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TMI Blog1930 (10) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... .A.R.M. The effect of these assignments is in issue in the suit. 2. Prior to the death of one Vijayan Servai, in March 1904, S.K.T. had made considerable monetary advances to him, and after his death up to 1906 they had made certain further advances to the administrator of his estate. These advances had been secured by a mortgage for Rs. 10,000 dated 22nd September 1902, and other securities in favour of S.K.T. In fact that money for these advances was provided jointly by S.K.T., R.M.A.T., and another Chettiar firm, T.A.R.M.; the interest of the last-named firm was subsequently taken over by S.K.T., and T.A.R.M. need not be further considered. It is now agreed that R.M.A.T. provided one-fourth of the advances. 3. In March 1906 the hei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd an order made that S.K.T. should be struck out as parties to the suit. In a review of judgment; however the Chief Court, on 2nd May 1910 directed that the suit be remanded for making a preliminary decree and that S.K.T. be regarded as claimants, under the said decree to be creditors of the estate and that their claims be taken to have been made on 25th June 1906. On the remand the District Court on 14th August 1911, passed a preliminary-administration decree and, inter alia, ordered that an account be taken of all the liabilities of Vijayan Servai. Thereafter N.R.M.A. were made co-claimants with S.K.T. After the account had been taken, a decree was passed on 17th November 1919 declaring that Rupees. 1,70,520-1-6 was due to N.R.M.A., the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he lands purchased by N.E.M.A. in 1920, for partition of the lands and for an account of mesne profits, and (2) an account of the moneys received by S.K.T. and N.E.M.A. as creditor claimants in the administration suit and an account of the expenses incurred therein. 11. By decree dated 4th May 1926, the Trial Judge dismissed the suit with costs, but, on appeal, the High Court of Judicature at Rangoon by decree dated 18th May 1927, upheld the respondents' claim for an account of a one-fourth share of the proceeds of the administration suit come to the hands of the appellants N.E.M.A., but rejected the respondents' claim to a share of the lands. 12. The appellants have taken the present appeal against the decree of the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interest of R.M.A.T. in any money recovered by S.K.T. in the administration suit. Their Lordships concur in this view and for the reasons given by the High Court. 16. It will be more convenient to deal with, the second contention last. 17. The third contention raises the question of the nature of the original right, of R.M.A.T. as against S.K.T. The Trial. Judge held that it was a partnership right, which was not assignable by R.M.A.T. to the respondents, that the liability of S.K.T. was not transferred to the appellants by the assignment of 26th September 1906, and that there was no privity of contract between the respondents and, the appellants such as to confer a right of suit. The High Court appear to have proceeded on the vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 of Vijayan Servai's indebtedness and the securities, N.E.M.A, took subject to the equitable right of R.M.A.T. to claim an account, and that A.M.K. as assignees from R.M.A.T., are now entitled to claim an account. 21. As regards the question on the cross-appeal, their Lordships agree with the conclusion of both Courts below. The respondents A.M.K., appellants in the cross appeal, relied on Section 258, Contract Act of 1872, and Section 88, Trusts Act of 1882. But the appellants N.E.M.A. were not partners of the respondents, and, as regards the Trusts Act, the respondents were unable to show that N.E.M.A. in purchasing the property had availed themselves of their fiduciary relationship to A.M.K., or that their interest of N.E.M.A. i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... until there is an accrual, of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted : Mt. Bolo v. Mt. Kaklan A.I.R. 1930 P.C. 270. 25. Counsel for the appellants admitted that he was unable to specify any date at which the claim to an account here in suit was denied by the appellants. Accordingly this contention fails. 26. It follows that their Lordships will humbly advise His Majesty that the appeal and cross-appeal should be dismissed, and, in respect that neither party has been successful, there will be no order as to costs except that, in accordance with the order in Council of 7th May 1929, granting special leave ..... X X X X Extracts X X X X X X X X Extracts X X X X
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