TMI Blog1933 (8) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... heir respective claims on the basis of intestacy. In 1912, Raja Durgaprasad had made certain mokarrari grants for life in favour of his wives, the Ranees. By the will, he bequeathed to them a ten annas share of the jewellery and the cash that would be left by him at his death, and declared that the remaining six annas share thereof should form part of his zamindari, and he further provided that whoever should get the zemindari on his death would be bound to pay to each of his wives maintenance at the rate of ₹ 3,600 per year. The allowance was to be payable in monthly instalments of ₹ 300 carrying interest at the rate of one per cent per mensem in case of default, and such was to form a charge on the estate. On the death of Raja Durgaprasad and within a few hours thereafter, Shivaprasad Singh, the defendant in this suit, was treated by the officers of the raj as the next rightful successor, and, his name being entered in the rokar of the estate, accounts began to be kept in his name. Shortly afterwards, disputes arose between him, and the widows. On 5 August 1916, three bantannamas were executed, one by each of the widows, whereby, for a consideration stated therein, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etal order Clause (v) containing four sub-clauses (a) to (d). From the decision of the High Court, passed in the aforesaid appeals, both parties appealed to His Majesty in Council: P.C. Appeals Nos. 71 and 72 of 1925 were preferred by the defendant, and P.C. Appeal No. 79 of 1925 by the plaintiffs. These three appeals together with two others in which the defendant was the appellant, namely, P.C. Appeals Nos. 2 and 3 of 1923 which arose out of certain interlocutory matters but of which the particulars are no longer material, have all been disposed of by a judgment of the Judicial Committee, delivered on 7 April 1932: Shiba Prasad Singh V/s. Prayag Kumari Debi 1932 PC 216. By this judgment, their Lordships have ordered that the appeals preferred by the plaintiffs (No. 79 of 1925) and by the defendants (Nos. 71 and 72 of 1925) be allowed in part and that the decree of the High Court should be affirmed subject to certain directions and modifications. These directions and modifications have been enumerated in certain clauses, (1) to (5), Clause (5) itself consisting of three sub-clauses (i) to (iii). Of these, Clause (5), sub- Cl. (iii) merely contains a general order to give effect to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on the Raj estate... Sch. kha, 9 to 19. ( 6. ) The High Court had affirmed Mr. Bose's decision disallowing the plaintiff's claim. The Judicial Committee has affirmed the High Court's decision. [High Court's decretal order, Clauses (ii) and (iii).] (3) Immovable properties acquired by Raja Durgaprasad... Sch. kha, 1 to 8. ( 7. ) The High Court had affirmed Mr. Bose's decision allowing the plaintiff's claim and directing an inquiry into mesne properties. The Judicial Committee has reversed the High Court's decision Clause (1). [High Court's decretal order, Clause (iv).] ( 8. ) Part of (8). Any other immovable property left by Raja Durgaprasad which might on inquiry be found to have come into the hands of the defendant. The High Court had directed an inquiry and had ordered that, if any such be found on inquiry, the same together with mesne profits will go to the plaintiffs. This direction has been modified by the Judicial Committee as will be seen hereafter: Clauses (2) and (5)(i). B.-Movable properties-(5) to (7) and the other part of (8) of the plaintiff's claim: [High Court's decretal order, Clauses (v), (d) and (vi).] (5) Jewelle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, Clause (v)(c).] ( 14. ) The High Court allowed deduction of costs of realizations, incometax, supertax and other public charges paid by the defendant, and also for payments made by the defendant on account of shop debts and other outstanding bills against Raja Durgaprasad, otherwise than for the estate and the impartible estate or immovable properties incorporated therewith. The Judicial Committee has affirmed the High Court's decision and has directed this Court to determine whether the defendant is also entitled to credit for payments referred to in ground No. 30 of the defendant's petition (No. 75 of 1925) for leave to appeal to His Majesty in Council, except expanses incurred on account of funeral and sradh of Raja Durgaprasad [Clause (5)(ii).] D.-Discovery. [High Court's decretal order, Clause (vii).] ( 15. ) The High Court made an order for discovery. This has been affirmed by the Judicial Committee. E.-Maintenance. [High Court's decretal order, Clause (viii).] ( 16. ) The High Court left over the question of maintenance for decision in a separate suit, but made an order that since its decision and till the final decision of the case in the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imately belongs to them. He has repudiated all suggestions of bona fides on the part of the defendant and has tried to paint him as a wrongdoer of the worst type, who not only took what did not belong to him, but tried his utmost not to disclose what he had taken and also to unlawfully and fraudulently induce the real owners, the plaintiffs, to consent to his retaining the things he had thus acquired, and further put every obstacle in the way of their seeking or obtaining relief from proper quarters. These arguments have been pressed on our attention with considerable force and insistence. ( 21. ) The arguments can possibly be relevant from two points of law: one, for the purpose of determining the footing upon which the rights and the liabilities of the parties are to be adjudged; and the other, for the purpose of determining the attitude or what may technically be said to be the frame of mind of either of the parties, a matter which is pertinent to the question whether it may or may not legitimately give rise to any presumption in relation to some particular matter or some particular item of property, rights and liabilities in respect of which have got to be considered in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 Cal 883, Ramaswami Ayyar v. Rangaswami Ayyar 1931 Mad 683. The administration consists, generally speaking, in the payment of the funeral expenses of the deceased, in the payment of debts and legacies and in the collection, realization, preservation and distribution of the assets. Forms of plaints in such suits are given in Sch. I, App. A, Forms Nos. 41 to 43. C. 20, Rule 13, Civil P. C, provides that, in an administration suit, the Court shall pass a preliminary decree, before passing the final decree, directing accounts to be taken and enquiries to be made. Forms for preliminary decree are given in App. D, Forms Nos. 17 and 19, and forms for final decree are given in App. D, Forms 18 and 20. Neither the constitution of the suit nor any of the prayers resemble those which are to be found in a suit for administration, and, although a few of the directions that have been given by this Court in its decision of 17 August 1925, as regards the enquiries to be made, resemble those that are given in an administration suit, in their essence the directions are widely different. In para. 15 of the plaint, the plaintiffs have averred, (a) that the plaintiffs are the real heirs of their hus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied on it. The passage runs thus: It is next contended that the defendant, even if liable as an executor de son tort to executors, administrators, creditors or legatees, are not liable to the plaintiffs. But an action for administration which means that the legacies and debts have to be paid off may be brought by the next of kin (see Form No. 17, App. D, Civil P. C). ( 28. ) There is however no express finding in the judgment that the present suit was of that nature. And even if there was any, we think it is no longer binding on us, having regard to the view which the Judicial Committee has taken. In another passage, in the same judgment, it was said: But the suit is for recovery of the impartible estate as well as other properties, moveable and immovable, of which the defendant is said to have been in wrongful possession, and there is only one cause of action, viz. the withholding of all those properties by the defendant, etc. ( 29. ) The suit, in our judgment, is a suit against the defendant for wrongful withholding of possession of immovable and moveable properties, and is not in the nature of an administration suit at all. ( 30. ) Executor De son tort-Date of convers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... speaking the date of the suit, the defendant having come into possession with the will before him, which made him a co-sharer with the plaintiffs in respect of the moveables which were undivided, he was in the position of a bailee or a trustee to the extent of the ten annas share of the Ranees therein, and that, if at all, he became an executor de son tort only on demand and refusal or roughly speaking at the date of the suit. To this argument Mr. Das reply is two- fold: firstly, that the question is concluded by the judgment which the High Court has already passed; and, secondly, that the defendant was a wrong-doer from the moment that he came into possession. Before dealing with the contention and the reply, it is necessary to refer to an extreme contention which Mr. Das in one part of his argument put forward, namely, that an executor de son tort, being an executor of his own wrong, is nothing else than a wrong-doer; and as a person who is a wrong-doer cannot be allowed to take advantage of his own wrong, it is right to hold that, an executor de son tort has all the liabilities, though none of the privileges, that belong to the character of an executor. ( 32. ) Williams on Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is said: The most recent, and the most luminous judgment on this question is to be found in Peters Leeder (1878) 47 LJ QB 573, where Lush, J., says: The definition implies a wrongful intermeddling with the assets, a dealing with them in such a way as denotes a usurpation of the functions of an executor, an assumption of authority which none but an executor or administrator can lawfully exercise. It is obvious that it is not every intermeddling with the goods of the deceased which is wrongful. Acts which are not destructive of the property, and which do not otherwise amount to a conversion of goods, are wrongful or not according to the intent. Milking the cows, feeding the horses, locking up the goods, doing repairs, and such like acts, if done as an assertion of dominion and act of ownership, would be wrongful--if an act of necessity, or an office of kindness and charity, would be meritorious. So the removing and holding possession of the goods if done for the purpose of keeping them in safe custody till a lawful representative should appear, is rightful; if for the purpose of making away with them, is wrongful. ( 34. ) The defendant therefore though he is to be judged on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion may be justifiable on some reasonable grounds or may be attributable to some justifiable cause. The illustration itself says that the Court shall also have regard to other facts in considering whether the maxim does or does not apply to any particular case. But where no other cause is apparent or proved, the Court will be entitled to rely on such presumption. The Judicial Committee has, in several cases, strongly condemned the practice of parties to a suit withholding, from the Court, evidence which may throw light on the points for determination. In the case of Murugesam Pillai V/s. M.D. Gnana Sambandha Pandara Sannadhi 1917 PC 6 their Lordships have said that in such circumstances they felt free to conclude that if the evidence withheld did, in any manner, help the case of the party who were guilty of such nonproduction, they would have brought it before the Court: see also Lal Kuuwar V/s. Chiranji Lal (1910) 32 All 104 and Ram Parkash Das V/s. Anand Das 1916 PC 256. Their Lordships however have said that it is open to a litigant to refrain from producing any evidence, not forming part of his case, that he considers irrelevant; if the other litigant is dissatisfied it is for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 838, in the case of Sooriah Row v. Cotaghery Boochiah (1838) 2 MIA 113. In that case Lord Brougham in delivering the judgment observed: And the Court below, we have no doubt, proceeded upon this principle, that everything is to be presumed against a party keeping his adversary out of possession of the property, and out of possession of the evidence, and taking means to retain that evidence in his own custody. ( 39. ) In the leading case of Armory V/s. Delamirie (1721) 1 Sm LC 393, a jewel found by a chimney sweeper's boy was presumed to be of the best description as against the jeweller who had received it from the boy and refused to return it. The principle has been applied in this country in several cases amongst which reference may here be made to one, namely, the case of Soondur Monee Chowdhrain V/s. Bhoobun Mohan Chowdhry (1869) 11 WR 536, a case upon which the Court below has relied. That was a suit to recover possession of plundered property, and in which the question arose as to the amount of the property misappropriated and it was ruled that unless the defendant produced the property and showed it not to be of the value stated by plaintiffs the strongest presumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in mind that where a wrongful withholding or tortious act is not proved the presumption cannot apply, Vinayak V/s. Collector of Bombay (1901) 26 Bom 339. Mr. Chaudhuri has argued that the High Court in its previous judgment, in a manner, held that the spoliatoris maxim is inapplicable to the case because the High Court set aside Mr. Bose's decision by which he had accepted the plaintiffs valuation without any inquiry as to value, and remanded the case for such an inquiry. We do not think this to be a correct appreciation of the judgment of the High Court. Mr. Bose had disposed of the question of value of the moveables in these words: The parties have not adduced any evidence before me as regards their price. I shall therefore accept the price of these items as given in the plaint. ( 43. ) The High Court pointed out that there was an issue, viz., No. 13, on the question of value and that the proper procedure was to be followed so that the values might be determined and that the question could not be disposed of in the way it was, because the values put on the articles by the plaintiffs had been disputed by the defendant. We may also point out that the application of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendant, it can hardly be justified on any conceivable principle: it assumed that the plaintiffs, on whom the onus undoubtedly lay of proving all the elements which go to constitute their claim, must do so by direct evidence only and it ignored such presumption which the plaintiffs are at liberty to call in their aid, and it also overlooked that inferences drawn from circumstances and probabilities are also a legitimate means of proof. In Mayne on Damages, Edn. 9, p. 384, the matter has been put in this way: When the defendant in trover will not produce the article, it will be presumed against him to be of the greatest value that an article of that species can be. ( 45. ) And after referring to certain cases in which the aforesaid principle has been laid down or applied, it has been said: In all other cases, however, the plaintiff must strictly prove the amount taken, and its value, even though the conversion be admitted by the pleadings. Otherwise there would be no evidence of damage more than nominal. ( 46. ) In this Court, Mr. Das has very frankly said that he does not dispute that it was for his client to trace the articles to the possession of the defendant. The whole q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier or later date. [Salmond on Torts, Edn. 7, p. 413.] Also, The damages to which a plaintiff who has been deprived of his goods is entitled are prima facie the value of the goods, together with any special loss which he may have incurred in consequence of the wrong . . .. Where the value has fluctuated it must be taken as it stood at the time of the wrongful act. In Greening V/s. Wilkinson (1825) 1 C P 625, where the cotton which formed the subject-matter of an action for trover rose in value between the date of the conversion and that of the trial, Abott, C.J., held that the jury in estimating the damages were not limited to the mere value of the property at the time of the conversion, but were at liberty to find as damages the value at a subsequent time at their discretion. There does not appear to be any reported decision in which Greening V/s. Wilkinson (1825) 1 C P 625 has been either questioned or followed, but it has been frequently laid down, and the rule now appears to be established, that the proper measure of damages is the market value of the goods at the time of the conversion. [Clerk and Lindsell on Torts, Edn. 8, p. 250.] ( 49. ) Under the English law, If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troversy, the Court, by its order dated 23 June 1920, called for a further inventory, and in pursuance of that order, a petition together with a fresh inventory (Ex. Z. 270) and certain affidavits, of Smith and of Mahendranath Chatterji, together with certain annexures explaining certain matters in connexion with the inventory previously filed, were filed on 12 July 1920. The Court had previously ordered that, if the plaintiffs consider the list to be filed by the defendant to be incomplete they should move the Court then for deputing a Commissioner for the preparation of the list. ( 52. ) The plaintiffs never took any further action in the matter and the fresh inventory filed (Ex. Z 270) was allowed to rest as it was. On these facts, it has been contended on behalf of the defendant that inasmuch as the plaintiffs took no further action, as ordered by the Court, they are not entitled to challenge the correctness of the said inventory. This contention has also been emphasized on the principle of conclusiveness of affidavits of documents, which is this: that if a party states in his affidavit of documents that he has no document relating to the matters in question in the suit othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts specified in two schedules (A and B) appended thereto. As a result of this petition, a commissioner was deputed to inspect the articles and make a report of their condition, and on that being done, a compromise was reached; some of them were delivered to the plaintiffs and the others were allowed to go to the defendant on his agreeing to pay ₹ 21,000, as their value, and it was agreed that the said amount was to be included in the decree. With this arrangement we are not concerned, but what is important is para. 2 of the said petition, in which the following statement appears: That your petitioner is ready and willing, in obedience to the decree of the Honourable Court, and without prejudice to his appeal to His Majesty in Council, to deliver possession to the plaintiffs of such of the movables as actually came into the possession of your petitioner and are now in his possession, in the same condition in which they were left by the said Raja Durgaprasad Singh. ( 55. ) In making this statement, the defendant clearly and deliberately assumed the attitude that besides the articles mentioned in the two schedules (A and B) to the petition, he had in his possession no others ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendant's assertion is untrue, the Court would still be bound to pass a decree for the articles in the first instance and in the alternative only for their value. The question as regards the form of the decree has also arisen in connection with one of the grounds taken in the plaintiff's cross-objection. But it will be convenient to deal with it later on and at its proper place. STATEMENTS OF CLAIMS ( 57. ) We shall now pass on to the various items of claim. But only as preparatory to the consideration thereof a few more words need be said. On the case going back to the Subordinate Judge on the order of remand made by this Court, and in pursuance of the order for discovery that was made, the defendant, on the 28 May 1926, filed a verified petition with annexures alphabetically marked. On 1 June 1926, another petition was filed on his behalf praying that the plaintiffs be called upon to file a detailed statement of their claims. On 29 July 1926, the plaintiffs filed a petition together with a number of statements in the shape of annexures to the said petition and marked numerically. On 16 August 1926, certain issues were proposed on behalf of the plaintiffs and on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est discretion, released or compounded debts due to the testator or the intestate. Subsequent legislation, viz., Lord Cranworth's Act (23 24 Vict. c. 145, Section 30). and the Conveyancing and Law of Property Act (44 45 Vict. c. 41) modified the rigour of the law to a very large extent, but these Acts applied only to executors and not to administrators, and to the latter, those decisions still applied in which it had been previously held that if an executor releases a debt due to the testator or cancels or delivers to the obligor a bond of which the testator was the obligee, this shall charge him to the amount of the debt, whether in point of fact he received it or not: see Williams on Executor, 11 Edn., Vol. 2, p. 1419; and that debts or damages due to the deceased will be regarded as assets, although never in point of fact received, if they be released by the executor, for the release in contemplation of law shall amount to a receipt. (Williams on Executor, 11 Edn., Vol. 2, p. 1284). The Trustee Act 1893(56 57 Vict. c. 53, s. 21) expressly gave powers to executors, administrators as well as trustees, to compromise, compound, abandon, submit to arbitration or otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payments were payments in part of an entire rent, really payable for the entire year, and as regards royalties they were commissions which could only be determined at the end of the year. The Subordinate Judge has held that the plaintiff's are entitled to only such rents and royalties as had fallen due before the death of Raja Durgaprasad according to stipulated kists, and has thus overruled the contentions of both the parties, and he has made a decree for such amounts in respect of the first three kists of 1322 B.S., as were proved to have been realised by the defendant. APPEAL AND CROSS OBJECTION. ( 65. ) Both parties have challenged the decision of the learned Judge and their respective contentions are on the lines on which they were put forward in the Court below. On behalf of the appellant reference has been made to Walsh V/s. Lonsdale (1882) 21 Ch D 9. This was a case where there was an executory agreement for lease, one of the terms of which was that a certain minimum rent or dead rent was to be payable in advance and the balance of the rent was to be determined at the end of the year upon the number of looms that would be worked by the lessee and upon other conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving regard to Section 2, Sub-section (d) of the Act, apply to the case, and has referred to the case of Mathewson V/s. Shyam Sunder Sinha (1906) 33 Cal 786 as covering the point in dispute. So far as Section 36, T.P. Act, is concerned the learned Judge is right. As regards Mathewson v. Shyam Sunder Sinha (1906) 33 Cal 786, Mr. Das has contended that case is distinguishable. In that case one R. was a hikim and as such was entitled to certain mouzas which were held by one M. as mortgagee in possession under him; on a particular date in Sraban 1307 Fasll, R ceased to be the hikim and the plaintiff became hikim and took possession of the mouzas by ousting M. M had collected rents from the tenants of the mouzas, the entire rent for 1307 Fasli. The plaintiff sued M for the rent of the period commencing from that date to the end of the year. The learned Judges held that Section 36, T.P. Act, not being applicable, the plaintiffs could not succeed. In that case, under the contract between M and the tenants, the rent for the entire year 1307, Fasli, was payable in the month of Jaistha, Fasli, and M had realized the entire rent in advance though the year had not run out. The learned Judges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not have sued for it till the end of that month. He held that no question of apportionment really arose, but if it did he would not be inclined to go beyond the statute law in force in this country, and would be reluctant to apply any principles of English statute law to the case. ( 69. ) But Subrahmania Ayyar, J., held that in absence of a specific rule, applicable to cases like this in India, the Courts are entitled to follow the broad and just principle underlying the English statute law, which culminated in the Apportionment Act of 1872, and held that, as a matter of equity and good conscience, the assignee of the tenant-for-life was entitled to an apportionment of the rent due up to the date of the death of the tenant-forlife. It may be, and on this question we express no opinion, that the learned Judge went somewhat too far in holding that as between the tenant and the assignee of the landlord's right the equitable principle of apportionment may be applied, notwithstanding the covenant as to instalment. The view taken by Subrahmania, J., in the case just referred to appears to have been adopted in Kunhi Sou V/s. Mulloli Chathu 1916 Mad 768, in which it was held that o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Judges distinguished the case of Satyendra Nath Thakur V/s. Nilkanta Singha (1893) 21 Cal 383, as a case of transfer of the lessee's interest, and observed that they were unable to follow the decision in Mathewson V/s. Shyam Sunder Sinha, (1906) 33 Cal 786. Several other cases have also been referred to in this connexion by Mr. Das, but as they are not directly in point we do not propose to discuss them. One of the cases is that of Nand Kishore Vs. Ram Sarup 1927 All 569, in which, as far as may be gathered, Section 36, T.P. Act, was applied to the case of an auctionpurchase. Satya Bhupal Banerjee V/s. Rajnandini Debi 1924 Cal 1069, in which Satyendra Nath Thakur V/s. Nilkanta Singha (1893) 21 Cal 383 and Mathewson V/s. Shyam Sunder Sinha, (1906) 33 Cal 786, were followed, was a case between a zamindar and his patnidar. Reference has also been made before us to the decision of the Judicial Committee in the case of Phirozshaw Bomanjee Petit V/s. Bai Groolbai 1923 PC 171. What was actually decided in the case was a question of intention, as evidenced by a deed of settlement, as to whether income derived from rents and shares was apportinable de die in diem: (i) between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s has referred us to the English statutes dealing with apportionment, but we do not propose to refer to them as we can only be concerned with the old English law, as it stood apart from Statute, the English Statute law not applying to this country. Lord Eldon in Ex parte Smyth (1818) 1 Swans 337 expressly referred to the decision in Paget V/s. Gee (1753) Amb 198, in which Lord Hardwicke said: I do not mean to give this as an absolute opinion, for that must be against the tenant; though I am strongly inclined to it. But in the present case, I found my opinion on the tenant having actually paid the rent, and out of conscience and equity waived any strict right he might have. The payment has been for the use and occupation during all the half-year. Defendant cannot be entitled to more than for one week. It is against conscience for him to retain the whole money. Many cases, where a man pays money from equity and conscience, and though not bound at law, such money shall be divided according to equity. Suppose two traders, partners or correspondents and a man pays money to one of them, though not obliged but by conscience, the other trader shall have his proportion of it. A case to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e institution of the suit, on account of royalties due from the Maharaja and certain decrees obtained against him by Raja Durgaprasad, with interest thereon up to the date of such realisation. .... ( 76. ) The plaintiff's case was that the full amounts due on Raja Durgaprasad's account (principal, together with such interest, as was payable and was running) had already been satisfied by the amounts of ₹ 5,10,000 received till April 1917, and so they are entitled to such full amounts. The Judge has accepted this contention. The decision of the High Court enabled the plaintiffs to get the amounts realized by the defendant on this debt up to the date of institution of the suit together with interest thereon at 6 per cant from the dates of such realization. The Judge has made a calculation of interest, on this basis, and has found that, up to the date of the decree, the dues would amount to ₹ 6,20,271-9-3. ( 77. ) Dr . Gupta, on behalf of the appellant, has urged, in the first place, that the High Court decree meant that only such amounts as had been actually realized, according to the true meaning of the word actually, as used in English, should be taken into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Administration of Estates Act 1925(Lewin on Trusts, Edn. 13, p. 352, et seq.), and also the provisions of the Trust Act 1885, Section 43 and the principle underlying it. This matter has been already dealt with in connection with other items of releases discussed above. He has also referred to the case of Thompson V/s. Harding (1853) 22 LJ QB 448, in which it was laid down, a principle which has never been disputed, that where an executor de son tort really acts in the character of executor and out of the assets in his hands makes a payment in satisfaction of a debt from the deceased, to a person who at the time might reasonably suppose that he had authority to act as executor, such payment is valid and binding upon the person who afterwards becomes the rightful administrator. So: though an executor de son tort cannot by his own wrongful act acquire any benefit, yet he is protected in all acts, not for his own benefit, which a rightful executor may do. And accordingly, if he pleads properly, he cannot be made liable beyond the extent of the goods which he had administered, and therefore under a plea of plene administrative, he shall not be charged beyond the assets come to his ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of appropriation. If no express appropriation be made by either the debtor or the creditor, it may be implied or presumed that payments to and drawings against a running account are to be attributed to the earliest items on the opposite side of the account (Clayton's case (1816) 1 Mer 572, Pennell V/s. Deffell (1853) De GM G 372, and In re Stenning. Wood V/s. Stenning (1895) 2 Ch 433). But as between trustees and their beneficiaries and as to every person in a fiduciary character, the rule is modified, and so long as the trustee has money standing to his account drawing by him will be attributed to his own money, the trust money being intact. (In re Hallet's Estate. Knatchbull V/s. Hallett (1879) 13 Ch D 696). So where a solicitor paid into his own account moneys of different clients, but the balance of the account always exceeded the amount first paid in, though less than the amount of other client's moneys, it was held that the money of the client first paid in must be taken to have been drawn out Wood V/s. Stenning (1895) 2 Ch 433): see also Lewin on Trusts, 13 Edn., p. 933. ( 82. ) The defendant, even if he was an executor or trustee, must on these princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrator brings an action of trover or trespass against the executor de son tort, the latter may give in evidence in mitigation of damages, payments made by him in the rightful course of administration. (Ingpen on Executors, 2nd Edn., p. 69.) That also is the law in India under Section 304, Succession Act, for it cannot be maintained that the maintenance and upkeep of live-stock is not in due course of administration. So also would an executor or administrator be bound to pay the debts of the deceased. These principles however will only apply to the wages of servants for the period of Durgaprasad's lifetime and the feeding of the elephant which subsequently died of lightning stroke and of the several items of live-stack which have been delivered. As regards those which have not been delivered and for the non-delivery of which no explanation has been offered the defendant, from the moment of conversion, became a wrong-doer. To a wrong-doer or trespasser, in our judgment, a different principle, should apply. For example where the proprietor of land seized an animal, as damage feasant, under circumstances which made the seizure wrongful, and after feeding it for several days sold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to bonds and promissory notes, had these words: Are the plaintiffs, entitled to get them or their money value, , and that the defendant had moved the Subordinate Judge to delete the words or their money value, but the learned Judge has refused to accede to this prayer and that upon that the defendant moved this Court for the same purpose but failed. He has therefore argued that the learned Judge was wrong in refusing to assess the money value of these bonds. ( 89. ) The Subordinate Judge has disposed of the matter in these words: If the bonds, etc., that came into the defendant's hands were discovered, the plaintiffs could bring suits as successors to the interest of Raja Durgaprasad on these bonds for the recovery of the moneys due thereon. They may still do so, even without filing the bonds, provided the necessary particulars are available, and it is open to them to claim damages from the defendant, in the alternative, if the defendant fails to deliver the bonds to them and they suffer any loss in consequence. But I think that an enquiry regarding the damages which the plaintiffs would be entitled to recover from the defendant in the event of non- delivery of the bonds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egards the harassment that the plaintiffs will have to undergo if they are relegated to a future suit, the matter requires no very serious consideration, for the legislature has provided in Order 21, Rule 31, a remedy which seems to us to amply meet the requirements of the case. That rule after laying down in Clause (1) the different modes in which the decree may be enforced, says in Clause (2) that the Court may award to the decree-holder in case where any amount has been fixed by the decree to be paid, as an alternative to delivery of moveable property, such amount and, in other cases, such compensation as it thinks fit. This provision itself shows that a decree for delivery of a specific moveable need not necessarily, in all cases, be in the alternative form. That an enquiry as to damages in cases of this kind may more profitably be started by the Court in execution, cannot, in our opinion, be disputed. ( 92. ) The principles on which such damages have to be assessed, are not very difficult of appreciation. Dr. Gupta has argued that it is only on the footing of wilful neglect or devastavit, that such damages may be assessed. But with this we do not agree. If the security is v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a distinction is not necessary to be made, because ordinarily the person succeeding to the impartible estate is the person who, as heir, would be liable for such contracts, but where, as here, the heir is one person or one body of persons and the successor another, the distinction becomes necessary and has to be made. To put it in another form, his argument has been that contracts which have a concern with the estate should be treated as creating liability on the estate in the hands of the successor only, in the same way and to the same extent as alienations made for the benefit of the estate are binding-an argument which, if pursued, gives rise to a vexed question, namely, what is the true meaning of the words for the benefit of the estate which occur in the judgment of the Judicial Committee in Hunoomanpersaud Panday's case (1854-57) 6 MIA 393-18 WR 81n. (See Mulla's Hindu Law, Edn. 7, pp. 243- 243-A.) Several cases have been cited in this connexion-Kali Krishna Sarkar V/s. Raghunath Deb (1904) 31 Cal 224, Inder Sen Singh V/s. Harpal Singh (1911) 34 All 79 and Harpal Singh v. Bishan Singh (1909) 3 IC 907. In these cases following the observations contained of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Chinnayasami Naicker (1006) 29 Mad 453, taking the former view, while the latter view was taken in Rajah of Kalahasti V/s. Achigadu (1905) 30 Mad 454, Zamindar of Karvetnagar V/s. Trustee of Tirumalai, Tirupati, etc., Devastanams (1909) 32 Mad 429. An exhaustive and illuminating review of the case law on the point will be found in the decision in the case of Shyam Lal Singh V/s. Bijay Narayan Kunda 1917 Pat 616 in which it was held that the interest of the holder of an impartible estate is liable for his debts, in the hands of his heir, and that it is only for the purpose of ascertaining the person entitled to succeed to an impartible estate that recourse must be had to the rule which would have governed the succession, if the estate had remained partible. The decision of the Judicial Committee in Baijnath Prasad Singh V/s. Tej Bali Singh 1921 PC 62 in an attempt to reconcile the different decisions of the Board [with the exception of the decision in Bishun Prakash Narayan Singh V/s. Janki Koer 1920 PC 34 which was said to have been the result of acceptance of an off-hand view without argument and without citation of authorities] has predicated for succession to an impartible est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these contentions because the evidence is that the income-tax people examined the books and assessed the tax and the defendant was in consequence obliged to pay. He was entitled to assume that the tax was rightly assessed and he then made the payment, for which in our opinion he is clearly entitled to be reimbursed. A.-ITEM 18-INTEREST AND B.-MODE OF ACCOUNTING; A-Interest. Appeal. ( 101. ) The contentions of the appellant as regards interest, from the date of the liability up to the date of decree, are in the following three heads: First.-That the Judge was wrong in compounding interest, from the date of liability up to date of decree, with the principal amount of the liability, and then decreeing interest on the total amount, at 6 per cent per annum, from the date of the decree until realization. This contention relates only to it items 6, 7, 8, 9, 10 and 11. Second.-That there should have been a stoppage of interest from some point of time till now. This contention relates to all the items on which interest has been allowed. And Third.-That the rate of interest should not be 6 per cent, per annum but much less. ( 102. ) The third contention is wholly untenable. Nothing le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hearing of this appeal. On all these facts, Mr. Chaudhuri has contended that there should be a stoppage of interest from such point of time as to us may seem just and equitable. He has referred in this connexion to certain cases which we shall now notice. Torre V/s. Browne (1855) 5 HLC 555, which was a bill for distribution of a testator's estate. One of the questions was whether interest should be charged on arrears of an annuity. The Lord Chancellor, while holding that the general rule of the Court was that arrears on an annuity do not carry interest, observed: The cases in which, in later times, the Court, in the absence of express contract, has allowed interest have been confined to those where the annuitant has held some legal security which, but for the interference of the Court, he might have made available for the obtaining of interest; or where the accumulation of arrears have been occasioned by the misconduct of the party bound to pay. . . . But on the best consideration of the facts, I am unable to fix the blame of delay on those who were to pay the annuities rather than to those who were to receive them. ( 104. ) Curiously enough, one great and perhaps the on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h can be put against the plaintiffs, so long as it has not been shown that the plaintiffs in any way have stood in the way of the speedy disposal thereof. The defendant could well have applied to the Court to give him liberty to raise funds and could at least have offered to pay off his liability in full or in part. The adjournment that was obtained on 10 February 1933, was, as far as we can gather, not on the application of one side only. ( 107. ) One important principle, under which running of interest may be suspended, is where the delay in the payment of the principal debt is caused by some improper act or omission of the creditor, Gopeshwar Saha V/s. Jadav Chandra 1917 Cal 630, in which several authorities have been cited), because in such a case the wrong is with him. So if a creditor, by his own act, puts it beyond the power of the debtor to make payment, no interest should be recoverable for the period during which the creditor was thus prevented. This principle is based on the plainest principles of justice equity and good conscience. Again in Mohammad Ali Mohammad Khan V/s. Ramzan Ali 1921 PC 100, the Judicial Committee disallowed interest for the period taken up by ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is concerned, there again the Court has a discretion. But the object of allowing such interest on the aggregate amount, compounded of principal and interest up to decree, is twofold. One is to enable the debtor to know the exact amount of his liability, which as soon as it is found in the decree it is his duty to discharge; for, under the law, it is the duty of the debtor to find his creditor out and to make the payment. The other object is what was pointed out by the Judicial Committee in the case of Sophia Orde V/s. Alexander Skinner (1880) 3 All 91: A practice, indeed, of giving upon the aggregate sum decreed for principal, interest, and costs, interest at only 6 per cent, does seem to have grown up; but that may have been in order to prevent the parties from enforcing their decree, and allowing their demand to roll on at 12 per cent. ( 109. ) In the present case, there was no contract, implied or express, and the interest ante lite as well as pendente lite has been allowed at 6 per cent, because presumably the Subordinate Judge considered that was a fair rate. There was no point therefore in compounding the principal and the interest due up to the date of the decree, and ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Judge has not given details as to how the credit was to be made, but if the same process has been resorted to, in arriving at the figure, which is to be found in item (16) of the decree which was drawn up in pursuance of his judgment, the decree cannot be upheld. The interest that has been awarded in plaintiffs favour in this case is not an interest provided for in any contract between the parties, express or implied, but by way of damages only. The payments that were made were not payments made against interest expressly, and there has been no agreement between the parties and no order of Court under which such payments or any of them, if made, were to be credited against interest. A right of a creditor to appropriate a payment against unliquidated damages and when no interest was in fact running under any contract, express or implied, is a thing unknown to law. The payments were made subject to adjustment in future. In these circumstances, all payments made before the decree of the Subordinate Judge, dated 7 May 1927, must necessarily be regarded as payments on account and on the same footing as the payment of ₹ 48,259 referred to above. Payments made since that day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The plaintiffs have taken exception to this decision, by way of a cross-objection; but it has been conceded by Mr. Das that the objection, as a cross-objection, cannot succeed, because the High Court's decree having limited the inquiry, in the manner stated above, it was beyond the competency of the Subordinate Judge to override it and to enlarge the scope of the inquiry and to give the plaintiffs a decree for realizations made after the institution of the suit. ( 117. ) The plaintiffs however have, at the hearing of this case before us, put in a petition asking for a supplemental decree or further directions, in respect of such realizations. They say that when, after Mr. Bose's decree, the question of stay of execution was brought up to this Court there was an order made by this Court (Mookerjee and Cuming, JJ.) on 9th February 1922, maintaining an injunction which had been previously issued and which restrained the plaintiffs from executing the decree upon certain terms, one of which was that the defendant was to forthwith deposit in Court all sums which he might from time to time realize out of moneys invested in various money-lending businesses. They say also that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Robinson (1885) 29 Ch D 170, which was a partnership action for dissolution and accounts and in which accounts and inquiries having been ordered a further direction was asked for in order to credit premium which had been paid, the prayer was refused. Kay, J., laid down the rule in these terms: That which is asked now is a very important addition to the decree indeed. The first question, when leave is asked for to bring a supplemental action is, when were the facts discovered? The answer here would be that the plaintiff discovered them before he obtained judgment in his action. This is a very serious objection to granting leave to bring an action for a supplemental relief. ( 120. ) Instances where, in order to shorten litigation and best attain the ends of justice by preserving the rights, events subsequent to the suit, or even posterior to the decree appealed from, have been taken cognizance of by the Court, have been cited: Balakbala, Dasee v. Jadunath Das 1931 Cal 45, (administration suit), Ram Ratan Sahu V/s. Bishun Chand (1907) 11CWN 732, (mortgage suit). The case of Peary Mohan V/s. Manohar Mookerjee 1924 Cal 160 has also been referred to, in which, in pursuance of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, when it was before this Court, on the previous occasion; and that it was because no such thing was attempted that this Court, expressly, limited its decree and directions to realisations made by the defendant before the institution of the suit. All rokars up to 1325 (pueca rokars from 1300 to 1308 and cutcha rokars from 1309 to 1325), it was found by the High Court, had been filed, on behalf of the defendant, in the original trial. In the decretal order of this Court's judgment, discovery was ordered in respect of matters up to date of suit, as is plain from the wording of Clause (7) taken with the other clauses. When, in pursuance of the order of remand, the case went back to the Court below, documents up to 1325 only were called for (vide Order 542, dated 21 November 1925). The documents produced were inspected on behalf of the plaintiffs, and the parties then went on filing statements of their claims. On 15 February 1926, the plaintiffs made a further petition for discovery, and an order was made by the Subordinate Judge, which made it clear beyond the shadow of a doubt, if there could possibly be any doubt before, that it was only for the period up to the date of instit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from harassment and expense. And delay, by itself, is not sufficient to deprive a party of his remedies, if such delay does not amount to waiver, acquiescence or abandonment of his claim or has not created a corresponding right in his opponent on extinguishment of his own. ( 124. ) But boaring these principles in mind, we find ourselves unable to hold that we should be justified in granting this application. Even assuming that the plaintiffs came to know of these realisations in 1926, and not earlier, what action did they take to have their right enforced? They never asked the Court below in proper time to enlarge the scope of the enquiry, but themselves proposed issues that limited it. And if it be said that such a prayer would have been fruitless because that Court was only carrying out the order of remand, one is justified in asking, what prevented them, from 1926 to 1933, from coming up to this Court and praying for a supplemental decree or further directions such as they are now praying for? Even when the hearing of the appeal commenced before us no such application was made, and though the hearing began on 19 June, the present application was put in with the Bench officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antial ground for his complaint, that he has had no fair chance of raising funds to pay off the decree which was made against him, and that while the receiver is managing the properties the burden of the interest accumulating on the debt is increasing every moment. He, through his counsel Mr. Chaudhuri, has expressed his willingness to remain bound by the condition that was imposed on him in the order referred to above, namely, that: The defendant will withdraw his application to the encumbered estate authorities and that he undertakes not to make any such application till the dues of the plaintiffs in the present litigation as finally adjusted are paid off. ( 126. ) The defendant must file an application containing such undertaking in this Court as early as possible and on his doing so our order will be that the receiver be directed to submit his final accounts so that he may be forthwith discharged. RESULT ( 127. ) As the result of the appeal and the cross-objection, and of the determination of the matters arising on the remand, ordered by the Judicial Committee, the following decree emerges, in modification of the decree of the Court below (with reference to Clauses 16 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do recover from the dedant the two principal sums of ₹ 60,195-11-9 and ₹ 338-2 as with interest on the constituent parts of the said sums at six per cent per annum as from the dates on which such parts were realized, and till realization. The Commissioners will prepare a statement showing the calculations. V-(a). That it should be further declared the plaintiffs are also entitled to a sum of ₹ 5,025 with interest thereon at six per cent pec annum from 22 February, 1918, (i.e., the data of sale) till realization. VI. That in lieu of Clause (9), it should be declared that the plaintiffs do recover from the defendant the amounts of rents and royalties realized by the defendant, for any period ending with 7 March 1916, less six per cent as collection and management charges, together with interest thereon at the rate of six per cent per annum from the dates when any such amount may have been collected and till realization. The Commissioners will prepare a statement showing the calculations, VII. That in lieu of Clause (10), it be declared that the plaintiffs do recover from the defendant such amount as the defendant may have realized, in satisfaction of Raja Durgapras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per annum, from the amount payable by the defendant to the plaintiffs under this decree. The Commissioners will prepare a statement showing the calculations. XII. That Clause (15) should be affirmed. XIII. That the decree in the form of Order 20, Rule 10, should be made in respect of the furniture furnishings and equipments, as ordered above. XIV. That a decree for maintenance be passed as ordered above. The amount of arrears of maintenance will be ascertained by the Commissioners on calculation and such amount will be incorporated in the decree. XV. That the order as to costs made by the Court below will stand. XVI. That there will be no order for costs in the appeal or in the cross-objection, each party bearing his or their own costs therein. Terms of the decree to be drawn up. We think it would be convenient to draw up the decree in the following form: That in addition to the declaration contained in direction (1) in the judgment of the Judicial Committee delivered on 7 April 1932, and order of His Majesty in Council, dated 23 April 1932, and to so much of the decree of this Court, dated 17 August, 1925, as has been affirmed by the Judicial Committee the following declarations ..... X X X X Extracts X X X X X X X X Extracts X X X X
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