AS/4/1954 of ROSAMMA Vs MARIYAMMA on 14 November 1958

(Kunara.Pil.;;_lai,J a_nd Joseph,J).No •. 4 of 1954.-- ---------------i1J u d g me n t.l-------·-------lJ.)This appeal arisesfromthe prelisinary decreejina suit for rar.ti'tion of the estate o.f one.Anthony !"lho '8diedon 5-1-1_112 !,_.· By his fir-st m2rriage he had two sons. 13the lst plaiHti_f_f -and one Joseph and two daughters,9iunjelechiwhc pre-deceased him and the 9th defendant.After the deat-~- of his first wife he married the 1stdefend.ant and :)efenr::ants .2 and 3 are the sons and Defen-dants 4 to 7 the daughters by- the second marriage.The8th defendant is the son of Kunj elechi deceased and_ the-,10th defend@~nt :..s the 1st plaintiff's·wife.These partie,\·,·were implead.ede.s they were lege.tees under the Will of\Anthony.Acco:rc.ing to the last Will and testament of the./Ideceased the assets ~ere to be divided among the 1stdefendant nd his four sons after payment of certainlega·cies and c.e"~,tsspecified in the Hill.The immoveable;properties ·to be divideda.re items 1 to53 in schedule ....B schedule cor::::-risesrno,;,eable properties left by thedeceased2-nd ~ schedule, the amounts due to the estote.'I'he plaintiff claimed to shores on the allegation, thathis brother ,Icseph had assigned his slre to him.Accord-ing to the plai.tiff the lst defendant us managing allthe properties of the deceased e,1en during his life timeand at the tiL:e of his death,sheL2.011itl1 her a surn of"Rs.14000 as accumulated incomeof the prcrerties.Thiswas also inclvded among the assetstc be partitioned.The plaintiff also sought for settlement of accounts ofthe income which had accrued after Anthony's death andwhich was in the possession of the 1st defendant as exe-cutrix under the \fill, Ext.III.Besides hisshare, theplaintiffalso claimed a. sum of Rs.8034-10-5 as amount dueto hire from deceased.4..nthony.Defendants 1, s, Sand I

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10 filed written statements.In view of the limi~cope of the appeal it is unnecessary to3borate-ly the contentions of all the contesting defendan!s. Allthe defendants except the·1st defendant have acquiescedin the decree passed by the trial court.The main con-tent;ionsof the lst defendant were that she had nomanagement till the death of her husband, th2.t theincome of the properties was not kept by her and that shehad discharged several debts binding on the estate.Ioof such debtswere amounts due to the 3rd defendant'swife Mariamaand the 2nd defendant's wifeThresiama,being the income from their properties which Anthony ha6·taken.She claimed to have discharged these and severalother debts.She claimed credit for these payments.The court below upheld the lst defendant's case that shehad no marwger.-;.ent of the properties till the time ofntiony's death and that she was not liable to accountfor the profits till that date.The two pa.yments alleged,to have been made by her to her daughters-in-law werefound against.

There were certain negotiations for partitionbefore the institution of the suit andsome_ mediatorsattempted acH[0].'ision.They had divided the imo veableproperties into several schedules and by consent of par-ties,·_the properties in schedulesA and B ere taken bythe plaintiff soon after the institution of the suit.£ngSo far as the imoveble properties are concerned theparties agreed to abide by the division by the mediatorsand an order ,-ms passed by the court below on 6-12-1121,ratifying the said arrangement.

The trial court passeda preliminary decree declar-ing that items1 to 53 in schedule •~ of the plaint werethe immoveable properties available for partition.Inrespect of moveables, the plaint claim was disallowed inrespect of certain items specified in the decree.As •

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the amountcollected by the 1st defendant as execu;lx hadalso to beincluded among the partj_ble assets, ti:e Jria1court specified certain payD1er.i.tS made by the lst defendantas binding on the estate andshe was made accountable forthe balance.Te points.raised by the appellant mainlyrelate to two debts alleged to have been paid by herwhich 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 appellantis that she is entitled to credit for the sums paid tokiariamama and Thresiamma.These are described as itemsl4and l6 respectively in schedule.C of her 'i:rrittenstatement.Of~hese item 14 isa 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 isthe wife of the 3rd defendant.She was a rich heiressand she got one-half of the properties of her father whohad only two daughters.Ext.119 is the deed of partitionbetween Na.riamma and her sister whereunder she got cocoa... -nut gardens and paddy fields and the evidence is thatthe annual incc:we of these properties amounted toabout75000cocoanutsand 400 paras of paddy.Ext.XVI is anaccount igygs3ag . of the incomne of these properties.After the death ofAnthony the 1st defendant executed apromissory note Ext.XVII in favour of Nariamma on 25-1-1119 for a -sum of Rs .450C.It is this amount which isstated to have been repaid by the 1st defendant with the'income she received as executrix.The plaint1fs caseon this point is that the 1st defendant was all along maxmanaging these properties, that Anthony had nothing to dowith it and that the estate was not answerable for theclaim.The trial court upheld the plaintiff's case anddisallowec5 the 1st defendant's claim.There was a similarclaim regarding the income of the properties of hresiam,)wife of the 2nd defendant.She was married in Makarom1114 and the dowry paid was a sum of Rs.5000. Ext. XVIII

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is the account relating to this.Ets.P andD arflt• saleIdeeds for properties purchasedwith 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 propertieson 27-1-1119 as Rs.2050-7-3.On 1-1-1120 the 1stdefendant executed a promissory note Et.XI in favourof Ihersiamma for Rs.2200 and this debt is alleged tohage been paid by her with the income of the estate on30-12-1120.The contention of the nlaintiff regardingthis item is sailar to the previous one.The main question whic~ therefore arises for decision iswhetherthe income of te properties of Mariamma and The siammawas collecteda:_-_d spent by Anthcny or the 1st defendant.If Anthony tock eg the income, the estate is answerablefor the same.In considering this question reference hasto be made to t::.:.e plaintiff's ca.se that during the latterpart of his life Anthony was unable to manage his proper-ties and that the 1st defendant was managing all hisproperties.This case was found against by the trialcourt.In the .n.2ture of the evidence in the case it isdifficult to ur:old the conclusion reached by the lowerregarding pent of the debts toMariamma and Thresianecourt,/The lsdefendant filed several documents to

substantiate her case that Anthony was managing the properties of his daughters-in-law.Exts.98 to 111 are therelevant documer-'-ts.The learnedSubordinate Judge doesnot appear to have paid proper attention to these docu-ments.Ext.98 is an envelope on which Anthony has made anote in his own hand-writing that the contents wereMariamma's notes and receipts.Ext.98 is a similarenvelope on which Anthonvto has made a note that the con-tents ccnsistec:of \fariamma' s notices etc.Ext.100 isa notice received by Mariarmma from V.T.K. state inrespect of a property which belonged to the said estateand which had been originally demised in favour of astranger.Anthony hasmadea note on it that the notice

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 thenotice.As the notice was one dated 25-11-1117 Anthonymust have written this on a later date,which shows thateven one year before his death he was looking after:Mariarnma's prcperties.Ext.101 is a schedule ofMariamma's properties in which she had mortgage rights.Ext.102 is a letter to the lst defendant from herbrother rele.ti ,,g to a property which belonged to Mariarnu,Anthony haszaade a note at the bottom on 22-6-l117 tothe effect tha a reply was sent to bis brother-in-lawon the 22nd.Ext6.103 is draft of the reply referred toin Ext.102 an'.i this also contains a marginal note inAnthony's hand.-writing.Ext.103A is draft of a lettersent by Anthony to his brother-in-law regarding thesame property.Ext.104 is a receipt taken from oneVarkey on payent of a sum of money due to him fromMariamma under the partition deed in her family.Anthonyhas made a note on the back of it in his own handwritingexplaining the nature of the document.Ext.105 is aletter from a stranger to Anthony regarding certainamount due from him to Mariamma and esking for time forrepayment.TI::.is is a debt referred to as itern 20 inschedule 3 ofExt.llI the p-artition deed in llariamma[I]sfamily.Tis shows that deceasedAnthony had sent aregistered notice in Makarom 1117 for collection ofthe arount due toMariamma.Ets.17 and 1CG are letterfrom Anthony to theVicar of a ChurchC.emanding r/aymentof a debt to ariamma.'The debt itself _is item 27 inschedulecf Kt.ll9.We hae referred only to thosedocuments which admittedly contain Anthony's handwriting.These show that Anthony was taking an active part in tlemanagement of the properties of1-1ariar;1.ma.As statedearlier most of these are of the ye2,rs 1116 and 1117.

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The explanatio:-: offered by the plaintiff is that thesebeing correspor..dence with strangers,Anthony may haveAattended to the same instead of leaving it to his wife.These however do not consist of corresrondence alone.Some of these such as xts.andare notes made byAnthony in his own hand-writing on the~Jc.ck of en,;elopes'stating that the contents related to Eariamma[1]s proper-ties.Certaicircumstance swere also relied on by theplaintiff to sl:ow that if the incon:e lrnc been collectedand used by nCony he would have given some document tohis daughters-i:-la especially as he executed promissorynotes in favour of all creditors including close relat-ives.5ts.7I,XV), XI and II are such promissorynotes.The fact that these ilems did not find a placein a book Ext.I.III wherein he had noted his debts wasalso relied on.Anthony being dead it is not possible· to ascertc:in;,..ir-:- he did not execute any document to hisdaughters-in-la or enter these in Ext.XIII.A possibleexaplanticn is that these amounts were entered in accountswrit.ten by one E.K.Joseph who was looking after Anthony'sproperties andwriting the accounts relating to thesame.Again,since Anthony was· managing his own proper-ties till the end it is difficult to hold that he le;ftit to his wife to manage the properties of his daughters-in-law.It has also to be stated that this is a point onwhich the plaintiff could not give reliable evidence asThe was not staying with Anthony or the 1st defendantduring this period.Gn the other hand there is ora·-l-.f.evidence supJ)Orting the 1st defendant's case.D..6 isMr.T.A.Verghese, a son-in-law of Anthony and the 1stdefendant.He is an I.c.s.Officer still in service andthere is evidence in the case to show that his advicewas sought by ai:( the parties in several matters.Hehas deposed that the properties of Mriamma andThresiammawent iuto the common pool and that Anthony was in A

financial difficulties even though he owned severalimmoveable properties.He further stated that his infor-·/mation that the income was not treated separately fromthe personal income of Anthony was obtained fror:1 the 1st·plaintiff and the lst defendant.le believe his testimcntin full.Defendants 2 and 3 have also deposed in supportof the case of their mother the 1st defendant.Theirevidence is t.zt their father was managing these proper-ties and taking the income.The 2nd defendant deposedthat Anthony hi.:'.:lself bad told him so.The 3rd defendantstated that his father was collecting the income ofMarianm1a[1]s pro:;:erties and that the only occasion on whichhe receivedmoney out of such income was in lll7 whenhe required h.s.350 to go to Bezwada.Ee added that therewas no need to take a docrunent from his father singeproper acccunts were being kept.The promissory notewas taken fror is mother after his father's death as hewas in the arr.:y and as he thought that nobody would beanswerable for the amount if anything happened to hismother also.e have already stated that the 1st plain-tiff was not i a position to have any direct knowledgeabout this matter.Even though Defendants 2 and 3 areparties to the suit we are not prepared to say that theyshould be disbelieved on that ground.The documentaryevir::'ence refe.rred to earlier fully supports their version.Coming ta the ebt due toThresiam1a; reference may bemade to Exts.110 and 111, letters sent by.:1.nthony toThresiamma's father regarding disposition of her dowryamount.Ia Ext.llO dated 13-5-1ll4 he suggested thatthe amount should be deposited in her father's Bank asthe rate of interest was higher thm.:. was available in theBalks at Ernaiulam.IExt.lll dated 20-4-lll5 he askedfor return of 16G Rupees for purchasinga property for'Thre siamma and her husband.{ll the reasonswhichweighed with us for holding that .nthony was lookingafter Mariamnia's properties and taking the income thereof, \.

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apply to Thresiamma's properties also.We therefore holdthat 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 forthe amounts paid by her to Mariamua andThresiamma.

The next point relates to the appellant's claim forcredit of Rs.GCCO in addition to what has been decreed.This clnim aris-ss out of a chitty transaction.ie do notconsider that th.is point meritselaborate discussion asthis was not raised in the written statement.The 1stdefendant appended various schedules to her writtenstatement but she omitted to include this in any of these.If her case reg2.rding this is true,she is entitled todeduct Rs.600C from the amount due to the 1st plaintiff.In that case there is no explanation for not referring tothis as she had questioned a small portion of the amountclaimed by the 1st plaintiff from the estate.During thecourse of the argument we pointed out this omission inthe pleadings srd Shri Venkiteswara Iyer learned counselIfor the aprells.nt then filed an application for amendment 'of the written statement.We do not think there is anyjustification for allowing the application.According tothe lst defensnt the mediators who attempted to effectt'•a settlement cf the dispute prepared schedules regarding iclaims and cou:.-:.ter-claims.It is admitted that thisclaim was not :raised before them.Thesnit was hotlycontested in te court below and it is unlikely that the.. 1st defendantho was careful enough to mention eventrivial cl:=ims could have overlooked this subst,mtialsum of Rs.:iOCC.·r11e evidence as it stands also does notsupport the neu plea..According to the 1st defendant herhusband had ar, unprized ticket in a kuri conducted by achurch.Theplaintiff's wife also had a ticket,whichshe prized and the prize money was received by Anthony wh<in turn assigned his unprized ticket to the plaintiff

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under Ext.89.According to the lst defendant thesubscriptions for both these tickets were paid by Anthonytill the termination of the kuri.The lst defendant hasnot produced receipts to substantiate that subscriptionswere thus paid 'Jy Anthony in respect of both the tickets.Ext.J is a letter given by Anthony to the plaintiffregarding the uri transaction.This also does notsupport this claim.If Anthony really had to get Rs.6OGGunder this heac he is not likely to have omitted to referto it in Ext.J.Further discussion is Ulmece ss:c,.ry as theapplication for amendment is refused.Tis point istherefore decided against the appellant.

The third point raised is that the plaintiff whotook the properties in schedules A andwas liable topay Rs.lOCO to the 1st defendant and a similar sum to the2nd defendant ±r equalisation of shares and that heshould have been, made liable for interest thereon fromthe be ginning cf 1122 as he took possession of all thepropertiesschedulesand B as per the order dated6-12-1121.The 1st defendant's case is that the 1stplaintiff should be made liable for interest on Rs.2000from the begi::__:_:..ing of 1122-or at any rate from the dateof the preliui=.ary decree.This is a point which maybe left for decision to the court below at the time ofpassing the fial decree.The appellant is allowed toraise this in the court below and the same will beconsidered when. passing the final decree.We do nottherefore propose to decide this claim at this stage.

The last roint raised relates to the declarationin the decree-~ in respect of a sum of Rs.4875 beingproceeds of the sale of a property under Ext.C and a sumof Rs.100 being the value of a school building.Theseare included2.mong the partible assets.The pointraised is that the liability of the ls defendant inrespect of these amounts does arise until all accounts are settledandthat it isincorrecttotreat theseas partible assets.All thatthe lower court means isthat these are itemsto betaken intoaccount whenpassingthe final decree.The question of1iabi4-ity oftheJ lst defendant arisesonly in caseshe is finallyheld accountable for any amount.

The at:idi t=--.onal plaintiffs have fileda meu.orandum ofcross-objecticns.The main ground relatestothe dis-. allowanceof tl"::.e claim in respect ofthesun of Rs .14000allegedto hae been in the lst defendant's possessionatthe tine c Anthony's death asaccumulatedincome ofthe properties.The lower court has given valid_groundsfor disallowing this claim.Anthony hadto borrow evensmall amounts.ring hislast sg yearsand it is unlike- ily that hewcud have donesoifthesumof Rs.loGwas available.Since Anthony was in management till hisdeath the clai is not sustainable even if any portionpfthe incomeas available witchthe lst defendant atthetime of his deathsinceit·was open for Anthony togivethesame ts the lst defendant.Another point•relatestothevalue oftheschool building dismantledby the 1st defendant.The lower court hasawarded onlyasum of Rs.las against Rs.IGO claimed underthishead.There~s nosatisfactory evidence in the casetosupport theplaintiff's claim.We do not think anymodification is necessary underthis head.The lastpoint in the neuorandv.m of objections relates totheidirection regarding costs.The court below directed theplaintiff andthe lst defendantto beartheir respectivecosts.Weconsiderthat the court below has exercisedproper discretion in this matter andthat interferenceis not called for.The memorandum of cross-objectionsmust therefore be dismissed.

Inthe result theappeal isallowed tothis extentviz.,that in addition totheamounts given credit to by

thecourt below,the lst defendant is given credit for-thesum of Rs.4678 paidto Mariamma on 303-1120 and thesum of Rs.2266 pai•dto Th4rasi•amma on 3-7-1120%.Theseamounts will also betaken into account at the time ofpassingthe final decree.The appeal is dismissed inother respects.Proportionate costs are allowedin theappeal.The memorandum of cross-objections is dismissedwith costs.

+ November 1958.

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