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Kumar Chandra Singh Dudhoria and anr. Vs. Gobinda Das Nath and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Reported inAIR1937Cal280
AppellantKumar Chandra Singh Dudhoria and anr.
RespondentGobinda Das Nath and ors.
Cases ReferredIn Bhujendra Nath Biswas v. Sushamoyee Basu
Excerpt:
- .....allege that there were still any debts of her husband subsisting. it does indeed allege that the debts of nityakali were incurred for the benefit and for the necessity of the estate. there is no direct evidence whatever of this, but it is suggested that since some of the property was sold under the management of two of the petitioners for the payment of her debts, these debts must have been her husband's debts or debts incurred for the benefit of the estate. this does not at all follow. the accounts have not been produced to show why the debts were incurred, and there is no reason to suppose that the objectors are wrongfully withholding accounts which are in their hands, or that the debts were incurred either for the benefit of the estate or for necessities of the widow. the statement.....
Judgment:

Jack, J.

1. These appeals have arisen out of two petitions of objection to the execution of a decree against (1) the petitioner Gobinda Das Nath (2), the petitioner Shyama Charan Nath, and Radhaballav Nath. The decree is a simple money decree against Nityakali Dasya on her admission in a hatchhita (Ex. F) dated 2nd Baisack 1328 B.S. that up to that date she owed the moneylending firm of Raja Bijoy Singh Dudhoria Rs. 13,874-12-0. The claim in the suit in 1924 was for Rs. 18,945-13-0 including interest and costs. In an execution case of 1925 Rs. 17,550 was realized. In an execution case of 1929, Rs. 3,950 was realized.

2. The claim in the present execution case up to 1st January 1934 was Rs. 5,296 including interest and costs. Execution was taken out against the objectors not as legal representatives of Nityakali who died in 1932 but as owners of the property left by Rakhaldas Boral (the late husband of Nityakali). The objections are on the grounds: (1) that the decree is a personal decree, and the objectors did not obtain or take possession of any personal property of Nityakali, they are not her legal representatives and therefore are not liable under the decree; (2) Nityakali had only life-interest in the landed properties of Rakhaldas Boral which the objectors have inherited. This debt incurred by her was not for legal necessity since her husband left her a large amount of money so that the properties inherited by them cannot be sold in execution of the decree. The learned Subordinate Judge allowed these objections, to execution of the decree against the objectors and hence this appeal on behalf of the petitioner for execution.

3. The principal grounds which the appellants urged are: (1) that' the learned Judge was wrong in holding that the decree was a personal decree against the widow. That it was really a decree against her as representing the estate of her late husband and for the realization of her husband's debts for which the estate was liable; (2) that in any case the objectors are liable under the compromise decree of Privy Council Appeal 10 in the High Court in a case brought by the objectors against Nityakali. As to the first point the plaint is clearly one for a personal decree against the widow. No relief is claimed as against her husband's estate or against her as representing that estate. The only foundation for the claim that it is a decree against her as representative of the estate is the statement in para. (2) of the plaint (Ex. F) as follows:

That from the lifetime of the defendant's husband, Rakhaldas Boral, monetary transactions have been carried on with the said Kuthi (firm) of the plaintiff on the basis of Hishab Khatas and Hatchhittas. For the benefit of the estate and for the necessity of the estate the defendant, having, since the death of her husband, admitted the debts of the time of her husband, carried on the said monetary transactions, and on having the dues of the previous years calculated on adjustment of accounts and having got Hatchhittas written by her own manager and ammuktear, executed the same under her own 'duly authorized and authenticated' seal.

4. On the other hand in para. 3 it is stated that she 'admitted her debt by hatchhitta' and in para. 6 a decree against her personally is all that is prayed for. The estate in the hands of the reversioners would ordinarily only be liable for her husband's debts or for her debts if incurred for the benefit of the estate or for her necessities. Her husband died in 1295 B.S. and there is no reliable evidence that there were any debts of her husband left unpaid in 1328 B.S., 33 years later. Even the plaint does not allege that there were still any debts of her husband subsisting. It does indeed allege that the debts of Nityakali were incurred for the benefit and for the necessity of the estate. There is no direct evidence whatever of this, but it is suggested that since some of the property was sold under the management of two of the petitioners for the payment of her debts, these debts must have been her husband's debts or debts incurred for the benefit of the estate. This does not at all follow. The accounts have not been produced to show why the debts were incurred, and there is no reason to suppose that the objectors are wrongfully withholding accounts which are in their hands, or that the debts were incurred either for the benefit of the estate or for necessities of the widow. The statement of the witness Deb Narain Mukherjee that the amount of the last dastabez for Rs. 16,000 or Rs. 17,000 was due on account of loans taken by Rakhaldas from the decree-holder has practically no value. He served in the estate only from 1325 B.S. as record-keeper and law clerk, and then as naib. He admits he had no connexion with the estate before 1325 B.S. and there are no records produced in proof of what occurred previously, or to corroborate him. The claim of the petitioner therefore does not gain any support from the fact that the estate would vest absolutely in the widow for the purpose of payment of the debt of the husband as implied in the case of Jugol Kishore v. Jatindra Mohan Tagore (1884) 10 Cal 985 cited by the petitioners. On the other hand it was held in that case that:

If the suit is for a personal claim against the widow then merely the widow's qualified interest is sold and the reversionary interest is not bound by it.

5. Further authority for this is to be found in the cases of Lalit Mohun Pal v. Dayamoyi Roy and Giribala Dassi v. Srinath Chandra (1908) 12 C W N 769. The first point must therefore be decided against the appellants. Now as to the second point, viz., that the objectors are liable or the estate of the Rakhaldas is liable on account of the compromise in the Privy Council Appeal No. 10 of 1925. The clause in the compromise relied on by the appellants is Clause 4 which reads as follows:

That out of the income of the secular properties of the first party the managers after paying the Government revenues, cesses and other rents and portion of the management expenses so far as the said secular estates are concerned and after paying the debts due by the first party to the creditors and other dues from the estate shall keep the balance thereof if any as a reserve fund which will be corpus of the said debuttar estate.

6. The suit was one brought by the objectors against Nityakali and others for a declaration that certain properties were debuttar; for the removal of Nityakali from the shebaitship of those properties, and for the appointment of a receiver in her place to manage the properties. By the compromise it was agreed that the findings of the High Court as regards the character of the properties should stand; that Syama Charan Nath and Radhaballab Nath (2 of the objectors in this case) should act as joint managers during the lifetime of Nityakali both of the secular and debuttar properties left by her husband; that (as stated in Clause 4) Nityakali'a debts were to be paid out of the income of the secular properties; that the plaintiffs and Nityakali were to be paid certain allowances from the income of the secular estate, the managers were to be paid Rs. 2,000 each on the occasion of the marriage of one of their daughters and Nityakali was to be paid Rs. 17,000 within three years. The order of the Court on the application for leave to appeal to the Privy Council was as follows;

The parties have amicably settled the matter in dispute between them and have put in a petition of compromise. The appellant will not proceed with the appeal. Let the compromise be recorded. This clearly formed a contract between the parties of which one of the terms was that the then existing debts of Nityakali to her creditors were to be paid out of the income of her secular properties. To this contract however the petitioner in this execution case or his predecessor was no party, and it is not clear how it could possibly be enforced by him as against the objectors. This was no case of a trust, nor did the contract establish any charge on the property. The circumstances in the cases cited to show that a charge could be so established were quite different. For the appellants however it is contended that the objectors are in the circumstances estopped from denying their liability to pay these debts. I think no question of estoppel arises, the objectors have not by their conduct caused the petitioner's predecessor to alter his legal position to his disadvantage, for this was merely a private arrangement between them and Nityakali, to which the petitioner's predecessor was no party. No doubt the legal representatives of Nityakali might be able to enforce this undertaking against the objectors but that is another matter altogether.

7. There is here no real question of equity and good conscience. The evidence shows that the two managers (who are now two of the objectors) paid off a very large amount of Nityakali's debt. The predecessors of the petitioners realized from them between 1921 and 1932 Rs. 21,500 by suit and otherwise Rs. 4,900, in all Rupees 26,400 on account of a debt which stood at Rs. 13,874-12-0 in 1921. Again the debts were to be paid out of the income of the secular property during the lifetime of Nityakali. There is no reliable evidence as to what this income was, and what amount it left over for the payment of debts after fulfilling the other terms of the contract which entailed large payments both to Nityakali and the other parties. From Ex. (C) it appears that during her lifetime (since they took charge in 1921) the managers paid Rs. 15,559 in settlement of her debts and during the same period the creditors realized by suit Rs. 18,990 so that in all Rs. 34,549 was spent in liquidating debts leaving Rupees 23,788 debt outstanding probably made up chiefly of interest, charges and costs.

8. In support of the argument that the objectors were bound to pay the debts in return for the various benefits received by them under the compromise the cases of Chintamony Dutt v. Mohesh Chandra Banerjee (1896) 23 Cal 454 and Bhujendra Nath Biswas v. Sushamoyee Basu : AIR1936Cal67 are referred to but the circumstances were totally different. In Chintamony Dutt v. Mohesh Chandra Banerjee (1896) 23 Cal 454 by a deed of release a Hindu widow relinquished the estate inherited by her from her husband in favour of the reversioners on consideration of their paying off a judgment debt to a third party. It was held that they were liable after the death of the widow for that debt to the extent of the assets they had received. That case is distinguishable for there the widow relinquished the estate; moreover the reversioners were on the record as representatives of the widow. Here there was no relinquishment and the reversioners were not the legal representatives of the widow.

9. In Bhujendra Nath Biswas v. Sushamoyee Basu : AIR1936Cal67 the reversioners divided an estate among themselves with the assent of the female heir of the original owner undertaking to pay off the amount of a decree for rent of the estate while in the hands of the female heir. It was held that the reversioners were liable for the decretal dues. That case was also entirely different from the present case for in that case the debt was on account of rent of the estate and the decree was for that rent, not a personal decree for a personal debt as in this case. On the second ground also there is no reason to set aside the orders of the learned Judge. The appeals therefore fail and are dismissed with costs. The hearing fee is assessed at three gold mohurs in each appeal.

Patterson, J.

10. I agree.


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