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Somorendra Nath Mitter and anr. Vs. Ashutosh Roy and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1939Cal588
AppellantSomorendra Nath Mitter and anr.
RespondentAshutosh Roy and ors.
Cases ReferredKanakayya v. Kottayya
- .....d. 1920 =anath roy -------------------- | | | ------------------------ samarendra mukul | | (minor) (minor) ashutosh ajit kumar (minor) (minor)2. the case made in the plaint is that on the death of ishan intestate his three sons bepin, lal behary and charu inherited his estate in equal shares. bepin and lal behary died intestate leaving plaintiffs 1 and 2 and plaintiff 3 their respective heirs. charu chandra, however, left a will by which he gave his properties to his only son baidyanath. tarubala obtained letters of administration and represented the estate of her husband. on the death of her son baidyanath in 1920, she succeeded to the estate of her son. for the purpose of the appeal before us, it is not) necessary to recite the other facts stated in the plaint, nor the.....

R.C. Mitter, J.

1. On 12th April 1923, three persons Sourendra Nath Mitter, Satya Santi Mitter and Khokalal Mitter instituted a suit for partition and accounts against Tarubala Dasi in the Court of the Subordinate Judge at Hughli. They claimed two-thirds share of the estate left by their ancestor Rai Ishan Chandra Mitter Bahadur and in the accretions thereto, and admitted that Tarubala owned the remaining one-third share. The relationship between the parties will appear from the following pedigree:





| | |

Bepin Chandra Lal Behary Charu Chandra

D. 22-12-1910 D. 27-2-191 D. 27-4-1915

| | =Tarubala, defendant

--------------------- Khokalal D. 20-6-1936

| | (Plff. 3) |

Sourendra Satya Santi D. 7-4-1928 --------------------

(Plff. 1) (Plff. 2) | | |

D. 19-1-1933 D. 16-2-1934 Maniklal Baidyanath Umarani

| (minor) D. 1920 =Anath Roy

-------------------- |

| | ------------------------

Samarendra Mukul | |

(minor) (minor) Ashutosh Ajit Kumar

(minor) (minor)

2. The case made in the plaint is that on the death of Ishan intestate his three sons Bepin, Lal Behary and Charu inherited his estate in equal shares. Bepin and Lal Behary died intestate leaving plaintiffs 1 and 2 and plaintiff 3 their respective heirs. Charu Chandra, however, left a will by which he gave his properties to his only son Baidyanath. Tarubala obtained letters of administration and represented the estate of her husband. On the death of her son Baidyanath in 1920, she succeeded to the estate of her son. For the purpose of the appeal before us, it is not) necessary to recite the other facts stated in the plaint, nor the allegations on which the plaintiffs asked for accounts and sought to make the estate of Charu Chandra liable. An application for appointment of a receiver was made by Tarubala and during the hearing of the said matter her counsel Mr. N.N. Sircar (now Sir N.N. Sircar) made a compromise on her behalf and on the basis thereof the preliminary decree was passed on 31st March 1924. This decree is printed at pp. 6 and 7 of the paper book of Appeal from Original Order No. 600 of 1936. The terms of settlement were (i) all accounts waived, (ii) plaintiffs took over all liabilities shown in the books of the estate, (iii) defendant gave up all claims to moveables, decretal amounts, outstandings, deposits, arrears of rent, loans, shares, securities, etc., (iv and v) all the immovable properties except the family dwelling house were to be divided, the plaintiffs taking two-thirds share and the defendant one-third share in Hindu widow's estate. She was to have right of residence in the family dwelling house, (vi) the defendant's claim to ornaments was left to the arbitration of Mr. Sircar. Clause (vii) of the compromise which is material to this appeal ran thus:

(vii) Prom 3rd day of September 1923 and until partition is actually completed and possession taken, defendant will be paid by the plaintiffs the sum of Rs. 1400 (fourteen hundred) per month and the defendant will have no concern with the income or management of the properties of the estate beyond getting the said sum of Rs. 1400 (fourteen hundred) per month, the balance will belong absolutely to the plaintiffs, and no account of the income will be necessary for this period viz. from 3rd September 1923 to the date when partition is effected and possession taken. Defendant will join, whenever required, the plaintiffs by signing proceedings for realization of rent, etc. and other assets, and that a sum of Rs. 36-8-0 be paid by the defendant to the plaintiffs on account of costs of this proceeding.

3. Shortly after the compromise Tanubala repudiated it. The proceedings started by her ultimately terminated on 23rd January 1930, their Lordships of the Judicial Committee holding that she was bound by the compromise effected by her counsel, Mr. Sircar: Sourendra Nath v. Tarubala Dasi . After the year 1924, the properties in suit were placed in the charge of two joint receivers and are now in the possession of the official, trustee as receiver. The suit when filed was valued at over sixteen lacs of rupees, but now the bulk of the properties, more than three, fourths, have been lost to the parties by reason of sales in execution of mortgage decrees and for nonpayment of revenue and rent. The work of partition has not progressed far, and according to the recitals of the conveyance, on which the respondent Jitendra Nath Roy bases his claim, there is no prospect of the partition being effect, ed within a reasonable time. In the present circumstances when the income has shrunk considerably prima facie it is to his interest, as it was to the interest of the persons through whom he claims and on whose behalf he looked after the litigation, to delay the partition as long as possible. We do not however wish to apportion the blame, but only desire to say that it is eminently proper that the learned Subordinate Judge should expedite the work of partition and pass the final decree before the parties, most of whom are minors, are ruined. It appears that large sums of money payable to Tarubala under the terms of the aforesaid compromise decree remained in arrears. She started execution proceedings and three of those proceedings were pending in three Courts at the time of her death which occurred on 20th June 1936. On 17th February 1936, shortly before her death, she executed a deed by which she surrendered her estate in favour of the reversioners, her grandsons Ashutosh and Ajit Kumar Roy. On her death, the said grandsons were substituted in the suit in her place on 24th June 1936. They were and still are infants and their mother Umarani was appointed their guardian-ad-litem and is still representing them is the suit. On 9th August 1937 without obtaining leave of the Court she as 'next friend and natural guardian of her infant sons' conveyed for a cash consideration of Rs. 15,000 the minors' share in the immovable properties in suit, their right to large sums of money due to their grandmother Tarubala under para. 7 of the compromise, the arrears due to them and their right to receive in future the sum of Rs. 1400 a month from the plaintiffs under the said paragraph of the compromise decree. This conveyance is on the record. It has not been printed but typed copies were supplied to us. It is necessary to notice the main features of this transaction as they appear from the document itself.

4. Shortly before the partition suit was instituted Tarubala left the family dwell, ing house and came to live with her daughter's father-in-law, Jitendra Nath Roy. She lived in his house and died there. Her son-in-law, Jitendra's son Anath, died leaving two minor sons Ashutosh and Ajife Kumar and a young widow Umarani. Umarani and her sons are living in Jitendra's house and the conveyance by Umarani was executed in Jitendra's house. The conveyance recites that the latter had all along been financing the litigation. It recites that for that purpose he had up to the date of the conveyance advanced a sum of Rs. 3,11,969-1-8 and had received payment of Rs. 1,33,100-15-3. Accordingly a sum of Rs. 1,78,868.1-5 was still due to him. He gave up his claim to Rs. 65,868-1-5, and accordingly a sum of Rs. 1,13,000 was still due to him. The conveyance further recites that a sum of Rs. 1,17,594-2.9 was due to the minors from the plaintiffs up to the date of the conveyance under the terms of para. 7 of the compromise decree, and execution was then pending for a sum of Rs. 1,12,974-2-9 out of this said sum. There was also a sum of Rs. 47,446.12-4 lying in deposit in the High Court as the surplus sale proceeds of some Calcutta properties and the minors were entitled to a half share of the same. Umarani sells to Jitendrafor a total consideration of Rs. 1,28,000, (of which only Rs. 15,000 appears to have been paid in cash, the balance being set off against the sum of Rs. 1,13,000 alleged to be due to Jitendra as detailed above)(l) the right of the minors to the aforesaid sum of Rs. 1,17,594-2-9, (2) their half share in Rs. 47,446-12-4, (3) their right to receive Rs. 1400 a month from the plaintiffs till the partition is completed, (4) the share of the minors in the immovable pro. perties in suit and (5) their alleged right to obtain compensation from the plaintiffs for alleged acts of mismanagement by reason of which it is said that some valuable properties in suit had been lost to the parties. On the face of the documents it appears that the minors were denuded of all their rights for a consideration which is prima facie inadequate. It may be that for these reasons this Court had cast a doubt on the bona fides of Jitendra in Jitendra Nath v. Harindra Nath (1938) 42 C.W.N. 1183. As evidence has not, however, been led we cannot definitely pronounce our opinion as to whether the conveyance was for the benefit of the minors. Prima facie it does not seem to be so, even if the recitals be taken as true.

5. On the basis of this conveyance Jitendra Nath got himself added as a party defendant in the partition suit on 8th February 1938. Two days later he made an application under Section 39, Civil P.C., for transfer of the decree to the Court of the District Judge, 24-Perganas, for enabling him to execute it for Rs. 12,600, the sum which he says became payable to him from 1st May 1937 to 31st January 1938 calculated at the rate mentioned in para. 7 of the said decree. In this application he recited the deed of surrender executed by Tarubala in favour of her grandsons and the conveyance executed by the guardian of the latter in his favour. On 26th February following, he filed another application under Order 21, Rule 16, Civil P.C., for leave to execute the decree as assignee and for leave to proceed with the pending execution proceedings originally started either by Tarubala or her grand-sons. Notices in terms of Order 21, Rule 16 were issued on the same date on the plaintiffs judgment-debtors. On 22nd April and 30th May 1938 the two sets of judgment-debtors filed objections. Most of the grounds specified in the two objection petitions would only be relevant at a later stage of the execution proceedings. Those grounds were not accordingly pressed either in the lower Court or before us. The only question now relevant is whether Jitendra Nath can, as assignee, get leave to execute the decree or continue the pending execution proceedings. The learned Subordinate Judge answered this question in the affirmative. He also overruled the judgment-debtors' objection to the effect that a succession certificate was necessary. The two sets of judgment-debtors have preferred the aforesaid two appeals. The points raised by them are (1) that the assignment of the decree to Jitendra Nath is invalid, (2) that even it be valid he cannot claim the arrears due to Tarubala up to the date of the surrender of her estate to the reversioners, (3) that he cannot proceed with regard to a portion of his claim without obtaining succession certificate. We will now proceed to deal with the second and the third points.

6. The argument of the appellants' advocates has been put forward in the following way: They say that the income from the estate of her deceased son belonged to her absolutely. The sum of Rs. 1400 payable to her monthly in terms of para. 7 of the compromise decree represented the income due in her share. No exception can be taken to these two contentions. They further contend that properties acquired by a Hindu female holding a Hindu widow's estate from the income of her inherited estate as also the income thereof would not pass on her death to the reversioner but would descend on her stridhana heir (in this case her daughter Umarani) unless she had manifested an intention to treat the same as part of the corpus, and the onus of proving such intention on her part is on the reversioners or persons claiming through them. These propositions are supported by precedents, one of them being Nirmala Sundari Dasi v. Deva Narayan Das : AIR1927Cal868 . Apart from the question that this point, which required an investigation into facts, was not raised in the Court below, the appellants, in our judgment, cannot advance their case very far. The deed of surrender recites that the lady, Tarubala, had by inheritance from her son acquired a Hindu widow's estate in the properties left by her son and that she had acquired with the income other moveable and immovable properties, which also she was holding in Hindu widow's estate. This last mentioned statement indicates her intention to incorporate the properties acquired by her with the corpus. She surrenders them all to her reversioners. The sums of money which were due to her from the plaintiffs at the time and which she had not then recovered would not pass to the reversioners by this alone, but in the operative part of the document she passes on to the reversioners all arrears due to her under decrees and all her rights in all decrees of whatever nature they may be. On the construction of the deed we hold that the right to receive the arrears due to Tarubala under para. 7 of the compromise decree had passed to Ashutosh and Ajit Kumar Roy and from the latter to Jitendra Nath unless that part of his conveyance is invalid. This view also takes away all force from the third contention of the appellants. No succession certificate is necessary, for Ashutosh and Ajit Kumar and from them Jitendra Nath, did not acquire the right to those arrears on succession and did not claim them on succession, but by an assignment from Tarubala. The second and the third points are accordingly overruled.

7. The assignment to Jitendranath of the arrears due under the decree is attacked on the ground that TJmarani, who was also the guardian-ad-litem of her infant sons, had not taken the leave of the Court. This argument has been developed on two lines by the appellants' advocates. They say firstly that the case falls within Order 32, Rule 7, Sub-rule (1) and secondly within Order 32, Rule 6, Sub-rule 1(b). The first proposition which is well established is that the karta of a joint Hindu family or the natural guardian of a minor who had sued as his next friend or who has been appointed his guardian-ad-litem comes under the control of the Court and his powers as karta or as natural guardian are controlled by the provisions of law contained in Order 32, Civil P.C. He cannot in the capacity of karta or natural guardian do anything on behalf of the minor which he is debarred from doing as next friend or guardian-ad-litem without leave of the Court: Ganesha Row v. Tuljaram Row (1913) 36 Mad. 295. A payment to such a person by the judgment, debtor out of Court without its leave is accordingly invalid and cannot be given effect to. Such a payment would not discharge the judgment-debtor: Plichakkuttiya Pillai v. Doraiswami Mooppanar (1925) 12 A.I.R. Mad. 230. The case in Harihar Pershad Singh v. Mathura Lal (1908) 35 Cal. 561 which took a contrary view, must be taken as overruled by necessary implication by the Judicial Committee: Ganesha Row v. Tuljaram Row (1913) 36 Mad. 295.

8. The question therefore is whether Umarani was bound to take the leave of the Court. She was the natural guardian of the minors but was also at the date of Jitendra Nath's conveyance their guardian-ad-litem. In our judgment, the case is not covered by Order 32, Rule 7(1) of the Code. The word 'agreement' occurring there means an agreement with a party to the suit and must be in reference to the proceedings of the suit. An agreement with a third party, as also an agreement outside the scope of the suit does not in our judgment come within the scope of the said Rule, and a natural guardian is not bound to take the leave of the Court with regard to such an agreement, though he or she be the next friend or guardian-ad-litem of the minor. When a decree has been passed in favour of the minor in respect of some property or for a sum of money, it passes to the domain of property and his natural guardian qua natural guardian would be free to deal with it (subject to what we state below in reference to Order 32, Rule 6) in spite of Order 32, Rule 7(1) in the same way as he or she would be entitled to deal with the minor's other properties. To this extent and this extent only, we agree with the Full Bench of the Madras High Court: Venkatakrishnayya v. China Kanakayya (1938) 25 A.I.R. Mad. 539 which overruled the decision in Kanakayya v. Kottayya (1921) 8 A.I.R. Mad. 587. Moreover, an agreement or compromise entered into in contravention of Order 32, Rule 7(1) would give the minor only the right to avoid it and the want of leave of the Court would not be of avail to the adult parties to the suit. We are, however, of opinion that the case before us falls within Order 32, Rule 6, Sub-rule 1(b).

9. It is a general principle that 'a suit relating to the estate or person of an infant and for his benefit has the effect of making him a ward of Court' and

in all cases where an infant is a ward of Court, no act can be done affecting the person or property or state of the minor, unless under the express or implied direction of the Court itself: Ram Sarup Lal v. Shah Latafat Hossain (1902) 29 Cal. 735 at page 737.

10. In our judgment this principle must be kept in view in interpreting Order 32, Rule 6 of the Code. The widest meaning of which the words are capable must be attributed 'to para. 1 of that Rule. The enactment is that a next friend or guardian for the suit -shall not without leave of the Court receive any money on behalf of the minor under a decree or order in favour of a minor. The word 'receive' should be taken to mean 'receive either directly or indirectly,' for, unless it be so construed the protection which the Legislature intended to give to the minor would in many cases be illusory. That protection would be reduced to a farce if the guardians, while restrained from receiving any money directly from the judgment-debtor, were free to assign the decree to a third party and receive money from the assignee, who would then, recover it from the judgment-debtor. To permit any such assignment without leave of the Court would be to defeat the plain purpose of the Rule. Before the Full Bench of the Madras High Court, Venkatakrishnayya v. China Kanakayya (1938) 25 A.I.R. Mad. 539, Order 32, Rule 6 was referred to in the argument of counsel and was noticed in the judgments delivered, but the contention was put forward on a narrow ground. What was argued at the Bar was that that Eule would be evaded unless the word 'agreement' occurring in Order 32, Rule 7 were given a wide meaning, a meaning as wide as was given in Kanakayya v. Kottayya (1921) 8 A.I.R. Mad. 587. It was not argued there that on a proper interpretation the case fell within Order 32, Rule 6, Sub-rule 1(b). The appellants judgment-debtors are vitally interested in raising the contention that the case before us falls within Order 32, Rule 6, Sub-rule (1) and they can attack Jitendra Nath's conveyance on that ground. We give effect to this part of their contention and hold that Jitendra Nath has no right to substitute himself in pending executions or to apply for execution in respect of sums of money due from the plaintiffs judgment-debtors under para. 7 of the preliminary decree. The result is that both the appeals are allowed with costs against the respondent Jitendra Nath Roy. Hearing fee 10 gold mohurs in each of the two appeals.

Rau, J.

11. I agree.

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