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Sarat Chunder Mullick Vs. Administrator General of Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1937Cal382
AppellantSarat Chunder Mullick
RespondentAdministrator General of Bengal and ors.
Excerpt:
- .....provisions of the will. the application is in substance twofold, firstly for substitution of the heirs of sarat in the place of sarat as plaintiff in the suit. apparently, an innocuous order such as has been made on many other occasions since the decree, and secondly an order regarding the palas of sarat, an order to decide in some form or other what is to happen to it. the summons is unsatisfactory and has been departed from by mr. page. mr. page does not contend that i can decide the dispute which i have described on this application. he abandons therefore any question of declaration. he contends further so far as any family arrangements are concerned that is obviously a matter which those asserting it must establish. the line taken by him is this: that under the decree in this suit,.....
Judgment:
ORDER

Ameer Ali, J.

1. This is an application in a suit of 1876 which suit substantially was to decide upon the effect of certain provisions in the will made by a lady called Chitra Dasi for the endowment of a deity. The matter can only be understood by a reference to the genealogical table annexed to the affidavit of Monilal Mullick, dated 20th November 1936. There was a judgment and a decree in that suit, and a final decree after inquiry by an officer deciding that the persons entitled to act as shebaits or to worship were the five sons of Chitra Dasi and their heirs. All that took place a long time ago and the original parties to that suit are long since dead. From time to time however their descendants were substituted and at the time of his death in October 1936 one Sarat, the grandson of Chitra Dasi's fourth son, was the plaintiff having got there presumably by an order for substitution such as is sought on this application. This application is by Moni for whom Mr. Page has appeared and is brought about by the death of Sarat which I have mentioned. Moni and Manik (this is not disputed) are the heirs-at-law of Sarat. When I say Manik, there is a question whether Manik is dead.

2. The application originally, i. e., the position, raised a contest between Moni and Baladeb. The question depended upon whether Manik was or was not dead. That question is now not put in issue. Mr. Page does not rely upon the presumption of death of Manik and the whole question between Moni and Baladeb has fallen into insignificance by reason of the bigger question raised by the affidavits in opposition, namely succession to palas by heirship or by branches. It is said that succession to palas is not by heirship but by branches. It is said that this is so by reason of a family arrangement, and it is further said this family arrangement merely confirms the real intention of the provisions of the will. The application is in substance twofold, firstly for substitution of the heirs of Sarat in the place of Sarat as plaintiff in the suit. Apparently, an innocuous order such as has been made on many other occasions since the decree, and secondly an order regarding the palas of Sarat, an order to decide in some form or other what is to happen to it. The summons is unsatisfactory and has been departed from by Mr. Page. Mr. Page does not contend that I can decide the dispute which I have described on this application. He abandons therefore any question of declaration. He contends further so far as any family arrangements are concerned that is obviously a matter which those asserting it must establish. The line taken by him is this: that under the decree in this suit, he is entitled to some direction from the Court on the receiver or upon the trustee who has taken the place of the Receiver. (The official trustee by consent took the place of the Receiver with all the powers of the Receiver sometime in 1890's.) He contends that pending any decision in a suit and until and unless the alleged family arrangement is established, or the construction contended for by the respondents is established, he is entitled to a direction that the heirs of Sarat should be treated as entitled to the pala of Sarat, and incidentally to a direction that the Official Trustee should make payment upon that basis. The respondents have addressed me on the merits and have contended that assuming jurisdiction to make an order, no order should be made. I am not of this view. But their main contention is there is no jurisdiction to make an order of any kind, their points being (1) that the suit is dead and that there can be no substitution, and (2) as regards directions, that no directions of this nature can be given under a liberty to apply even assuming that liberty to apply is still operative and that there is no other manner of giving directions, the application not having been made under any Act.

3. Now, taking the first point, dead suit Mr. B.C. Ghose for one respondent, and Mr. Chatterjee for another with almost shrill indignation threatened me with 'dead suit,' 'carcass,' and 'corpse' for the purposes of contending that nothing of whatever kind can be done in this suit. Things have been done in this suit, done by everybody, but of course counsel are quite entitled to argue that they should not have been done. This is a matter on which I would have preferred not to express an opinion without having time to consider it, but my opinion for what it is worth, is as follows: In this kind of suit dealing with the right to worship and with palas, where, as the family develops, sub-division occurs, it has undoubtedly been our practice to include in the decree a liberty to apply, and as occasion arises on death and so forth to allow parties to avail themselves of the liberty to apply in order to obtain orders and directions, as it were, to deploy the decree. With regard to this question of dead suit, I am not attracted by the analogy of vertebrate life. A suit, no doubt, is determined by a final decree, but according to our view a decree of the kind in question is not wholly rigid, or incapable of further adaptation. The phrase 'working out the decree,' is somewhat equivocal. If it means simply making the decree as passed effective as between parties to the suit existing of course at this stage in a suit like this the decree has long ago been 'worked out.' On the other view the decree theoretically is never worked out. But it is to be remembered that our system cannot be precisely the same as the English system; suits of this nature do not happen in England.

4. In other words I am not without further consideration going to lay down a rule that in such a case as this, after a decree has been perfected as regards the persons in existence there is no power under a liberty to apply to adapt it to supervening circumstances: (1) I propose to allow substitution. (2) With regard to making an order, what I have said does not indicate, any way, an opinion that any matter or dispute or contest subsequently arising can be decided under the liberty to apply. And with regard to the declaration originally sought, I regard this as a matter which cannot be so decided. It remains to be considered whether I should, disregarding for the moment the dispute which is raised in the affidavits in opposition, treat this matter as one for directions as to how the trustee or receiver should behave in working out the decree. I think it is open to the heirs of Sarat to come here and ask for orders on the Receiver or trustee to treat them (qua heirs) as entitled to the palas of Sarat.

5. That there will be a suit brought by one side or the other to decide the question of heirship or branches is obvious. The only question is who brings it. But apart from this dispute there is the question of how the trustee should act in the meantime. I think that under the liberty to apply it is open to this Court under the original judgment and decree to treat the heirs of Sarat as entitled subject to any order or decree which may be made in a suit for declaration. The order I propose to make therefore is that there be substitution (Cls. 1 and 2 of the summons) and that pending and subject to any order or decree which may be made in any suit to be filed to decide who is entitled to the palas of Sarat, the Official Trustee to treat the heirs of Sarat as entitled to their pala and make payments to them accordingly. There will be a liberty to the Official Trustee to pay the share of money to which Manik would be entitled as heir of Sarat into the hands of Baladeb for the purposes of the pala. The whole order is as already stated without prejudice to any order or decree in other proceedings. Costs will come out of the trust estate as of a motion as between attorney and client. This order is also without prejudice to any question which Manilal Mullick desires to raise with regard to the presumption of death of Manik.


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