1. The suit out of which this appeal has arisen was originally, laid by the plaintiff No. 1 Sarojini Debi. Her adopted son Chandra Kanta Ganguly, who was originally apro forma defendant, was subsequently transferred to the category of plaintiffs, as plaintiff No. 2. The plaint set out a long history but for the purposes of the appeal now before us only a short statement of the salient facts alleged therein is necessary. They are as follows:
The plaintiff No. 1 is the widow of one Nibaran Ganguly who died childless in 1306 B.S. leaving her as his only heir and giving her by a will authority to adopt a son and to possess his properties for her life. Nibaran's father Parbati left four widows of whom the youngest Swarnamoyi was the mother of Nibaran. Of the other three, the eldest Uma Sankari came, on Nibaran's death, to be in actual management of the properties. Uma Sankari and Swarnamoyi in concert with one Uma Kanta Ganguly, who was an agnatic relation as well as a debtor of Nibaran, managed to give put that Uma Kanta's son Chandra Kanta had been adopted by the plaintiff No. 1. In 1913 the plaintiff No. 1 instituted a suit to set aside the alleged adoption and having lost it in the trial Court preferred an appeal to the High Court in April 1915. While the appeal was pending the Chief Officer who was managing the properties died and Uma Kanta Ganguly went to the mofussil and created troubles for which she bad to seek the help of the Criminal Court. She was thus put to great difficulty; because collections were stopped, the accounts and other papers were taken away, no realisation could be made from the debtors and rents payable for the properties fell into arrears. Reduced to such straits she, in April, 1916, approached the defendant No. 1 Srish Chandra Mukherjee and the defendant No. 2 Beni Madhab Ganguly, two Pleaders who had acted for Nibaran and Parbati in the past and were well conversant with the estate. These two gentlemen, on looking into such papers as she produced, assured her that they would be able to free the properties of debts and liabilities if they were allowed to manage them for four years. They also said that they being professional men were unable to devote sufficient time for the purpose and so they advised her to associate with them the defendant No. 3 Ambica Churn Mukherjee who, they said, was intimately known to them and was a trustworthy man. These three defendants thereafter took from her the documents and papers that she had and they appointed the defendant No, 6 Bepin Behary Chakravarty as' Tehsildar. Under the aforesaid arrangement the estate began to be managed by the aforesaid defendants. They then caused the appeal which was then pending in the High Court, disposed of on a compromise, by which an admission was obtained from her to the effect that the adoption was true and valid and that she would remain in possession of the estate only as executrix. They made her borrow monies which they themselves took, appropriated the collections that were made and went on in that way. They suggested to her that in order to avoid trouble and difficulties arising from the fact of joint ownership with co-sharers and also in order to facilitate collection of rents the properties should be allowed to be sold up for arrears of rent and purchased at auction by themselves, assuring her that there would be no change in the ownership of the properties inspite of the change in the name of the owner and agreeing that they would reconvey to her the properties so purchased by them at the time of settlement of accounts. Ten items of property were given in the plaint as properties so purchased by them; Nos. 1, 2, 3 and 4 were purchased by defendant No. 1 in the name of his clerk the defendant No. 5 Abinash Chandra Chatterjee; No. 5 was purchased by the defendant No. 1 in his own name; and Nos. 6, 7, 8, 9 and 10 were purchased by the defendant No. 3 in the name of his son the defendant No. 4 Shama Charan Mukherjee. For the purchase of properties Nos. 1 and 2 the defendant No. 1 took from her Rs. 310 and for the purchase of properties Nos. 6 to 10 the defendant No. 3 took from her Rs. 300. All the properties were purchased with monies belonging to the estate. The defendant No. 3 took usufructuary mortgage in the name of his son the defendant No. 4 Shama Charan from her tenants for monies due to her from them.
2. On the above allegation she prayed for accounts from the defendants Nos. 1 to 3 for their management from 1323 B.S. for declaration of her right to and confirmation of her possession in the ten items of property aforesaid and for other reliefs.
3. The Subordinate Judge having made a decree in plaintiff's favour, the present appeal has been preferred by the defendants Nos. 1, 3 and 4. To the pleas of these three defendants only, it will be sufficient to refer for the purposes of this appeal. The defendant No. 1 denied almost everything that was alleged against him and alleged that he had lent some money of his own to the plaintiff No. 1 and had also accommodated her by a loan raised by him by executing a hand-note jointly with the defendant No. 2, that the properties had been purchased in his own name and in the name of the defendant No. 5 either at the request of the plaintiff No. 1 or of the defendant No. 2 but not with the money of the plaintiff No. 1, and on the assurance that the plaintiff No. 1 would soon take back the properties on repaying him with interest.
4. The defendant No. 3 made similar denials and repudiated all liability and asserted that he had merely helped the plaintiff No. 1 in her suits at the request of the defendant No. 2 and subsequently of herself. His son the defendant No. 4 claimed the properties purchased by him as his own.
5. In this appeal the main arguments of the appellants have been directed against the findings of the Subordinate Judge on the two issues, Nos. 7 and 10, which go to the root of the plaintiffs' claim and which have been found in favour of the plaintiff. Those issues are as follows:
No. 7. Did the defendants Nos. 1, 2 and 3 enter into the alleged contract for management of the properties for plaintiff Did they manage the properties and are they liable for accounts, and if so, for what period and for what purposes ?
No. 10. Were the scheduled properties purchased with money of the plaintiff or with the income of her properties Did the plaintiff advance any money as alleged for the purchase of the properties Has defendant No. 3 purchased any property in the name of defendant No. 4 with plaintiff's money And a part of another issue, namely, issue No. 13, which raises the question whether the suit is barred by resison of the provision of Section 66 of the Code of Civil Procedure also arises for consideration in this appeal.
6. On the matters which form the subject-matter of the issues referred to above a number of points have been taken and these points will now be considered.
7. It has been urged in the first place that Section 66 of the Code is a bar to the suit in so title under the purchases which the defendants Nos. 1 and 3. are alleged to have made of the properties at auction. Reliance in this behalf has been placed upon the decision of the Judicial Committee in the case of Ramathai Vadivelu Mudaliar v. Peria Manioka Mudaliar 47 IA 108 : 56 Ind. Cas. 395 : 43 M 643 : 24 CWN 699 : 18 ALJ 584 : 28 MLT 13 : 39 MLJ 11 : 12 LW 1 : (1920) MWN 389 : 2 UPLR (P.C.) 90 (P.C.) and it has been argued that where the only allegation is that there was an agreement prior to the sale that the purchaser would make the purchase but would reconvey the property purchased for the price he pays, the transaction in effect is a benami purchase and so a claim based on such a purchase is hit by Section 66 of the Code. The decision of the Judicial Committee was one in which there were as well certain agreements to reconvey entered into, after the sale and their Lordships upheld the claim on the basis of those agreements but made certain observations as regards the agreement antecedent to the sale which undoubtedly may be read as favouring the appellants. So far as agreements subsequent to the sale are concerned, there can be no question after the aforesaid decision of the Judicial Committee in which the decision of the Madras High Court in the case of Amrutam Vankatappa v. Vavilala Jalayya 42 M 615 : 51 Ind. Cas. 111 : 9 LW 598 : 26 MLT 46 : (1919) MWN 355 : 37 MLJ 98 (F.B.) was approved, that when there is such an agreement the true owner is always entitled to maintain a claim notwithstanding the provisions of Section 66 of the Code. As regards a purchase with regard to which there is an antecedent agreement to reconvey, the observations referred to above do apply. They are as follows:
If the agreement entered into before the auction stood alone there would be considerable force in this contention. The object of Section 66 was to put an end to purchases made by one person in the name of another; and a distinction between a purchase on behalf of another, and a purchase coupled with an undertaking to convey to another at the price of purchase is somewhat narrow.
8. These observations were not necessary for the decision of the case before their Lordships, but even as obiter dicta they are undoubtedly entitled to very great weight. In a recent decision of this Court in the case of Haran Chandra Roy v. Ram Kumar Roy : AIR1932Cal170 it has been held on the strength of the aforesaid observations that in the case of a purchase coupled with an antecedent agreement of such a character the claim is barred by Section 66 of the Code. Now, the exact nature of the antecedent agreement in the case before the Judicial Committee was that it was an agreement that the purchaser would be bound to convey at the price of the purchase; and money that was to be spent for the purchase was being treated as the money of the real owner which the purchaser was supplying for the purpose. But in the present case the nature of the antecedent agreement is entirely different; here the defendants Nos. 1, 2 and 3 were to remain in charge of the management for four years at the expiry of which they would relinquish the management and submit accounts and the agreement was that on the final adjustment of accounts which would take place when the period was over they would reconvey the properties to the plaintiff. The price for which they would reconvey was possibly to be the same for which the purchases were to be made, but the reconveyance would be effected on the footing of the adjustment of the rights and liabilities of the parties at the date of the adjustment. Mere tender of the amount for which the purchases were made may not be sufficient to entitle the plaintiff to a reconveyance; and in any event she would be incompetent to ask for a reconveyance until the period of management was over. In such circumstances it is difficult to maintain that the agreement, such as it was in the present case, was of the nature to which their Lordships referred in their observations quoted above; we find also that there was, though not set out in the plaint itself, a clear subsequent agreement as disclosed in the evidence of P. W. No. 4 Rai Bahadur Mehendra Chandra Sen. Referring to an occasion when defendants Nos. 1 to 3 were all present he has said,--''they also undertook at the time to reconvey the properties of the plaintiff if they would get their dues'. With this undertaking they were allowed to continue in such management of the properties as they previously were, and so it was an undertaking to which they may legitimately be held down and which may be enforced against them. In such circumstances we think the bar of Section 66 of the Code does not operate in the present case.
Secondly, the alleged oral agreement under which the defendants Nos. 1 to 3 came to manage the plaintiff's properties and the entire story of their connection and dealings therewith have been challenged. One of the main grounds on which the story as to the plaintiff No. 1 having sought the help of the defendants Nos. 1 and 2 originally was sought to be discredited was sought to be made out by showing that she could not have showed them any papers of the estate because there were no such papers in existence. We are not satisfied that it has been established that all the papers had been removed or destroyed : the previous deposition of the plaintiff No. 1 (Ex. Q-2) upon which reliance has been placed for this purpose does not go that length. The evidence of the plaintiff No. 1 coupled with the evidence of her witness P. W. No. 2 Gopal Chandra Das Gupta not only directly establishes her case, but also establishes circumstances which appear to us to make it inherently probable that she should have approached the defendant No. 2 and then the defendant No. 4 and that later on the services of the defendant No. 3 were also availed of. It is quite true that in her evidence as also in the evidence of Gopal there are some inconsistencies and contradictions which it is difficult to reconcile, some palpable traces of attempts at exaggeration, and also certain details and particulars which obviously could have no foundation in truth but have been introduced to make the case more definite and look blacker. But we have no doubt whatever that the story she has put forward is, in its main features, a substantially true story; we are not prepared to think much of the evidence of D. W. No. 10 Nishi Kanta Chakravarty or to draw any inference adverse to the plaintiff from the fact that Umesh Chandra Haldar has not been examined by her as a witness. We hold that under the agreement or understanding alleged on behalf of the plaintiff No. 1 the defendants Nos. 1 and 2 took up the management of the estate and the defendant No. 3 began to carry on the management under their control and supervision.
Thirdly, it has been urged on behalf of the appellants that the actual management of the properties by the defendants Nos. 1 to 3 or by any of them has not been sufficiently proved. By reference to a number of letters written by the defendant No. 1 (Ex. 11 series), or the defendant No. 2 (Ex. 12 series) or the defendant No. 6 (Ex. 13 series) and to the receipt book of documents (Ex. 9 series) certain letters written by the plaintiff No. 1 (Exs. 16 and 17) and receipts granted by her (Exs. K and L) and the letter of appointment of the defendant No. 6 (Ex. F) and also to the oral evidence such as there is on the paint including the previous depositions of the plaintiff No. 1 herself [Ex. Q, Q (1) and Q (2), it has been Bought to be established that the plaintiff No. 1 was all along personally doing some work or other in connection with the estate, visiting the properties, receiving rents and nazar, keeping documents in her custody, signing papers, making settlements, appointing officers and so on. But all this evidence, far from suggesting that the defendants Nos. 1 to 3 had no hand in the management of the properties, clearly suggests the contrary, and only establishes that the plaintiff No. 1 was not wholly out of touch with the estate but was taking such part in the works connected with the estate as she had necessarily to take. In other words, the said evidence to our mind, does not in any way militate against the story of management by the defendants Nos. 1 to 3 as put forward on behalf of the plaintiff No. 1, In this connection far more convincing is the mass of documentary evidence, that we have on the record. In our opinion, the letters of the defendant No. 1 (Ex. 11 series) the hisabs [Ex. 8, 8 (a)] the letters written by the defendant No. 2 (Ex. 12 series), the letters written by the defendant No. 3 [Ex.14 and 14. (a)] and the letters written by the defendant No. 6 [Ex. 13 and 13 (a)] prove beyond the shadow of a doubt that the plaintiff No. l's story as to the actual management of the properties by the defendant No. 3 under the control and supervision of the defendants Nos. 1 and 2. In addition to the above-mentioned documenary evidence we have the evidence of two very respectable witnesses namely P. W. No. 1 Salyendra Chandra Sen and P. W. No. 4 Rai Bahadur Mohendra Chandra Sen who have spoken to matters as to the conduct of the defendants Nos. 1 to 3 which, in our judgment, would be inconsistent with any other supposition than that in connection with the management of the plaintiff No. l's those defendants were under some sort of obligation or liability to account. We have examined the evidence which the appellants themselves and their witnesses have given in this case with the evident object of throwing the entire responsibility on the defendant No. 2 who is dead, and we are firmly of opinion that that evidence cannot be trusted. The appellants stood in a fiduciary relation to the plaintiff No. 1 and there can, upon the evidence, be no escape from the conclusion that the plaintiff No. 1 is entitled to accounts as against them.
Fourthly, it has been urged that as between the plaintiff No. 1 and the defendant No. 3 there was no privity of contract which would make the latter liable to account to the plaintiff No. 1. This argument is based upon the evidence which the plaintiff No. 1 gave to the effect that she had nothing do with the appointment of the defendant No. 3 and that the latter had been appointed by the defendants Nos. 1 and 2 entirely on their own responsibility. In making such a statement the plaintiff No. 1 in our view very probably deviated from the truth: But whether that is so or not the defendant No. 3 having meddled with the plaintiff No. l's properties and monies it is only right that there should be an account taken even though no contractual relations have been established between them.
The argument next addressed to us on behalf of the appellants relates to the documents Exs. 6, 7, 14 and 14 (a), it being urged that there is intrinsic evidence which these documents contain showing that they cannot be true, and further that they have not been given sufficient opportunity to call expert evidence to prove that they are forgeries. The first of these two contentions in so far as they relate to Exs. 6 and 7 is based upon a comparison of dates as regards the dates on which the monies were received under them as compared with the dates on which the respective sales took place, and also on the manner in which the plaintiff No. 1 was addressed in them. We are not prepared to attach any great weight to this contention because it is not unlikely that the monies were received after the purchases had been already made, and that the plaintiff No. 1 may have been under a mistake when she spoke to the contrary. The learned Judge was not satisfied as to the genuineness of Ex. 6. We need only say that we do not differ from him if he meant that he was not satisfied that it was signed by defendant No. 1, as was the case of the plaintiff No. 1; but we must say that we would not countenance any suggestion that the document was a fabricated one; in our judgment, it is not unlikely that it was written by some other person at the instance of the defendant No. 1. The writing in Ex. 7 exactly resembles that in Ex.. 20 a document which admittedly bears the handwriting of the defendant No. 3.: So also do the letters Exs. 14 and 14 (a), which are impugned on the ground that it is exceedingly improbable that the defendant No. 3 would care to make such damaging admissions against himself as well as against the first two defendants as would prove the entire case of the plaintiff No. 1. We are not prepared to hold that it is inherently improbable that what is stated in all these documents could be true. So far as opportunity to call expert evidence is concerned, we find that the appellants never took any steps for this purpose until January ]3, 1930, and not until the documents had already been proved, and then only the applications they made was one for the appointment of an expert to examine the documents. The documents had been lying in Court having been filed on behalf of the plaintiff a Very considerable time before. We think the learned Judge was right in rejecting the applications.
Sixthly, it has been argued that copies of some jama kharach papers which the defendant No. 4 fried should have been received in evidence. The matter is covered by Order No. 135 of the Subordinate Judge dated January 24, 1930. We find that the circumstances justifying the reception of such copies as secondary evidence have not been made out on proper evidence, and that the loss of the original papers has not been sufficiently accounted for.
9. An argument has next been advanced that the entries contained in Ex. 8 and 8 (a) have not been specifically proved and so such entries are not admissible in evidence. What has happened is that the hisabs in their entirety have been proved and marked as the aforesaid exhibits. The defendant No. 6 no doubt denied that these hisabs are in his hand writing; but that this denial is false is obvious on a comparison of the writing on these hisabs with the letters Ex. 13 series the genuineness of which he has not denied. In such circumstances it would, we think, have been mere waste of time to prove also the entries, one by one. Of course the entries should ordinarily have been put to the defendants or their witnesses specifically and one by one, in order to get their explanations, if any. But as the entire] hisabs were impugned on behalf of the defendants as forged or fabricated, there was no point in adopting that procedure, so long as they were aware that all the entries were being sought to be used against them, a fact which is not disputed.
10. The above, in short, are all the contentions which have been urged against the findings of the Court below upon the issues referred to above; and as they fail, those findings must necessarily stand.
11. We now turn to consider the. form of the decree that has been made in this case. The decree is that 'the defendants Nos. 1 and 3 (as also the defendant No. 6 with whom we are not concerned in this appeal) do submit true and correct account of the periods of their management of the plaintiffs' estate, that is from 1323 up to the time of rendering accounts of the dues of the estate realised by them and of the rents and profits of the properties managed by them (that is of the properties Nos. 1 to 10 and other properties) and that they do also file in Court all collection and accounts and other papers of the plaintiffs' estate which may be in their custody and possession,' etc., etc. Such a decree is not a decree for account on the basis of wilful default. And so long as it is not on such a basis, it is difficult to see what grievance the appellants can legitimately have; because the decree only means that the appellants are to give up all papers, etc., that they may have in connection with the management of the estate, papers, etc., which they can possibly have no right to retain. It is claimed by the defendant No. 1 that money is owing to him from the plaintiff No. 1; and so, there must necessarily be an accounting to ascertain what the exact position is. As regards the defendant No. 3, he seems to have, had the direct management in his hands and it is not possible to see how he can resist an accounting in order that his liabilities may be assessed. The assessment of separate liabilities of the defendants Nos. 1, 2, 3 and 6 is a perfectly just order and, if anything, is in the interest of the defendants and not to their prejudice. The order as to reconveyance as contained in the decree as against the appellants is also fully justified on the findings of the Court below, findings which have been challenged on grounds which have, in our opinion, failed.
12. There are, however, two matters which need be made clear in the decree. One of these arises upon the observation in the judgment which is worded thus:
The defendants did not submit the accounts to the plaintiff and the plaintiff had no means of ascertaining the particulars of the other properties. For all these reasons I hold that the plaintiff is entitled to a declaration of her title and to a re-conveyance of the other properties purchased by the defendant No. 4 which have not been mentioned in the plaint.
13. This observation can only apply to such other properties belonging to the plaintiff No. 1's estate which may have been purchased by the defendant No. 4. The decree should be amended accordingly.
14. Secondly, it also appears that property No. 2 of the schedule to the plaint has reverted to the plaintiffs' estate, the sale in connection therewith having been already set aside. The order as to reconveyance in respect of this property should, therefore, be deleted from the decree.
15. The appeal, subject to the two modifications noted above, should be dismissed with costs against the appellants.