TMI Blog1938 (7) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... Siruvayal in the Ramnad district of Madras, the place of origin of this Chetty family. The temple is called Alagiya Nachiar temple. The amount of the debt is stated as ₹ 48,915-10-0; the date when contracted is entered as April 1932; and the consideration is described as deposit . In June of 1934 a proof of debt for the sum mentioned was tendered on behalf of one Annamalai as trustee of the temple, but in July 1937, this was supplemented by another in which Annamalai claimed to prove on behalf of the deity as a worshipper representing the deity and all the worshippers. In this amended proof, interest to the date of adjudication is added to the sum appearing in the insolvents' books making the total debt ₹ 51,488-12.3. The debt is described as amount due on current account which amount was gifted to the said Alagunachiar Koil (temple) by the insolvent firm who retained custody of it as a custodian. 2. In December 1935, seven affidavits, all in the same form, were filed, by each of which the deponent claimed to be a trustee of the temple and explained that the temple was administered by seven trustees each representing a karai . They alleged that the insolvent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s property vests as owner though only for the benefit of others. How a claim that certain property has not vested in him at all or a claim to have a charge upon property which has vested in him can under the Act be dealt with by him as a tribunal, it is not possible to discover. The Official Assignee in such a matter is a party litigant. Even if the matter could be regarded as a mere question of admitting or rejecting a proof, when the Official Assignee acts under Rule 25 of Schedule 2, it seems more reasonable and more in accordance with a sound interpretation of Section 86 and with English practice under statutory provisions couched in the same terms that the appeal from the act or decision of the Official Assignee to the Judge should be by motion and that the oral evidence necessary should be taken before the Insolvency Judge himself. It is at least clear that the present case cannot be concluded by regarding the Official Assignee as a trial Judge whose estimate' of the witnesses' evidence must prima facie be accepted. Inadmissible evidence has come upon the record as though it were good evidence of custom and witnesses have been asked and have answered questions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er I required. 7. The witness explained that Ramaswami, who was the eldest brother, the others being minors, managed the affairs of the S.A. family for five or six years and that he had died about 16 or 17 years ago (i.e. from 1936). The witness further said that twice after the conversation described by him, he had gone to Ramaswami and got money for the purposes of the temple. No accounts with reference to these monies were produced and no particulars whatsoever given. This evidence is highly suspicious particularly as it seems reasonably clear that the managers of the idol were in ignorance of the credit in the firm's books. If they had made any claim or obtained any money in recent years, evidence to prove this would have been readily available, and according to Dunkley J. it was common ground that the managers were in entire ignorance of the credit. But, as that learned Judge noticed, the evidence of Subramoniam is as harmless as it is unreliable. 8. The evinence of a clerk of the insolvents adds little or nothing, but two Ghettyar business men were called apparently to explain the practice and intention of Chettyar firms in crediting amounts to charities and temples ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents' right to payment in full cannot be made out unless there was either a trust or an endowment. 10. Their Lordships think it reasonably plain that in the present case there was no endowment of any property and no intention on the part of the insolvent firm to hold any property as trustees for the deity. In this view they are in agreement with Braund and Dunkley JJ. It may be as well to guard against the supposition that because the other party to the transaction was a deity the insolvents must have made themselves trustees. If, instead of Ramaswami's father entering in his books a credit to the temple by way of charity or by way of promise, the firm had owed to the trustees of the temple a like sum by way of rent and had been allowed to postpone payment on terms as to interest, it is clear that the firm would not have been trustees: to covenant to pay money to trustees does not make one a trustee. The prima facie meaning of the entries in the insolvent's books discloses an intention on the part of the firm to treat itself as debtors to the temple in a sum which should increase as time went on. To hold that they are trustees because they have consented ..... X X X X Extracts X X X X X X X X Extracts X X X X
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