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Ganesh Prosad Agarwalla and anr. Vs. Monohar Lal Mullick and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1940Cal202
AppellantGanesh Prosad Agarwalla and anr.
RespondentMonohar Lal Mullick and anr.
Cases ReferredKali Charan Singha v. Bibhuti Bhushan Singha
Excerpt:
- .....heirs who shall inherit his estate after the death of his wife. this is the first reference to his sons' estate. later he says:i give and devise my real and personal property...to my beloved wife...for life and...after her death to vest in my sons or their heirs who may then be in existence.6. later again he says:it is my wish that my sons hereinbefore mentioned will not be entitled to my estate during the lifetime of my said wife.7. it will be remembered that only three of the testator's sons were the mortgagors. harihar and monohar are introduced on the death of their father gokul and if their father's interest is only a contingent interest, which does not ripen into an estate of inheritance until uttommoni's death, it is not liable to attachment. the general rule of law is in favour.....
Judgment:
ORDER

McNair, J.

1. This is an application by mortgagees for execution of a decree dated 20th March 1928. The decretal amount was Rs. 24,632-12-9. The mortgagors were three of the sons of Kanailal Mullick, who died on 31st December 1888. Kanailal, by his will, gave a life interest in his property to his widow with remainder to his sons and their heirs. One of the mortgagors, Gokul Lal Mullick, died in 1925, and one of Ms sons, Hariharlal is contesting this application. The widow Uttommoni died on 22nd May 1938. In May 1930, the mortgagees attached the share of the defendants in the compensation money lying with the President of the Calcutta Improvement Tribunal by reason of the compulsory acquisition of Nos. 33 and 33/2, Ratan Sircar Garden Street. In September 1933 the right, title and interest of the judgment-debtors in the compensation money was sold and the proceeds of sale were applied in part satisfaction of the decree. Part of the compensation money was invested in Government promissory notes and the balance in landed property in 67-B Raja Naba Krishna Street and 21-A Shib Shanker Mullick Lane and was held on behalf of Uttommoni as executrix of Kanailal's estate. Uttommoni died in May 1938, and the decree-holders now seek to attach the judgment-debtors' interest in these properties, and in the Government promissory notes in the custody of the President of the Calcutta Improvement Tribunal. Gokul Lal Mullick's sons object to the attachment on the ground that they are only liable to the extent of their father's property which came into their hands as his legal representatives and they contend that Gokul Lal had only a contingent and not a vested interest in his father's estate during the life of Uttommoni.

2. Mr. Majumdar for the attaching creditors relies first on the words of the decree. Monohar and Harihar are defendants des-eribed in the cause title as 'sons, heirs and legal representatives of Gokul Lal Mullick, deceased,' and in the body of the decree: 'It is ordered and decreed that the defendants personally do pay to the plaintiffs the said sum, etc.' Mr. Majumdar contends that the word 'personally' attaches a personal liability to each and every defendant and being unqualified it cannot be confined to the liability of Monohar and Harihar in their representative capacity and only to the extent of assets that have come into their hands. On the other hand, it is suggested that the decree does not express the real order of the Court and I am invited to use my powers under Section 152 to rectify the decree on the ground that the suggested alteration is correcting what is really a mistake of the ministerial officer by whom the decree or order was drawn up.

3. There is no doubt that the Court has the power under Section 152 to correct an error or omission in the decree and this seems to me to be clearly a case in which that power should be exercised. There was no judgment delivered in the case so that it cannot be said that the decree is not in conformity with the judgment but it is clear from the cause title that Harihar and his brother have been sued only in their representative capacity, and it is equally clear that in such capacity their liability is limited to the assets of the person whom they represent which have come into their hands. There has in my opinion been an accidental omission in the operative part of the decree which provides for personal liability, in failing to limit the liability of Gokul's sons. It has been held both in Bombay and in Lahore that the passing of a personal decree against the legal representatives is an accidental slip, which may be corrected under this Section, and, with respect, that is a view in which I concur. The objection is raised that this is an application in execution and that this Court as an executing Court is not entitled to go behind the actual words of the decree even if it has that power under Section 152. In In re Swire, Mellor v. Swire (1885) 30 Ch. D. 239 Bowen, L.J. said:

Every Court has inherent power over its own records so long as those records are within its power, and it can set right any mistake in them. It seems to me perfectly shocking if the Court could not rectify an error which is really the error of its own minister.

4. The power to rectify such error can be exercised at any time, and although it is true that the present application is an application in execution, yet the Court which is now invited to rectify the error is the same Court which passed the decree. The decisions in Kali Charan Singha v. Bibhuti Bhushan Singha : AIR1933Cal85 and similar cases are distinguishable. There the question agitated in the executing Court was whether some other Court which had tried the suit had jurisdiction to make the decree and it was held that the executing Court could not go into the merits or the validity of the decree as made. Here there is no question of the validity of the decree of which execution is sought. The decree on the face of it shows that a person sued in his representative capacity has been burdened with a liability which is not consonant with that capacity. The error is obviously that of a ministerial officer. In the circumstances, I fail to see why the Court which made the decree and which is empowered by Section 152 to rectify its error at any time, should be debarred from exercising its powers under the Section, merely because that error has been brought to its notice in the course of an application, in which the decree-holder is seeking to execute the decree in a manner which the Court could never have intended when it passed the decree. Reliance is also placed on the fact that an application for execution of this decree was made in 1930, when Harihar himself appeared and raised no objection to the form of the decree. This omission does not in my opinion operate as res judicata, and there is no ground for suggesting that the decree-holder has thereby altered his position to his detriment so as to introduce the doctrine of estoppel.

5. For the decree-holders it is further argued that all the defendants are liable because under Kanailal's will they took a vested interest in his estate at the date of his death. The testator by his will appointed his widow his executrix. He referred to his six sons by name and having empowered his widow to mortgage his estate for the marriage expenses of his daughters, he directs that such mortgage shall be binding in law upon his sons or their heirs who shall inherit his estate after the death of his wife. This is the first reference to his sons' estate. Later he says:

I give and devise my real and personal property...to my beloved wife...for life and...after her death to vest in my sons or their heirs who may then be in existence.

6. Later again he says:

It is my wish that my sons hereinbefore mentioned will not be entitled to my estate during the lifetime of my said wife.

7. It will be remembered that only three of the testator's sons were the mortgagors. Harihar and Monohar are introduced on the death of their father Gokul and if their father's interest is only a contingent interest, which does not ripen into an estate of inheritance until Uttommoni's death, it is not liable to attachment. The general rule of law is in favour of the vesting of an estate, so that in the absence of any contrary disposition the estate of the testator's sons should vest immediately on the testator's death. The words of the will have provided that the sons shall inherit on the death of the testator's widow. The gift is of an estate in futurity and the question is whether the words used by the testator were intended to delay the vesting of the sons' interest or merely to delay their possession. Ordinarily, the words 'after the death of the life tenant' operate to vest the estate both in the life tenant and in the remainderman on the death of the testator. It is argued that the words in the will providing that the sons shall not be entitled to the testator's estate 'until' the marriage of the unmarried daughters, or 'until' the youngest son attain the age of 25, are evidence of the desire to grant a vested interest and exclude the idea of a contingent gift, which would have been conveyed by some such expression as 'if and when' in place of the word 'until.' It is also clear on the authorities that the ordinary meaning of the word 'vest' means 'vest in interest.' The testator here by his will devises his real and personal estate to his wife for life and 'after her death to vest in his sons or their heirs who may be then in existence.' The intention seems to me clear that the estate was only to vest (i.e., to vest in interest) after the death of the wife. As was said by James L.J. in In re Deighton's Settled Estates (1876) 2 Ch. D. 783 at p. 785:

The Court leans strongly in favour of the early vesting of interests in cases where the effect of holding the share of a child of the testator to be-contingent on his living to a future period would be that, if he died before that period leaving a family, his children would take no benefit under the will; but there is no reason for departing from the fair meaning of the words of a testator in order to vest the shares of his children, when he has made a provision for all his descendants living when the fund becomes divisible.

8. The words 'then in existence' strengthen my view that the testator was contemplating the period of vesting as being at a future date, viz. on the death of his wife; and the words later in the will in which the testator expresses his wish that his sons should not be 'entitled' to his estate during the lifetime of his wife add further support to this construction. The applicant relies on Section 119, Succession Act, in support of his contention that the sons' interest is vested in them at the testator's death, and that possession alone is postponed; but Section 119, while it provides the general rule following the English law, contains the words 'unless a contrary intention appears by the will,' and in my opinion Kanailal's will contains more than one expression which shows a contrary intention. Reliance has also been placed on the proceedings in connexion with Uttomoni's application to be appointed guardian of her grand-daughter Umasasi, as an indication that the construction for which the applicant now contends has been the accepted construction of the will by the members of the family, including Gocul. Uttomoni made the application in 1924 and In para. 9 of her petition she stated:

The abovenamed infant (i.e. Umasasi) is entitled to a vested interest in respect of one undivided sixth share in certain houses forming part of Kanailal's estate.

9. Gocul consented to the application, but his consent was only to the prayer of the petition that Uttomoni should be appointed guardian. It cannot be said that he thereby accepted every statement or submission of law which the petition contained. His action does not in my view operate as any kind of estoppel so as to prevent him or his sons from putting forward their present contention as to the construction of the will. In the result, I hold that Harihar and Monohar are not personally liable for the unpaid balance of the mortgage money and their share is not liable to attachment in execution of the decree of 20th March 1928. The attachment will issue as prayed in respect of the interest of the judgment-debtors Naba Kumar Mulliek and Baidya Nath Mullick. The decree will be amended by the addition of words indicating that Monohar and Harihar Mullick are only liable in their representative capacity. The decree was passed 10 years ago and had Harihar then sought to have it amended it is possible that the present somewhat protracted hearing would have been avoided. In the circumstances I consider the proper order to be that each party pay his own costs. Certified for counsel. The applicant may add his costs to his claim. The interim orders and undertakings are dissolved.


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