C 257 )
Present: Lascelles C.J. and Ennis J.ltli
SOMASUNDERAM CHETTY v. ARUNASALEM CHETTY359—D. C. Jaffna, 6,697.
Chetty firm—Vilasam—Conveyance of land to an agent with the initials ofthe firm affixed—Title vests in agent, and not in partners of the firm—
Trust—Action to compel agent to convey to members of the firm—Commission to record evidence issued to one 'Judge—Nomination ofa pleader to record evidence made by another Judge—Irregular—
Oath to be taken by Commissioner and interpreter.
A conveyance to a Chetty with the initials of his firm affixed isnot equivalent to a conveyance to an individual or individualscomposing the firm. The conveyance passes title to the personnamed in the deed as transferee, but it is permissible to call evidenceas to the meaning of the vilasam, in order to prove that the con-veyance was made to the transferee in the capacity of an accreditedagent of the firm.
In this case a commission to record the evidence of some witnesseswas originally addressed to the District Judge of Ramnad. TheSubordinate Judge of Ramnad nominated a pleader to record theevidence of the witnesses, and there was nothing to show that thepower of the District Judge was properly delegated to the Subordi-nate Judge. Both parties, however, appeared before the pleader.
Held, that the appointment of the pleader by the SubordinateJndge was irregular.
Lascblu!s C.J.—“ The irregularity is substantial, and I cannothold that it has been waived or is capable of being waived."
A pleader appointed to record evidence should administer theoath to himself anil to the interpreter.
PPEAL from a judgment of the District Judge of Jaffna(M. S. Pinto, Esq.). The facts are set out as follows in the
judgment of Ennis J.: —
“ The plaintiff in this action sued for a declaration of title to acoconut estate, for the ejectment of the defendant, and for damages.
The claim for damages was waived. The plaintiff’s case is that theestate originally belonged to one Todd, under deed No. 2,449 ofDecember 18, 1894. who by deed No. 319 of April 28, 1898, trans-ferred it to R. M. A. K.. A. R. Supramaniam Chetty, who by deedNo. 911 of May 1. 1900, transferred it to R. M. A. R. A. R. Soma-simderam Chetty.
“ The defendant in answer asserted that the deed No. 911 was atransfer of the land to the Chetty firm of R. M- A. R. A. R., and notto the plaintiff personally, or, in the alternative, in the event of itbeing held that the deed No. 911 vested the legal title in the plaintiff,a—J. N. B 18828 (7/52)
Somaaun-deram Chetty«. Aruna-eaUm OheUy
( m )that it was held by the plaintiff in trust for Arunasalem Chetty, whotraded under the firm, name, and style of R. M. A. B. A. B. ; thatArunasalem Chetty (1) died intestate in 1901, leaving as his onlyheirs-at-law his son; the plaintiff, Somasunderam Chetty, and agrandson, the defendant, Arunasalem Chetty (2), the son of hispredeceased son, Bomanathan Chetty, who are equally entitled tothe estate. The defendant further asserted that the transferNo. 911 was made without consideration, and that the plaintiffrefuses to recognize the defendant's right.
** The plaintiff also claimed title by prescription. "
Tlie learned District Judge dismissed plaintiff’s action.
The plaintiff appealed.
Bawa, K.C., and F. ,). de Saram, for plaintiff, appellant.
Joseph Qrenier, K.G., Kanagasabai, ElUott, B. F. de Silva, and
S.Jayewardene, for the defendant, respondent.
June 4, 1914. Lascblles C.J.—
The first question arising ou this appeal is whether the learnedDistrict Judge is right in holding that the deed P 2 of May 1, 1900from B. M. A. B. A. B. Supramaniam Chetty to B. M. A. B. A. B.Somasunderam. Chetty (the plaintiff) passed title, not to the plaintiff,but to the firm denoted by the initials B. M A B. A. R., namely,the firm carried on by Arunasalem Chetty, the father of the plaintiffand the grandfather of the defendant. In my opinion this part ofthe judgment cannot be sustained.
It is true that our Courts have frequently recognized the customof Natucotta Chetties trading in Ceylon with regard to signingcommercial documents. The firm has a vilasam or trade styleconsisting usually of the initials of the persons who constitute thefirm, and an agent signing in Ceylon on behalf of his firm usuallyprefixes these initials to his own name. Examples of the recognitionof this practice with regard to commercial documents may be foundia Ra-Ma-A. Sevugam Chetty v. Ka-Ru-Ghu-Golopan Chetty,1 K.N.P.Jjctchiman Chetty v. K. N. P Peria Carpen Chetty, Bank of Madras v.A. Ru-Su-VeiyR. Virappa Chetty,3 K., M. M. S. T. WalayappaChetty v. V. 7?. M. S. Suppcramaniam Chetty A The Bank of Madras v.Ana Buna Suna Vaiyami Rana Weerappa Chetty,5 and in other cases.But there is no case which goes the length of holding that a con-veyance of immovable property to a Chetty with the initials of thefirm prefixed to hi6 name vests title in the firm or in the persons
Ram. 63-68, 200.
2 S.O. C. 393.
5 7 S.C. C. 89.
' * 3S. C. C. 136•4 4 S.C. C. 91.
( 259 )
constituting the firm. The learned District Judge relied on KanappaChetty v. Walathappa Chetty.1 This case is an authority for theproposition that it is permissible, under section 98 of the EvidenceOrdinance, to prove the meaning of the initials prefixed to theChetty*s name by parol evidence.
In that case the evidence was ordered to be taken in order toascertain whether the relation of principal and agent subsistedbetween the fifth defendant and the Chetty firm. If the relationshipwas established, the result would have been that the fifth defendantwould have been accountable to the firm for the value of the land.So far as the legal title was concerned, it would still have been withthe fifth defendant.
This case is thus no authority for the proposition for which therespondent contends.
I think the law on the subject is clear. The conveyance passestitle to the person named in the deed as transferee, but it is per-missible in these cases to call evidence as to the meaning of thevllasam, in order to prove that the conveyance was made to thetransferee in the capacity of accredited agent of the firm.
There is, so far as I am aware, no authority for the propositionthat a conveyance to a Chetty with the initials of his firm affixedis equivalent to a conveyance to the individual or individualscomposing the firm.
Where a conveyance is made in accordance with Ordinance No. 7of 1840 to a juristic person, there can be no doubt but that the legaltitle vests in that person, though it may be that the legal title issubject to some equity in favour of another.
But this point does not go to the root of the present case, as,although the learned District Judge has decided the case on thefooting that the deed P 2 passed title to Aunasalem Chetty, heholds that, on liis findings of fact, the defendant must succeed onhis claim in reconvention, by which he seeks to compel the plaintiffto transfer the estate to Muttiah Chetty as the administrator of theestate of Arunasalem Chetty, or the half share, which the defendantclaims, to the defendant himself.
The learned District Judge has found—and his findings arebased on overwhelming evidence—that the deed P 1 from JamesPrice Todd to R. M. A. R. A. R. Suppramaniam was a conveyance toSuppramaniam' on behalf of the firm, and that the purchase moneywas provided by the firm. This fact, after having been contested,was admitted by the plaintiff at a late stage in the trial. Withregard to the transfer P 2 to the plaintiff, he has found that noconsideration' passed for the transfer; that the transaction was infact a transfer effected, for purposes of convenience, from one agentof the firm to another; that the stamp duty on the deed was chargedto the estate; and that, after the transfer, the estate was managed,
11N. L. R. 35.9.
deram Chettyv. Arana-salem Chetty
( 260 )
****** not as the property of the plaintiff alone, but as the property of theLascbules firm B. M, A. It. A. R.
C J* It was also proved that when the Karambagam estate (which wasSomaeun- comprised in P 2) was sold, half the proceeds were paid to theplaintiff and half to the defendant, on the footing that this estate,taUm GheUySt any rate, belonged to the firm, and not to the plaintiff.
On these facts the defendant is clearly entitled to succeed on hisclaim in regonvention. The plaintiff’s claim to be beneficial ownerof the property "by virtue of his deed is fraudulent, and the Courtwill not allow the Ordinance of Frauds and Perjuries to be used osan instrument of fraud. It is well settled that parol evidence maybe admitted to establish an implied or resulting trust withoutviolating the Ordinance of Frauds (vide Saibo n. Oriental Bank,lOould v. Innasitamby,2 Ohlmus v. Ohlmus *).
On the findings of the District Judge, which, as I have said, arcsupported by an overwhelming volume of evidence, I have no doubtthat the defendant is entitled to succeed on his claim in reconvention.
But we are confronted with a question of some, difficulty m the$hape of the plaintiff's objection to the admissibility of the evidencetaken on commission in India. Several grounds of objection wereput forward. I will deal with the most formidable.
It appears that the commission had originally been addressed tothe District Judge of Madura. On October 4, on the motion of thedefendant’s proctors, the commission was amended and addressedto the District Judge of Ramnad, on the ground that the villageswhere most of the witnesses lived had been brought within thejurisdiction of the District Court of Ramnad. On November 29there is an entry of service of notice on the plaintiff of issue ofcommission to the District Judge of Ramnad.
The official stamp on the back of the commission shows that thecommission was received in the District and Sessions Court ofRamnad on October 31. 1911, and below this is affixed, under dateNovember 13, 1911. the stamp of the Subordinate Court of Ramnad.On November 22 the parties consented to the evidence beingrecorded by a vakil nominated by the District Judge of Ramnad.Then on December 6 the Subordinate Judge of Ramnad nominateda pleader to take the examination of the witnesses. How thecommission was transferred from the District Court of Ramnad tothe Subordinate Judge, and how the Subordinate Judge came toappoint the examiner, is not explained. If there were reason tobelieve that the District Judge of Ramnad had made order undersection 24 of the Indian Code of Civil Procedure, 1908, or otherwise,transferring the matter to the Subordinate Judge, we might haveassumed the regularity of the proceeding. But it is pretty clearthat no such order was made.
1 3 N. L. R. 148.
*9 N.L. R. 188.
*9N. L. R. 175
( 201 )
The learned District Judge, in this connection, refers to a letter 1W4.from the Subordinate Judge of Bamnad (which is not in evidence), las^xbsand to a letter from the clerks of the Jaffna Court to the Subordinate C.J.Judge (also not in evidence). The result is vve have a commission Somaaun-issued to the District Judge of Bamnad, and the commission carriedout by another Judge of the Subordinate Court of Bamnad, without chettyanything to show that the power of the District Judge was properlydelegated to the Subordinate Judge. The learned District Judgetakes the view that the plaintiff, having appeared before the examinerappointed by the Subordinate Judge, cannot now take exception tothe competency of the Subordinate Judge. In view of the obser-vations of Lindley J. in Wilson v. Wilson. 1 I do not think this viewis sustainable.
In cases where the regularity of a commission is open to questionfI think it would be unreasonable to expect counsel to elect betweenthe alternatives of retiring from the commission and of continuingto represent his client, and so waiving his right to object to theadmissibility of the evidence.
The irregularity is substantial, and I cannot hold that it has been-waived or is capable of being waived.
But this is not the only respect in which the commission is-irregular. No proper return was made to the Commission. Thereis nothing to show that the examiner administered the oath tohimself and the interpreter. The evidence taken on commissionappears to have been read without the proof of the circumstancesrequired by section 426 of the Civil Procedure Code to be provedbefore the evidence is admissible.
The evidence taken on commission mu6t clearly be eliminatedfrom the record for the purpose of this appeal. But, in my opinion,this will not affect the findings of fact. On the evidence taken inthe District Court of Jaffna, coupled with the plaintiff's failure toappear in the witness box and his evasive and disingenuous answersto interrogatories, no jury could reasonably have come to any otherconclusion than that at which the District Judge has arrived.
There cannot, in my judgment, be any doubt that the property~mquestion was conveyed to the plaintiff as an agent for and on behalfof the firm carried on by Arunasalem Chetty.
Then it is contended that the defendant's claim in reconventionis prescribed.
The defendant relies on the evidence of Muttiah Chetty, that afterthe death of Arunasalem Chetty, which seems to have been in 1901,the firm B. M. A. B. A. B. continued for the purpose of the estatein Ceylon, and that the Ceylon agent, Bamen Chetty, looked afterthe estate for the two co-heirs, and that it was not until August,
1906, tEat the plaintiff first claimed the whole estate. The plaintiffrelies on paragraph 8 of the answer in its unamended form, which
1 9 Prob. Div. 8.
( 262 )
1914. gives November, 1902, as the date when Bamen Chatty, in collusionLA8^LB8refused to acknowledge the defendant.
Somaaunplaintiff cannot rely on a portion of the answer which
Attorn Chtttyhas beenstruck off the record, and thedefendant has admitted
"***«-receivinga considerable sum in respect oftherents and profits of
^ v the estate as late as 1907. I see no reason for holding that theclaim in reconvention is prescribed;
For the above reasons, I think that the defendant is entitled tosucceed on his claim in reconvention. The proper order, I think,will be that the decree of the District Court be set aside, except sofar as it orders the plaintiff's claim to a declaration of titie to bedismissed; that the defendant be ordered to execute, in the mannerprovided by sections 331, 332, and 333 of the Civil Procedure Code,a conveyance to the added defendant astheadministrator of the
estate ofArunasalem Chetty, deceased, oftheproperty described in
the schedule to the plaint; that the amounts deposited by thereceiver appointed in case No. 6,868 of the District Court of Jaffnabe paid to the added. defendant as such administrator. Thedefendant is entitled to his costs here and in the District Court.
His Lordship set out the facts, and continued : —
Three sets of issues were submitted, and they all appear to havebeen accepted as issues, although they overlap one another. Laterin the case two additional issue? were framed. In the course of theargument on appeal it was urged that the plaintiff was prejudicedowing to the absence of a definite issue as to a failure of considerationfor deed No. 911. That. consideration had not been paid is a circum-stance in support of the contention that there was a trust, and anissue as to whether the land vested in trust was definitely raised.Moreover, it was definitely stated in the answer that deed No. 911was without consideration. The plaintiff cannot, therefore, havebeen taken by surprise, and in the circumstances of the case I amunable to see that he was prejudiced by the absence of a separateissue.
In the course of the trial a commission was issued to take evidencein India for the defendant and it is urged by counsel for the appellantthat all the evidence taken on that commission is inadmissible.The commission was directed to “ the District Judge of Bamnad.
In some way it passed to the Subordinate Judge of Bamnad atMadura, who subsequently appointed a vakil to take the evidence.The original commission to the District Judge of Bamnad containedno authority to him to appoint another to take the examination.Application appears to have been made to the Jaffna .Court toauthorize the District Judge of Bamnad to appoint a vakil to take'the examination. The application was allowed, but the document,'
( *263 )
if any, by which the authority was communicated" to the DistrictJudge of Bamnad is not in the record. Apart, however, from anyauthority from the Court of Jaffna, the District Judge of Bamnadhad authority under the Evidence by Commission Act, 1886 (48and 48 Vic., oh. 74), section 2, to nominate some fit person to takethe examination. The vakil who took the examination in this casewas not, however, nominated by the Disriot Judge of Bamnad, butby the Subordinate Judge at Madura, who appears to have had noauthority, either under the commission or under the Imperial Act,to make any nomination, even if be himself can be presumed to havebeen properly nominated by the District Judge of Bamnad. Inthe circumstances, it seems to me that the evidence has not beenproperly taken, and is inadmissible. The objection is, however,highly technical, for if the commission had issued, as seems to havebeen the intention, to the Court at Madura without specifying anyparticular Judge, no good objection to the admission of the evidencecould have been maintained (Wilson v. Wilson '). Had thisevidence been very material to the defendant’s contention I thinkthe case should be sent back, but in my opinion the appeal mustfail on the evidence taken at Jaffna.
In the District Court it was held that the transfer deed No. 911vested the property in Arunasalem Chetty (1), on the ground thatby Chetty custom the transfer to B. M. A. B. .A. B. SomasunderamChetty was a transfer to the firm of B. M. A. B. A. B. If this wereso the deed was unnecessary, as the previous transfer deed No. 319to Suppramaniam Chetty would have vested the property in thefirm, and no further transfer for the purpose would have beenrequired. The Supreme Court has already expressed an opinion onthis point with regard to this same deed No. 911 (SomasunderamChetty v. Toddy 2), holding that, notwithstanding the initials mightrefer to a firm, the property vested in Somasunderam Chetty. I am inentire accord with that view, and it is hardly necessary to considerthe question further, as the real point of the case is whether thedeed No. 911 vested the property in Somasunderam Chettypersonally or as agent of the firm B. M. A. B. A. B.
It is asserted that Somasunderam’s own personal initials werealso B. M. A. B. A. B., and there is evidence in support of this.The added defendant, Muttiah Chetty, says, “ So long as the oldArunasalem lived, his sons had the same vilasam, B. M. A. B. A. B.If a letter was written to Somasunderam Chetty, it would be addressed
M. A. B. A. B. Somasunderam Chetty. ” The contentionbased on this assertion is that deed No. 911 is on the faceof it a sale to Somasunderam personally, apd evidence is notadmissible to show that the initials were intended as the firm’sintials. It seems to me that such evidence would be admissblein a case sucb as this, where it is alleged that the instrument is being
1 0 Prof>. Div. 8.
Somasun–deram OhetSyv. Aruoa-Salem Oketty
used to perpetrate a fraud. The evidence would be admissibleunder the first proviso to section 92 of the Evidence Ordinance.It is conceded that the estate was originally acquired with the
^ money of Arunasalem, the senior, for his firm of R. M. A. R. A. R.e.Aruna^ plaintiff Somasunderam was appointed Arunasalem’s generalsofem Chatty attorney in respect of his property and business in 1899. * Thepower of attorney D 56 recites that it is given by Arunasalem ashe is growing old. Suppramaniam was at that time the agent ofArunasalam’s business in Jaffna, and as sueh acquires the estate forArunasalem’s firm, which Somasunderam controls as general agent.In 1900 a new agent is appointed to Jaffna, and Suppramaniamexecutes the deed No. 911 to Somasunderam, reciting that he wascarrying on the business of the firm in Jaffna “to go to my nativeplace in India, and it is necessary .that I should sell and transferover the said coconut estate.” The consideration mentioned in thedeed is for a less sum than the consideration on the previous deed.The attestation to the deed does not state that the considerationwsa paid in the presence of the notary. Suppramaniam*s books ofaccounts, which have been produced, contain no entry of the receiptof the consideration money. Arunasalem Chetty died in January,1901. In April of that year an agreement D 2 is entered intobetween the parties to this case to manage the coconut estate incommon, an agreement which would be unnecessary if the estatesbelonged to Somasunderam alone and had been paid for by himpersonally. These facts are more than sufficient to throw on theplaintiff the onus of proof of payment of consideration and of hisgood faith in the transaction. The plaintiff has, however, abstainedfrom giving evidence, and his answers to interrogatories are distinctlyevasive. In the circumstances, I nsider the finding that theproperty vested in him in trust is righx,.
As to whether the defendant's claim is barred by prescription. Iagree with the finding of the District Judge. The evidence ofMuttiah Chetty shows that the plaintiff first denied the defendant'sclaim in 1908.
It has been urged for the first time on appeal that Suppramaniamw&6 entitled; to one-tenth of the capital of the Jaffna business.The estate. Jbowever, never vested in Suppramaniam personally.He held it as agent of Arunasalem (1), and as such transferred thewhole,estate. If Suppramaniam had any claim, he can prefer it tothe administrators of Arunasalem’s estate. I
I would vary the decree by ordering "the plaintiff to execute atransfer of the whole property to the administrator of Arunasalem’sestate, the respondents to have costs on this appeal.
SOMASUNDERAM CHETTY v. ARUNASALEM CHETTY