1. This is an appeal by the first defendant in a suit for administration, partition, accounts and incidental reliefs against an executor. Rakhal Chander Dey, the admitted owner of the subject-matter of the litigation, died on the 31st July 1901. Two days before his death, he made a testamentary disposition of his properties. He appointed his eldest son Pulin Behan Dey as executor and directed that his second son, Sattya Charan Dey, at that time an infant, do become joint executor on attainment of majority. He left a widow, Thakomoni Dasi, the mother of Satya Charan Dey, and his three sisters. His first wife, the mother of Pulin Behari Dey, had died during his lifetime many years before. After the death of Rakhal Chandra Dey Probate was taken out by Pulin Behari Dey on the 15th July 1903. Satya Charan Dey attained majority on the 16th February 1917 and took out joint Probate on the 12th July 1918. On the 20th August 1918 he instituted the present suit against his step-brother Pulin Behari Dey and his mother Thakomoni Dasi who was joined as the second defendant. The object of the suit was to obtain from Pulin Behari Dey, who had acted as executor during his minority, accounts of the management of the estate. The plaintiff also asked for administration of the estate in accordance with the terms of the Will of his father. The suit lasted for three years and was not taken up for final disposal till the 16th June 1921. On that day the case was heard ex parte and a preliminary decree was made. That decree is now assailed by the first defendant substantially on four grounds, viz., first, that the procedure adopted by the Subordinate Judge was unfair and made it impossible for the appellant to establish his defence before the Trial Court; secondly, that the order for accounts is unjust and incomplete; thirdly, that the Subordinate Judge should have held that the three properties mentioned in the schedule to the plaint had been validly created debutter and were consequently not liable to be treated as secular properties capable of division and, fourthly, that the order for maintenance in favour of the second defendant is contrary to the provisions of the Hindu Law.
2. As regards the first point, it is plain that the appellant has no substantial grievance. The plaint was lodged on the 20th August 1918 and after the written statement had been filed, issues were framed on the 30th January 1919. The plaintiff was diligent and on the 15th April 1919 he made an application for the issue of a Commission for the examination of his mother. The writ was issued on the 30th April 1919 and the examination was completed in due course. The first defendant, however, did not take any steps to summon his witnesses. It has been stated to us in justification of his conduct that, as the matters in difference were referred to arbitration, he believed in good faith that no 'steps in Court would be necessary. We find, however, that the proceedings for arbitration which ultimately proved infructuous occupied the period between the nth August 1920 and the 2nd May 1921. It was not till a very late stage of the suit, that is, on the 1st June 1921, that the first defendant made an application for examination of a lady Kishoreemoyee Dasi on commission. This application was granted and a writ was issued in due course. On the 13th June however the first defendant applied for extention of time on the allegation that, the lady had been taken ill and could not be examined on Commission. The Subordinate Judge refused this application for adjournment on the ground that the defendant had net taken steps in time. A further application for adjournment was made on the same day and was refused on the ground that it was frivolous. The Subordinate Judge further expressed the opinion that the case which had been pending for three years should be heard as early as practicable. On the next day, the case was taken up for disposal; the first defendant, though repeatedly called, did not appear. On behalf of the plaintiff witnesses were examined and the second defendant was also represented by her Pleader. In our opinion, the conduct of the first defendant cannot possibly be justified. Even if we assume for a moment that time should have been allowed to examine the lady on Commission, there is no conceivable reason why the first defendant should not have appeared to give evidence himself. s There is also no explanation why he should not have instructed has Pleader to cross-examine the witnesses produced by the plaintiff, particularly his uncle, Brojo Nath Dey, who went to the box as a witness on behalf of the plaintiff. There is no doubt, in our minds that the applications for adjournment on the 13th June 1921 were not bona fide and were intended to prolong the proceedings as far as practicable. The Subordinate Judge adopted the only course open to him in the circumstances, namely, to proceed with the trial of the suit in the absence of the first defendant. We hold accordingly that the first ground urged by the appellant cannot be sustained.
3. As regards the second point, it has been urged that the order for accounts is defective and that the Court should have enunciated the principles which should regulate the taking of accounts from the appellant. In our opinion, there is no substance in this contention. The first defendant as executor had a threefold duty to perform, viz., to keep accounts, to deliver accounts and to vouch accounts after delivery. If he has kept accounts, he should deliver them to' the Commissioner and prove them in due course. When the accounts are duly proved questions may arise as to, the measure of his liability. The principles which regulate the extent of liability of an executor are well known and will be found formulated in Sections 146 and 147 of the Probate and Administration Act. They are also explained by the Judicial Committee in the case of Aga Mahomed Rohim Sherazee v. Meerza Aly Mahomed Shoostry 4 W.R.P.C. 106 but it is plainly idle to discuss questions of law as to the measure of his liability as an executor till the facts have been ascertained by the Court. There is, however, one point urged before us on behalf of the appellant which deserves notice. The appellant has contended that in his written statement he stated that he was entitled to obtain out of the estate of his father the sale proceeds of the ornaments which belonged to his deceased mother and had been converted by his father into money. This question, in our opinion, should be investigated when accounts are taken by the Commmissioner. The point in fact raises the question of the extent of the' assets received by him when he became, executor to the estate of his father. The burden of proof; on this point, however, will lie entirely, upon him. He has to establish at this distance of time that his. mother did, in fact, possess ornaments, that those ornaments were converted by his father and that a certain sum of money was kept by his. father as the sale proceeds of those ornaments. He has, in addition to prove that at the time he became executor his claim against the estate of his; father on this basis had not already become barred by limitation. In other words, he has to prove that he was a creditor of, the estate of his father at the time when he became executor and that he was consequently entitled to retain the amount due to him. We are of opinion that he should have an opportunity to prove his allegation in this respect before the Commissioner. The question will ultimately be decided by the Court on the report of the Commissioner.
4. As regards the third point, we are of opinion that there is no substance in it. It appears from the record that in 1902 a suit was instituted on behalf of the plaintiff by his mother on the Original Side of this Court for partition of the joint estate. To this suit, the first defendant was a party as also his uncle and other members of the family. The suit was ultimately decreed by consent of parties on the 25th June 1906. The effect of the decree was to declare that the allaged debutter was fictitious. The appellant now contends that the debutter was real. His difficulty is the consent decree to which he was a party. No doubt, under Section 44 of the Indian Evidence Act, as explained in the cases Nistarini Dassi v. Nundo Lall Base 26 C. 891 : 3 C.W.N. 670 : 13 Ind. Dec. (N.S.) 1171 and Rajib Panda v. Lakhan Sendh Mahapatra 27 C. 11 : 3 C.W.N. 660 : 14 Ind. Dec. (N.S.) when a decree which has been obtained by fraud is sought to be used against a person, he is entitled to show the true nature of the decree notwithstanding the fact that he has not previously taken steps for cancellation of the decree. The appellant has not however, specifically set out the details of the alleged fraud in his written statement. He was a party to the decree and the materials on the record show that he did subsequently act in accordance with the decree. He cannot be permitted to challenge the decree unless he sels out specifically the circumstances which constituted the alleged fraud on him and on the Court.
5. He has not also stated when he first became aware of the alleged fraud. In these circumstances, it is impossible for us to hold that he is entitled to disregard the consent decree of the 25th June 1906 and tore-open in this litigation the question of the validity of the debulter.
6. As regards the fourth point, it is plain that the order for maintenance made by the Subordinate Judge is based upon a correct interpretation of the provisions of the Will of Rakhal Chandra Dey. The Will directs that the second wife of the testator Thakomoni will be maintained out of the estate and will have the right to reside in his house. This in our opinion, Js not a mere enunciation of the rights of maintenance and residence of the widow under the Hindu Law. Reference has been made to the decision of the Judicial Committee in the case of Hemangini Dasi v. Kcdarnath Kundu Ckowdhry 16 I.A. 115 : 16 C. 758 : 13 Ind. Jur. 210 : 5 Sar. P.C.J. 374 : 8 Ind. Dec. (N.S.) 502 (P.C.); that case, however, is clearly distinguishable. In that case A died leaving a widow B, & son C by B and two sons D and E by a predeceased wife. C sued D and E for partition. Each of the three sons was entitled to take one third share. It was ruled that B was not entitled to share the one third allotted to her son C with him, as she had only one son; but she was entitled to maintenance out of the one third allotted to her son C. Here the lady claims maintenance under the terms of the Will as the widow of the deceased testator. She does not assert a right of maintenance as against her step-son or even against her own son under the rules of Hindu Law. In our opinion, there is no room for controversy that the order for maintenance is proper and must be maintained.
7. The result is, that, subject to the direction we have given as to the investigation by the Commissioner of the claim put forward by the appellant against the estate of his father on account of the alleged ornaments of his mother, the decree of the Subordinate Judge must stand confirmed and steps taken to carry out that decree as early as practicable. The appellant must pay the respondent the costs of this appeal.