A. Varadarajulu Chetty vs A. Rajamma

Sadasiva Aiyar, J.—The appellant, 1st defendant, is one of the two executors who took out the Probate, Exhibit A, and accepted the office

of executor. The testator''s name is Purushothama Chetty. The plaintiff is the other executor who took out Probate A third executor, Nalam

Venkataratnam, is an insolvent and it does not appear that he joined in the Probate. The learned trial Judge held the 1st defendant liable to account

to the estate in respect of a sum of Rs. 8,500 (eight thousand five hundred rupees) which belonged to the estate and which he lent out to the third

executor. The Judge directed the 1st defendant to file the necessary accounts and also gave the usual further directions. The first contention in

appeal (if I understood it right) is that one executor cannot file an action at common law, according to English practice, against another executor,

that the present action is an action of devastavit, which is a common law action, and hence that this suit must be dismissed.

The short answer is that there are no forms of action within one of which every suit must be brought in Indian Courts and that the records show

that this action was brought on behalf of the estate for establishing all necessary reliefs for the benefit of the estate.

Then it is contended that the 1st defendant was entitled to lend the money without security to Nalam Venkataratnam. A perusal of the testator''s

Will clearly shows that this contention also is untenable.

Lastly, it is argued that, in any event, the plaintiff is jointly liable with the 1st defendant, as she consented to the loan made to Nalam

Venkataratnam. In the first place this is not stated as one of the grounds of appeal in the appeal memorandum, which only says that because the

plaintiff was wrong-doer herself, she could not call upon the 1st defendant to answer. In the next place, the learned Judge says: ""it is unnecessary

for me to determine at this stage whether the plaintiff consented to it or not."" I have, therefore, no doubt that the questions whether the plaintiff

consented to the making of the loan to Nalam Venkataratnam, and if so, whether she is jointly liable with the 1st defendant for the loss incurred by

the estate or even whether she, as executor-legatee, is liable in a greater degree than the 1st defendant-all these questions were left to be decided

in later stages of the suit, and we must presume that the final decree in the suit would have been passed after a consideration of these points.

I would, therefore, dismiss the present appeal with costs.

Napier, J.

I concur.