TMI Blog1967 (10) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court of Allahabad reversed the decree passed by the Trial Court and passed a decree directing that the jewellery be restored to the plaintiff within one month from the date of decree, and in the event of failure to comply with that direction the appellant and his son Ghanshyam to pay ₹ 32,379/6/- together with costs out of the estate of Lachhmi Narain in their hands. Against that decree, this appeal is preferred with certificate granted by the High Court, Ghanshyam who was at all material times a minor died unmarried during the pendency of the appeal before the High Court and his name has been struck off. 2. The plaintiff's case that on April 5, 1942 she entrusted to Lachhmi Narain her jewellery described in the plaint was not denied by the appellant. The appellant, however, submitted that the jewellery was returned to the plaintiff by Lachhmi Narain on April 23, 1942. The burden of proving that case lay upon the appellant. In support of that case the appellant relied upon a receipt Ext. A-4 which it was claimed the plaintiff had given acknowledging receipt of the jewellery. The Trial Court held that the receipt was not genuine and with that view of the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with whom the jewellery was sent to Shyamabai has not been examined as a witness and the testimony of Banwari Lal - husband of Shyamabai - who deposed about the circumstances in which the jewellery was sent to Shyamabai goes against the case of the appellant. 6. In view of the confidence reposed by the plaintiff in Lachhmi Narain, absence of a demand for return of the jewellery during the lifetime of the letter is not significant. After the death of Lachhmi Narian it appears that the oral demands were made of return of the jewellery from the appellant : see the lawyer's notice Ext. 24. 7. The circumstances taken either individually or collectively do not make out the case for the appellant. 8. Counsel for the appellant contended that in any event the suit filed by the plaintiff was not maintainable, because on her own case the jewellery was left with Lachhmi Narian with the object of defrauding Gomti Bai - widow of the son of the plaintiff. The facts which have a bearing on the plea may be set out. Ram Sewak son of the plaintiff died in November 1941 leaving him surviving his wife Gomtibai. Between Gomtibai and the plaintiff there arose disputes, which were referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain policy. Rest is not admitted. (7) As regards para No. 7 of the plaint, it is admitted that Lala Lachhmi Narain had sympathy with the plaintiff and that an agreement was arrived at between the plaintiff and Gomti Bai. Rest is wrong and not admitted. Lala Lachhmi Narain did not at all participate in the disputes between the plaintiff and Gomti Bai, nor was any agreement arrived at in consultation with Lala Lachhmi Narain. 12. Counsel for the appellant contends that the plaint contains clear admissions that the plaintiff and Lachhmi Narain colluded with the object of the defeating the claim of Gomtibai, that in furtherance of that object the plaintiff entrusted the jewellery to Lachhmi Narain, and that in consequence thereof Gomtibai was defrauded. It is clear that the appellant did not plead that with a view of defeat the claim of Gomti Bai the plaintiff and Lachhmi Narain entered into an arrangement under which the property belonging to Ram Sewak was handed over to Lachhmi Narain and that as a result of that arrangement the claim of Gomti Bai was defeated. No issue was raised at the trial that in consequence of the arrangement between the plaintiff and Lachhmi Narain, Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish Law of Contracts', 22nd End., p. 343 : 'there are exceptional cases in which a man will be relieved of the consequences of an illegal contract into which he has entered - cases to which the maxim does not apply. They fall into three classes : (a) where the illegal purpose has not yet been substantially carried into effect before it is sought to recover money paid or goods delivered in furtherance of it; (b) where the plaintiff is not in pari delicto with the defendant. (c) Where the plaintiff does not have to rely on the illegality to make out his claim.' 15. There was in this case no plea by the plaintiff that there was any illegal purpose in entrusting the jewellery to Lachhmi Narain. It was also the plaintiff's case that Gomtibai knew that the Jewellery in dispute was entrusted by the plaintiff to Lachhmi Narain, and if the averments made in the plaint are to be the sole basis for determining the contest, Gomtibai did not suffer any loss in consequence of the entrustment. Assuming that the Trial Court was competent without a proper pleading by the appellant and an issue to enter upon an enquiry into the question whether the plaintiff could maintain an acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns to recover from them out of property left by their father, or out of the property of their joint Hindu family, the deficiency in the fund. It was held by the Judicial Committee that the drawings for unauthorised purposes were criminal breaches of trust, and under the Hindu law the sons to that extent were not liable to satisfy that liability out of the joint family estate. This case, in our judgment, does not support the contention raised by counsel for the appellant. A Hindu son governed by the Mitakshara law is liable to pay the debts of his father even if they are not incurred for purposes of legal necessity or for benefit to the estate, provided the debts are not avyavaharika or illegal. But there is no evidence that the appellant is sought to be rendered liable for a debt which is avyavaharika or illegal. In raising his contention counsel assumes that Lachhmi Narain had misappropriated the jewellery entrusted to him, but for that there is no support. Granting that the appellant was, after the death of Lachhmi Narain, unable to trace the jewellery entrusted by the plaintiff, it cannot be inferred that the jewellery was misappropriated by Lachhmi Narain. The burden of proving ..... X X X X Extracts X X X X X X X X Extracts X X X X
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