021-NLR-NLR-V-31-VELUPILLAI-v.-SIDEMBRAM-et-al.pdf

* [1847) 16 M. de W. 449.
4J. H. B 11394 (10/61)
( 98 )
1929.
VelapiUai
»-
Eidsmbram
given (Curtis v. Rickards 1 and Douglas v. Holme 2). The explanationgiven by the defence has been rejected. There is evidence that thedefendant was indebted to the deceased at the material dates.Such evidence is sufficient to connect the debt with the claims onthe I.O.XJs. The letters written by the deceased constitute anadmission of liability made by him. No special degree of proofi6 therefore required.
H. V. Perera, in reply.—There must be definite evidence of theloan in regard to which the I.O.U. was given.
June 18, 1929. Drieberg J.—
Therespondent,who resides in theFederated MalayStates,
brought this action to recover two sums of 100 dollars and 210dollars, ’ amounting to Es. 542.50, which he said were borrowedfrom him in the Federated Malay States by R. Aiyampillai onMarch15, 1924,and April 21, 1924,respectively. Hepleaded
that for each ofthese sums Aiyampillai gave him anI.O.U.
Aiyampillai returned to Ceylon and died in March, 1926.
Theaction isbrought against thefirst defendant-appellant,
his widow, as the legal representative of his estate, and the seconddefendant-appellant, his minor child, over whom the first defendant-appellant was appointed guardian ad litem. The respondent soughtto render the first defendant-appellant liable as an executrix de sontort. Aiyampillai shortly before his death gifted a certain land tothe first defendant-appellant. Under section 11 of Ordinance No. 1of 1911 the property remained liable for the debts and engagementsof her husband. In considering the issue whether Aiyampillaileft an estate the learned District Judge held that this formedpart of his estate and that the first defendant-appellant had dealtwith it. This view is not right. Though the land is subject to theclaims of creditors of the donor, the right of property in it is in thedonee.
Aiyampillai, who was employed in the Postal Department of theFederated Malay States, was entitled on retirement to a gratuity,which after his death was paid to his widow. The trial Judgeheld that this was property to which Aiyampillai was entitled, butwas not certain whether it could be made liable in execution against hisestate on a writ of a Ceylon Court.
The first defendant-appellant has however clearly made herselfliable as an executrix de son tort by -receiving the sum of Rs. 83.06,which was a refund of payments made by Aiyampillai to the PublicOfficers’ Guarantee Fund.
I cannot agree with the. learned District Judge that the respondenthas proved his right to recover the money on the I.O.Us. from theestate of Aiyampillai. The first defendant-appellant in_her_answer
1 (1840) 1 Man. & Q. 46.a (1840)12 Ad. <fc E. 641.
( 99 )
pleaded that she had no knowledge of the debts sued for or of the
I.O.Us. produced, either from information given by her husband or T*ninM»n jotherwise, and she put the respondent to the proof of them. She"
said further that there was one I.O.U. given by the deceased to the Ve*tifrip™respondent, which the latter had sued on and which had been settled. SidembramAt the trial she stated that the last liability was one on a transactionbetween the respondent’s attorney and the deceased, and that thiswas settled by the deceased; but as the respondent has failed toestablish his claim it is not necessary to consider the evidence on thispoint.
The respondent did not give evidence at the trial. His attorneysaid that he was not present when the I.O.Us. were made and thathe was not aware of the transactions between the respondent andAiyampillai. He said that the respondent had not received anypayment on account of the I.O.Us, but this was not a matter ofpersonal knowledge. The only corroborative evidence producedwas a letter, P 4, written by Aiyampillai to the respondent onApril 3, 1924, promising to make a payment to him on the 15th ofthat month, and a similar letter, P 5, on May 30, 1924, expressingregret that he could not keep his word and promising to settledefinitely the following month on the return of a certain. Kantiah.
The letter, D 1, of May 31, 1924, was produced by the first defendant-appellant, in which the respondent writes to Aiyampillai that hehad received no reply to his letter and asking Aiyampillai to remitmoney.
These letters were written in the States and they contain no .reference to the I.O.Us., nor is any amount mentioned in them.
Aiyampillai was two years in Ceylon prior to his death here inMarch, 1926, and no correspondence during this period isproduced.
The first point for consideration is whether the I.O.Us. weregiven to the respondent. In Curtis v. Rickards 1 and Douglas v.
Holme 2 jt was held that though an I.O.U. was not addressed toanyone, as is the case here, the production of it by the plaintiff wasprima jade propf that it was given to him-. “ Primd facie proof ”in effect means nothing more than sufficient proof—proof whichshould be accepted'if there is nothing established to the contrary;but it must be what the law recognizes as proof, that is to say, itmust be something which a prudent man in the circumstances ofthe particular case ought to act upon—s. 3, Evidence Ordinance.
This is a claim against the estate of a dead man. Though thereis now no rule of law that judgment cannot be obtained in such aclaim on the uncorroborated evidence of the plaintiff, “it is theduty of the Court to watch with great jealousy ” such evidence
1 (1840) 1 Man. cfc G. 46.‘ (1840) 12 Ad. dt E. 641.
31/10-( 100 )
1M9.,(fry Jt •J.. in- In re Garnett:Gandy v. Macaulay ‘); the evidence
J)RlBBEI(0 jtmust, be such as ‘' brings conviction to the tribunal which has to
'■—‘-7try the question ” (Hannen J.in In re Hodgson: Beckett v. Rams-
In this case there isnot even the sworn- testimony of the
SfdetMnm. respondent, and there is one circumstance which calls for explanationby him: in his letter P 4 of. April 3, 1924, Aiyampillai promised topay what he owed by the 15th; according to the respondent theamount then due was 100 dollars, and it is unlikely that if Aiyam-pillai made default on that day the respondent would have lent him210 dollars six days later, especially as one can infer from D 1that the respondent had difficulty in meeting his own liabilities.
In my opinion there was in the circumstances insufficient proofthat these' I.O.Us-. were given to the respondent.
But even if it is accepted that the I.O.Us. were given to therespondent, the action cannot succeed. The trial Judge has basedhis judgment on the ground that an I.O.U. is prime, facie evidenceof an account stated and that- the grantee of it is entitled to judgmentunless the defendant opposes the claim by one of the defences opento: him in such an action. But this is not an action on an accountstated; it is one for the recovery of money lent. In Fessenmeyer v.Adcock 3 the plaintiff, an attorney, sued for work and labour as anattorney, with counts for money lent, money paid, and an accountstated. At the trial he limited his claim to £32 for his bill of costs,£40 for money lent, and £13.10s. for money paid to a' third personon the defendant’s account. To prove the count for money lentthe plaintiff offered in evidence an I.O.U. for £40 signed by thedefendant but not addressed to the plaintiff. It was held that itwas not evidence of the loan. Parke B. said “An I.O.U: is nomore proof of money lent by the party holding it to the partysought to be charged by it, than of goods sold and delivered by oneto the other. And unless it is evidence of an account having beenstated by them, it proves nothing at all. In Curtis v. Rickards,the production by the plaintiff of the I.O.U. was held prima facieevidence that an account had been stated by the defendant withhim, though no name was mentioned on the instrument. I' agreewith that decision.”
Alderson B. said “ I am clearly of opinion that this instrumentis not evidence of money lent by the plaintiff to the defendant, andit may be well that our opinion should be expressed on that point,in order to prevent any contrary impression from Douglas v.Holme.” 1
1 {1886) {C.A.) 31 Ch. Div. 1, on p. 16.
* {1886) {C.A.) 31 Ch. Div. 1, on p. 183.
» (1847) 16 M. <fc W. 449.
( 101 )
! In Curtis v. Richards (supra) the claim was for money lent, moneyhad and received, and on an account stated; Douglas v. Holme{supra) was an action for money lent. These cases must be regardedas overruled so far as they allowed the I.O.Us. as evidence of moneylent.
In the present case the respondent sues for the recovery of moneylent, not on an account stated, and offers the I.O.Us. as. evidenceof the loans. There is consequently no proof that these sums werelent by the respondent to Aiyampillai, and the appeal must succeed.Decree will be entered dismissing the action with costs; therespondent will pay to the appellants the costs of the appeal.
Akbar J.—
The plaintiff-respondent by his attorney sued on two I.O.Us.for the recovery of Rs. 542.50, the equivalent of 100 dollars and210 dollars.
The two defendants in this case are the widow and minor sonof the maker of the I.O.Us., one R. Aiyampillai, who died in Jaffnaabout three years ago.
The parties went to trial on the following issues : —
Did the late Ramanather Aiyampillai owe a sum of Rs. 542.50
to the plaintiff?
Has any portion thereof been paid by deceased or his heirs?
Did the deceased leave behind any estate?
Is the first defendant wrongly joined?
Did first defendant intermeddle with the estate?
It will be seen from issue (5) that the first defendant is sued as anexecutrix de son tort, in that she intermeddled with the estate of thedeceased Aiyampillai. The District Judge has held that she is anexecutrix de son tort- on the ground that Aiyampillai having purportedto transfer a piece of land by way of sale to his wife in considerationof her dowry money which he had spent, sh.e must be considered tohave intermeddled with her husband’s estate, inasmuch as suchproperty is liable under the Theswalamni for her husband’s debt.I cannot see the point of this reasoning, because by the transfer ofthe land there was an end of her husband’s estate after his death sofar as this land was concerned. But I. think first defendant is anexecutrix de son tort for another reason, and that is, that sheadmittedly received from the Government of the Federated MalayStates a sum of Rs. 3,701.52 as gratuity due under the PensionMinutes and also another sum of Rs. 83.06 from a Post OfficeGuarantee Fund. Clearly this sum of Rs. 83.06, being a refund ofcontribution money contributed by Aiyampillai, is a part of his estate,and therefore when first defendant received this sum she became anexecutrix de son tort. I am prepared to hold that by receiving thegratuity money also she became liable to be sued. The fact that
1889.
Drikbkrq J.
VehtpiUai
v.
Sidtmbram
1980.Axbab J.
Vdupittai
v.
Si&mbrem
l ioa )this woman is in receipt of a pension due to her as a widow in additionto this gratuity shows that the gratuity was paid in lieu of pensiondue to her husband and not as gratuity to his widow and children.However that may be, the receipt of Us. 83.06 is sufficient to renderher liable. As a matter of fact a decision on this point is notnecessary in view of the conclusion to Which I have come on thefirst issue. The plaintiff sues by his attorney, who merely producesthe two documents which were admittedly signed by the lateAiyampillai, but in cross-examination he says that he was notpresent when the I.O.Us. were executed and that he is ignorant ofthe money transactions between his principal and Aiyampillai. Infact, beyond producing the I.O.Us., which he says were sent to himby his principal by post, he knows nothing of the transactions. Heproduces certain letters which were admittedly sent by Aiyam-pillai to the plaintiff, namely, letters P 4, P 5, and P 6, which .togetherwith letters D 1 and D 2 put in by the defence form a series of lettersbetween the plaintiff and Aiyampilli. These.two I.O.Us., althoughsigned by Aiyampillai, are not addressed to anybody and are datedrespectively March 15, 1924, and April 21, 1924. There is noevidence before the Court to prove that the I.O.Us. were handed tothe plaintiff and that they were in respect of moneys lent to Aiyam-pillai by the plaintiff. It is however contended for the plaintiff-respondent that the letters P 4, P 5, and P 6, show that Aiyampillaiwas indebted in a sum of money arid that therefore there was enoughevidence for the District Judge to come to the conclusion that thesums covered by the I.O.Us. were in fact lent by the plaintiff toAiyampillai. The defendants however urge that the letters P 4,P 5, and P 6 were in respect of another debt due by the deceased to theplaintiff. This defence is corroborated to some extent if documentsP 2 to P6 are read together with document D 1, for they show (hatthe plaintiff was not likely to lend 210 dollars when Aiyampillai waspromising to pay the previous debt of 100 dollars before April 15and had not as a matter of fact done so. I may add that the lettersP 4 to P 6 contain no reference to the I.O.Us. It is however reallynot necessary to decide this question of fact because in my opinionon the law the plaintiff has failed to prove that the I.O.Us. were infact given by Aiyampillai to the plaintiff and that they were inrespect of money lent. Even if we follow the English law, theauthorities, notably Fessentneyer v. Adcock,1 show that an l'.O.U. isevidence only of an account stated but not of money lent. These
I.O.Us. are not addressed to the creditor nor have they been really“ produced ” by the plaintiff. All that the plaintiff’s attorney can6ay is that they were sent to him by his principal. This does notshow that they were actually given to the plaintiff by Aiyampillainor the nature of the transaction in respect of which they were given.
> 16M.dk W. 449.
( 103 )
It may well be that they were given to some other person and thatplaintiff came by them dishonestly. Further, they may be inrespect of debts already settled or in respect of % cause of action'onwhich the plaintiff cannot sue, for example, a gambling transaction.We have no evidence of the circumstances and the plaintiff has- failedto lead the best evidence on the point, namely, his own evidence. Ido not think the case of Knotoles and Others v. Michael and Another, 1which was cited by respondent's Counsel, is in point, because in thatcase there was evidence to prove that the account stated was inrespect of the -particular cause of action which arose in that case.In this case there is no evidence at all of the transaction whichresulted m the I.O.Us., and Aiyampillai’s indebtedness as shown inletters P 2 to P 6 has not been connected with the two I.O.Us. put inevidence. There are many facts which have to be • explained byplaintiff arising on the statements in the letters P 4 to P 6, and thisexplanation has not been given. Such explanation is particularlyrequired and is expected by the Court in a cawe of this kind, wherethe debtor, Aiyampillai. is dead and the widow states that she knowsnothing of the transactions and puts the plaintiff to the proof thereof(see paragraph 2 of the answer). In this view I think the judgmentof the learned District Judge is wrong. I would, therefore, allowthe appeal and dismiss plaintiff’s action against both the defendantswith costs in both Courts.
Appeal allowed..
♦
1929.
Akbxb J.
Vtliipillqi
v.
Sidembram
» U Bast 249.