1. In this suit the, plaintiff Probodh Chandra Sircar, asked for a declaration of title to and recovery of possession of an 8-annas share of certain Government promissory notes of the face value of Rs. 100,100, or in the alternative for the value thereof, together with interest thereon, and for other consequential reliefs. The Subordinate Judge having decreed the suit the defendant Swarnamoyi Dasi has preferred this appeal.
2. The parties are related thus:
Brother Radha Mohun.... Ram Kamal Mondal... Brother Radharaman|died 21st April 1868 __________________________| |=W. Bhagabati Dasi died Iswar Chandra AnotherDebrani, died 3rd August 1892|_____________________________________________________| |Brojendra K. Sirear Jadunaty Sirear,Died 1894-85 Died Ist February 1915| =W. Swarnmoyee Dasi, defendantProbodh, plaintiff(Born in 1881, attainedMajority in 1899).
3. On 11th April 1868 Ram Kamal Mondal executed a will (Ex. l) under which he left an 8-annas share of his paternal properties to his brother Radha Mohan and the other 8-annas thereof to Iswar Chandra and Brajendra, the son and grandson respectively of his other brother Radharaman and, providing that Radhamohan should pay Rs. 25 a month, and Iswar Chandra and Brojendra Rs. 25 a month, i. e. Rs. 50 in all, to Ram Kamal's widow, daughter and daughter's sons; he provided that Government promissory notes of the value of rupees two lacs odd, which had been dedicated to the worship of the ejmali deity Sridhar Jiu Thakur but stood in his name should, on his death, go to his brother Radhamohan who would perform the sheba of the deity with the interest thereof; he recited that he had already dedicated some of his self-acquired properties to the deity Sri Raghunath Jiu Thakur installed by him, but they proved insufficient; and he accordingly left some other self-acquired properties to his wife Bhagabati Dasi and on her death to his daughter and daughter's sons, so that the income thereof might be applied for the worship of the said deity and also for the maintenance and other necessary expenses of the daughter and the grandson enjoining them to perform the worship of the said deity in the said manner; and as regards other Government promissory notes which he had that is to say besides those which had been dedicated to the Ijmali deity as aforesaid, he provided:
4. Excepting these, my wife Bhagabati Dasi and on her death my daughter and on her death my daughter's sons shall, on my death, be entitled to get the Government promissory notes exclusively belonging to me whose numbers are mentioned in the aforesaid Court papers, and in respect of those last mentioned papers neither my brother, nor my nephews nor my brother's grandsons shall be competent to make any claim, and even if they do the same will not be accepted. It is these Government Promissory Notes, or rather an eight annas share thereof which the plaintiff alleges he is entitled to, which forms the subject-matter of the suit. A few more facts require to be stated. Ram Kamal died on 21st April 1868. Probate of his will was taken by the executors of whom his widow Bhagabati Dasi was one. On 6th August 1890 Bhagabati Dasi died. On 12th March 1891 the daughter Debrani filed an application for Letters of Administration (Ex. 10) alleging that Government promissory notes of the value of one lac one hundred which Ram Kamal had bequeathed in the aforesaid manner had been endorsed over to Bhagabati Dasi as she had a life interest therein, and that the said Government promissory notes were in her possession since Bhagabati Dasi's death. She obtained the Letters of Administration and her son Jadu Nath Sircar who held a power of attorney from her dated 3rd August 1878 (Ex. 12) bound himself as surety for her in that matter (Ex. 11). The plaintiff was born in 1881. His father Brojendra, brother of Jadu, died in 1884 or 1885. In 1892 Debrani died leaving a will (vide Ex. 3) in which no specific mention was made of these Government promissory notes, but it was said that she had moveable and immovable properties, as her stridhan, acquired from presents given to her from her father and her mother and that she had on her mother's death obtained certain moveable and immovable properties under her father's will as his heir, from the income whereof she had also purchased some other properties of her own. She purported to make the will saying that all her properties, With the exception of those that she got under her father's will as his heiress, belonged to her absolutely. The properties which, thus belonged to her absolutely were disposed of by the will. By the will she gave, subject to certain bequests, a moiety thereof to Jadu absolutely, and she provided that the other half, subject to an allowance for maintenance of Probodh's mother, was to be held in trust by Jadu for Probodh until Probodh attained the age of 25 years. The will provided that if Probodh behaved in a certain way he would be taken to have an absolute interest under the will, but in case Probodh died without any issue this moiety would go to Jadu and his heirs. On 3rd May 1893 Jadu obtained probate (Ex. 3) of Debrani's will. Probodh attained majority in 1899. It is common ground that by this time he had acquired vices and had contracted debts and gone astray and that it became impossible to restrain him in the wild career into which he had launched himself. Soon after he attained majority, that is to say, on 24th November 1901, Jadu took from him a conveyance of his entire properties. This conveyance is not before us, but it is said that it was for an adequate consideration, On 1st February 1915 Jadu died leaving him surviving his widow Swarnamoyee, the defendant in this suit, and a will by which he left all his ancestral and self-acquired properties to her in absolute right. Prior to Jadu's death Probodh had married, and he, his wife and his mother evidently were by this time in want, living mainly if not entirely on the bounty of Jadu. It is fairly clear that after Jadu's death, trouble from him was apprehended.; and in consequence of this apprehension Swarnamoyee, before applying for probate of Jadu's will, took a letter from Probodh, his wife and his mother (Ex. C) dated 3rd April 1915, in which it was said:
The revered Jadu Nath Sircar left by his will all his ancestral and self-acquired properties to you for good in absolute right. We were his dependents and were supported by him. In order that there might be any difficulty in future as regards our maintenance he had made up his mind to settle with us Sm. Nityakali Dasi (the mother) and Sm. Pankajini Dasi (the wife) the properties purchased by him from Probodh Chandra Sircar. But on account of his sudden death he could not give effect to it. Now that we requested you for that purpose, you too out of affection for us have agreed to make a proper settlement and have said so. So we and our Probodh Chandra Sircar all convey our thanks and inform you that none of us have any objection or claim at all with regard to his estate. You may soon take out probate without any trouble and go on maintaining us. This is our prayer.
5. On 28th March 1922 two deeds of release were executed, one by Probodh (Ex. A) and the other by Nitya Kali Dasi (Ex. B), and it is said that on the same day Swarnamoyee executed a deed of gift in favour of Nitya Kali Dasi in respect of all the properties which Probodh had conveyed to Jadu in 1901. After the aforesaid documents were executed there appears to have been several litigations between the parties: two suits were brought by Probodh against Swarnamoyee to recover arrears of annuity due upon the term of Ram Kamal's will, and a suit was instituted by Nrityakali against Swarnamoyee to recover a sum of money which she alleged she had kept with Jadu; but it is not necessary to state what the results of these litigations were. Thereafter on 1st October 1926 the present suit was instituted. The suit was resisted by the defendant upon various grounds amongst which such as have been urged before us in this appeal will now be dealt with. The first contention urged is put in the defendant's written statement in these words:
This defendant further submits that as there is a provision in the will of Ramkamal Mondal deceased that his wife Bhagabati Dasi, and on her death her daughter, and on her death her daughter's sons, would acquire all his self-acquired Government Promissory Notes and as the said Bhagabati Dasi and Debrani Dasi were alive after the death of the said Ramkamal Mondal and as the plaintiff's father, the late Brojendra Nath Sircar, died during the lifetime of the said Bhagabati Dasi and Debrani Dasi, the said Brojendra Nath Sircar or the plaintiff did not or could not legally acquire any title to the self-acquired Government promissory notes which were left by the late Ramkamal Mondal.
6. The question is one of construction. It has been argued that the use of the word Tad avarthamane (on her death) and the omission of any restrictive words as regards the estates that were conferred on the wife, the daughter and the grand-sons, indicate that not successive estates but substitutional estates were intended to be conferred. In other words, it has been contended that the whole object of the will was to keep these Government promissory notes away from the brother and his line and that nothing else was done by the will than to leave them to his widow, and then to his daughter and thereafter to his daughter's sons, as it would be in the case of intestacy. We are unable to agree in this view. Putting ourselves in the testator's arm-chair for the moment, as we are bound to do, we can conceive of no reason why the testator should think of mentioning the daughter and the daughter's sons if it was his intention to postpone the bequests themselves in their favour in that way; we think it was his intention to make gifts in praesenti in their favour, only postponing the enjoyment thereof in the case of the daughter till on the death of the widow, and in the case of the grandsons till the lives of the widow and the daughter were over. We have been asked to construe the words used in their natural meaning; it is true that it is not expressly stated in the will that the estate to the widow was for her life, or that the estate to the daughter was for her life, and it is also true that so far as the widow and the daughter are concerned the devise apparently is no more restricted in its character than in the case of the grandsons. But taking the whole of the bequest together and giving the words their natural meaning we are driven to the conclusion that what was meant was that it would go to the widow for her life, then to the daughter for her life and thereafter to the grandsons absolutely. In other words the intention was to create an absolute estate in the grandsons with the two life estates intervening, a thing not unknown or repugnant to Hindu law The will, having regard to its date, is not governed by the Succession Act, but even if the principles of that Act are applied to it the same result is reached because the interests created are not 'contingent' but 'vested.' The expression 'on her death' must be taken to indicate merely the time when the gift over is to be reduced to possession and not the time when the right to such possession vests: see Hallifax v. Wilson (1809) 16 Ves Jun 168. The principle underlying this rule is that no contingency is imported by the fact that the legacy is given after a life-estate in the property bequeathed. As nothing is more certain than that every person who lives must die, the death of a life-tenant is an event not contingent but certain.
7. But if the bequest had been not merely after the death of the life-tenant but to such of her sons as may be surviving on her death, then clearly the condition of surviving or being alive at her death would be a condition precedent to the vesting itself and the bequest would be a contingent one. As the plaintiffs' father was alive at the testator's death the plaintiffs' right to a half-share of the Government promissory notes cannot, in our opinion, be disputed. (Here the judgment considered matter not material for this report, and taking up the question of limitation it proceeded as follows.) Be that as it may, the question of limitation really depends upon the article to be applied. On behalf of the appellant it has been contended that the article applicable is Article 49 or Art. 62, and on the respondent's behalf it has been said that either Art 123 or Art. 120 is the article to apply. That Art. 123 will not apply has now been conclusively settled by the Judicial Committee in the case of Ghulam Mohammad v. Ghulam Hussain . Their Lordships have said in that case:
This article (meaning Article 123) only applies where the suit is brought against an executor or administrator or some person legally charged with the duty of distributing the estate.
8. It cannot be contended that any such capacity or duty can be attributed to Swarnamoyee. In the case of Mohomed Reasat Ali v. Mt. Hasin Banu (1893) 21 Cal 157, in which a Mahomeden widow had sued to recover the cash and moveables left by her husband on the ground that she was her husband's heiress, their Lordships observed:
This is not a suit for a distributive share of property (Art. 123), nor a suit for specific moveable property wrongfully taken (Art. 49). This latter article does not appear to be applicable to a suit to establish a right to inherit the property of a deceased person. Article 120 provides for a period of limitation of six years in a suit for which no period of limitation is provided elsewhere in the schedule.
9. Article 62, in our opinion, is wholly inappropriate. Article 49 is, in our judgment, equally so in a case where, as here, a half-share in certain moveable is sought to be recovered on declaration of title, such a suit not being a suit for specific moveable property, which means property of which one can demand the delivery in specie. In our opinion it must be held that the suit is governed by the residuary Art. 120. The plaintiff had six years from the date when the right to sue accrued. That right accrued to him when the half-share of the Government promissory notes became due to him and so the question is whether he can rely, as he does, on Section 18, Lim. Act. As regards the circumstances under which and the extent to which he may do so, the following proposition is well settled: Except when the plaintiff's knowledge is an ingredient of his cause of action the plaintiff's ignorance of his right to sue does not prevent time from running against him. But it is otherwise if such ignorance is brought about by the fraud of the defendant. In order to constitute fraud there must be some abuse of confidential position, some intentional imposition, or some deliberate concealment of facts: a designed fraud, by which a party knowing to whom the right belongs conceals the facts and circumstances giving that right. The right of the party so defrauded is not affected by lapse of time, or by anything done or omitted to be done, so long as he remains, without any fault of his own, in ignorance of the fraud which has been committed. In the case of Rahimbhoy Hubibhoy v. Turner (1892) 17 Bom 341 their Lordships of the Judicial Committee observed:
When a man has committed fraud, the onus is on him to show that the injured person had clear and definite knowledge of the facts which constituted fraud, at a time which is too remote to allow him to bring the suit. The burden is not discharged by proof of the fact that some hints and clues had reached plaintiff, which might have led to such knowledge.
10. It is not the defendant's case that Jadu had informed the plaintiff about his right to the Government promissory notes under the will. Indeed, that cannot be her case, because such a case would be repugnant to her contention that the plaintiff had no such right at all. In such circumstances it may safely be taken that the plaintiff's case that Jadu never disclosed to him his right to the Government promissory notes under the will is true. If is not also difficult to infer that when Jadu took the Government promissory notes endorsed over to himself and dealt with or disposed of them he never disclosed that fact to the plaintiff. Indeed, judging from the position that the plaintiff was occupying in the family and the relations which existed between him and Jadu and considering that Jadu took a conveyance from the plaintiff in respect of all his other properties evidently with a desire to save them from being wasted, it is inconceivable that Jadu would ever think of doing so. To establish that such non-disclosure constituted fraud three different attributes have been ascribed to Jadu. It has been urged that he was in the first place the karta of the joint family, and nextly, that he was a trustee appointed under Debrani's will, and thirdly, that he was the plaintiff's cosharer in the matter of the Government promissory notes.
11. Having regard to the recalcitrant career which the plaintiff had begun to pursue and the transaction in the shape of the purchase of plaintiff's properties which Jadu had made in 1901, it is difficult to attribute to Jadu, by reason of his being the senior male member of the family, the fiduciary character which is attributable to the karta of a Mitakshara joint family, even assuming that, so far as such a character is concerned, a karta of a Dayabhaga joint family does not stand on a different footing. The trust that Jadu was to hold the properties dealt with by Debrani's will on behalf of the plaintiff was clearly not in respect of the Government promissory notes. But a cosharer he certainly was for the will gave him only a half-share in the Government promissory notes, the other half belonging, under the will, to the plaintiff on the termination of Debrani's death. If during the lifetime of Debrani he got possession of the Government promissory notes from her he upon a true construction of the will, was but a sharer therein and could claim no higher rights and privileges than a partner or a cosharer could. A partner is always entitled to rely on the good faith of his co-partner. And a cosharer coming into exclusive possession of property belonging to himself and his cosharer will be presumed to have done so not only for himself but for his cosharer as well until there is ouster: see Biswanath Chakravarti v. Rabia Khatun : AIR1929Cal250 . There was therefore a duty on the part of Jadu to speak, and if he remained silent when there was such a duty, there was concealed fraud on his part on which the plaintiff can justly rely to get over the bar of limitation: Betjamann v. Betjamann (1895) 2 Ch 474. Once this position is reached the burden would lie on the defendant to show that the plaintiff had 'clear and definite knowledge of the facts which constituted fraud which is too remote to allow him to bring the suit.' To discharge this burden, it is not enough for the defendant to show that the plaintiff had means available to him for coming to know of the fraud. As Rigby, L.J., observed in the case of Betjamann v. Betjamann (1895) 2 Ch 474:
What is the duty of a man to inquire? To whom does he owe that duty? Certainly not to the person who has committed the concealed fraud. For a man in that position to come and say: 'you ought to have inquired, and if you had inquired, you would have found me out' is utterly opposed to every principle of equity.
12. The positive evidence which the defendant has brought to prove that the plaintiff in fact had knowledge of his rights under the will is not believable and what the defendant herself has said in her evidence as to the plaintiff having had every access to the persons and therefore having had every opportunity of knowing how matters really stood falls far short of making out facts on which it might be held that time began to run against the plaintiff. As the suit was instituted well within six years from 1922, when the plaintiff says he acquired knowledge of the facts, the claim, in our judgment is not barred.
13. Then it has been contended that the deed of release executed by the plaintiff in 1922 (Ex. A) absolves the defendant from her liability. But the deed is entirely silent as regards the Government promissory notes, and it is nobody's case that any claim to or repudiation of a liability in respect of the Government promissory notes, in respect of which the deed could be regarded as constituting a disclaimer, was, at the date of the deed, in the contemplation of the parties. We have read the terms of the. deed with care, but notwithstanding the wide words in which they have been expressed we are not able to hold that they can be read as including a dispute which the parties never thought of at the time. The words of the deed run thus:
Be it further stated that with regard to the management of my properties during my minority by my said father's elder brother, i. e., your husband, the said late Jadu Nath Sircar, as trustee on my behalf as well as any money due to me that came into his hands or control in connexion therewith, as also with regard to any act done by him in connexion with my properties after my attainment of majority I did not make any claim or demand against your husband, and of this I informed your husband and yourself repeatedly long ago. But as there was nothing in writing about the same and as you demanded a written disclaimer from me with regard thereto, I accordingly hereby, etc.
14. Reading the deed as a whole it seems to us that its intention was to effect a release in respect of all claims arising on account of the properties described in the schedule to the deed and which had been taken by Jadu under the conveyance of 1901, and on account of all liabilities consequent on the management thereof and also all demands that could be made against Jadu for his dealings as trustee appointed by Debrani's will. But assuming that the words, which are very general and wide, may be read as including all claims of all kinds, the position is that the defendant who has obtained the properties left by Jadu by his will, can have no higher rights and equities in her favour than Jadu himself had. She is not in the position of a bona fide purchaser for value or an innocent third party. To her will apply all such considerations as could, in law and equity, apply to Jadu himself. The proposition is as old as the hills that a release shall be avoided where there is suppressio veri or suggestio falsi: see Jarvis v. Duke (1681) 1 Vern 20 and Broderick v. Broderick (1713) 1 PW Ms 237. The proposition is expressed in Story's Equity Jurisprudence, Sections 217 and 219, thus:
It is upon the same ground that a Court of equity proceeds where an instrument is so general in its terms as to release the rights of the party to property to which he was wholly ignorant that he had any title, and which is not within the contemplation of the bargain at the time when it was made. In such cases the Court restrains the instrument to the purposes of the bargain, and confines the release to the right intended to be released or extinguished.... Nor is it in every case where even a material fact is mistaken or unknown without any default of the parties that a Court of equity will interfere. The fact may be unknown to both parties, or it may be known to one party and unknown to the other. If it is known to one party and unknown to the other, that will in some cases afford a solid ground for relief, as for instance where it operates as a surprise or a fraud upon the ignorant party. But in all cases the ground of relief is not the mistake or ignorance of the material facts alone, but the unconscientious advantage taken by the party by the concealment of them. For if the parties act fairly, and it is not a case where one is bound to communicate the facts to the other upon the ground of confidence or otherwise, there the Court will not interfere.
15. Lastly it has been urged that by reason of the fact that the defendant was induced to execute the deed of gift there is an estoppel against the plaintiff. The estoppel is pleaded thus in the written statement:
The real fact is that the plaintiff, after he had sold all his properties to the defendant's husband made great efforts to get back the same from the defendant's husband Jadu Nath Sircar during his lifetime, and although the defendant's husband had a mind to make a gift of those properties in his favour he became displeased with the plaintiff on account of his ill-treatment and oppressive behaviour and did not execute such a deed in his favour. Subsequently after the death of this defendant's husband this defendant obtained the entire properties left by him in absolute right according to the provisions of her husband's will; whereupon the plaintiff entreated this defendant a good deal to make a gift of the properties sold by him and told him that he had no claim against her husband for the administration and management of his properties and for any work done by him during the time nor had he any claim for any money in that connexion and that he had no claim whatever in that connexion against the estate owned, held and left by him, and accordingly executed on 28th March 1922, the nadabi or deed of release, etc. (para. 13).
This defendant relying on the statements of the release executed by the plaintiff, and also on his promise, made a gift of property worth at least two lakhs in the name of his mother for the benefit of him and his family; the plaintiff's claim is barred by waiver, acquiescence and estoppel and the plaintiff is legally debarred from bringing the present suit (para 15).
16. Strictly speaking, the averments set out above are not sufficient for a plea of estoppel. But it is not unreasonable to assume that they mean that the defendant in making the gift acted on the representation of the plaintiff that he would have no further claim if the gift was made; and inasmuch as she did make it the plaintiff cannot be permitted to turn round and run contrary to the representation that he then made. There are however several difficulties in the way of this plea of the defendant being allowed. In the first place the defendant who derives her title through Jadu cannot plead any higher estoppel than Jadu could, and in view of the concealed fraud that Jadu was guilty of, the defendant can hardly plead an estoppel of this character, which, after all, embodies a doctrine of equity. It had been pointed out by the Judicial Committee in the case of Sarat Chandra Dey v. Gopal Chunder Lala (1892) 20 Cal 296 that the existence of the estoppel does not depend on the motive, or on the knowledge of the matter on the part of the person making it, and in that way it does not matter whether the plaintiff's intention in making the representation was fraudulent or was due to mistake or misapprehension and it is enough that the defendant was misled. So far however as the present case is concerned the defendant can hardly be permitted to take the plea of estoppel, claiming as she does through Jadu, through whose concealed fraud the plaintiff was kept in ignorance of his real rights. Then again the essence of the doctrine is that the defendant should have been misled; but when none of the parties had any idea, at the time, of plaintiff's rights to the Government promissory notes and the representation did not expressly include such rights, it is not possible to hold that the defendant was misled into thinking that the plaintiff was giving up such rights.
17. In our opinion the contentions urged on behalf of the appellants cannot succeed. We accordingly dismiss the appeal with costs to respondent 1 only. The application not being pressed is rejected.