Skip to content


Mr. K.C. Mukherji, Official Receiver and anr. Vs. Khajemali Khan and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in157Ind.Cas.605
AppellantMr. K.C. Mukherji, Official Receiver and anr.
RespondentKhajemali Khan and ors.
Excerpt:
civil procedure code (act v of 1908), section 110 - leave to appeal to privy council--law correctly applied by lower courts to set of facts concurrently found by them--substantial question of law, if exists--leave to appeal, if can be granted. - .....sarat was appointed receiver to take charge of the estate and he was given liberty to institute a suit or suits for setting aside perpetual lease or leases granted by pratap or any other trustee for the time being.2. it is necessary to state here that in the plaint in the suit aforesaid the lease in favour of the present plaintiffs was challenged as one granted by pratap for an inadequate premium and at a low rate of rent fixed in perpetuity in spite of better offers which he had received. in 1915 sarat, as receiver and acting presumably under the liberty reserved to him under the scheme decree aforesaid, instituted a suit against the present plaintiffs for khas possession of the garden and alleging that the property had been included in the trust estate and had been in the possession.....
Judgment:

Mukerji, J.

1. This is an application for leave to prefer an appeal from a decree of this Court affirming on appeal a decree of the Subordinate Judge, 1st Court, 24 Parganas. The suit in which the said decrees were made was for recovery of possession of a garden and, in the alternative, for recovery of the money which the plaintiffs had paid as selami and also the costs which they had incurred in making improvements. The property in suit was one of the properties which were included in a deed of trust executed in 1880 by the then owners thereof, and in accordance with the terms of the said deed one Pratab Chandra Ghose came to be the sole trustee in respect of the trusts with his brother Sarat Chandra Ghose standing to come in as trustee on his death. While this was the state of things, Pratap's son Bhupendra Sri, in 1910, as attorney for Pratap, granted a maurasi mokurrari lease to the plaintiffs in respect of the garden, the property in suit. In the same year Sarat Chandra Ghose instituted a suit against Pratab as trustee and making the beneficiaries parties thereto. In the plaint in that suit the trust was impugned as a sham and colourable transaction and it was prayed that the deed of trust be declared void, and various sorts of misconduct being alleged against Pratap in his dealings as trustee, accounts were asked for against him. The Court held that the general trust, in the deed were too vague and uncertain for the administration thereof to be under any control and so declared them to be bad and inoperative; and as regards certain other specific provisions made in the deed which were in the nature of trust the Court declared that in respect of those matters the properties to which they related were merely charged with the expenses to be incurred in carrying out those directions. To avoid an expensive reference the parties agreed to a scheme of management which eventually was secured by a decree of the Court in 1912. The relevant portion of the said decree was as follows:

(1) Pratap was released from liability to account, it being said that 'all accounts, including the premium in respect of the Talla garden (meaning the garden in suit) are waived, and all charges are withdrawn, by all parties against one another.'

(2) It was provided that on Pratap's death the estate subject to the charges for debsheba, etc. would be partitioned, Pratap's share being one-third, and.

(3) Sarat was appointed Receiver to take charge of the estate and he was given liberty to institute a suit or suits for setting aside perpetual lease or leases granted by Pratap or any other trustee for the time being.

2. It is necessary to state here that in the plaint in the suit aforesaid the lease in favour of the present plaintiffs was challenged as one granted by Pratap for an inadequate premium and at a low rate of rent fixed in perpetuity in spite of better offers which he had received. In 1915 Sarat, as Receiver and acting presumably under the liberty reserved to him under the scheme decree aforesaid, instituted a suit against the present plaintiffs for khas possession of the garden and alleging that the property had been included in the trust estate and had been in the possession of Pratap as sole trustee, that taking advantage of Pratap's absence his son Bhupendra Sri, as attorney for his father, with a view to raise money for himself out of the trust estate and to cause injury thereto, granted the lease to the plaintiffs. The Courts in India dismissed this suit; but on November 1, 1921, it was decreed by the Judicial Committee on the ground that the power-of-attorney under which Bhupendra Sri had purported to act had not been produced and that there was no proper secondary evidence given of its contents and so the defence that Bhupendra Sri in granting the lease had acted as Pratap's attorney had failed, and also on the ground that even if Bhupendra Sri's authority as attorney was proved, that would be of no avail to the defendants in the suit (i.e. the present plaintiffs) inasmuch as the fiduciary duties which Pratap had to discharge as trustee could not be delegated by him to any body. The decree was executed at the instance of the Official Receiver who had come in the place of Sarat in the meantime and the present plaintiffs were removed from possession.

3. Thereafter on May 22, 1926, the plaintiffs instituted the present suit, as upon a cause of action which arose on March 3, 1921, the date on which Pratap died, and on November 1, 1921, the date of the decision of the Judicial Committee. The defendants in the suit were the Official Receiver and also the heirs of Pratap and his co-sharers. The plaintiffs took their stand on the lease of 1910. The main relief claimed was recovery of possession to the extent of Pratap's undivided share on a declaration that the property was secular, or possession of the entire garden which it was asserted should be allotted in its entirety to Pratap's heirs on partition, and in the alternative for refund of the premium paid and of the costs incurred in making improvements. As already observed, the Subordinate Judge, as also the High Court, have upheld the plaintiffs claim for possession to the extent of an undivided one-third, in the garden.

4. In the appeal which the Official Receiver proposes to prefer to the Judicial Committee, the question of law on which he relies is the question of constructive res judicata, the contention being that the plaintiffs' claim in the present suit was barred by reason of the fact that that claim might and ought to have been put forward by them by way of defence in Sarat's suit of 1915 to resist the claim of the latter therein for khas possession.

5. Now, so far as the question of value is concerned, it is not disputed that the value of the subject-matter of the suit was Rs. 10,000 that was the value stated by the plaintiffs in their plaint that value was not disputed in the written statement or at any stage of the trial and the appeal which the Official Receiver preferred to this Court from the decree of the trial Court was valued by him at that amount. It is now said by the plaintiffs, as opposing this application for leave that under the decree which is sought to be appealed against, the plaintiffs having got only an one-third share of the garden, the subject-matter of the appeal to the Judicial Committee would be only of the value of 1/3rd of Rs. 10,000 either as representing the value of a third share in the garden or as representing a third share of the selami and the costs of improvement. On the other hand it would, I think, not be unfair to take that as the original claim in the alternative was for refund of Rs. 10,000 the question whether that amount should or should not be refunded to the plaintiffs would also be a question in the contemplated appeal, should their Lordships of the Judicial Committee consider it proper to discharge the decree and dismiss the claim for possession which the plaintiff has got. In any event it may also be necessary to direct an investigation as to value as has been asked for on behalf of the respondents, even if a third share of the garden is regarded as the only subject-matter of the appeal.

6. But the real difficulty in the petitioner's way is that we do not see how the question of law on which he relies can be regarded as a substantial question, of law. There can be no question that if the facts found by the Subordinate Judge as well as by the High Court have been correctly found, the law on the point has been correctly applied. It has been found that the suit of 1915 was tried on the footing that the property was trust property, that the question whether the property was secular or not was not the subject-matter of the suit, and that the present plaintiffs at the date of that suit or at the date when they filed their defence were not aware of the result of the suit of 1910. In this last mentioned suit to which they were not parties, the members of the family to which Pratap and Sarat belonged had got a certain declaration binding on none but themselves and got a scheme decree passed on a settlement which concerned none but themselves. The finding further is that the present plaintiffs, with the plaint of the suit of 1915 before them, could not be reasonably expected to know that the claim to which they were pleading was made by Sarat in any other capacity than as a Receiver and on any right other than what he had in the property as trust property in his hands as such Receiver. It has been found also, that the plaint of the suit of 1915, on the face of it, shows that Sarat was then making an endeavour to annex the property to the trust estate as such Receiver. Lastly, it has been found that in such circumstances a defence that the property was secular would be barred by the doctrine of estoppel.

7. It has been argued before us that although at the date of the written statement the present plaintiffs as defendants may not have had any knowledge of the facts which would give rise to the present claim as a defence, they must have come to know of those facts subsequently. Of such subsequent knowledge there is no trace or indication anywhere. But in my opinion, such subsequent knowledge of the present plaintiffs, even if the same were proved, could not make the position any better for the petitioner.

8. In such circumstances it is not possible to hold that there is any substantial question of law involved in the appeal such as would justify our granting the leave asked for. The law about which there can be no two views has been applied to a set of facts concurrently found by two Courts and to which, in our opinion, it is rightly applicable.

9. The application for leave is accordingly dismissed with costs, hearing fee being assessed at five gold mohurs.

Derbyshire, C.J.

10. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //