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Judgment
Koshi, J.—These appeals arise from the third preliminary decree passed in an administration suit (O. S. No. 18 of 1112) on the file of the Parur District Court. The present decree was passed on 27-9-1946, the two earlier pre liminary decrees having been passed respectively on 13-1-1941 and JO-l-1945. Issue No. 7 raised for trial is the issue now dealt with. It reads:
Whether any amounts are payable by Defendants 1, 2 and 7 to the estate of the deceased as damages or as amounts collected by them during the period of their management ?
The Court found that there was no proof on the side of the Plaintiffs to establish the liability of these Defendants except for an amount of Rs. 2800 for which Defendant 7 alone has been made liable. The Plaintiffs have preferred A. S. No. 650 against this decision and claim that in addition to the amount of Rs. 2800 for which Defendant 7 has been made liable, Defendants 1, 2 and 7 ought to have been made liable for all outstandings due to Chidambarom Pillai when he died, for the profits of the business conducted after his death, for the rents and profits of his immovable properties till the date, the administrator appointed by the Court to manage the estate assumed charge and for the value of the movables Chidambarom Pillai died possessed of including the stock-in-trade. Chidambarom Pillai died on 31-10 1107 and the administrator took charge on 1-3-1112. The Plaintiff''s appeal is valued at Rs. 22400 and the claim is that the three named Defendants should be jointly and severally made liable to the Plaintiffs at least to that extent. Defendant 7 has preferred A.S 57 against the decree making him liable in the amount of Rs. 2800.
The Court had in its previous decisions found that as executors and managers appointed under Chidambarom Pillai''s last will and Testament these, Defendants (1, 2 and 7) were liable to account for all the heads of claims mentioned above. The Court''s present task was only to assess the quantum of their liability, if any. We feel constrained to observe that the Court has thoroughly misdirected itself in discharing that task. The Court wrongly thought that it was for the Plaintiffs to establish by definite evidence the extent of the liability of the executors and clean forgot that it was the first duty of an accounting party, whether an agent a trustee, a receiver, or an executor to be constantly ready with his accounts. The lamentable fact about the whole case is the Defendants who took charge of assets of the deceased when he died and who were admittedly managing his estate for over four years have not cared to produce any books of account to show that the outstandings were, how the business was run, or what the rents and profits of the properties were or how they were dealt with during all these years. Exhibit B, the release deed, under which Defendant 2 renounced his management and executor ship and entrusted those functions to Defendants 1 and 7 shows that no account books were handed over to them at that time. Defendants 1 and 7 acted improperly in taking over management without making Defendant 2 render a proper account. The explanation offered for non-production of the accounts that Plaintiff 1 himself had destroyed or sold them away for paper value hardly commends itself to us as true. The lower Court has itself not accepted the explanation. Admittedly Chidambarom Pillai was running a flourishing trade and he was maintaining regulars accounts. That trade was continued for at last a year or two after his death. Necessarily those who were running the trade after Chidambarom Pillai''a death must also have been maintaining accounts. A statement which Defendant 1 filed during the course of the proceedings shows that Chidambrom Pillai had to realise very nearly Rs. 20,000 from various individuals and institutions. That statement also shows that the profits of the properties came to not less than Rs. 1800 and 453 paras of paddy a year. Of the outstandings due one item in respect of which an amount of Rs. 2450 or thereabout was due was the subject of a proceeding under the Debt Relief Act. By the time the administrator came on the scene the outstanding due to the trade must have become barred unless they were duly collected. There is no evidence what has become of them or how the trade goods were disposes of. Even on the modest estimate regarding outstanding and annual income given by Defendant 1 the Plaintiffs'' 1/5 share in them would exceed the amount they have claimed in the present appeal. If the figures mentioned in the statement the Plaintiffs gave, are accepted they would become entitled to more than twice the amount claimed. As pointed out by the lower Court the Plaintiffs'' figures in the plaint regarding these matters were not disputed in the suit. As per a statement their Advocate filed in Court on 7-11-1120 the profits of the trade and outstandings collected amounted to not less than Rs. 29,ooo and 4800 paras of paddy. Their claim in the appeal amounts to a little over Rs. 8000 whereas if we accept their figures they would become entitled to very nearly Rs 6000 and 1000 paras of paddy. In the Court below it was COURT tended on their behalf that as the Defendants had Defendants had failed to render any account with respect to the peried they were in management they must at least be made liable for the amounts admitted by Defendant 1 in his statement. But the argument was however summarily turned down by the Court who stated
that there is no proof of realisation of any amount by Defendants 1, 2 and 7 except what is admitted by Defendant 5 in Ex. 14 disposition.
This we are afraid betrays ignorance of the law to be applied in circumstances similar to the present. That the account books of Chidambarom Pillai''s trade went in the hands of Defendant 2 admits of no doubt. Defendant 1 and Defendant 7 on the one hand and Defendant 2 on the other are not agreed whether the latter handed them over to the former. The fact however remains that no account books whether existing when Chidambaram Pillai was alive or those maintained after his death are produced in the case nor is any satisfactory explanation for their non-production forthcoming.
The law to be applied in situations like this, is, if we may say so with respect, clearly and succinctly stated by Sir Asutosh Mookerjee J. and Panton J. in the case reported in Debendra Narayan V. Narendra Narayan 54 I. C. 636 : AIR 1920 cal. 428. The relevant portion of the judgment can usefully be reproduced here:
In a suit for accounts, the non-production of account books by the party who has custody of them justifies the presumption u/s 114 (g), Evidence Act that they have been withheld, because, if produced, they would have been unfavorable to his case. If he is the Plaintiff and is claiming accounts though withholding papers, his suit is liable to be dismissed. Upendra Kiskore v. Ram Tara 4 Ind. Cas 542 : 13 W. N. 696; Chand Ram v. Broja Gobind Doss 19 W. R. 14 If he is the Defendant who is liable to render accounts, the Court will proceed on the footing of evidence furnished by the Plaintiff, and in doing go, may make all reasonable presumptions against him; see the observations of Pheer J. in 8yud Shah Alai ahmad V. Bibee Musibun 24 W. R. 70 quoted with approval by Field J. in Annoda Persad v. Dwarakanath 6 Cal. 754 : 8 CLR 321. Again, as was pointed out by Field J., in Degamber v. Kallynath 7 Cal. 654 : 9 C. L. R. 265. if satisfied that the Defendant has contumaciously refused or omitted to comply with the order for production of the papers, the Court may enforce obedience by imprisonment or by attachment of property or by both. But, even if the Court does not consider it necessary to exercise its disciplinary powers, it may, by raising a presumption against the Defendant, afford relief to the Plaintiff. An instance of this nature will be found In the case of Rampershad v. Sheochurn 10 M. I. A. 490 : 2 Sar 177 P. C.. There the Defendant refused to render accounts; on evidence adduced to prove spoliation of the banking books the Court charged him with the principal sum for which he was accountable with interest at 12 per cent in lieu of the profits he had failed (SIC) that the Court had properly visited the failure of the Defendant to produce the accounts required by charging him with interest on the principal sum for which he was accountable. This is in conformity with principles firmly established in equity jurisprudence. Thus, in Walmsley v. Walmsley (1846) 3 J & L 556 : 72 R. R. 129, where an accounting party withheld the partnership books and documents and there by endeavoured to baffle the justice of the Court, Sir Edward Sugden, L. C, held that the Master had rightly raised a presumption against him both, as regards the amount of the capital and stock-in-trade and of the annual gains from the business. Again, in Gray v. Haig (1855) 20 Bea 219 : 109 R. R. 396, where an accounting party had destroyed the accounts before the matters had been finally adjusted, Sir John Romilly, M. R., stated that he would set on the principle laid down in the well known case for Armory v. Delamirie (1722) 1 L. C. 356 : 93 E. R. 664 and presume, as against the person who destroyed the evidence, everything most unfavorable to him, which is consistent with the rest of the facts either admitted or proved. This accords with the view adopted by Lord Nottingham, L. C. in Wardour v. Berisford (1687) 1 Vern. 452 : 23 E. R. 679. See also Rowley v. Adams (1849) 2 H. L. C. 725 : 9 E. R 1267, affirming Rowley v. Adams (1844) 7 Beav. 395 : 49 E.R. 1118..."
In the light of the law expounded in the above, extract and other cases to be referred to presently we have no hesitation to hold that the learned Judge in the Court below has taken a very wrong view of the whole matter and that it has really led to failure of justice. In the, circumstances of the case, we are in law entitled to adopt every presumption to the disadvantage! of the Defendants See Armory v. Delamirie 1 S.L. C. 356. The extract from the decision in 54 I. C. 636 quoted above Shows that the principle of that decision has been applied to suits of the present nature. The Cochin decisions reported in Sankunm Menon v. Komu Menon1 Select Decision 1 and Antony v. Kunhuvaried 40 KER L. R. 173 adopted a similar course. The cases in Murugesam pallai v. Gnana Sambandha Pandara Sannadhi 40 Mad. 402 : AIR 1917 P.C. 6; Guruswami Nadar v. Gopalswami 42 Mad. 629 : AIR 1919 Mad. 444 ; AIR 1925 93 (Privy Council) ; Viadyanatha Iyer v. Haji Abdulla Haji Abdu Sathar 4 Cash L. R. 386; Purushottom Gala Sait v. Hajee Essa Hajee Moosa 14 KER R. 899 and Varkey Mathew v. Kunhabdulla Hajee 2 KER R. 143, are among other cases where for non-production of accounts by parties in whose possession or custody they were the Courts drew adverse inferences against them and gave decisions accordingly. The cases referred to would even justify our holding in this case that the Plaintiffs'' figures as to the trade debts, profits of the business and rents and profits of the properties etc, should be accepted to determine the liability of Defendant 1, 2 and 7. However as by accepting the figures given by Defendant I in his statement we would easily give a decision in favour of the Plaintiffs to the extent of the amounts claimed by them in appeal, we do not think it necessary to go to that extreme length. In fact here it is not even necessary to give full effect to the admissions made by Defendant 1. We would accordingly set aside the lower Court''s decision exonerating Defendants 1, 2 and 7 from any liability under the various heads of claim put forward by the Plaintiffs for the amount of Rs. 22400 claimed in A. S. No. 650 and on which court-fee has been paid. Defendant 1 is now no more and his legal heirs are Defendants 8 to 11. The share of Defendants 1 and 2 in the deceased Chidambarom Pillai''s estate will stand charged for the amount we have awarded to the Plaintiffs in this appeal and Defendants 7''s liability in respect thereof will stand postponed until these two shares are found insufficient for the purpose. Defendant 7''s liability will also be limited to the extent, if any, the shares of Defendants 1 and 2 are found short to meet the Plaintiffs" claim. The Plaintiff will get their costs of the appeal and the same will also form a charge on the share of Defendants 1 and 2. This disposes of A. S. No. 650.
The position that arises in A. S. 57 is really this. Chidambarom Pillai''s will provided for a legacy in favour of his daughter, Defendant 6. Defendant 2 collected a debt due to the estate and paid off the legacy due to Defendant 5. Defendant 7 is the husband of Defendant 5, and a joint receipt was passed by them (Defendants 5 and 7) to Defendant 2. It is this amount which Defendant 7 is now asked to make good to the estate. Really no legacy could be paid before the debts are discharged and the lower Court cannot be said to be wrong in asking the amount paid to be recalled. However if the estate is solvent to discharge all debts there will be no necessity at all to recall the amount paid to Defendant 5. The impression that we have formed about the financial position of the estate is that there would be assets sufficient to discharge not only the debts and legacies but that something would also be left behind to be distributed among the heirs. We would in these circumstances modify the lower Court''s decision and direct that the legacy paid need be called back only in case that course is found to be necessary to discharge the debt due by the estate.
Further, the amount was paid to Defendant 5 and the liability of Defendant 2 or Defendant 7 in respect thereof could arise only if Defendant 5 does not refund the amount when called upon to do so. In case occasion arises for the amount to be recalled, the Court shall first ask Defendant 5 to refund the amount and if she does not comply with it within a time limited by the Court the legal consequence that would arise therefrom is that both Defendants 2 and 7 would jointly and severally become liable for the same. Defendant 2 is, no doubt, not a party in A. S. No. 57, but Defendant 13 who is Respondent 3 in that appeal now represents the interests of Defendants 2 to 4 and 8 to 11, and in the exercise of the jurisdiction vested in us under 0rder 40. Rule 32, CPC (CPC) we direct Defendant 2''s share in the estate shall also be a charge for this amount in case it has to be recalled. This appeal will stand disposed of as above. We make no order for costs in it.
Before parting with these appeals we would like to point out to the learned District Judge that we expect him to close the administration of this estate as expeditiously as possible. Chidambaram Pillai died in 1107. The matter came to Court in 1110 and an administrator was appointed early in 1112. A large-share of the debts still remains to be discharged and a proper step to find the wherewithal to pay off these debts has not yet been taken. The learned Judge will therefore soon try to dispose of the remaining issues that await disposal and finally close the administration of Chidambaram Pillai''s estate without losing any further time.