006-NLR-NLR-V-58-M.-R.-M.-M.-M.-R.-MURUGAPPA-CHETTIAR-Appellant-and-MUTHTHAL-ACHY-et-al.Respo.pdf
[lx the Pkivv Council]
1956 Presen' :Viscount Simonds, Lord Oaksey, Lord Tucker,Lord Somervell of Harrow, and Mr. L. M. D. de Silva •31. R. 3r.'3f. 3L R. 3HJRUGAPPA CHETTIAR, Appellant, ami3IUTHTHAL ACHY el ah, RespondentsPkivv Council Aiteal Xo. 4S of 1055
S. C. 1-5-3—D. C. Colombo, >0,420
Kvidencc—Otaint- against a dead man's estate—Standard ojproof required.
Plaintiff stieil the heirs of a deceased person, L, oil a parol contract enteredinto between V, who acted on behalf of the plaintiff, and L. 1’ho only questionfor decision in the present caso was whether L agreed without qualificationto pay interest at a particular rate on a certain sum of money. Upon thisquestion the solo basis of the plaintiff’s caso was the parol testimony of X.V’s evidence related to events which took place twenty years beforo ho gaveevidence.
Held, that when a claim is brought forward agai. ist tho oslalo of a dooe.-iseifjiorsou in a matter in which, if ho were alive, lie might have answered tho claim,the evidence ought to be looked at with great jealousy and care.
Appeal from a judgment of the Supreme Court reported in57 N. L. B. 27.
D. N. Prill, Q.C., with B. K. Hundoo, for the plaintiff appellant.
Dingle Fool, Q.G., with Sirimecan Amcrasinghe, for the defendantsrespondents.
Cur. ado. vull.
July 26, 1950. [Delivered by 3fr. L. 3F. D. be Silva]—
This is an appeal from a judgment of the Supreme Court of Ceylonallowing an appeal from a judgment of the District Court of Colombowhereby, in an action instituted in 194S by the appellant (hereinaftercalled the plaintiff), then a minor and suing by his next friend, therespondents (hereinafter called the defendants) were ordered to pay tothe plaintiff a sum of Rs. 16,G5S '17 with legal interest from date of decree.
The parties to the case are Chettiars.
The plaintiff pleaded that one Yelasamy (who acted as the next friendof the plaintiff until the latter came of age in the course of the proceed-ings), acting on behalf of the plaintiff, had “ deposited with one
K.R. K. X. L. Letchumanan Chettiar a sum of Rs. 18,700 which amount
2—LVIII
2J. X. B 59030—1.593 (10/56)
the said Letchumanan Chebtiar agreed to pay to the plaintiff together■with interest thereon at the rate prevailing from time to time amongthe Chettiar Community the interest being added to the principal fromtime to time according to the custom prevailing and calculated in themanner customary among the Chettiars in their dealings with eachother The year of the deposit is given in the plaint as 1930 but itappeared after several days of trial from the plaintiff’s books that it was1929. The rates of interest described in the plaint have been referred toin the course of the proceedings by both sides as “ nadappu valli ” andthe rates for different years have been established by the evidence of onoltamasamy Chettiar.
The defendants arc the heirs of Letchumanan who died in the year 1945.They admitted that a sum of money had been deposited wit li Letchumananbut denied the agreement with regard to interest averred in the plaintand raised other defences which are not how persisted in. In the booksof Letchumanan Chettiar, which have been produced, the plaintiff has beencredited in the months of September, October, November and December,3 929, with various sums amounting in the aggregate to Rs. 18,700, withinterest at the nadapjyu rate till March, 1934, and thereafter with interestat the bank rate which was a much lower rate. An amount calculatedat t-hese rates (less an amount paid out at (he instance of the plaintiff’smother which the plaintiff docs not now claim) was deposited to the creditof the plaintiff in curatorsliip proceedings on the 9th April, 1943, andM as drawn by the plaintiff in March, 1947.
The circumstances under which the money came to belong to theplaintiff and to be deposited, discussed in the judgments in the courtsbelow, are not relevant to the questions which have arisen on this appeal.
The case for the plaintiff was based on an oral contract betweenVelasamy acting on behalf of the plaintiff and Letchumanan. No otherground was pleaded or urged and the only question for decision was(apart from certain questions of law since abandoned), and is, the quest ionof fact whether Letchumanan agreed without qualification to pay interestat the nadappu rate during the whole period that the money was heldby him.
Upon this question the only witness called by the plaintiff was Velasamy.He said that Letchumanan agreed to pay interest- at the nadappu rate.His evidence docs not qualify the agreement by introducing into it anamed period during which nadappu interest was payable, or by intro-ducing into it any other condition or circumstance upon -which suchinterest ceased to be payable. If his evidence is accepted the plaintiff'sease must succeed, and, equally, if his evidence is not accepted theplaintiff’s ease must fail as the sole basis of the plaintiff’s ease is that ofa parol contract established by the parol testimony of Velasamy, the onusof proving the contract being on the plaintiff.
. The learned trial judge accepted Velasamy’s evidence and gave judg-ment for the plaintiff. The Supreme Court on appeal came to the conclusiont-hat Vejasanry’s evidence should not be accepted, set aside the judgment
of the District Judge and dismissed the action. It held that the learnedtrial judge had failed to apply established principles pertaining to anaction against the estate of a deceased person and, itself applying thoseprinciples, came to the conclusion that the plaintiff had not proved hiscase. Their Lordships are of the opinion that this decision should beaffirmed.
Adopting a view expressed by Fry, L.J., the Supreme Court(Gratiaen, J.) said it was the duty of the court to approach the caso“ with great jealousy, because the claim is brought forward against theestate of a deceased person when that person, who was a chief actor inthe transaction impugned was dead, ” re Garnettr Gandy v. Jlfacaulay.1In the same case Brett., M.R., said :—
“ The law is that when an attempt is made to charge a dead personin a matter, in which if he were alive lie might have answered thecharge, the evidence ought to be looked at with great care ; theevidence ought to be thoroughly sifted and the mind of any judgewho hears it ought lo be. first- of all, in a state of suspicion. ”
Their Lordships are of the same opinion.
There are no indications in the judgment of the learned District Judge,whether by way of an express statement or in the manner in 'which hecommented on the evidence, that he had approached the case as heshould have done. Their Lordships see no reason to disagree with theconclusion of the Supreme Court that the learned District Judge hadfailed to ivpjiroach. the case in the correct manner. The Supreme Courtproceeded itself to consider whether Vclasamy’s evidence upon the crucialquestion could safely be acted upon, and came to the conclusion thatit could not be relied on. Jt is a well established principle that anappellate court should not reverse the findings on the facts of a trial judgeunless exceptional circumstances exist but the circumstances of this casewere exceptional and fully justified the course of action taken by theappellate court. The conclusion which it arrived at appears to theirLordships to be equally justified.
The learned District Judge thought that Letclmmanan’s books affordedcorroboration of Vclasamy’s statement that nadappu interest was payablebecause the books showed that nadappu interest had been paid tillMarch, 1934. The Supreme Court considered tins view' fallacious becausethe question which arose for decision was, not what interest was payableup to March, 1934 (plaintiff had in fact been credited with and drawnout a sum calculated at the nadappu rate until March, 1934), but whatinterest was payable thereafter. Whether or not this evidence could beregarded as capable of amounting to corroboration, their Lordships areof opinion that, in the circumstances of this case, it was of little or noweight. The real point for consideration was the unexplained discon-tinuance of the nadappu rate from March, 1934, and the substitutiontherefor of a much smaller rate; but this is just one of those points
(ISS-5) 31 Ch. 1 at p. 9,
which Letchumanan “ if he were alive might have answered ” (videobservations in re Garnett above). The point no doubt has to be bornein mind but it does not possess the same significance as an absence' ofexplanation by-Letchumanan during his lifetime would have had. Ithas also to be borne in mind that no suggestion has been made at anytime during these proceedings that Letchumanan was a dishonest man.
Velasamy’s evidence related to events which took place twenty yearsbefore he gave evidence. Of that evidence the Supreme Court (Fernando,
J.) observed :—
“ Even if plaintiff’s principal witness Velasamy was making anhonest attempt to give truthful evidence, his recollection of the circum-stances of the alleged transaction with the deceased Letchumananwas at least confused and unreliable. To judge from the instructionslie gave to the plaintiff's proctor for the purpose of filing suit, thesum of Rs. IS,700 was according to his recollection paid toLetchumanan in 1930, but his subsecpient evidence was that the sumwas deposited in instalments in the latter months of 1929. Velasamy’srecollection of his meeting with Letchumanan on the occasion of thealleged agreement was also vague. He admitted that Letchumananwas in India at the time of Muttiah’s death, but was unable to saywhen precisely Letchumanan returned to Ceylon and had the allegedconversation concerning the deposit of money. At one stage heeven said that he did not see Letchumanan in 1929, but saw himin India in 1930 because he himself was then in India. Again,his statement that he personally handed over money to Letchumananat the latter’s place of business on several occasions is inconsistentwith the entries in the book P 12 (kept by Velasamy) according towhich the sums were delivered by one Somasundarain (also anemployee of the deceased Muttiah).
“ In the circumstances of this case, where the evidence as againstLetchumanan needs to be tested with more than ordinary care, it wasin my opinion unsafe in view of these and other contradictions, torely completely on Velasamy’s account of the precise undertakingsto which Letchumanan bound himself by the alleged agreement ”.
Their Lordships find themselves in agreement with this view. In theiropinion, without any reflection on Velasamy’s honesty, his evidence,relating as it does to events which took place many ears before theevidence was given, is faltering at many- points ; in definiteness, accuracynncl precision it falls short- ol the standard which woidd entitle it to beconsidered in a claim against the estate of a deceased person.
For the reasons which they have given their Lordships u ill humblyadvise Her Majesty that the appeal should be dismissed. The appellantwill pay the respondents’ costs of this appeal.
Appeal (lii'misioi.