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Hrishikesh Das Vs. Sm. Khantamani Dasi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 661 of 1954
Judge
Reported inAIR1959Cal257
ActsEvidence Act, 1872 - Sections 11(2), 13(1) and 115; ;Code of Civil Procedure (CPC), 1908 - Section 21; ;Succession Act, 1925 - Section 308; ;Limitation Act, 1908 - Section 14 - Schedule - Articles 60 and 145
AppellantHrishikesh Das
RespondentSm. Khantamani Dasi and ors.
Appellant AdvocateAsoke Chandra Sen, Adv.
Respondent AdvocateAmarendra Mohan Mitra and ;Arunendra Nath Basu, Advs.
Cases ReferredPearson v. Henry
Excerpt:
- .....in evidence an award against him, as administrator, whereby 2014 was awarded to be due from the intestate's estate, without directing the defendant to pay, and offered to prove that the defendant had undertaken to pay whatever might be found owing from the intestate. the evidence) was rejected and the plaintiffs were non-suited. court of king's bench upheld non-suit, grose, j. saying.'it would be very unreasonable to imply an admission of assets from the mere circumstance of the administrator's submitting to arbitration, so as to affect his own personal asset'17. the award may not be, as held in the case referred to above, an admission of the assets held by the executors. but that does not make exhibit 1, the decree in the partition suit incorporating in it the award, wholly irrelevant......
Judgment:

B.N. Banerjee, J.

1. One Girish Chandra Das, owner of considerable properties and a money lending business, died in the year 1918, leaving a will. Girish was survived by his widow Kalimoni, four sons Briudaban, Harish, Brisk and Suresh, and a grandson Hrishikesh by his predeceased son Nandalal. Plaintiff Khantomani is a daughter of Girish.

2. Nandalal, Harish and Kalimoni had originally been appointed respectively executors and executrix to the will. After the death of Nandalal Girish published a codicil by which Brindaban, and Srish were also appointed executors.

3. The executors Harish, Brindaban and Srish took out probate of the will and carried on administration of the estate. At all times material for the purpose of his appeal Harish and Srish acted as executors. Brindaban died in 1923.

4. During the period of administration of the estate by the executors abovenarned, Khantomani claims to have deposited with the executors, in or about the year 1933, a sum of Rs. 3950/-. The executors accept such deposit for the purpose of carrying on the money-lending business of the estate.

5. In the year 1939, Tapan (defendant No. 6), son of Brindaban filed Title Suit No. 50 of 1939, in the fifth Court of the Subordinate Judge at Alipur, praying for the partition of the estate of Girish amongst the legatees under the will and for other reliefs. The matter in dispute, amongst the parties in the partition suit, was referred to two arbitrators, both lawyers of Alipur Court. The reference required the arbitrators to ascertain the extent of the estate of Girish of the time of his death and also its extent at the time when the reference to arbitration was made.

6. In finding out the extent of the estate of Girish, it became necessary for the arbitrators to exclude therefrom the deposits or investments made by others in the money lending business, because those were not assets but liabilities of the estate. It appears from exhibit 1, the final decree passed in Title Suit No. 50 of 1939 of which the award is a part, that the arbitrators ascertained the extent of the estate of Girish with great care. We quote below the relevant passages from the award:

'...... After the ledger was completed we took evidence of the relations of the parties who claim to have invested their personal monies jointly with the estate and also of the parties who had made similar investments of their personal monies jointly with the estate and after finishing the same we proceeded to take evidence of the parties.'

'We find and award that the sums claimed by the relations as detailed in the schedule 'E' herewith annexed belong to the respective claimants and do not form part of the estate of Girish Gh. Das deceased.'

Schedule E

'Detailed list of relatives' monies invested along with the estate investments.

Name of the relative Invested in the matter of Amount.

............... ..............................7.Sm. Khantomoni Dasi Shorab Bhuiya and Ors.D/- 11-5-1934 2350-0-08. Do. Md. HahemD/- 12-5-1935 100-0-0 ............... .............................. .............................................'

The decree, that was passed in the suit, however, does not contain any direction for repayment of the deposits and other sums mentioned in Schedule E, to the parties concerned.

7. It may be mentioned here that after the completion of the arbitration proceedings Suresh and Hrishikesh (defendants NoSection 1 and 2) became the joint Receivers to the estate in or about May. 1943.

8. On 17--12-.1947, Khantomani and several others, who were not parties to the partition suit, filed an application before the Court, which passed the decree for partition, praying for directions on the Receivers to pay them the sums of money, which the arbitrators found as belonging to them.

9. The application was contested by the Receivers. The learned Subordinate Judge, however, came to the conclusion that as the arbitrators had held that these sums were due and owing by the estate of the deceased to the persons claiming, the Receivers should pay the sums and made an order accordingly.

10. Hrishikesh, one of the Receivers, moved the High Court under Section 115 of the Code of Civil Procedure against the order and obtained a Rule, which was registered as Civil Revision Case No. 957 of 1949. The matter came up for hearing before Harries C.J., and Sambhu Nath Banerjee J., and their Lordships passed the following order:

'The question which arises is whether the op-posit parties could apply for payment of these sums under the award and the decree made thereunder. The award was made inter partes and bound all the parties in the partition suit and the decree which followed the award also binds all the parties in the partition suit. However, it does not hind the persons who are not parties to the suit and further it cannot give persons who are not parties to the suit a right to execute the decree against other parties to the suit. The opposite parties would not be entitled to an order for the payment of those unless they had a decree or something in the nature of a decree in their favour and they could not ask the court to enforce that by calling upon the Receiver to make the payments. All that can be said in their favour is that there has been a finding by arbitrators in proceedings to which they were not parties that certain sums were due to them from the estate. It appears to me that at most that would only give the opposite parties a right to sue and recover these sums from the Receiver. The Receiver of course could pay these sums if he so desired. But if he does not so desire, as is clear in this case, it appears to me that he cannot be compelled to do so by an order of the Court, and suits must be brought for that purpose.'

Thereafter on the 18th May, 1951, Khantamoni filed the suit, out of which this appeal arises, in the First Court of the Subordinate Judge at Alipur, claiming a decree for Rs. 2450/-.

11. The allegations in the plaint were that at the instance of the executors (Harish and Srish) the plaintiff deposited, in or about 1933, a sum of Rs. 3950/-, with them, for investment in mortgages jointly with the funds of the estate. Such investments were, in fact, made. The plaintiff obtained from the executors payments of Rs. 1500/- out of the principal and Rs. 600/- by way of interest. The balance of Rs. 2450/- remained unpaid although the arbitrators decided on evidence that the said sum was payable to her by the estate of Girish. The cause of action pleaded was the refusal by the Receivers to pay to the plaintiff the said sum of Rs. 2450/- in April, 1949, at Alipur.

12. The suit was contested by Hrishikesh (defendant No. 2) whose defence was that the plaintiff had never deposited the sum of Rs. 3950/-, or any sum at all, in the money lending business of Girish, and that she was further not in a financial position to make such a deposit. Regarding the award, it was urged that the arbitrators went beyond their jurisdiction and consequently the finding by them to the effect that a sum of Rs. 2450/- was due to the plaintiff was ultra vires and illegal. It was urged further that the plaintiff, not being a party to the partition suit, could not take advantage of the award. Also it was urged that the First Subordinate judge at Alipur had no jurisdiction to try the suit, because the defendanis were all residents of Calcutta, outside the territorial jurisdiction of the Trial Court. It was lastly urged that the claim was barred by limitation.

13. The Trial Court decreed the claim and directed that the decretal amount shall be realised from the estate of Girish in the hands of the defendants.

14. Hrishikesh (defendant No. 2) appealed against the decree; the decree was, however, affirmed by the learned Additional District Judge at Aliaur, and the appeal was dismissed. Hence this second appeal by Hrishikesh.

15. Mr. Asoke Chandra Sen, appearing for the appellant, urged in the first place, that in view of the finding of the Court of appeal below on merits of the claim, the suit should have been dismissed. The finding referred to is to the following effect :--

'..... I am not inclined to believe that the plaintiff advanced any money to the banking business of Girish Chandra Das. So if there had been no award the plaintiff's suit was liable to be dismissed.'

'...... the plaintiff submitted to the jurisdiction of the Arbitrators and acquiesced in their decision. Hence, in the circumstances of the case, the ruling reported in Rai Dwarkanath Sarkar v. Haji Mohamed Akbar, 18 Cal WN 1025 : (AIR 1914 PC 33) will apply. In that case it was decided that a party would be bound by an award, although he may not be party to the suit if he acquiesces in the award or takes any benefit out of it. I, therefore, think that the mere fact that the plaintiff was not a party to the suit is not sufficient to show that she cannot take the benefit out of the award when she submitted to it.'

16. Mr. Sen argued that the award was not admissible in evidence, and in support of his contention he relied on an English decision, Pearson v. Henry, (1792) 5 TO 6. What happened in that case was that in an action for goods sold and delivered to the defendant's intestate, the defendant pleaded pline administravit. At the trial, the plaintiffs, in order to prove assets in the defendant's hands, gave in evidence an award against him, as administrator, whereby 2014 was awarded to be due from the intestate's estate, without directing the defendant to pay, and offered to prove that the defendant had undertaken to pay whatever might be found owing from the intestate. The evidence) was rejected and the plaintiffs were non-suited. Court of King's Bench upheld non-suit, Grose, J. saying.

'It would be very unreasonable to imply an admission of assets from the mere circumstance of the administrator's submitting to arbitration, so as to affect his own personal asset'

17. The award may not be, as held in the case referred to above, an admission of the assets held by the executors. But that does not make exhibit 1, the decree in the partition suit incorporating in it the award, wholly irrelevant. Schedule 'E' of the award and the circumstances under which the said schedule was prepared made the existence of the claim of the plaintiff in respect of the sum of Rs. 2450/- highly probable, and as such, was relevant under Section 11(2) of the Indian Evidence Act. Further, the award contains recitals showing that the plaintiff had claimed the money before the arbitrators, making that fact a relevant circumstance under Section 13(1) of the Indian Evidence Act. Therefore, although the verbal and other documentary evidence, relied on by the plaintiff, were disbelieved by the Court below, it could nevertheless proceed on the evidence contained in the award, unmistakably supporting the plaintiff's claim. That evidentiary value of the award was recognised, in effect, by the High Court in the judgment in Civil Revn. Case No. 957 of 1949 material portion of which has hereinbefore been quoted. We, therefore, repel the first contention advanced by Mr. Sen, and affirm the finding of the Court below, although on a ground different from that adopted by the Court below. We do not think that the doctrine of acquiescence invoked by the Court below has any application in the facts of the present case.

18. Mr. Sen next argued that the First Court of Subordinate Judge at Alipur had no territorial jurisdiction to try the case. That objection was taken in paragraph 5 of the written statement, and an issue on that point was framed, viz.,

'Has this Court jurisdiction to try this suit?'

19. The Trial Court decided the objection as a preliminary issue, and by its judgment, dated the 28th February, 1952, answered the issue in the affirmative. Relevant portion of that decision is quoted below :

'On the other hand, the learned Advocate for the plaintiff contends that defendant No. 2 is a receiver of a Court at Alipur, that he is an officer of that Court, that demands were made of him at Alipore, that the order of the Subordinate Judge directing defendant No. 2 to pay the money was made at Alipore and that all defendants, other than defendant No. 2, acquiesces in the institution of this suit. In short, the learned Advocate for the plaintiff contends that the cause of action has arisen within the jurisdiction of this Court at least in part. He relies on Section 20 and (c) of the Civil Procedure Code,

'I agree with the learned Advocate for the plaintiff that cause of action has arisen at least partially within the jurisdiction of this Court and that, therefore, this Court has jurisdiction to try this suit.'

20. The Court of appeal below rejected the reasonings given by the Trial Court, but did not allow the appellant to re-agitate the objection as to jurisdiction, because there had been no failure of justice occasioned by the trial of the suit at Ali-pur. Mr. Sen also did not argue before us that the trial of the suit at Alipur did cause any failure of justice to his client. We, therefore, do not allow the objection as to the place of suing, whatever may be the substance in it.

21. The third contention advanced by Mr. Sen was that the claim was barred by limitation. The Court below was of opinion that article 60 of the Limitation Act would be the proper article applicable to the claim. It held further that the earliest demand appeared to have been made on the 17th December, 1947, when the present plaintiff filed an application for a direction on the Receivers to pay up her dues. That application was ultimately rejected by the High Court in Civil Revision Case No. 957 of 1949 on the 6th December, 1949. The period between the 17th December, 1947, and 6th December, 1949, according to the Court below, was liable to be excluded under Section 14 of the Limitation Act. After such extension of time, the suit filed on the 18th May, 1951, would be within time, even if article 60 of the Limitation Act applied.

22. That is, however, one way of looking at the matter. We have our own doubts as to whether article 60 of the Limitation Act is at all applicable. There is no evidence in this case that the money was deposited by the plaintiff under an agreement that it shall be payable to her on demand. If the deposit was taken with the object of investing the sum in mortgages, it was unlikely that the executors agreed to pay back the money on demand. If Article 60 or Article 145 applies, we are of opinion that there is no substance in the plea of limitation.

23. The last contention of Mr. Sen was that the money was deposited at a time when the estate was in the hands of executors. The will did not authorise the executors to carry on money lending business or to accept deposits for the purpose of employment in further money lending business. The executors were not acting qua executors when they accepted the deposit from the plaintiff. Therefore, the estate should not be made liable for the repayment of the deposit. We hold that there is good deal of substance in this argument advanced by Mr. Sen.

24. Mr. Mitra appearing for the plaintiff respondent argued that the estate of Girish was benefited by the transaction, and therefore, the estate as a whole must be made liable. We are unable to agree. In the first place, we do not know if the estate of Girish was at all benefited by the money lending adventures of the executors. In the next place, the plea of benefit to the estate is a matter of irrelevant consideration in deciding a question like the present one. If the executors acted without jurisdiction in accepting the deposit, they are the persons who are primarily liable.

25. The three executors who accepted the deposit are all dead and are now represented in this appeal by their legal representatives-respondents NoSection 3, 4, 5, 8 and 9.

26. We, therefore, affirm the decree passed by the Court of appeal below with modifications. The suit shall stand decreed against defendants respondents NoSection 3, 4, 5, 8 and 9 only and shall stand dismissed against the other defendants respondents. The decretal money shall be realised from the estate of Girish Chandra Das deceased in the hands of defendants respondents Nos. 3, 4, 5, 8 and 9.

27. With the modifications indicated above, this appeal is dismissed, but we make no order as to costs in this Court.

Renupada Mukherjee, J.

28. I agree.


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