1. This is a suit to recover a sum of Rs. 1,393-3-0, the balance due in respect of a decree in a rent suit in the First Munsif's Court at Nadia. The claim is based on certain agreements set out in the plaint. The pedigree of the family is set out in para. 1 of the plaint. The head of the family was Radha Jiban Mustaphy who died in 1892. Radha Jiban had a patni interest in Mouza Lakhipur granted by the predecessor in title of the plaintiffs. The patni interest devolved on Radha Jiban's daughters Jogmaya, Padmabati and Bhababhabini. Padmabati and Jogmaya in 1916 executed leases in favour of Bhujendra, Jogmaya's eldest son. Bhujendra is said to have been the nominee on behalf of all the defendants in his branch of the family who will be called for brevity's sake the Biswas defendants. Bhababhabini's descendants have been referred to as the Ghose defendants.
2. On 1st February 1932 the plaintiffs obtained a rent decree for Rs. 1,636-10-11 against Jogmaya, Padmabati and Bhababhabini with regard to the patni tenure, Lakhipur. On 6th February Jogmaya died, and on 5th May Padmabati died. In June 1932 a family settlement is alleged to have been made under which Bhababhabini was to relinquish the estate, of Radha Jiban in favour of the reversioners, the Biswas defendants obtaining two-thirds share and the Ghose defendants the remaining one-third. On 22nd June 1932 two documents were executed: the first is a deed of relinquishment or surrender by Bhababhabini in which she recites that she is entitled to all the properties left by her father, and that Jogmaya had sold to Bhujendra her share in a certain mahal included in towzi No. 491. There is a further recital that:
There have been disputes and quarrels regarding the properties and likelihood of litigation, and being reluctant and free from all desires of carrying on litigation with you,
says the executant,
by executing this deed of relinquishment in your favour I now declare that I fully give up all my right, title and interest that I have in the immovable properties left by my deceased father.
3. The defendants have endorsed at the foot of that document their acceptance of the relinquishment and that document is duly registered. A further document was executed on the same day which is called a 'deed of determination of shares and family arrangement or settlement,' It recites the leases of 1916 which are there stated to be in favour of the Biswas defendants though in the name of Bhujendra only. There is again a recital of the likelihood of disputes and dissensions in respect of all properties, and of the deed of relinquishment which had been executed by Bhababhabini, and in Clause 12 which is the material clause on which the plaintiffs rely, it is provided:
The first party (that is the Biswas defendants) remain bound to pay all Government revenue, cesses, etc., and the rent and cess, etc., and all arrears outstanding, etc., due to the superior landlords payable in respect of the properties mentioned in Sch. Ka as also all kinds of debts which Jogmaya Dasi and Padmabati Dasi and Bhujendra Nath Biswas were bound to pay.
4. The second party similarly, the Ghose defendants, remained bound to pay the Government revenue, cesses, rents, etc., due to the superior landlord as also all kinds of debts which Bhababhabini Dasi was bound to pay.
5. By Clause 14 the Biswas defendants were entitled to be substituted in place of Jogmaya, Padmabati and Bhujendra in all suits and proceedings and were to enjoy and remain liable for the results thereof. That document is dated 22nd June 1932 and Sch. Ka contains in item 7 Towzi No. 491 of the Nadia Collectorate, Patni interest Lakhsmipur and other places. It was presented for registration by Bhujendra Nath Biswas and M.C. Batebyal. The plaintiffs rely on the clauses of these agreements, more particularly I should say on Clause 12 of the deed of family arrangement under which the Biswas defendants specifically remained bound to pay all the debts of Jogmaya, Padmabati and Bhujendra, while the Ghose defendants are liable for Bhababhabini Dasi's debts. The plaintiffs also rely on an oral agreement.
6. The plaintiff Sudhamoyee Dasi is the wife of a distinguished member of the Calcutta Bar, Mr. P.C. Basu, who has given evidence before the Court. His evidence is that a common friend saw him and after that Manindra, one of the defendants who has given evidence, came to him with Lakhsmikanta Mukerji and Pramatha Ghose. According to Mr. Basu they had already arranged how the disputes should be settled and the documents were in draft. Mr. Basu says they came to him as being relations of his wife and that he settled the deeds for them not in his professional capacity but as a friend. He suggested inserting an arbitration clause but to that they would not agree at first but agreed eventually. The deeds were executed and after execution Lakhsmikanta, Manindra and Pramatha came to Mr. Basu as representing the defendants and said that registration had been completed and that they would pay the dues of Mr. Basu's wife as soon as they had arranged their property. Mr. Basu has said that he pointed out to them that there might be legal difficulties over this family arrangement and that it must be strictly understood that the arrears of rent which were due to his wife should be provided for. They told him the documents provided for payment of all the creditors. The defendants however did not pay and Mr. Basu says being under the impression that execution would be the cheapest method of obtaining his wife's dues the plaintiffs started to execute their decree.
7. The original judgment-debtors were Jogmaya, Padmabati and Bhababhabini. In their place the Biswas defendants were substituted and the execution proceedings were transferred to Burdwan. The execution proceedings started on 1st May 1933 and on 1st September the Biswas defendants applied to pay a deposit of Rs. 100 in part satisfaction of the decree. They stated in their petition that they with great difficulty had been able to procure that sum and they prayed that after entering satisfaction towards the amount claimed in the execution proceedings and giving another month's time for the payment of the balance the auction sale might be postponed. They made a second and similar application on 23rd October but this time they paid in a sum of Rs. 300 which they asked might be set off against the amount of claim and the sale postponed. On 20th November 1933 once more 'with great difficulty' a sum of Rs. 500 had been procured and a further month's time was asked for to pay the remaining amount. An objection was filed on 24th November with regard to the execution of the Sadhipure decree, and on 7th December 1933 an objection was filed by the Biswas defendants saying that they had obtained legal advice. Para. 2 of their petition says:
Subsequently upon taking legal advice they have come to know that they are not liable for the said decretal amount. One of the debtors Bhababhabini Dasi and the petitioners agreed to accept liability under the decree, although they were not liable.
8. Their objections were dismissed by the Munsif but on appeal the District Judge of Burdwan allowed the appeal and a second appeal to this Court was dismissed and is reported in Sudhamoyee Basu v. Bhujendra Nath Biswas : AIR1935Cal713 . The defendants rely on this decision as being res judicata in their favour. On 12th November 1935, another Bench of this Court in a similar execution case between these parties held on the construction of the document that the defendants had undertaken the liability and that the plaintiffs were entitled to enforce it.
9. The following issues were raised: (1) Have the plaintiffs any cause of action by reason of the allegations in paras. 8, 9 and 10 of the plaint? (2) Did the defendants give the assurances alleged in para. 10 of the plaint? (3) Did the defendants hold themselves out as trustees? (4) Is the suit barred by limitation? (5) Is this suit maintainable by reason of the provisions of Section 47, Civil P.C.? (6) Is the defence of the Biswas defendants that they are not bound to pay under the two deeds of 22nd June 1932 barred by res judicata?
10. A further issue was raised by Mr. Basu for the defendant at a later stage is this: (7) Is the plaintiff's claim barred as against the Biswas defendants by reason of the decision of this Court reported in Sudhamoyee Basu v. Bhujendra Nath Biswas : AIR1935Cal713 ?
11. The first issue is with regard to the agreement which I have already mentioned in some detail namely, the agreement by way of family settlement under Clause 12 of which the Biswas defendants are said to have taken over complete liability for all debts. The provisions of this document are perfectly clear to me. They state quite definitely that these defendants have taken over liability for all kinds of debts.
12. For the defendants it has been argued that they did not purport to accept liability for any joint debts but only for separate debts. If that was really their intention it is unfortunate that they failed to say so in the document to which they are parties.
13. There is also the oral agreement to which Mr. P.C. Basu has given evidence in the witness box. His evidence is contradicted to some extent by the defendant Manindra. I accept every word of Mr. Basu's evidence, but I would have the greatest difficulty in accepting anything which was stated by Manindra, which was uncorroborated. He was a most unsatisfactory witness and I disbelieve him.
14. It was argued by Mr. Basu for the defendant that the plaintiffs, even if they did establish the agreement, have no cause of action. He contends that the decree was a personal decree and not binding on the reversioners, and he further argued that the plaintiffs are not parties to this family arrangement, and, therefore, they are not entitled to sue upon it. For the plaintiffs reliance has been placed on Section 128, T.P. Act, which provides:
Where a gift consists of the donor's whole property the donee is personally liable for all the debts due by and liabilities of the donor at the time of the gift to the extent of the property comprised therein.
15. And a note in Edn. 6 of Brown and Shephard's Commentary on the Transfer of Property Act, p. 565, states:
A resignation of a person's entire estate may occur in the case of a Hindu widow surrendering in favour of the person who would be the reversionary heir of her husband.
16. Reference is also made to Chintamony Dutt v. Mohesh Chunder Banerji (1896) 23 Cal 454 in which the headnote is as follows:
Under the terms of a deed of release executed by a Hindu widow relinquishing the estate inherited by her from her husband in favour of reversioners the latter bound themselves to pay off a judgment debt due from the widow to a third party. On the death of the widow the reversioners were brought upon the record as heirs of the widow and the judgment-creditors applied to execute their decree against the reversioners by attaching the surplus proceeds of sale of one of the properties relinquished by the widow:
Held: that the widow might have sued the reversioners for recovery of the money that they had undertaken to pay for her, and that being so there was clearly a debt due from them to the widow, and the reversioners being on the record as representatives of the widow were liable to have execution taken out against them.
17. In course of their judgment the learned Judges say:
The respondents obtained possession of the estate during the widow's lifetime by virtue of her relinquishment, upon the express condition that they should pay her debts, amongst which the debt due to the appellant is specifically mentioned. That being so it is but just that they should pay the amount due to the appellant.
18. Similarly in the present case under the provisions of the Transfer of Property Act the defendants, as donees, would be liable for the debts of their donor. In addition, they have specifically taken over that liability under the deed of family arrangement and by their oral promise to pay. In my view the plaintiffs are entitled to sue both on the agreement which was come to between Mr. P.C. Basu on behalf of his wife and the defendants, and on the two documents of June 1932. It is next contended that the decision in Sudhamoyee Basu v. Bhujendra Nath Biswas AIR 1935 Cal 713 operates as res judicata. But in that decision the matter came up on an application under Section 47 and the learned Munsif decided in favour of the applicant. The District Judge allowed the appeal on the ground that so long as Bhababhabini was alive the proper procedure was to execute against her property in respect of which the decree was passed. The High Court on appeal held merely that the application was not maintainable in the form in which it was brought. Nasim Ali, J. in his judgment clearly confines himself to the form of the execution case which had been brought and states that it is not maintainable and he concludes his judgment:
In this view of the matter the learned District Judge was right in observing that the proper procedure for the decree-holders was to proceed against the defaulting tenure in respect of which the decree for rent was obtained.
19. It is clear therefore that Nasim Ali, J. had confined himself purely to the procedure which had been adopted. The other Judge, Henderson, J. says:
In my judgment the only question for consideration is whether the properties other than the defaulting tenure are liable to sale.
20. There is no question in my mind, that they were not considering in their judgment the liability which the defendants had undertaken but whether the decree-holder could enforce his rights by the method he had chosen to adopt. The plaintiffs on the other hand relied on the decision of this Court reported in Bhujendra Nath Biswas v. Sudhamoyee Basu : AIR1936Cal67 where Guha and Bartley, JJ. in a similar execution matter between the parties, held that the appellants have by virtue of the clear stipulations contained in the document of June 1932 accepted liability so far as the decretal debts in question were concerned. It was apparently suggested in that case that the proper remedy of the decree-holders was to proceed by way of suit, but now that a suit is brought before me it is suggested that they are not following the proper remedy and that they are prevented by Section 47 from successfully prosecuting this suit.
21. The defendants in their efforts to avoid their debts are untroubled by a desire to be consistent either in their arguments or in their statements. They contend that the plaintiff by her earlier proceedings under Section 47 exhausted her remedy against the defendants and that having failed to execute the decree in previous litigation, no suit will now lie. There is no substance in this contention and I hold that the liability of the defendants is res judicata by reason of the decision in Bhujendra Nath Biswas v. Sudhamoyee Basu : AIR1936Cal67 .
22. It is finally contended that the suit is barred by limitation. The learned advocate for the defendants has suggested various articles under which he says the suit may have been brought, and he contends that the plaintiffs cannot rely on the deposits in part satisfaction of the decretal amount to extend the period of limitation within the meaning of Section 20, Lim. Act; nor can they rely on the admissions in the petition which should operate in their favour under Section 19 of that Act because in those proceedings it was held that the defendants were not liable. This contention is obviously unsound. The Ghose defendants have made certain payments and they do not deny their liability to pay one-third of the amount of these dues. They have paid, so it is stated by their counsel, a sum of Rs. 202 some time after action was brought. The plaintiffs are entitled to a decree for the amount claimed with costs as against the Biswas defendants other than defendants 7. Interest on judgment at six per cent and interim interest from 1st January up to date also at six per cent. The Ghose defendants will pay their own costs. I certify for two counsel.