendant which would enure for the benefit of Rajammal also but it is unnecessary to consider its tenability as no such case was taken though an opportunity was given in the District Court. But the fact that Rajammal''s claim for a share in the legacy against the Defendant as executor had become barred, would be no answer to the claim of the Plaintiffs to Raj animal''s share as held and enjoyed by the Defendant on their behalf as their agent. It has never been the case of the Defendant that he enjoyed any portion of the estate in his own title. He had been managing the estate as belonging to the Plaintiffs and for the Plaintiffs as their executor or guardian. The question of the executor''s assent to the legacy is of little consequence in this case. The assent can be implied and there is voluminous evidence of the executor''s assent to the legacy. His account books reveal the assent; he has made payments on account to the Plaintiffs, maintaining separate accounts. The deposit in the Vasudeva Funds has been in the name of Krishnamurthi (first Plaintiff) and minors, the Defendant styling himself as the executor, trustee and operator. The present is a case of the kind contemplated in Navroji Manockji Wadia v. Perozbai ILR (1898) 23 Bom. 80, 86. Therein one Manockji died leaving a widow Mothibai and two sons. Mothibai obtained Letters of Administration in 1838 to the estate of her husband and thereafter till her death in 1897, solely possessed and enjoyed the estate. On these facts it was held that the right of the sons to recover the shares to which they were originally entitled had become barred under Article 123 of the Limitation Act and their right to such shares was extinguished u/s 28 of the Act. But it was pointed out:

The case might have been different if evidence had been given to show that Mothibai was holding with their consent and on their behalf, but the Advocate-General said he was not in a position to give such evidence.

Another moot question is possible whether if the entire estate had been held for the Plaintiffs by the Defendant, it would be open to the Plaintiffs to claim ouster of Rajammal, a co-sharer with them, when all the parties had been ignorant of her rights. Against the Plaintiff''s the article applicable would not be Article 123 and if it is Article 144 mere exclusive possession and enjoyment may not in the circumstances amount to ouster as they never intended ousting her. But it is unnecessary to embark on this aspect of the case, as Rajammal claimed no share in the estate and in fact she has purported to release whatever right she had in the same. I am indicating only the various problems that can arise in this case and could have been matters for serious and careful consideration if the present defence had been taken at the appropriate time and not raised in a truncated form as has now been done.

Leaving all these, on the case as considered in appeal, there can be no doubt that as against the Defendant the Plaintiffs can obtain title for the l/4th share of Panchapakesan also. The principle of the decision in Chenabasavana Gowd v. Mahabahshwarappa (1954) 1 M.L.J. 714, 716 (S.C.) can be applied on the facts of this case. There two sisters, Paramma and Pompamma, were as between themselves entitled to an extent of 9 acres and 49 cents of land. Pompamma died after giving birth to two sons Sindalingana and Cenabasavana. On the death of Pompamma her husband Nagana married again and his infant sons by Pompamma were brought up by the mother''s sister Paramma. On the death of Pompamma her sons inherited her half share in the 9 acres and 49 cents and Paramma executed a deed of gift in favour of the infants on her half share in 9 acres and 49 cents. Thus the two infants became entitled to the entirety of the 9 acres and 49 cents. Shortly after the gift, one of the sons Sidalingana died and his half share in the land in law devolved on his father Nagana. But Paramma continued to possess the entirety of the land on behalf of the younger son and the father who had acquired by inheritance a half share, leased the entire property by a registered deed in favour of Paramma for a period of twelve years, the father representing and acting as guardian of the surviving son Chena Basavana in respect of the entire property. On the death of his son Sidalingana the father had become a co-owner of the disputed property with his minor son Chena Basavana, but he dealt with the property as if his minor son was the exclusive owner, The Supreme Court observed on the facts:

In granting the lease on behalf of the infant the father definitely asserted the exclusive title of his son to the property and by implication denied his own rights as a co-owner thereto. The fact that Nagana consented to such exclusion is immaterial. There can be in law, under certain circumstances, adverse possession with the consent of the true owner....

We are not satisfied from the materials in this case that Nagana was ignorant of his rights as heir of his deceased son when he executed the lease in the year 1926. But even if he was, as the exclusive possession of the infant was exercised with the full knowledge and consent of the father who openly acknowledged the title of his son, such possession could not but be adverse to the father.

To repeat in the present case the Defendant had no idea that Rajammal had become entitled to the l/4 th share of Panchapakesan, but he clearly acknowledged the exclusive title of the Plaintiffs to the suit properties, on the death of Panchapakesan. He managed the properties as belonging to the estate of the testator of which the three Plaintiffs were the legatees and asserted no adverse title in himself to the share therein treating himself as in possession of the share on his own. It follows that his possession of Rajammal''s share also was on behalf of the Plaintiffs and any rights that accrued by such possession accrued only to Plaintiffs. It was an Accretion to their estates. The learned District Judge''s finding is to the said effect. He has held that even if the Defendant had held possession adversely against the heir of Panchapa-kesan, the possession being admittedly on bahalf of the Plaintiff would enure to the benefit of the Plaintiffs and that it is not open to the Defendant to assert title as against the Plaintiffs. I fail to see how this finding could be got over. It follows that the Plaintiffs'' title to the entire property has been made out and the claim for an account of the income from the same is perfectly justified.

The only question that remains for consideration is as to the investment in Vasudeva Funds. Both the Courts below have on the facts found that it is an imprudent transaction. It was not disputed that Vasudeva Funds was a banking concern started by the Defendant himself. It is found that the Defendant was aware that the concern was in a sinking condition. The first Plaintiff was anxious for his moneys and wanted ready money to meet the marriage expenses of his sister. He had implored the Defendant under exhibit A-14, dated 1st February 1957, to have the moneys transferred from Vasudeva Funds to some other bank. Notwithstanding this, the Defendant renewed the fixed deposits in Vasudeva Funds in November 1957. The lower Court points out that the Plaintiffs were prepared to give time to the Defendant to withdraw the amount from the Funds and pay them. If persons accept the office of executor they must perform it; they must use due diligence and not suffer the estate to be injured by their neglect. Exeoutors are certainly chargeable with neglect if they allow the assets to remain outstanding in an improper state of investment when prudence would dictate otherwise. The question whether an exeoutor has acted prudently or not is a matter for inference from the facts and circumstances of the case. The Defendant in this case has admitted that if he had concentrated his attention and devoted his entire time, he could have withdrawn all the moneys from the Funds within a couple of months from 18th September 1957 and invested them with the Tiruchirappalli District Co-operative Bank. The Commissioner points out that there is no reason why he did not do so especially when the Plaintiffs were demanding liquid cash from September 1956.

Learned Counsel for the Defendant referred me to the decision in Wilks v. Groom 25 L.J. Ch. D. 724, 728 where on the facts it was held that the administration therein was not liable for the loss of moneys by failure of the private bank in which they had been deposited. But in that case the administration deposited the funds in the private bank with the knowledge of the solicitors of the testator and of other persons interested under the Will. In the course of the discussion it was pointed out in that case that the moneys were deposited with the bank not because the administration had any account with the Bank or they were her bankers. The solicitors of the testator in that case who had in every way a stake in his estate, had concurred in the investment and had themselves paid in money to the same account. And they were also acting as solicitors for parties mainly interested in the property. It is these very solicitors that questioned the property of the investment. That case turned on its own facta and the Vice-Chancellor remarked:

I believe that, in holding Mrs. Wilks not to be liable for this money, I am not at all relaxing what are unquestionably the very strict rules of the Court with regard to trustees, executors and administrators. I should be very sorry to relax those rules, for although they operate extremely harshly in some particular cases, they are rules which are necessary for the protection of trust monies, and for the protection of cestuis que trust.

Learned Counsel for the Defendant pleaded on behalf of the Defendant that the present was a case of no wanton improper investment, and that his client had acted throughout bona fide in the management of the estate. He took up the management solely to carry out the directions of his father and protect the interests of the minors. Honestly in the belief that possession could be had by the legatees only when the last of the legatees became major without any controversy he surrendered possession. The Defendant had been compelled to put forward the defence of limitation when the account bona fide maintained by him had been questioned most unkindly. He had been managing the estate as he had been managing his own estate and it has not been made out that he had profited himself at the expense of the estate. Learned Counsel submits that the Defendant had even earlier been asking the Plaintiffs to assume possession of the lands. But they had found it convenient to have the lands managed by the Defendant. It is the ungracious and cantankerous demands with accounting on the part of the Plaintiffs, learned Counsel submits, that has necessitated the Defendant to raise the legal contentions. The Defendant had readily consented to a preliminary decree to satisfy the requests for accounting though in fact he had given the accounts earlier. But it is their attitude during the accounting and their attempt to vilify his management that led to the exchange of notices subsequent to the final decree and putting forward a perfectly legal defence. On their part they had come forward with a false plea of an oral release. But these aspects of the case cannot carry the matter either way. The Courts below have considered the merits of the case fully and find that the transaction is imprudent. The conduct of the Plaintiffs, whether gracious or ungracious, is not a matter that calls for decision in this case. The question is whether the defence has been made out and on this part I have to conclude that the decree of the lower Court is proper and justified.

In the result the second appeal fails and it is dismissed. This is a fit and proper case where the parties should bear their respective costs in this Court and in the Court below. There will be an order accordingly. Leave granted.