Kerala High CourtR. Vasudevan Pillai vs K. Malathy Amma on 12 October, 1987Equivalent citations: AIR1988KER300, AIR 1988 KERALA 300, (1987) 2 KER LT 802JUDGMENT
 

Sukumaran, J.1. A widow is obstructed in diverse ways, in her attempts at getting what is her legitimate due. All that she wanted was a settlement of accounts and recovery of the money that it legitimately due to her on such settlement. The trial court dismissed the suit, taking the view that the suit as framed is not maintainable. That view was reversed by the appellate court. The appellate court remanded the matter to the trial court, as in its opinion, none of the relevant matters had been considered by the trial court, "in its anxiety to find that the suit as framed is not maintainable." A permission was granted even to amend the plaint seeking recovery of a specific amount from the defendant.2. The judgment of the appellate Court is in challenge in the appeal.3. There is no reason now, when the area is well illumined by decisions, for the ghost of old forms and rigid views to haunt the courts of law. As to how exceptional circumstances would justify invocation of equity principles has been clearly illustrated by the law laid down by the highest Court in the land. Equity jurisprudence is flexible and meets the challenge of new situations without the law; for, as noted in the Current Legal Problems, 1952 Vol. 5, Page 1:"New days may bring the people into new ways of life and give them new outlooks; and with new rules of law."The Supreme Court further clarified that :"Equity is not penalty but justice and even where neither party..... is at fault, equitable
considerations   may  shape   the   remedy. ........our   equitable   jurisdiction   is   not
hidebound by tradition and blinkered by precedent, though trammelled by judicially approved rules of conscience."The new approach that the courts of law should have in such situations had been dealt with even earlier by the Supreme Court inNarandas v. Papammal, AIR 1967 SC 333. Even when there was no statutory right for the Principal to sue the agent underSection 213of the Contract Act, an equitable right arising under special circumstances enabling the agent to sue the principal was approvingly upheld in that decision.More than a decade prior to that decision, Iyengar J. of this Court, had encapsulated the basic principle in his decision in A.V. George & Co. Ltd. v. Peter Kuruvilla, 1956 Ker LT 466 : (AIR 1957 Trav Co. 264). After noting that the general rule is that the agent is not entitled to an account against his principal, the learned Judge observed :"But this rule is however subject to exceptions in cases in which the relation between the agent and the principal is of a fiduciary character or the transactions between (he parties are so involved and complicated that the right of accounting will alone serve to administer complete justice and where the accounting sought is ancillary 'to the main 

purpose of the action."4. It is unfortunate that these decisions and the principles underlying them, had been missed by the Courts below. They have been recently recalled by a Bench decision of this Court in Kerala State Electricity Board v. Marshall Sons &. Co., 1985 Ker LJ 930, to which I was a party. The only further thing then to find out is whether the factual situation in the present case is such as to bring the case within the exceptional circumstances as elucidated in the decisions referred to above.5. For an effective consideration of that aspect of the case, a recapitulation of the bare facts may be helpful.6. Ramahingam Pillai who had virtually settled in Trivandrum for over a long time, had a wife, the plaintiff here for whom he had much attachment. He had a friend, with whom he had extraordinary intimacy, the defendant in the case. Ramalingam Pillai used to make available to the defendant, substantial amounts, from time to time. The defendant had after his association with Ramalingam Pillai, prospered considerably. Whether the prosperity was due to the financial aid emanating from Ramalingam Pillai or whether the defendant's prosperity led to advances or funds to Ramalingam Pillai, it is not necessary at this juncture to decide. In a way it is premature too. The intimate business relationship and an involvement in business and other transactions, is established by irrefutable evidence available in the case. The best evidence on that aspect is the Will left by Ramalingam Pillai himself. Ramalingam Pillai died on 12-3-1975, within two months of the execution and registration of the Will.7. Ramalingam Pillai was aged 64 at that time. He had continuous agony caused by a constant rheumatic complaint. He felt weakness in his limbs and thought it desirable to make provisions in relation to his assets. He refers in endearing terms to his wife as party No. 1 in the will, and had abiding affection for and pride in her. Party No. 2 Vasudevan Pillai, is referred to as a very intimate friend and trustworthy person. The past services rendered by him were acknowledged by the testator. and as regards both he had absolute trust and pride. A

gnawing agony arising out of an indifferent sun. was mentioned us a reason for disinheriting him. His daughter had been given in marriage, and had been adequately provided for. He therefore felt it unnecessary to make further provisions for her under the Will, it is thereafter that under the operative provision, that the testator bequeathed his entire assets including the bank, deposits, other movables, furniture and records in favour of the two. Both were to have equal rights and both were to enjoy the properties.8. The background thus furnished by the Will itself, would posit a fiduciary relationship as, between the two legatees, in relation to the assets of the deceased after his death.9. It may be that many money minded men in a mundane world, make it a habit "to gorge and disgorge" as Conrad would put it. Whenever there is an unjust gorging, or unfair dealing, courts have evolved necessary legal mechanism, to bring about justice between the parties, The device of a constructive trust has been pressed into service quite often. As Cardozo J. stated :"A constructive trust is the formula through which the conscience of equity finds expression."See Beatty v. Guggenheim Exploration Co., ( 1919) 223 New York 380 at 385.Lord Denning introduced this trust concept, in many situations, which to conservative minds, was revolting as opposed to known notions in that field. (See Hussey v. Palmer. (1972) 3 All ER 744 and Eves v. Eves, (1975) 3 All ER 768). The New South Wales Court of Appeal rejected those views. (See Alien v. Snyder. (1977) 2 NSWLR 685 and Griffiths v. Kerkemeyer (1977) 15 ALR 387). There have been academic criticism too on the views of Lord Denning. (See Underhill's Law of Trusts and Trustees. Thirteenth Edition. Page 320 for example.)10. It is however, unnecessary to wander in that area too much, inasmuch as the relationship between co-owners has been referred to in the decisions of the Supreme Court itself, in the present case, the parties to whom Ramalingam Pillai had bequeathed his properties do stand in the position of coowners. That relationship is one of trustee, has been clearly laid down by the decisions of the Supreme Court. The observations were made in the context of a claim of adverse possession between the co-sharers. It was held that a co-owner in possession is a constructive trustee on behalf of the co-owner, who is not in possession. Para 7 of the judgment brings out the idea clearly :"It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Indeed even if this fact be admitted, then the legal position would be that Mohd. Bashir and Mohd. Rashid, being co-sharers of the plaintiff, would become constructive trustees on behalf of the plaintiff and the right of the plaint iff would be deemed to be protected by the trustees. The learned counsel appearing for the respondent was unable to contest this position of law. In the present case, it is therefore manifest that the possession of the defendants, apart from being in the nature of constructive trustees, would be in law the possession of the plaintiff."[SeeKarbalai Begum v. Mohd. Sayeed. AIR 1981 SC 77]  
 

 If that be so in relation to mere co-sharers, much more stronger would be the fiduciary character of the relationship between the parties as arising in the present case. The background of the antecedent conduct between the parties, the close and intimate relationship which existed between them even during the lifetime of Ramalingam Pillai. the position of confidence and trust which Vasudevan Pillai had occupied vis-a-vis Ramalingam Pillai. and the arrangement which the testator provided for the right and enjoyment in relation to his assets, all bring out a clear case of the strong fiduciary relationship. If that be so a relationship of fiduciary character, justifying a right of accounting would certainly arise as between Vasudevan Pillai and the widow of Ramalingam Pillai. In that view of the matter, there is no scope for interference with the view taken by the lower appellate court. A suit for accounting will be maintainable in the above circumstances.11. The above conclusion, may to some extent obviate possible further steps trial might have been necessary under the order of remand. Whether the plaintiff should resort to such steps by way of abundant caution is a matter for her to decide upon in the light of professional advice received by her.12. Having regard to the circumstances, I would therefore dismiss the appeal with costs here and in the Court below. The trial Court will give priority for an expeditious trial of the suit. The facts, prima facie, make out a harassment against a widow. Even a facility of a car of which the widow was the registered owner, had been withdrawn by the might and influence of the appellant, is prima facie revealed. The court should not be indifferent in such situations which require a helping hand to a vexed litigant. I hasten to clarify that these observations herein do not preclude a fair and proper trial of all the issues on the basis of the evidence to be adduced in the case.