TMI Blog1915 (7) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... removal on the 20th April 1910. On the 30th August 1909, Bhupendra, Purendra and Khagendra, three of the sons of Chandra Nath, instituted the present suit for the purposes already specified. They joined as defendants their three brothers, their mother and also the other members of the family who were interested in the estate left by their grandfather as legatees or annuitants. The suit was based on allegations of mismanagement which were repudiated by the executor. Various questions also arose in respect of the title to some of the properties claimed by the plaintiffs as part of the estate of the testator and alleged by some of the defendants to be the exclusive property of the widow of Chandra Nath. The Subordinate Judge after a protracted trial, made a preliminary decree, which directed the executor to render accounts for the period subsequent to the death of Chandra Nath, that is, from the 29th July 1907 to the 20th April 1910. The latter date was fixed in view of the circumstance that from that date, by an order of the Court, Upendra Nath ceased to be executor and was appointed Receiver in charge of the estate during the pendency of the litigation. The preliminary decree also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbent upon him to call upon the representatives of his predecessor to render an account and respond in damages for devastavit, mismanagement or breach of duty whereby any property of the deceased testator was diverted from a due course of administration. Consequently, it would be the duty of Upendra Nath to realise from himself arid his five brothers whatever might be found due to the estate of their grandfather on an examination of the accounts of their father as executor. Such an investigation is obviously not beneficial to the parties and although they are by no means friendly to each other, they are united upon one point, namely, that the accounts of their father as executor should not be taken. A different attitude, we may add, was adopted in the Court below and some of the sons of Chandra Nath sought to fasten a special liability upon the others on the allegation that they were the trusted advisers of their father during the period of his executorship, and shared his responsibility for due administration of the estate. This endeavour was not successful, and as we have said, in this Court all the parties by common consent have agreed that the accounts are not to be investigate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conveyances by Chandra Nath in favour of Srinath and by Srinath in favour of Nishadini were both fictitious transactions. 5. The second ground raises the question of title to the Calcutta house. It is the common case of all the parties that the house belonged to Raj Mohan, and on the 12th May 1874: was mortgaged by him to Mary Ratter. After the death of Raj Mohan Mary Ratter sued to enforce her security and obtained a decree on the 1st September 1884. The house was sold in execution of this decree on the 20th June 1885 and was purchased for ₹ 8,700 by one Shama Charan Ballabh, a friend of Raj Mohan. The family of Raj Mohan, notwithstanding this sale, continued in occupation of the house as they took leases from the purchaser on the 5th August 1885 and 5th December 1886. On the 30th April 1887, Shama Charan conveyed the house to Nishadini, the wife of Chandra Nath, for a consideration of ₹ 11,000. The question in controversy is whether this transfer to Nishadini was for the benefit of the estate of Raj Mohan or whether by this transaction the house became her private property According to Nishadini she had ₹ 3,000 with her at the time of the purchase of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by itself is sufficient to justify the inference that the purchase in her name was not for her benefit, This conclusion does not rest on mere suspicion which, as their Lord-ships of the Judicial Committee have repeatedly held [ Sreemanchunder Dey v. Gopaulchunder Chuckerbutty 11 M.I.A. 28; 7 W.R. 10 (P.C.); 1 Suth. P.C.J. 651; 2 Sar. P.C.J. 275; 20 E.R. 11 Nawab Azimut Ali Khan v. Hurdwaree Mull 13 M.I.A. 395; 14 W.R. 4 (P.C. ); 5 B.L.R. 578; 2 Suth. P.C.J. 343; 2 Sar. P.C.J. 571; 20 E.R. 599 Faez Buksh v. Fukeer-ood-deen Mahomed Ahassun Chowdry 14 M I.A. 234; 9 B.L.R. 456; 2 Suth P.C.J. 490; 2 Sar. P.C.J. 733; 20 E.R. 775 Uman Parshad v. Gandharp Singh 14 I.A. 27; 15 C. 20; 1 Ind.Jur. 474; 5 Sar P.C.J. 71; Rafique and Jackson's P.C. No. 98, Suleiman Kadr Bahadur v. Nawab Mehndi Begum 25 C. 473 (P.C.); 23 I.A. 15; 2 C.W.N. 186 Nirmal Chunder Banerjee v. Mahomed Siddik 25 I.A. 225; 26 C. 11] cannot be made the foundation for a judgment in cases of this description But the plaintiffs have been able to carry the matter further. They have established that on the 31st March 1886, Chandra Nath obtained the sanction of the District Judge with a view to raise a loan of ₹ 16,000 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.C.J. 147; 1 Sar. 1. C.J. 271; 18 E.R. 484 Gopeekrist Gosain v. Gungupersaud Gasain 6 M.I.A. 53: 4 W.R. 46 (P. C); 1 Sar. P.C.J. 493; 19 E.R. 20] and possession of the property [Imambandi Begam v. Kamleswari Pershad 13 I.A. 160; 14 C. 109; 10 Ind. Jur. 468; 4 Sar. P.C.J. 732] we find that the inference may legitimately be drawn that the house was purchased by Chandra Nath for the benefit of the estate in the name of his wife Nishadini. We must also remember that there were strong motives for a step of this description as Sir Arthur Wilson said in Dalip Singh v. Nawal Kunwar 35 I A. 104;30. A. 258; 12 C.W.N. 609 (P.C.); 4 M.L.T. 141; 10 Bom. L.R. 600; 14 Bur. L.R. 151 reliance must be largely placed, not only upon the surrounding circumstances and the position of the parties and their relations to one another, but also upon the motives which could govern their actions and their subsequent conduct. Kalinath, the brother of Chandra Nath, had under the Will of his father a right of residence in this house, a right which he subsequently sought to enforce by litigation. It is not improbable that Chandra Nath would allow the house to be sold in execution of the decree of Mary Ratter wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties to this litigation to state that they have not been particularly scrupulous in their dealings, and assertions appear to have been made from time to time just as the needs of the moment required. We feel no doubt, on the whole, that the Subordinate judge has Correctly held that the transfer of the Calcutta house by Shama Charan Ballabh to Nishadini on the 29th April 1887 was for the benefit of the estate of Raj Mohan and that the ostensible transferee did not acquire any beneficial interest thereunder. 6. The third ground raises the question of title to the gauti tenures which stand in the name of Nisbadini, either because they were created by Chandra Nath in her favour or were acquired in her name. According to the plaintiffs, all these tenures are fictitious and have no real existence. According to Nishadini and such of her sons as have taken her side, the tenures are real and are binding on the estate of Raj Mohan. The Subordinate Judge has decided partly in favour of the plaintiffs and partly in favour of the defendants. His decision is consequently assailed by both sides. After some discussion at the Bar, it was agreed that these gauti tenures should be deemed to ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sons other than Upendra apparently took no objection to this course. They did not contend that the mortgage had been executed by Chandra Nath in his capacity as executor and that consequently his successor in that office alone was liable to be placed on the record. The result was that a decree was obtained against the six sons, and in execution thereof the property was put up to sale. There is nothing to show that the price obtained at the sale was inadequate, consequently it cannot be contended that the sale of the house and its conversion into money have been prejudicial to the estate, nor is there any evidence to show that, at the time, Upendra had funds of the estate in his hands which might have been applied to avert the sale. The estate which had come into his hands only a few months before, was admittedly in a condition of considerable embarrassment, and failure to raise money on interest with a view to save the property from sale was not necessarily a dereliction of duty, unless it is proved that damage has actually resulted to the estate from the sale. Consequently Upendra cannot be held liable merely on the ground that he did not prevent the sale of the house at the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In support of this view, reference has been made to the well-established principle that the effect of the appointment of a debtor to the office of executor is that the debt due from the debtor executor is considered to have been paid to him by himself and that the executor is accountable for the amount of his debt as assets: Freakley v. Fox 9 B. C. 130; 4 Man. Ry. 18: 7 L.J.K.B. (o.s.) 148; 109 E.R. 49; 32 R.R. 605; Ingle v. Richards 28 Bea. 366; 6 Jur. (N.S.) 1178; 8 W.R. 697; 54 E.R. 406; 3 L.T. (n.s.) 116; 126 R.R. 170; Carey v. Goodinge (1790) 3 Bro. C.C. 110; 29 E.R. 439; Berry V. Usher 11 Ves. 87; 32 E.R. 1021; Tomlin v. Tomlin (1841) 1 Hare 236; 66 E.R. 1019 and Administrator-General of Bengal v. Kristo Kamini Dassee 31 C. 519; 8 C.W.N. 500. This doctrine is of no assistance to the respondents. On this theory, the money must be deemed to have been advanced by Chandra Nath to Upendra on or before the 20th September 1887, at any rate, not later than the 1st April 1888, if we accept the statement by Harendralal Rai in his plaint in mortgage suit dated the 27th January 1889. But Upendra did not succeed as executor till the 28th July 1907. There are no materials on the record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be decided in his favour. The surplus sale-proceeds, however, shall be deemed part of the estate, as we have held that the house itself formed part of the estate of Raj Mohan, though it had been transferred by Shama Charan Ballabh ostensibly to Nishadini. 13. The sixth ground raises the question of genuineness of the transfer made by Sailendra of his interest in the estate of his grandfather to his mother Nishadini. The question was raised in the Court below by the plaintiffs, and they obtained an adjudication that the conveyance represented a benami transaction. In the present appeal that conclusion has been assailed by Nishadini. But the plaintiffs have taken up the position that they are not interested in the decision of this matter. Consequently the dispute reduces to a controversy between the two co-defendants, In this view the parties have agreed, and in, our opinion, very properly, that the decision of the Subordinate Judge on this point should be set aside and that the matter should be left open for determination in a subsequent suit but that in the meanwhile the decree in this suit should be made on the assumption that the appellant represents the real estate of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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