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Nistarini Dassi Vs. Nundo Lall Bose and anr. - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1899)ILR26Cal891
AppellantNistarini Dassi
RespondentNundo Lall Bose and anr.
Cases ReferredCoates v. Legard
fraud - pleading fraud--power of court at instance of innocent party to treat decree of another court obtained by fraud as a nullity--jurisdiction--administration suit--acts of mal-administration regarding immoveable property outside jurisdiction--power of court to set aside leases of immoveable property outside its jurisdiction--heave to sue--letters patent, high court, clause 12--misjoinder of causes of action--code of civil procedure (act xiv of 1882), section 44, rule a. - stanley j.1. a number of preliminary objections to the maintenance of this suit have been raised by the defendant nundo lall bose. the first and most serious of them is that this court has no jurisdiction to set aside the decree of the alipore court. the plaintiff in her statement of claim alleges that the joint property of her late husband mohendra nath bose, and of the first and second defendants, which was undivided joint family property, was partitioned by arbitrators under an agreement to which her consent was fraudulently obtained, and that by the fraud of the same defendants, a decree upon the award was subsequently passed by the subordinate judge of the 24-pergunnahs. in her claim, which is for the administration of the estate of the late mohendra nath bose, the plaintiff seeks.....

Stanley J.

1. A number of preliminary objections to the maintenance of this suit have been raised by the defendant Nundo Lall Bose. The first and most serious of them is that this Court has no jurisdiction to set aside the decree of the Alipore Court. The plaintiff in her statement of claim alleges that the joint property of her late husband Mohendra Nath Bose, and of the first and second defendants, which was undivided joint family property, was partitioned by arbitrators under an agreement to which her consent was fraudulently obtained, and that by the fraud of the same defendants, a decree upon the award was subsequently passed by the Subordinate Judge of the 24-Pergunnahs. In her claim, which is for the administration of the estate of the late Mohendra Nath Bose, the plaintiff seeks among other things a declaration that the award and the decree made thereon are fraudulent and void, as against her, and in no way binding upon her, and so far as they purport in any way to deal with the residuary estate of Mohendra Nath Bose that the same may be set aside and cancelled. For the purpose of the objection the defendant Nundo Lall Bose admits that the award and decree were fraudulently obtained, but his Counsel contends that, even admitting this, inasmuch as the plaintiff was a party to the decree-proceedings in the Court at Alipore, she is estopped by that decree, and cannot in this Court set it aside; that whatever relief she may be entitled to in respect of the decree, proceedings must be taken in the Court which pronounced the decree, and the relief which she claims cannot be granted in this Court; and that a bill to set aside a decree for fraud is in the nature of a bill of review, and must be filed in the Court in which the decree was obtained.

2. A number of text books and authorities have been cited, and as is not unusual opinions and decisions somewhat conflicting are to be found as to whether or not an innocent party would be allowed to prove in one Court that a judgment against him in another Court was obtained by fraud. It is clear that a guilty party would not be permitted to defeat a judgment by showing that in obtaining it he had practised an imposition on the Court; but can an innocent party, who may apply directly to the Court which pronounced the judgment to vacate it, apply to another Court to set it aside? The author of Taylor on Evidence suggests a doubt as to this, p. 1133, 9th edition, as does also the author of Kerr on Frauds. In the case of Aushutosh Chandra v. Tara Prassanna Roy (1884) I.L.R., 10 Cal., 612, the Court held that for the purpose of setting aside a decree passed in pursuance of a compromise come to out of Court there were two available modes of procedure-(1) by suit; (2) by a review of the judgment sought to be set aside, the latter being the more regular mode of procedure. In that case Wilson, J., abstained from saying whether, if a suit were brought, it ought to be brought in the Mofussil where the decree was obtained, or on the Original Side of this Court. The principle upon which judgments are set aside for fraud is tersely and forcibly stated by Lord Chief Justice De Grey in Meadows v. Kingston, (1775) 2 Amb., 756, thus: 'Fraud is an extrinsic collateral act which vitiates the most solemn proceedings of Courts of Justice.' In the Queen v. Saddlers Company (1863) 10 H.L.C, 404(431), Wllles, J., says: 'A judgment or decree obtained by fraud upon a Courts binds not such Court nor any other, and its nullity upon this ground, though it has not been set aside or reversed, may be alleged in a collateral proceeding.' In applying this rule it matters not whether the impeached judgment has been pronounced by an inferior tribunal or by the highest Court of Judicature in the realm; in all cases alike it is competent for every Court, whether superior or inferior, to treat as a nullity any judgment which can be clearly shown to have been obtained by manifest fraud, Shedden v. Patrick (1854) 1 Macq. H.L.C., 607, Fabula, non judicium hoc est, in scena non in foro res aqituri In the case of Bandon v. Becher (1835) 3 C1. & Fin., 479, where sales of estates had fraudulently taken place under decrees of the Court of Exchequer in Ireland obtained by collusion between the tenant-for-life, the mortgagor, the person in whose favour a charge had been created, and the purchaser, and where the interests of the tenant in remainder had not been protected, the Court of Chancery in Ireland on the tenant in remainder coming into possession granted him relief on a bill filed to redeem. The House of Lords affirmed that decree, and held that though the Court of Chancery cannot review or correct a decree of the Court of Exchequer, yet where such decree has been obtained collusively and fraudulently a party whose interests are affected by it may raise in the Court of Chancery either as actor or defender a question as to its validity. In this case the remainder man was not a party to the collusive proceeding; the tenant-for-life represented the estate of the mortgagor.

3. In the case of Flower v. Lloyd (1877) 6 L.R., Ch. D., 297, which is relied on by the defendant, where final judgment bad been pronounced by the Court of Appeal dismissing an action with costs, it was held that the plaintiff was not entitled by motion in that action to apply to the Court of Appeal for leave for the rehearing of the appeal on the ground of the subsequent discovery of facts showing or tending to show that the order of the Court of Appeal was obtained by fraud practised on the Court below. That application was, however, refused on the ground that the Court of Appeal having once determined an appeal was functus officio and had no further jurisdiction in the matter. The Court, however, intimated that the plaintiffs had another proceeding open to them, namely, to bring an independent action to set aside the decree for fraud. Such action was subsequently brought before Vice Chancellor Bacon, who gave judgment for the plaintiffs. On appeal the Court of Appeal was of opinion that fraud was not proved, and dismissed the action; Flower v. Lloyd (1878-79) L.R., 10 Ch. D., 327. On this appeal a doubt was expressed by James, L.J., as to whether or not an action was maintainable to impeach a judgment on the ground alleged by the plaintiffs, namely, falsehood and fraud practised upon an expert named by the plaintiffs and not objected to by the defendants for the purpose of inspecting the defendants' process for printing on metal plates.

4.'Where' said he (James, L.J.) 'is litigation to end if a judgment obtained in an action fought out adversely between two litigants sui juris and at arms length could be set aside by fresh action on the ground that perjury had been committed in the first action, or that false answers had been given to interrogatories.'

5. Baggallay, L.J., declined to express an opinion on this question, and stated that he should much regret to feel himself 'compelled to hold that the Court had no power to deprive the successful but fraudulent party of the advantages to be derived from what he had so obtained by fraud.' Brett, L.J., in a later case commenting on the doubts expressed by James, L.J., in Flower v. Lloyd (1878-79) L.R., 10 Ch. D., 327, says: 'It seems to me the fraud alleged in that action was probably fraud on the part of certain servants of the party and not fraud brought home to the party himself; Abouloff v. Oppenheimer & Co. (1882) L.R., 10 Q.B.D., 295 (307).' It is to be observed in passing that in the case of Flower v. Lloyd (1878-79) L.R., 10 Ch. D., 327, the plaintiff and the defendant were at arms length fighting out a real suit,

6. In the present case the fraud alleged is the fraud of the first defendant in procuring the plaintiff's consent to the agreement to refer to arbitration and her consent to a decree upon the award, the true fact being that she was a mere puppet in the hands of the defendants and knew not what she was doing; that in fact the defendants deceived the Court by their fraudulent conduct. I have been referred by Counsel for the first defendant to the statement of Phipson in his useful book on Evidence, where he says: 'Proof of fraud however can in general only be taken advantage of by a stranger to the judgment who is in no way privy to the fraud, and not by a party, since if the latter were innocent he might have applied to vitiate the judgment and if guilty he cannot escape the consequence of his own wrong.' This no doubt, as a general proposition, is true. The judgment of a Court of competent jurisdiction is in general undoubtedly conclusive proof in subsequent proceedings between the same parties or their privies of the matter actually decided. Likewise foreign judgments in personam are, subject to certain-grounds of impeachment, conclusive between parties and privies, yet it has been held that a foreign judgment obtained by the fraud of a party to the suit in the foreign Court cannot be enforced by him in an action brought in an English Court. In the case of Abouloff v. Oppenheimer & Co. (1882) L.R., 10 Q.B.D., 295 (307), to which I have referred, it was held that even although the question whether the fraud had been perpetrated was investigated in the foreign Court, and it was then decided that the fraud had not been committed, the judgment would not be enforced in England. In that case to an action claiming the value of goods and brought upon a foreign judgment whereby the defendants were ordered to return to the plaintiff the goods or to pay to her their value, the defence was that the judgment was obtained by the false representation to the foreign Court by the plaintiff that the goods were not then in her possession and by fraudulent concealment by the plaintiff from the Court that the goods then were in her possession. Lord Coleridge, C.J., commenting on the argument, that upon the pleadings in that case it must be taken that the allegations of fraud were brought before the foreign Court and that the foreign Court came to a conclusion against the defendants, and that whether this conclusion was right or wrong on the matters of fact the question of the plaintiff's alleged fraud could not be tried in the Courts of this country, says: 'I may state the arguments for the plaintiff also in somewhat different words, namely, that although the Russian Courts at Tiflis were led to decide against the defendants through believing a false state of facts to exist owing to the fraud of the plaintiff, nevertheless the defendants are not now at liberty to say that the judgments against them were procured by that fraud. Certainly this contention seems unreasonable. Many authorities from Meadows v. Kingston, (1775) 2 Amb., 756, down to our own time have been cited during the argument, but not one of them throws a doubt on the broad proposition that where a judgment has been obtained by the fraud of a party to a suit in a foreign country, he cannot prevent the question of fraud from being litigated in the Courts of this country, when he seeks to enforce the judgment so obtained.' Brett, L.J., in that case says: 'I cannot help thinking that the same doctrine which is now asserted with regard to a foreign judgment would be applicable to an action brought on a judgment obtained in an English Court other than the Court in which the action is brought. There may be a difference where it is sought to enforce by the process of a Court, a judgment of that very Court, because if that judgment has been obtained by improper means the objection does not arise in a new action brought on that judgment, but it arises with regard to the process of the Court to enforce a judgment of its own. In a case of that kind it was perhaps formerly necessary to proceed in a Court of Equity in order to get rid of the judgment, but I doubt whether it was necessary, because, at least in my opinion, a Court of Common Law would have in the exercise of its own jurisdiction set aside a judgment procured from it by deception.' And again: 'With one exception none of the authorities cited before us in the least militate against our decision; they all seem to show that the fraud of a party to a suit is an extrinsic and collateral act which will vitiate the judgment. That exception is to be found in the doubts expressed by James, L.J., with the assent of Thesiger, L.J., in Flower v. Lloyd (1878-79) L.R., 10 Ch. D., 327. It seems to me that the fraud alleged in that action was probably fraud on the part of certain servants of the party, and not fraud brought home to the party himself. Moreover it was, as I understand, fraud committed, not before the Court itself at the trial of the action, but previously to the case being brought to a hearing before the Court. If it is to be taken that the doubts of James and Thesiger, L. JJ., related to a fraud of a party to the action, committed before the Court itself for the purpose of deceiving the Court, I cannot, after having heard the present argument, agree with the doubts expressed by them. These doubts are not binding, and no decision as to the effect of fraud was pronounced by these Lords Justices in Flower v. Lloyd (1878-79) L.E., 10 Ch. D., 327.'

7. Again in the case of Vadala v. Lawes (1890) L.R., 25 Q.B.D., 310, in which an action was brought by the plaintiff in the English Courts upon a judgment obtained in the Court of Palermo, the Italian action was brought upon certain bills of exchange, and the defence raised in the Italian action was that the bills were given in respect of gambling transactions by an agent of the defendant without his authority. It was held that the defendant might raise the defence that the judgment was obtained by the fraud of the plaintiff, even though the fraud alleged was such that it could not be proved without retrying the question adjudicated upon by the foreign Court. Lindley, L.J., in the course of his judgment says: 'But we now come to another and a more difficult question, and that is whether this defence can be gone into at all. There are two rules relating to these matters which have to be borne in mind, and the joint operation of which gives rise to the difficulty. First of all there is the rule which is perfectly well established and well known that a party to an action can impeach the judgment in it for fraud. Whether it is the judgment of an English Court or of a foreign Court does not matter; using general language, that is a general proposition unconditional and undisputed. Another general proposition which, speaking in equally general language, is perfectly well settled, is that when you bring an action on a foreign judgment you cannot go into the merits which have been tried in the foreign Court. But you have to combine those two rules and apply them in the case where you cannot go into the alleged fraud without going into the merits.'

8. The case of Carew v. Johnston (1805) 2 Schedule and Lef., 280, is an instructive illustration of the power which a Court of concurrent jurisdiction will assume in a matter of this kind. In that case a decree for foreclosure on sequestration in 1777 against an absent mortgagor known by the plaintiff to be of weak and feeble understanding and incompetent to conduct his affairs, where advantage had been taken in the account of the estate of the defendant and of his absence and of his having no one to manage his defence, and a sale had in 1780 in pursuance of such decree to the person under whose directions the proceedings were taken, were set aside as fraudulent on an original bill filed for that purpose by the heir of the mortgagor in 1785 Lord Redesdale, in the course of his judgment says: 'On the whole I think it is impossible for me to hold the decree, which has been pronounced, conclusive on the party. If I should be of opinion that the party has brought himself completely within the saving of the Act I cannot pay any attention to the decree, I must treat it as a nullity; but if I should think that he has not brought himself precisely within the saving of the Act by the allegation in his bill, then I must decide on the ground of unconscientious advantage being (by means of a Court of Justice) taken of the imbecility and of the absence of this man, by which gross injustice has been done, and in fact a fraud practised on the Court. That would not be a ground for relieving against trifling errors or little inaccuracies, but it will be a ground for relieving against palpable injustice, such as could not have existed, if anybody had appeared for this man to state his rights, and the Court or the Master had entered into considerations of the subject, and acted upon the instruments which were the foundations of the proceedings.'

9. The statement of Lindley, L.J., in Vadala v. Lawes (1890) L.R., 25 Q.B.D., 310, is consistent with the view of Vice-Chancellor Shadwell expressed in the case of Price v. Dewhurst (1837) 8 Sim., 279, namely: 'The Court by means of the injunction set aside the judgment of a foreign Court, and the ground on which the Court proceeded was that the foreign judgment had been obtained by fraud.' 'Now I take that to be quite consistent,' says the Vice-Chancellor, 'with the principles on which this Court acts; and it is of no consequence where the judgment is given if it appear to have been obtained by fraud; in every such case the Court will consider it as a nullity.' In Cole v. Langford (1898) 2 Q.B., 36, a judgment which had been obtained by fraud was set aside in an action brought for that purpose. In Priestman v. Thomas (1884) L.R., 9 P.D., 70, 210, which was an action in the Probate Division, in which C. Thomas and E. Gunnell propounded an earlier and H.W. Priestman propounded a later will, the action was compromised and by consent a verdict and judgment were taken for establishing the earlier will. Priestman discovered that the earlier will was a forgery, and in an action in the Chancery Division, to which Thomas and Gunnell were parties, obtained the verdict of a jury to that effect, and judgment that the compromise should be set aside on the ground that the compromise was obtained by the fraud of Thomas and that the will was a forgery. In another action in the Probate Division for revocation of the probate of the earlier will, it was held affirming the decision of the President of the Probate Division that Thomas and Gunnell were estopped from denying the forgery.

10. In the case of Eshan Chunder Safooi v. Nundamoni Dassee (1884) I.L.R., 10 Cal., 357, it was held that where a person acting for a minor has fraudulently withdrawn the minor's suit under Section 97 of Act VIII of 1859 without obtaining leave to bring a fresh suit, and by such withdrawal an absolute statutory prohibition is imposed on the minor from bringing a fresh suit, it was open to the minor to relieve himself from the consequences of the fraud in one of three ways: (1) by an application to the Court in the suit in which the withdrawal took place; (2) by a regular suit to set aside the judgment founded upon the withdrawal; or (3) by bringing a fresh suit for the same purpose and setting up the fraud as an answer to the statutory bar.

11. The latest English case on the subject is that of Wyatt v. Palmer, W.N. (20 May 1899) p. 74., where Lindley, L.J., says: 'The proposition that an action would not lie to set aside a judgment by default on the ground that it had been obtained by fraud-could not be sustained. There was no reason for saying that because, the Rules (that is the English Judicature rules) provided a summary method of setting aside such a judgment, it was no longer possible to have recourse to the older method of setting it aside by action. This procedure did not interfere with the old jurisdiction of the Court of Chancery, under which a decree or judgment might be impeached on the ground of fraud by filing a bill.'

12. Nowhere, however, is there to be found a clearer exposition of the law on this subject than in the judgment of Lord Brougham in Bandon v. Becher (1835) 3 Cl. & Fin., 479. 'The first ground,' says he, 'of objection assigned appears to be one of form, but in fact it is one of substance, for it goes to the jurisdiction. It is said that the whole of these proceedings spring from a decree of the Court of Exchequer in Ireland, and that decree being pronounced by a Court of competent jurisdiction, upon parties legally before it, cannot now be questioned in another Court of co-ordinate jurisdiction; but if brought into dispute at all, should be brought into dispute in the Court where it was originally pronounced. 1 agree generally to the proposition, but I must add to it this one qualification, that you may at all times in a Court of competent jurisdiction,--competent as to the subject matter of the suit itself--where you appear as an actor, object to a decree made in another Court, upon which decree your adversary relies; and you may, either as actor or defender, object to the validity of that decree, provided it was pronounced through fraud, contrivance or covin of any description, or not in a real suit; or if pronounced in a real and substantial suit, between parties who were really not in contest with each other. That it is undeniably true that the Court of Chancery has no right to review a decree of the Court of Exchequer; that nothing but a Court of Appeal can give redress if such decree is erroneous, is clear, and indeed nothing can be more true than such a proposition; but it is equally true, that if the decree has been obtained by fraud it shall avail nothing for or against the parties affected by it, to the prosecution of a claim, or to the defence of a right. These two propositions are undeniably true; they are recognised in practice; they are independent of each other, and they stand well together.' And then he quotes the language of Mr. Solicitor-General Wedderburn summing up all the authorities, viz.: 'A sentence is a judicial determination of a cause agitated between real parties upon which a real interest has been settled; in order to make a sentence there must be a real interest, a real argument, a real defence, a real decision. Of all these requisites not one takes place in the case of a fraudulent and collusive suit; there is no Judge, but a person invested with the ensigns of a judicial office is misemployed in listening to a fictitious cause proposed to him; there is no party litigating, there is no party defendant, no real interest brought into question.'

13. I should refer to the case of Allen v. Macpherson (1841) 5 Beav., 469; (1847) 1 H.L.C. 191, which has been strongly relied upon by the defendant's Counsel, That was the case of a will in which the Ecclesiastical Court had exclusive jurisdiction. The Courts of Equity were bound to receive as testamentary a will in all its parts which had been proved in the proper spiritual Court, though in certain cases they might affect with a trust a particular legacy or residuary bequest which had been obtained by fraud. Also where probate has been obtained by fraud on the next-of-kin, Equity interferes and either converts the wrong-doer into a trustee in respect of such probate or obliges him to consent to a revocation of the grant of probate in the Court in which it was obtained (Mitford' s Pleas of the Crown, 257, 4th edition). In Allen v. McPherson (1841) 5 Beav., 469; (1847) 1 H.L.C., 191, the plaintiff unsuccessfully resisted the admission to probate of a codicil, which revoked a bequest to him on the ground that the codicil had been obtained by fraud. He thereupon filed a bill in Chancery to set aside the probate. A majority of the House of Lords held that this was in effect an attempt to review the decision of a Court of Probate by the Court of Chancery, and that the proper course would have been to appeal to the Judicial Committee of the Privy Council. If there had been an appeal to the Privy Council the Judicial Committee of the Privy Council might have been put in conflict with the House of Lords, they both being Courts of the last resort.

14. Now, the fraud charged in this action being admitted for the purposes of this preliminary objection, let us see how the facts alleged which constitute the fraud stand. The plaintiff is a purdanashin lady, wife of the deceased Mohendra Nath Bose and sister-in-law of the first and second defendants. She lived with the defendants and Nundo Lall Bose had and exercised considerable influence over her. While she was living under his care and guardianship he both personally and through his son induced her to put her name to documents, the purport and effect of which were not explained to her, and none of which she understood. Nundo Lall Bose was a man who professed to lead a strictly religious life, and the plaintiff was under the belief that he was incapable of doing anything to hurt her interest. She had entire confidence in him, and relied upon his assurances that he would properly safeguard her rights, and that the documents and papers did not in any way injuriously affect her interests. Her signature to the agreement to refer to arbitration and to the petition upon which the decree was granted was thus obtained, and she had no independent advice or assistance. The matters dealt with in the award were of an involved and intricate nature and required a knowledge of the circumstances of a large family estate.

15. In consequence of their helpless and dependent position the Courts of this country have found it necessary to extend special protection to purdanashin women. In the case of Kanai Lal Jowari v. Kamini Debi (1867) B.L.R., O.C. 31 note, Mr. Justice Phear says at p. 32: 'I may remark that I have more than once felt myself obliged to hold that a Hindu purda-womana is entitled to receive in this Court that protection which the Court of Chancery in England always extends to the weak, ignorant, and infirm, and to those who, for any other reason, are specially likely to be imposed upon by the exertion of undue influence over them. The undue influence is presumed to have been exerted unless the contrary be shown. It is, therefore, in all dealings with those persons who are so situated, always incumbent on the person who is interested in upholding the transactions to show that its terms are fair and equitable. The most usual mode of discharging this onus is to show that the lady had good independent advice in the matter, and acted therein altogether at arm's length from the other contracting party.'

16. The position of the plaintiff, if her case be true--and I must assume for the purposes of this argument that her case is true--is much the same as that of the party of weak intellect referred to in the case of Carew v. Johnston (1805) 2 Schedule and Lef., 280, whose helplessness was taken advantage of by the mortgagee and his estate foreclosed. No intelligent consent was given by her to the institution or carrying out of the award or to its embodiment in the decree of the Alipore Court.

17. If the plaintiff's case be true, I am of opinion that a decree so obtained cannot stand, and that this Court has jurisdiction if not to set it aside at least to treat it as a nullity and render its effect nugatory.

18. There is another aspect of the question. Can it be said that there was, so far as the plaintiff is concerned, any real suit between her and the defendants? The matters in difference were between Nundo Lall Bose and Pasupathi Nath Bose. This is so recited in the agreement to refer to arbitration. The plaintiff took no active part in the arbitration proceedings. She was not represented at them by any adviser. She lent her name to the proceedings by signing documents at the instance of the defendant Nundo Lall Bose, and without understanding their import. Was this a real proceeding between her and the defendants, or was it a sham? An interesting case having a bearing on this question is the case of Girdlestone v. Brighton Aquarium Co. (1878) L.R., 3 Exch. D., 137. In that case the defendants kept open the Brighton Aquarium on a Sunday, and so incurred a penalty under the Statute, 21 Geo. 3, chap. 49. One Rolfe, at the request of the defendants, their object being to protect themselves from all actions in respect of penalties, brought an action against the Company, at the same time verbally agreeing that the defendant Company should be at liberty to make any use they pleased of the action, and that he would not issue execution or claim penalties. Judgment was obtained in Rolfe's action. In a subsequent action by Girdlestone against the Company for penalties, the Company pleaded in bar the previous judgment, and the plaintiff replied that the judgment was obtained by fraud and collusion. It was held that the first judgment was obtained by covin and collusion, and that such a fictitious judgment is no judgment at all to affect the rights of third parties. In the Court of appeal [Girdlestone v. Brighton Aquarium Co. (1879) L.R., 4 Exch, D., 107], it was held that the judgment recovered was no bar to an action for the same offence by a different plaintiff, by Thesiger, L.J., on the ground that it was procured by covin and collusion, by Brett, L.J., on the ground that the judgment had been recovered in an action in which the defendants were in truth both plaintiffs and defendants, and by Cotton, L.J., on both grounds.

19. In the course of his judgment Brett, L.J., says: 'The defect in the judgment which was obtained seems to me to have arisen from the over-caution of the defendant's solicitor. If he had asked the person Rolfe to bring the action, and if Rolfe had instructed a solicitor to bring the action, and he had brought it, although he had bound himself, as it is said, in honor not to insist upon the payment of the penalty, in the absence of a finding of any fraud by the jury, I should have thought that judgment was valid, and that it could not have been set aside under a plea of covin and collusion, because the plea of covin and collusion is not proved in its legal effect, unless the jury find there was something wrong in the mind of the parties who had agreed to the judgment. I should think the jury would have to find that there was something wrong in the minds of both the parties. The defendant's solicitor asked Rolfe to allow him, the defendant's solicitor, to bring an action against the defendants using Rolfe's name, and the supposed plaintiff did not exercise any judgment upon the action. He exercised no control. He did not instruct anybody, he did not become liable to anybody for what was done; he did not know of the course of the action, he did not, in fact, so far as I see, know whether the action was brought or not. The only thing that happened was that he was asked whether he would lend the defendant's solicitor his name in order that the defendant's solicitor might bring an action against the defendants. It shows to my mind that Rolfe never was a plaintiff, and that the only plaintiff in that suit was the defendant's Company. Therefore the defendant's Company were the plaintiffs in that suit, and they were also the defendants; therefore the judgment recovered in form was no judgment--no judgment which can be said to have been recovered by a third party.'

20. It appears to me that there is some analogy between that and the present ease, The plaintiff was in truth no party to the proceedings. So far as she was concerned there was no matter of difference; there was 'no real argument, no real prosecution, no real defence, no real decision. Fabula non judicium hocest, in scena non inforo, res agitur.' I am of opinion, for the foregoing reasons, that the defendant's contention is wholly unsustainable.

21. I now come to the other preliminary objections which have been raised.

22. It is objected that no leave under Section 12 of the Charter can be obtained to set aside leases of property situate outside the jurisdiction of this Court, the suit being one for land outside the jurisdiction. This has reference to the allegation in the plaint that the defendants Nundo Lall Bose and Pasupathi Nath Bose made leases to themselves of portion of the estate of Mohendra Nath Bose, and to the claim that these leases were irregular, and as against the estate of Mohendra Nath Bose should be set aside. Mr. Hill contends that the relief so sought converts this suit into one partly for immoveable property, or at any rate for a declaration of title to immoveable property outside the jurisdiction. This is not so in my opinion. The suit is one for the administration of the real and personal estate of Mohendra Nath Bose, a portion of whose immoveable property is without the jurisdiction, while other portions are within the jurisdiction of this Court. The suit is merely to have this property administered under the direction of the Court, and for this purpose, if it be found that the trustees or executors have been guilty of misappropriation of assets or mal-administration of the estate, to compel them personally to make amends. This does not turn the suit into one for the recovery of immoveable property. If the trustees had assigned some of the properties to a stranger, and recovery of the property from such stranger had been sought in the action, a question of jurisdiction might arise; but here it is the executors, in whom the property was vested by the will of the deceased, who are alone sought to be made responsible for an alleged act of mal-administration, namely, the granting of leases of part of the trust estate to themselves. Counsel for Nundo Lall Bose points out that the plaintiff was a party to the leases, and that this alters the complexion of the matter. It is true that she was a party to the leases, but she says that her concurrence was obtained by fraud of the defendants, and, if this be so, the defendants cannot rely upon her concurrence. The Court assumes jurisdiction in regard to immoveable properties situate outside the jurisdiction in cases where it can act in personam, either to compel the owner to give effect to legal obligations into which he has entered or to a trust reposed in him. All that is sought here is that the Court in administering this estate shall act in personam and compel the trustees and executors to fulfil their obligations. This objection, therefore, in my opinion is unsustainable.

23. The next objection is that the plaintiff's claim to set aside the trust deed of 1877 is bad on the ground of non-joinder of the parties beneficially entitled under the deed. The surviving trustee is a party to the action, as are also two beneficiaries, namely, the defendants. This deed purports to deal with the estate of Mohendra Nath Bose, but is very obscure in its language. It may be necessary for the Court to determine whether or not the estate is affected by it, and possibly it may be necessary hereafter to direct an independent action to be brought to have it set aside. I fail to see, however, that there is any substance in the objection as to non-joinder now raised.

24. The next question is that leave under Section 44 of the Code has not been obtained to join the several causes of action. Such leave, in my opinion, is entirely unnecessary. There are not several causes of action; the suit is one to administer the assets of a deceased person, and the fact that in the claim acts of mal-administration are complained of, and sought to be redressed, does not render it multifarious.

25. In the case of Pointon v. Pointon (1871) L.R., 12 Eq., 547, where three out of four testator's children, residuary legatees (the fourth being out of the jurisdiction) filed a bill against their mother, the tenant-for-life, and their uncle (who had carried on business in partnership with their father) and who were executrix and executrix and trustees of the will, alleging that the uncle had possessed himself of and employed the estate of the testator and had occasioned great loss to it; that he had mismanaged the partnership business; that he intended to get in and to apply the outstanding debts to his own use; and that he had bought at a valuation a portion of the estate, but had not paid the purchase-money; and praying for accounts of the estate of the testator, and of what the uncle had or but for his wilful default and neglect might have received; and that he might be charged with what was now due from him in all respects, and with all losses occasioned by his mismanagement, and for a receiver and for an injunction, a demurrer by the uncle for multifariousness and for want of parties was overruled.

26. The frame of that suit is not unlike that of the present suit.

27. In the course of his judgment the Vice-Chancellor says: 'Next, as to the question of multifariousness, I think that there is no more in the objection on that ground than there is in that for want of parties. There are three analogous vices to which bills in equity are subject--misjoinder of plaintiffs, misjoinder of defendants, and multifariousness or misjoinder of subjects of suit. It is the last which is imputed to this bill. Multifariousness, properly so called, exists when one of the defendants is not interested in the whole of the relief sought, as the old form of the demurrer for multifariousness shows. Misjoinder of subjects of suit is where two subjects distinct in their nature are united in one bill, and for convenience sake the Court requires them to be put in two separate records. The case of Salvidge v. Hyde (1821) Jacob, 151; 5 Mad., 138, in which the bill was for the administration of a testator's estate, and to set aside a sale made of part of it by the executor, was an instance of this. There the Court refused to allow the two subjects to be united, although the plaintiff was interested in each, and the defendants were liable in respect of each. In the present case the misjoinder is of this nature; the suit is first an ordinary suit against the devisees in trust and executors for the administration of the real and personal estates of the testator; and, secondly, the plaintiffs claim to have the partnership accounts taken as between the testator's; estate and the defendant William Pointon the testator's partner and one of the executors and trustees; and then the suit is further complicated in this way: It is alleged that William Pointon has sold to himself or taken possession of the partnership assets at a valuation under a power in the will, and that he has not paid for them. It is suggested that not only is the price of such assets in his hands, but that he having sold to himself without payment, what was purported to be sold remains assets of the testator till the price is paid. If a trustee, who is entitled to take property at a valuation has a valuation made, but does not pay the money, nothing passes; until the money has been paid he has no interest in the property. It is not necessary to consider whether the plaintiffs are or are not entitled to all the relief which they ask; but the question is whether the various subjects as to which relief is sought are such as if fit for discussion can be properly dealt with in one suit. This is, of course, a matter of discretion. The Court will not allow distinct subjects to be mixed up in one suit when it would be inconvenient to the Court or unfair to some one or more of the parties to it; but not one of these considerations or of those mentioned in the case of Campbell v. Mackay (1837) 1 My and Cr., 603, applies to the present case.'

28. Again in Coates v. Legard (1874) L.R., 19 Eq., 56, the same principle is laid down.

29. I have now dealt with all the preliminary objections., As to the costs of the arguments it seems to me that it would be wrong to make the estate bear these costs, and I, therefore, order the first defendant to pay the plaintiff the costs of this argument and to abide his own costs. The costs of the second defendant I reserve.

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