1. This is a suit in which the plaintiffs ask to revive certain causes which have abated, and ask that the present suit may be taken as supplemental to the said causes, and that the plaintiffs may be declared entitled to the benefit of the various decrees and orders made therein from time to time.
2. The original suit was instituted in the Supreme Court on the 26th October 1807, and then there have been a series of other suits by which the older suit has been revived from time to time. The original suit was for the administration of the estate of Nemyechand Mullick, and the parties to it were his grandsons, of whom two were defendants.
3. The parties to the present suit all claim under one or other of those grandsons. In 1808, a decree was made, under which certain testamentary papers were established and the grandsons declared entitled to shares, &c.; Another decree was made in 1837, under which certain moneys were set apart for certain purposes which are said to have been satisfied, and it was declared that there were then in the hands of Ramgopal and Ramrutton Mullick and in those of the heirs of, &c.;, over thirty lacs, and it was ordered that Ramrutton should pay the balance after deduction of certain sums to be retained in diminution of the debt. It is further admitted that the debt was reduced by the sale by the Master of the late Supreme Court of the immoveable estate of Ramgopal Mullick.
4. There is now a sum in Court arising from accumulations of interest on the sum set apart for the performance of certain acts, works, and ceremonies which were to be performed ; and the specific object of the present suit is a division of such accumulations. The only serious controversy is, whether the sons and representatives of Ramgopal and Ramrutton should share without satisfying the debt declared to be due from their respective ancestors. They cannot in my judgment receive any shares. It is held in England that an executor is justified in retaining a share, though the debt is barred by limitation-Courtenay v. Williams (3 Hare, 539); and the series of cases collected m L. R., 20 Eq., 644, establish this. There is no difference between the state of the law in England and the state of the law here; see Mohesh Pal v. Bussunt Kumaree (I. L. R, 6 Cal., 340). Executors would be justified in withholding payment of a residue distributable to the two estates till the debt is satisfied. It is clear, what would be the duty of executors is the duty of the Court. It follows, therefore, that the representatives of Ramgopal and Ramrutton are not entitled to share, and their shares must be divided amongst the other parties entitled. The decree will declare there must be this division, and that the suit is supplemental to the old one.
5. There must be an enquiry whether trusts 1 to 9 have been carried out, and what sum is divisible. There will also be an enquiry as to the devolution of the estates since the decree of 1837 to ascertain who are now entitled to share. This enquiry may be assisted by investigation of the records and supplemented by affidavit. The costs of suit will be reserved.
6. Attorneys for the Plaintiffs: Messrs. Swinhoe & Co.
7. Attorney for the defendants Odoychurn and Toolsee Doss: Mr. Paliologus.
8. Attorneys for the other defendants: Messrs. Beeby and Butter, Mr. H. H. Remfry, Baboo Gonesh Chunder Chunder, Messrs. Watkins and Watkins, Baboo N. C. Burral, Baboo O. L. Bose, Baboo B. C. Bonnerjee, and Baboo W. C. Bonnerjee.