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Brojo Gopal Naik Vs. Lakshmoni Dassi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal791
AppellantBrojo Gopal Naik
RespondentLakshmoni Dassi and ors.
Cases ReferredRajah Ojooderam v. S.M. Nobinmoney Dossee
Excerpt:
- .....from early in february onwards. lakshimoni herself was in calcutta and gave her assent to the terms in calcutta and apparently the only thing she did at mankundu, the family residence, was the actual-signing of the deed of relinquishment. so that whether there may be witnesses of the locality (the plaintiff has not named one) who can give evidence in the plaintiff's favour as regards lakshimoni's capacity about that time, the kernel of the case would appear to lie in the negotiations and circumstances surrounding the settlement, and the part taken by lakshimoni and her advisers. it seems undoubted that the attorneys will have to be called, and be employed not merely in giving evidence, but to watch and advise in the case having regard to their knowledge. the attorney's day-book is a.....
Judgment:

Pearson, J.

1. This is an application for transfer to this Court of a suit pending in the Court of the Subordinate Judge at Hooghly. The application is on the part of defendant 4 in that suit, one Rash Behary Mondal, and is supported by all the appearing defendants, but opposed by the plaintiff.

2. Ramdhone Khan and Rameswar Khan were two brothers possessed of considerable joint properties moveable and immovable; the pedigree which is exhibited shows their descendants and their relationship. It appears that there was certain litigation in this Court concerning the joint estate. In 1914 Ramdhone's widow Lakshimoni filed a suit for partition in this Court, as a result of which certain properties were allotted to her, the rest remaining joint. In 1919 a suit was instituted against Lakshimoni, also in this Court, for a declaration that certain transfers by her of Government securities were invalid, and for other reliefs. That suit never came to a hearing.

3. In June 1920, a suit (1172 of 1920) was filed in this Court by Narottam Mondal (defendant 5 in this suit) against Lakshimoni Dassi, Haridasi and other members of the family to set aside a certain deed of relinquishment executed by Haridasi Dassi. Ultimately that suit was settled upon certain terms, which were gone into at some length before Mr. Justice Page, to satisfy the Court that they were for the benefit of the infant parties, after which a decree was passed in accordance with them. The terms embodied inter alia a relinquishment by Lakshimoni Dassi of her rights as a Hindu grandmother in the estate of Shamadas Khan, deceased. The decree was passed on the 26th February 1923, and the deed of relinquishment was executed by Lakshimoni on the following day, the 27th. The present suit is brought by an infant member of the family, born on the 21st June 1926, to set aside those terms of settlement, the decree based upon them, and the deed of relinquishment by Lakshimoni. The grounds set out in para. 17 of the plaint are her infirmity, want of mental capacity, the absence of independent legal advice and undue influence on the part of Haridas Mondal. Lakshimoni has filed an affidavit on the present application to the effect that she knew quite well what she was doing.

4. It is to be noted that all the negotiations from which the settlement resulted, and the settlement itself, took place in Calcutta. All the parties concerned, including Lakshimoni, were represented by attorneys of this Court in those negotiations, and they lasted from early in February onwards. Lakshimoni herself was in Calcutta and gave her assent to the terms in Calcutta and apparently the only thing she did at Mankundu, the family residence, was the actual-signing of the deed of relinquishment. So that whether there may be witnesses of the locality (the plaintiff has not named one) who can give evidence in the plaintiff's favour as regards Lakshimoni's capacity about that time, the kernel of the case would appear to lie in the negotiations and circumstances surrounding the settlement, and the part taken by Lakshimoni and her advisers. It seems undoubted that the attorneys will have to be called, and be employed not merely in giving evidence, but to watch and advise in the case having regard to their knowledge. The attorney's day-book is a familiar enough production in these Courts, though not outside Calcutta. There is also the question of what took place in Court when the terms of settlement were placed before the Court by counsel.

5. As regards the properties belonging to the estate, the suit is valued at some 26 lakhs. Mohipal Naik's affidavit says that the value of the properties in Calcutta is about 4 lakhs and of those outside Calcutta more than 2 lakhs. At the time of the partition suit in 1914, when the properties were valued by the commissioner, the Calcutta properties were estimated at Rs. 4,59,000, at Chandanagor Rs. 66,000, at Hooghly Rs. 12,000, There were zemindaris in the districts of Hooghly, Murshidabad, Nuddea and Bhagalpore valued at Rs. 5,50,000. And there wsre Government securities in Calcutta of about Rs. 5 lakhs, and another 4 to 5 lakhs of outstandings on mortgages in Calcutta and the family business in Calcutta.

6. I do not think that the fact that previous litigation had already taken place in this Court is really material to the present application, except that if it is necessary to refer to the records they had better be referred to in this Court than be taken up country. Whichever Court heard the care, I take it the parties would have to take certified copies of such proceedings as they required. As regards expense, it would be surprising if counsel were not engaged where the estate is so large, and it is common knowledge that the fees would be much higher than if the suit were tried here. The expense of getting the witnesses to Calcutta is not disproportionately large as compared with Hooghly.

7. One point made in opposition is that Lakshimoni herself is not in a state to be examined except on commission at Mankundu, but as against that I have applicant's undertaking through his counsel that she will be brought to Calcutta for such examination. Another objection is made that the translation of account books would be expensive if the suit i3 heard here, but the applicant has similarly undertaken to bear the expense of that in regard to relevant entries should it become necessary. And as regards the expense of conducting a suit here, he has similarly agreed that in the event of the plaintiff succeeding he may tax his costs against the applicant, irrespective of the restrictions of Ch. 24, Rule 34, of the rules, I think, further, that if the suit is transferred here, the delay in the hearing may be considerably minimized, at any rate, if the parties are diligent.

8. It has been argued that no transfer should be made unless it is 'for purposes of justice' within the meaning of Clause 13, Letters Patent, that is, it must at least be shown that the trial will be unsatisfactory, if it is conducted at Hooghly : see Rajah Ojooderam v. S.M. Nobinmoney Dossee [1886] 1 Ind. Jur. 396. But I take it that the question is to be determined by reference to the circumstances of each case, and that the balance of convenience, having regard to those circumstances, is one of the matters for consideration. Upon the whole, I think, that this is a case where the order ought to be made. Costs in the cause.


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