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Shivaprasad Singh Vs. Prayagkumari Debee and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1935Cal39
AppellantShivaprasad Singh
RespondentPrayagkumari Debee and ors.
Cases ReferredLindsay Petroleum Co. v. Hurd
Excerpt:
- 1. durgaprasad singh succeeded to the gadi of the jharia raj in 1899, on the death of his elder brother raja joymangal singh. the family is governed by the mitakshara school of hindu law. by custom the raj is impartible, and succession to it is governed by the rule of lineal primogeniture. raja durgaprasad died on 7th march 1916(=24th falgun 1322 b.s.), leaving three widows, ranee prayagakumari, ranee subhadrakumari and ranee hemkumari, but no issue. the three ranees were the plaintiffs in this suit; and one of them, namely, ranee subhadrakumari having died since the suit was commenced, the other two are now on the record as plaintiffs, in their own rights and also as her heirs and legal representatives. raja durgaprasad had, on 27th august 1915, made a will, purporting to dispose of some.....
Judgment:

1. Durgaprasad Singh succeeded to the gadi of the Jharia Raj in 1899, on the death of his elder brother Raja Joymangal Singh. The family is governed by the Mitakshara school of Hindu law. By custom the raj is impartible, and succession to it is governed by the rule of lineal primogeniture. Raja Durgaprasad died on 7th March 1916(=24th Falgun 1322 B.S.), leaving three widows, Ranee Prayagakumari, Ranee Subhadrakumari and Ranee Hemkumari, but no issue. The three Ranees were the plaintiffs in this suit; and one of them, namely, Ranee Subhadrakumari having died since the suit was commenced, the other two are now on the record as plaintiffs, in their own rights and also as her heirs and legal representatives. Raja Durgaprasad had, on 27th August 1915, made a will, purporting to dispose of some of the properties in dispute; but no detailed reference to its particulars are necessary because although its genuineness is beyond question, the parties have not, at any stage of this litigation, sought to establish any right under the will but have all along pressed their respective claims on the basis of intestacy. In 1912, Raja Durgaprasad had made certain mokarrari grants for life in favour of his wives, the Ranees. By the will, he bequeathed to them a ten annas share of the jewellery and the cash that would be left by him at his death, and declared that the remaining six annas share thereof should form part of his zamindari, and he further provided that whoever should get the zemindari on his death would be bound to pay to each of his wives maintenance at the rate of Rs. 3,600 per year. The allowance was to be payable in monthly instalments of Rs. 300 carrying interest at the rate of one per cent per mensem in case of default, and such was to form a charge on the estate. On the death of Raja Durgaprasad and within a few hours thereafter, Shivaprasad Singh, the defendant in this suit, was treated by the officers of the raj as the next rightful successor, and, his name being entered in the rokar of the estate, accounts began to be kept in his name. Shortly afterwards, disputes arose between him, and the widows. On 5th August 1916, three bantannamas were executed, one by each of the widows, whereby, for a consideration stated therein, they purported to acknowledge Shivaprasad Singh as the rightful successor of the late Raja and relinquished their claim as the heirs of their husband to all properties left by him. On the same day Shivaprasad Singh executed three khorposh deeds, one in favour of each of the three Ranees, wherein Rs. 300 a month was fixed as allowance for her maintenance and a charge for the amount on one-third of the raj was created. On 13th April 1917, each of the three Ranees purported to execute an ammukhtearnama conferring power-of-attorney upon Shivaprasad Singh.

2. On 6th March 1919, the present suit was commenced by the three Ranees as plaintiffs against Shivaprasad Singh as defendant. Shivaprasad Singh's claim to the succession was denied; it was alleged that the bantannamas were taken by practising fraud and undue influence, and that the ammukhtearnamas were also similarly obtained; and it was asserted that the three Ranees, as heirs of their husband, were entitled to succeed to the raj and all other properties left by him. In respect of the raj, it was also asserted, in the alternative, that if the three widows together were not entitled to it, at least the senior widow was so entitled. And a decree substantially in the nature of a decree for declaration of the plaintiffs title, as heirs to their deceased husband, and for recovery of possession of the estate and effects left by him, which, it was alleged, the defendant had wrongfully and fraudulently taken possession of, was asked for.

3. The suit was in the first instance, tried by the Subordinate Judge, Mr. N.K. Bose, whose judgment bears the date, 3rd November 1921. From this decision two appeals were preferred, one (F, A. No. 194 of 1921) on behalf of the plaintiffs and the other (F.A. No. 51 of 1922) on behalf of the defendant. These appeals were dealt with by this Court (Chatterjee and Panton, JJ.) by a judgment, Prayag Kumari Debi v. Siva Prasad Singh. 1926 Cal 1. By this judgment, a part of the decision of the trial Court was affirmed and another part was set aside, while an inquiry was directed with regard to certain matters which had either been left undecided or which needed further investigation. The result of the appeals in this Court, barring certain minor matters of an interlocutory nature, was summarized in its judgment in nine clauses, (i) to (ix), of the portion containing its decretal order Clause (v) containing four sub-clauses (a) to (d). From the decision of the High Court, passed in the aforesaid appeals, both parties appealed to His Majesty in Council: P.C. Appeals Nos. 71 and 72 of 1925 were preferred by the defendant, and P.C. Appeal No. 79 of 1925 by the plaintiffs. These three appeals together with two others in which the defendant was the appellant, namely, P.C. Appeals Nos. 2 and 3 of 1923 which arose out of certain interlocutory matters but of which the particulars are no longer material, have all been disposed of by a judgment of the Judicial Committee, delivered on 7th April 1932: Shiba Prasad Singh v. Prayag Kumari Debi 1932 PC 216. By this judgment, their Lordships have ordered that the appeals preferred by the plaintiffs (No. 79 of 1925) and by the defendants (Nos. 71 and 72 of 1925) be allowed in part and that the decree of the High Court should be affirmed subject to certain directions and modifications. These directions and modifications have been enumerated in certain clauses, (1) to (5), Clause (5) itself consisting of three sub-clauses (i) to (iii). Of these, Clause (5), sub-Cl. (iii) merely contains a general order to give effect to the declaration and directions contained in their Lordships' judgment. In the meantime, the inquiry directed by the High Court, as aforesaid, was held by Mr. M.N. Das, Subordinate Judge, who completed it by his decision dated 7th May 1927. From the decree that was drawn up in accordance with this decision the defendant has preferred an appeal (F.A. No. 207 of 1927) and the plaintiffs have preferred a cross-objection.

4. Matters now outstanding.-At the outset, it is necessary to have a clear idea as to how far the decision of the High Court, dated 17th August 1925, has been affected by the decision of the Judicial Committee, referred to above; in other words it is necessary to have a correct appreciation of the matters that are now outstanding, on the combined effect of the High Court's and the Judicial Committee's decisions. For this purpose, it would be convenient to recite here the plaintiffs' claim in the suit, as summarized in the judgment of the Judicial Committee, with reference to the two schedules to the plaint, Sch. ka and Sch. kha. It is as follows:

(1) The impartible Raj... Sch. ka 1.

(2) Immovable properties which came into the hands of Raja Durgaprasad from his predecessors... Sch. ka, 2 to 77.

(3) Immovable properties acquired by Raja Durgaprasad... Sch. kha, 1 to 8.

(4) Improvements on the Raj estate... Sch. kha, 9 to 19.

(5) Jewellery... Sch. kha, 20(1-23).

(6) Furnishings and equipments of the palace, etc... Sch. kha, 20(24-83), etc.

(7) Cash and deposits in banks... Sch. kha, 21.

(8) Besides the above, the plaintiffs claimed all other properties, both moveable and immovable, left by the Raja, which might, on inquiry, be found to have come to the hands of the defendant.

5. If these items are taken, and the direction and modifications contained in the judgment of the Judicial Committee Clauses (1) to (5) with sub-Cls. (i) and (ii) of the last-mentioned clause and the directions contained in the decretal order of the High Court Clauses (i) to (ix) with sub-Cls. (a) to (d) of Clause (v) are compared, the results as given below will follow:

A.-Immovable properties-(1) to (4) and a part of (8) of the plaintiffs claim:

[High Court's decretal order, Clause (i).]

(1) The impartible Raj... Sch. ka, 1.

(2) Immovable properties which came into the hands of Raja Durgaprasad from his predecessors... Sch. kha, 2 to 7.

(4) Improvements on the Raj estate... Sch. kha, 9 to 19.

6. The High Court had affirmed Mr. Bose's decision disallowing the plaintiff's claim. The Judicial Committee has affirmed the High Court's decision.

[High Court's decretal order, Clauses (ii) and (iii).]

(3) Immovable properties acquired by Raja Durgaprasad... Sch. kha, 1 to 8.

7. The High Court had affirmed Mr. Bose's decision allowing the plaintiff's claim and directing an inquiry into mesne properties. The Judicial Committee has reversed the High Court's decision Clause (1).

[High Court's decretal order, Clause (iv).]

8. Part of (8). Any other immovable property left by Raja Durgaprasad which might on inquiry be found to have come into the hands of the defendant. The High Court had directed an inquiry and had ordered that, if any such be found on inquiry, the same together with mesne profits will go to the plaintiffs. This direction has been modified by the Judicial Committee as will be seen hereafter: Clauses (2) and (5)(i).

B.-Movable properties-(5) to (7) and the other part of (8) of the plaintiff's claim:

[High Court's decretal order, Clauses (v), (d) and (vi).]

(5) Jewelleries... Sch. kha, 20(1-23)-part of (8). Other jewelleries of Raja Durgaprasad which might, on inquiry, be found to have come into the possession of the defendant.

9. (5) had been decreed to the plaintiffs by Mr. Bose. The High Court affirmed that decree but ordered that there should a further and proper inquiry as to their value. As to part of (8) an inquiry was ordered by the High Court. The High Court's decision has been affirmed by the Judicial Committee.

[High Court's decretal order, Clauses (v), (d) and (vi).]

(6) Furnishings and equipments of the palace, etc... Sch. kha, 20(24-83).

Part of (8). Other movables of Raja Durgaprasad which might, on inquiry, be found to have come into the possession of the defendant.

10. Mr. Bose had awarded the greater part of the articles in (6) to the plaintiffs, giving some to the defendants on the ground that 'they would follow the estate.' The High Court affirmed this decree with some variation. And the High Court also ordered an inquiry as to the part of (8). The Judicial Committee has overruled the view as to movables following the estate and ordered that all movables so found should go to the plaintiffs Clause (4).

[High Court's decretal order, Clause (v)(b).]

(7) Cash-Rs. 48,249-3-9.

11. This amount had been disallowed to the plaintiffs by Mr. Bose. The High Court reversed his decision. The Judicial Committee has restored Mr. Bose's decision with a direction as to how the amount was to be credited: Clause (3).

[High Court's decretal order, Clause (v)(a) and (d).]

(7) Cash-Money in the bank.

12. Mr. Bose allowed it to the plaintiffs. His decision was slightly varied by the High Court in plaintiff's favour as regards interest. The Judicial Committee has upheld the decision of the High Court.

[High Court's decretal order, Clause (v), (c) and (a).]

(7) Cash-Cash in the till, rents, royalties and moneys realized from Maharaja Manindrachandra Nandi. Part of (8): Such cash as would be found on inquiry.

13. Mr. Bose's decision was silent as to these items, except as regards the cash in the till which was awarded by him to the plaintiffs. The High Court ordered an inquiry and gave directions as to how all these were to be decreed in plaintiffs' favour. The Judicial Committee has upheld the decision of the High Court.

C.-Deductions.

[High Court's decretal order, Clause (v)(c).]

14. The High Court allowed deduction of costs of realizations, income-tax, supertax and other public charges paid by the defendant, and also for payments made by the defendant on account of shop debts and other outstanding bills against Raja Durgaprasad, otherwise than for the estate and the impartible estate or immovable properties incorporated therewith. The Judicial Committee has affirmed the High Court's decision and has directed this Court to determine whether the defendant is also entitled to credit for payments referred to in ground No. 30 of the defendant's petition (No. 75 of 1925) for leave to appeal to His Majesty in Council, except expanses incurred on account of funeral and sradh of Raja Durgaprasad [Clause (5)(ii).]

D.-Discovery.

[High Court's decretal order, Clause (vii).]

15. The High Court made an order for discovery. This has been affirmed by the Judicial Committee.

E.-Maintenance.

[High Court's decretal order, Clause (viii).]

16. The High Court left over the question of maintenance for decision in a separate suit, but made an order that since its decision and till the final decision of the case in the Court below the defendant should pay to each of the plaintiffs Rs. 300 a month, and further ordered that the defendant would get credit for such amounts against the amount which would be payable by him to the plaintiffs.

17. The Judicial Committee has ordered a determination of the claim as to maintenance if it is made [Cl. (5)(ii).]

F-Costs.

[High Court's decretal order, Clause (ix).]

18. This has been varied by the Judicial Committee.

CONDUCT OF THE PARTIES SINCE THE DEATH OF RAJA DURGAPRASAD AND TILL THE INSTITUTION OF THE SUIT.

19. Before dealing with the respective claims of the parties as involved in the various matters referred to above as outstanding, it is necessary that we should deal with some of the arguments that have been addressed to us in order to establish some general principles, on the basis of which, it is contended, such claims should be dealt with.

20. One of these matters relates to the conduct of the plaintiffs and of the defendant since the death of Raja Durgaprasad and till the institution of the suit. Mr. Chaudhuri, appearing on behalf of the defendant, has asserted that on Raja Durgaprasad's death the defendant bona fide took possession of the estate on the strength of his title on the ground of lineal primogeniture, that he did so openly and honestly and without the slightest intention to injure the just rights of the plaintiffs, and that it was in that spirit and with that attitude that he has acted ever since. He has also attempted to show that it was the plaintiffs who from the very beginning took up an unreasonable and obstructive attitude, and that though they subsequently came round and consented to a settlement which was duly effected and was also acted upon for a good long time, they eventually went back upon the settlement at the instigation of some of the self-seeking and intriguing officers of the raj, who, to serve their own ends, got them to commence this suit. Mr. Das, on behalf of the plaintiffs has, on the other hand, endeavoured to make out that the defendant, with the help of people with whom he had entered into a diabolical conspiracy to deprive the plaintiffs of their just dues, lost no time in pouncing upon everything that he could get hold of on the death of the late Raja and has spared no pains or device, ever since, in thwarting the plaintiffs from obtaining what legitimately belongs to them. He has repudiated all suggestions of bona fides on the part of the defendant and has tried to paint him as a wrongdoer of the worst type, who not only took what did not belong to him, but tried his utmost not to disclose what he had taken and also to unlawfully and fraudulently induce the real owners, the plaintiffs, to consent to his retaining the things he had thus acquired, and further put every obstacle in the way of their seeking or obtaining relief from proper quarters. These arguments have been pressed on our attention with considerable force and insistence.

21. The arguments can possibly be relevant from two points of law: one, for the purpose of determining the footing upon which the rights and the liabilities of the parties are to be adjudged; and the other, for the purpose of determining the attitude or what may technically be said to be the frame of mind of either of the parties, a matter which is pertinent to the question whether it may or may not legitimately give rise to any presumption in relation to some particular matter or some particular item of property, rights and liabilities in respect of which have got to be considered in this case. The former point of view has now lost all its importance by reason of the decision of this Court, dated 17th August 1925, in which it has been expressly and definitely held that the defendant is in the position of an executor de son tort and that his liability is to be adjudged on that footing. This conclusion has been assailed on behalf of either side directly as well as indirectly, and some reference to this matter will be made hereafter. The other point of view is still of some importance; and therefore the respective contentions of the parties, as noted above, have got to be considered. [Their Lordships then considered the various contentions of the parties in detail, and proceeded.]

22. We have dealt with these contentions in detail, only out of deference to the learned Counsel who have put them forward. We do not see, however, that, at the stage at which the case has reached, anything materially turns on them, because this Court has, in its judgment of 17th August 1925, accepted the plaintiff's contention that if they had established their title to the self-acquisitions they are entitled to discovery on the ground that the defendant was an executor de son tort, and has made its decree generally and for discovery especially, on the footing of the liability of the defendant as an executor de son tort. The Judicial Committee, not having disturbed this conclusion, must be regarded as having affirmed it. Whatever decision we may have to come to on the various questions which arise for our determination now must be on that footing and no other.

23. Nature of the present suit.-The next question is, what is the true nature of the present suit. Mr. Das has strenuously contended that this is a suit in the nature of an administration action. 'Administration' means the management of the estate of a deceased person who has left no executor. The object of, an administration suit is to have the estate administered under a decree of the Court; in such a suit the whole administration and settlement of the estate are assumed by the Court; the suit in its essence is one for an account and for application of the estate of the deceased for the satisfaction of the dues of all the creditors and for the benefit of all others who are entitled, and the Court marshals the assets and makes such a decree, (see Shashi Bhushan Bose v. Manindra Chandra Nandy 1918 Cal 883, Ramaswami Ayyar v. Rangaswami Ayyar 1931 Mad 683. The administration consists, generally speaking, in the payment of the funeral expenses of the deceased, in the payment of debts and legacies and in the collection, realization, preservation and distribution of the assets. Forms of plaints in such suits are given in Sch. I, App. A, Forms Nos. 41 to 43. C. 20, Rule 13, Civil P. C, provides that, in an administration suit, the Court shall pass a preliminary decree, before passing the final decree, directing accounts to be taken and enquiries to be made. Forms for preliminary decree are given in App. D, Forms Nos. 17 and 19, and forms for final decree are given in App. D, Forms 18 and 20. Neither the constitution of the suit nor any of the prayers resemble those which are to be found in a suit for administration, and, although a few of the directions that have been given by this Court in its decision of 17th August 1925, as regards the enquiries to be made, resemble those that are given in an administration suit, in their essence the directions are widely different. In para. 15 of the plaint, the plaintiffs have averred, (a) that the plaintiffs are the real heirs of their husband and they are entitled to recover the properties left by him, (b) that plaintiff 1 or at any rate one amongst them is entitled to succeed to the impartible estate, and (e) that the defendant has no right or title to the properties left by the plaintiff's husband, but has obtained wrongful possession of them by exercising fraud, misrepresentation and undue influence. The prayers in the plaint substantially are:

(Ka) declaration of title; (kha) recovery of possession of the impartible estate; (ga) recovery of possession of the late Raja's self-acquisitions, moveable and immovable; (gha) declaration of title and recovery of possession of such properties as may be found on discovery made by the defendant; (uma) removal of the defendant from his wrongful possession, (cha) mesne profits; (chha), (ja) and (jha) declaration that the bantannamas, ammukhtearnamas and the High Court Original Side Decree in Suit No. 164 of 1917 are not binding; (ina) receiver, (ta) injunction and (tha) costs; (da) reserving a right to make special statements, in case any new facts came to the plaintiff's knowledge; and (dha) such other or additional relief as the circumstances of the case may require.

24. The High Court, in its judgment of 17th August 1925, described the suit as a

suit for recovery of possession of the Jharia Raj, an impartible estate, on declaration of the plaintiff's right by inheritance thereto.

25. The Judicial Committee, in dealing with a question of jurisdiction, which arose, has held:

As to jurisdiction, their Lordships are of opinion that the cause of action in respect of the rents, royalties and other items was the same as that in respect of the immovable properties, namely wrongful withholding of possession by the defendants.

26. A passage in their Lordships' judgment has been relied upon by Mr. Das in which the word accounts' is mentioned; but that passage obviously cannot be called by him in aid because it deals with the defendant's case that on the taking of accounts he would be entitled to some deductions. Their Lordships have said:

Their Lordships will turn to the subsidiary questions raised by the defendant in regard to moveables and to accounts.

27. There is, it is true, a passage in the judgment of the High Court, dated 17th August 1925, which may be read as supporting Mr. Das' contention, and Mr. Das has relied on it. The passage runs thus:

It is next contended that the defendant, even if liable as an executor de son tort to executors, administrators, creditors or legatees, are not liable to the plaintiffs. But an action for administration which means that the legacies and debts have to be paid off may be brought by the next of kin (see Form No. 17, App. D, Civil P. C).

28. There is however no express finding in the judgment that the present suit was of that nature. And even if there was any, we think it is no longer binding on us, having regard to the view which the Judicial Committee has taken. In another passage, in the same judgment, it was said:

But the suit is for recovery of the impartible estate as well as other properties, moveable and immovable, of which the defendant is said to have been in wrongful possession, and there is only one cause of action, viz. the withholding of all those properties by the defendant, etc.

29. The suit, in our judgment, is a suit against the defendant for wrongful withholding of possession of immovable and moveable properties, and is not in the nature of an administration suit at all.

30. Executor De son tort-Date of conversion.-The next question is as regards the rights and liabilities of an executor de son tort. It has already been observed that the High Court has definitely held that the defendant when he came to be in possession on the death of Raja Durgaprasad Singh was in the position of an executor de son tort. Both the parties have attempted to have this conclusion revised, either directly or indirectly, and in one form or another, each to suit his or their respective contentions. But, as we have already said, the conclusion must be taken to have been affirmed by the Judicial Committee and we are not permitted to resile from it, even if we were inclined to take any different view. Mr. Chaudhuri has contended: (a) that an executor de son tort is liable in equity not for a general account but only for such assets as he has received and so far as it can be stated that he has received a particular asset; (b) that he has no liability for devastavit unless negligence or wilful default has been specially pleaded and proved; (c) that he is entitled to be absolved from liability unless negligence on his part has been established; and (d) that he is entitled to all costs reasonably incurred by him in due course of administration. For these contentions he has relied upon Coote v. Whittington (1873) 16 Eq 534, and has also referred to Sections 303 and 304, Succession Act. So far as these contentions are concerned, the position taken up by Mr. Das is the following: As regards contention (a) he has pointed out that the case of Coote v. Whittington (1873) 16 Eq 534, upon which Mr. Chaudhuri has relied, itself shows that the executor de son tort is not liable for a general account unless he has received everything, and that in the present case the defendant did, in fact, come and take possession of all that was left by Raja Durgaprasad. He admits the propositions enunciated in contentions (b) and (d). But as regards (c) he maintains that from the moment the defendant was a wrong-doer he had no right to retain the property and the plaintiffs were entitled to the property as it was on that date, irrespective of what may have happened to it thereafter and whether its loss, if any, was due to the defendant's negligence or not. We are of opinion that the view contended for by Mr. Das is correct.

31. Mr. Chaudhuri has also urged that up to the time of demand and refusal, or roughly speaking the date of the suit, the defendant having come into possession with the will before him, which made him a co-sharer with the plaintiffs in respect of the moveables which were undivided, he was in the position of a bailee or a trustee to the extent of the ten annas share of the Ranees therein, and that, if at all, he became an executor de son tort only on demand and refusal or roughly speaking at the date of the suit. To this argument Mr. Das' reply is two-fold: firstly, that the question is concluded by the judgment which the High Court has already passed; and, secondly, that the defendant was a wrong-doer from the moment that he came into possession. Before dealing with the contention and the reply, it is necessary to refer to an extreme contention which Mr. Das in one part of his argument put forward, namely, that an executor de son tort, being an executor of his own wrong, is nothing else than a wrong-doer; and as a person who is a wrong-doer cannot be allowed to take advantage of his own wrong, it is right to hold that,

an executor de son tort has all the liabilities, though none of the privileges, that belong to the character of an executor.

32. Williams on Executor, Edn. 12, Vol. I, p. 161. The passage is referred to in Coote v. Whittington (1873) 16 Eq 534. If Mr. Das' argument is that the possession of an executor de son tort must always be regarded as wrongful, we must say we are not prepared to uphold it; for, though an executor acting before probate is called an executor de son tort, the term must not be understood as meaning that he is a wrong-doer [See Sykes v. Sykes (1870) 5 CP 113]. Moreover as is said in Williamson Executors, 12th Edn., 158-159:

There are many acts which a stranger may perform without incurring the hazard of being involved in such an executorship; such as the locking up the goods for preservation, directing the funeral in a manner suitable to the estate which is left, and defraying the expenses of the funeral himself or out of the deceased's effects, making an inventory of his property, feeding the cattle, repairing his houses or providing necessaries for his children; for these are offices merely of kindness and charity.

33. The following extract from Walker and Elgood's Law of Executors, 4th Edn., pp. 336-338, will be to the point:

It has been said to be clear from all the cases that the slightest circumstance will make a man executor de son tort [per Alexander, L.C., B. in Rogers v. Frank (1827) 1 T & J 409]..It has not always been clear what amount or kind of possession is requisite to charge a man as executor de son tort. The cases cited above from Dyer go a long way and of the same character is Read's case (1604) 5 Cob Rep 336, where it is laid down broadly that the using of the goods of a deceased by any one or the taking of them into his possession... is a good administration to charge him as executor de son tort. On the other hand it has been denied by Vaughan B, that the bare possession of goods would not make a man executor of his own wrong unless he undertook to do some acts which none but an executor could lawfully do; and a distinction may be taken between goods which are in a man's possession at the death of the deceased and goods which he subsequently takes into his possession. Again if a person in possession of the goods of a deceased makes out a prima facie legal title thereto though he may not be able to complete his title is not to be charged as executor de son tort.

Then after referring to and quoting a decision of Sir Thomas Plumer, M.R., it is said:

The most recent, and the most luminous judgment on this question is to be found in Peters Leeder (1878) 47 LJ QB 573, where Lush, J., says: The definition implies a wrongful intermeddling with the assets, a dealing with them in such a way as denotes a usurpation of the functions of an executor, an assumption of authority which none but an executor or administrator can lawfully exercise. It is obvious that it is not every intermeddling with the goods of the deceased which is wrongful. Acts which are not destructive of the property, and which do not otherwise amount to a conversion of goods, are wrongful or not according to the intent. Milking the cows, feeding the horses, locking up the goods, doing repairs, and such like acts, if done as an assertion of dominion and act of ownership, would be wrongful--if an act of necessity, or an office of kindness and charity, would be meritorious. So the removing and holding possession of the goods if done for the purpose of keeping them in safe custody till a lawful representative should appear, is rightful; if for the purpose of making away with them, is wrongful.

34. The defendant therefore though he is to be judged on the footing of an executor de son tort, is not for that reason only to be regarded as a person who was necessarily a wrong-doer; nor was his possession necessarily wrongful at its inception. His intentions, in respect of the acts attributed to him, must in our judgment, be taken into account to determine when the conversion took place, and as on what date liability is to be fastened on him.

35. So far as the merits of the contention put forward by Mr. Chaudhuri and its reply given by Mr. Das are concerned, we think we must hold that the question as to the date as on which the defendant should be held liable is concluded by the decision of this Court already passed; for there are clear indications in that decision making him liable as on the death of Raja Durgaprasad. The question in the shape in which it has been raised now, was never raised before, not at least with the amount of precision which the present contention involves; and even though it were res integra, we would have come to the same conclusion as this Court has previously done, in view of the fact that the conduct of the defendant, by which is meant that of himself and of his people, in relation to the cash and valuables, even as disclosed on the very next day after the death of Raja Durgaprasad, that is to say, on 8th March 1916, was ample proof of an intention from which conversion may be legitimately inferred. Subsequent conduct on the part of the defendant need not be referred to for this purpose; but if the defendant seeks to do so he gains nothing thereby. (Their Lordships then considered the question of the suppression or withholding the documentary evidence and concluding that the Hat Khatas had been purposely suppressed or done away with, and the other documents had been deliberately withheld, proceeded.)

PRESUMPTION FROM WITHHOLDING OF EVIDENCE AND NON-PRODUCTION OF ARTICLES.

36. As regards the non-production of evidence, illus. (g), Section 114, Evidence Act, says that the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The section does not, in all cases, make it obligatory on the Court to act on such a presumption, because a particular case may be such that notwithstanding that there is an intentional non-production, other circumstances may be present upon which such intentional non-production may be justifiable on some reasonable grounds or may be attributable to some justifiable cause. The illustration itself says that the Court shall also have regard to other facts in considering whether the maxim does or does not apply to any particular case. But where no other cause is apparent or proved, the Court will be entitled to rely on such presumption. The Judicial Committee has, in several cases, strongly condemned the practice of parties to a suit withholding, from the Court, evidence which may throw light on the points for determination. In the case of Murugesam Pillai v. M.D. Gnana Sambandha Pandara Sannadhi 1917 PC 6 their Lordships have said that in such circumstances they felt free to conclude that if the evidence withheld did, in any manner, help the case of the party who were guilty of such non-production, they would have brought it before the Court: see also Lal Kuuwar v. Chiranji Lal (1910) 32 All 104 and Ram Parkash Das v. Anand Das 1916 PC 256. Their Lordships however have said that it is open to a litigant to refrain from producing any evidence, not forming part of his case, that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for its production and inspection as evidence in the cause if he thinks proper; if this is not done the Court is not entitled at his suggestion to draw an adverse inference, Bilas Kunwar v. Desraj Ranjit Singh 1915 PC 96, and that the presumption will not arise when there is sufficient explanation, Durga Kunwar v. Mathura Kunwar (1911) 10 IC 963(PC).

37. Apart from the withholding of the documentary evidence just dealt with, the plaintiffs have also complained that the defendant has not produced the articles themselves, excepting only a few, which they have claimed. The details with regard to this matter will be referred to hereafter; but it is a fact that many of them have not been produced. On behalf of the defendant several explanations, possibly three, have been given: one is that the articles were never called for, or in other words there was no order made for their production; another, that the time for production has not yet come, but that it is only when the decree, which it is said should be in the form provided for in C. 20, Rule 10 of the Code, will be made and such decree will be executed that the defendant will have to produce the articles, if they are in existence, and that if he does not do so then he will be liable to pay their money-value, payment of which has been ordered, in the alternative, in the decree; and a third explanation is that many of the more valuable articles have been taken away by relations and friends of the defendant, presumably as gifts or rewards. Of this third explanation there is no evidence, though it is not unlikely that it is true; and the other two are also good so far as they go. The plaintiffs have also complained that not merely has the defendant refrained from producing some important and material documentary evidence but has committed spoliation, that is to say, suppressed or destroyed evidence which he ought to have produced and to which the plaintiffs were entitled and that in the circumstances there should be strongest presumption against him.

38. This presumption which the plaintiffs seek to invoke, in this case is one of the strongest presumptions known to law, and the law allows it against a party who, by his tortious acts, withholds the evidence by which the nature of his case would be manifested. This presumption was applied to India by the Privy Council so far as back as 1838, in the case of Sooriah Row v. Cotaghery Boochiah (1838) 2 MIA 113. In that case Lord Brougham in delivering the judgment observed:

And the Court below, we have no doubt, proceeded upon this principle, that everything is to be presumed against a party keeping his adversary out of possession of the property, and out of possession of the evidence, and taking means to retain that evidence in his own custody.

39. In the leading case of Armory v. Delamirie (1721) 1 Sm LC 393, a jewel found by a chimney sweeper's boy was presumed to be of the best description as against the jeweller who had received it from the boy and refused to return it. The principle has been applied in this country in several cases amongst which reference may here be made to one, namely, the case of Soondur Monee Chowdhrain v. Bhoobun Mohan Chowdhry (1869) 11 WR 536, a case upon which the Court below has relied. That was a suit to recover possession of plundered property, and in which the question arose as to the amount of the property misappropriated and it was ruled that unless the defendant produced the property and showed it not to be of the value stated by plaintiffs the strongest presumption should be made against him and the highest value assumed. This doctrine, commonly called omnia proesumuntur contra spoliatorem or omnia proesumuntur in odium spoliatorem, is a favourite one in law. This presumption against a spoliator has been carried to different extents in different cases, the cardinal basis of the principle being that no one shall be permitted to take advantage of his own wrong. But it has also been said (vide Best on Evidence, Edn. 11, Section 414):

However salutary and in general equitable, the maxim 'omnia proesumuntur contra spolia torem' must be acknowledged to be, it has been made the subject of very fair and legitimate doubt whether it has not occasionally been carried too far. 'The mere non-production of written evidence', says Sir W.D. Evans, 'which is in the power of a party, generally operates as a, strong presumption against him. I conceive that has been sometimes carried too far, by being allowed to supersede the necessity of other evidence, instead of being regarded as merely matter of inference, in weighing the effect of evidence in its own nature applicable to the subject in dispute' So in Barker v. Ray (1826) 2 Russ 63, Lord Eldon said: 'Now, this Court has a peculiar jurisdiction in cases of spoliation * * * * The jurisdiction of the Court in matters of spoliation has gone a long way; indeed it has gone to such a length, that, if I did not think myself bound by authority and practice, I should have great difficulty in following them so far. To say that, if you once prove spoliation, you will take it for granted that the contents of the thing spoliated are what they have been alleged to be, may be in great many instance, going a great length.

40. The rigour of the maxim in our opinion has to be reasonably softened upon the facts and circumstances of each particular ease. As observed by the Judicial Committee in the case of Shah Makhanlal v. Srikrishna Sing (1868) 12 MIA 157:

Presumptions even in odium spoliatoris have known reasonable limits. They must not be conjectures, nor grounded on data which the evidence itself shows to be inexact.

41. And as their Lordships observed in another case, Tayammaul v. Sashachalla Naiker (1865) 10 MIA 429:

If the facts are once ascertained, presumptions arising from conduct cannot establish a right which the facts themselves disprove.

42. It is also to be borne in mind that where a wrongful 'withholding or tortious act is not proved the presumption cannot apply, Vinayak v. Collector of Bombay (1901) 26 Bom 339. Mr. Chaudhuri has argued that the High Court in its previous judgment, in a manner, held that the spoliatoris maxim is inapplicable to the case because the High Court set aside Mr. Bose's decision by which he had accepted the plaintiffs' valuation without any inquiry as to value, and remanded the case for such an inquiry. We do not think this to be a correct appreciation of the judgment of the High Court. Mr. Bose had disposed of the question of value of the moveables in these words:

The parties have not adduced any evidence before me as regards their price. I shall therefore accept the price of these items as given in the plaint.

43. The High Court pointed out that there was an issue, viz., No. 13, on the question of value and that the proper procedure was to be followed so that the values might be determined and that the question could not be disposed of in the way it was, because the values put on the articles by the plaintiffs had been disputed by the defendant. We may also point out that the application of the presumption of odium spoliatoris is not so uncommon in this country as Mr. Chaudhuri has suggested in his argument. Apart from the cases to which reference has already been made we may refer to two others. In the case of Ardeshir Dhanjibai v. Collector of Surat (1866) 3 Bom HCR 116, it was applied against the Government, because the Collector had destroyed a material document. In Anand Chandra v. Dhanrup Mal (1907) AWN 227 it was applied in a case in which the plaintiff sued for recovery of certain jewellery which he had valued at a certain figure and gave evidence in support of the valuation, which was found unreliable by the trial Court but which nevertheless stood unrebutted; and the High. Court, applying the presumption on the ground that the defendant did not produce the jewellery and gave no evidence of its value, decreed the plaintiff's claim.

44. Onus of Proof.-Some argument has been addressed to us on the question of burden of proof. It is very curious that in the Court below the parties took somewhat extreme views on this question the plaintiffs going the length of claiming at least some items of property which they could only show as having belonged at one time or another to Raja Durgaprasad and resting content with relying entirely on the valuation stated by them in their statements of claim; and the defendant, on the other hand, sitting absolutely quiet and disclosing nothing either about their existence or their values, because, as it is said, it was for the plaintiffs not only to prove that they came into his hands but also what their exact values were and relying upon the view that in the event of the plaintiffs failing to prove the latter they would be entitled to nominal damages only. The plaintiffs in adopting such a course were led by the notion that as the defendant was an executor de son tort and had taken possession of everything within the meaning of Coote v. Whittington (1873) 16 Eq 534, he was liable for a general account, and as such articles as they claimed were not produced nor their valves proved, they were entitled to what they claimed on the doctrine of odium spoliatoris. But even then it should have been realized, as apparently it was not, in respect of some of the articles, that the existence of such articles at the time of the death of Raja. Durgaprasad must be shown. As regards the attitude taken up by the defendant, it can hardly be justified on any conceivable principle: it assumed that the plaintiffs, on whom the onus undoubtedly lay of proving all the elements which go to constitute their claim, must do so by direct evidence only and it ignored such presumption which the plaintiffs are at liberty to call in their aid, and it also overlooked that inferences drawn from circumstances and probabilities are also a legitimate means of proof. In Mayne on Damages, Edn. 9, p. 384, the matter has been put in this way:

When the defendant in trover will not produce the article, it will be presumed against him to be of the greatest value that an article of that species can be.

45. And after referring to certain cases in which the aforesaid principle has been laid down or applied, it has been said:

In all other cases, however, the plaintiff must strictly prove the amount taken, and its value, even though the conversion be admitted by the pleadings. Otherwise there would be no evidence of damage more than nominal.

46. In this Court, Mr. Das has very frankly said that he does not dispute that it was for his client to trace the articles to the possession of the defendant. The whole question must therefore be, whether upon the materials that are on the record, such a fact can be said to have been proved. In this connexion the definition of proof given in Section 3, Evidence Act, should also be borne in mind.

47. A question has been raised as regard some of the properties, whether certain matters relating to them were especially within the knowledge of the plaintiffs or of the defendant within the meaning of Section 106, Evidence Act. We do not propose to go into this question beyond saying that, having regard to the nature of the properties and the circumstances bearing upon them, no special knowledge can legitimately be attributed to either of the parties.

48. Valuation,-Damages.-As regards valuation the principles are well settled. In an action for specific restitution of chattels, the judgment is ordinarily in the alternative (Section 10, Specific Belief Act, and Order 20, Rule 10, Civil P.C.) that the plaintiff do recover the possession of the chattels or their assessed value in case possession cannot be had, together with any damages for their detention. It is for the defendant, and not the plaintiff, to determine the manner in which the alternative judgment of the articles or their value is to take effect, and it is in his election whether he would deliver the chattels or pay the assessed value on them. And the plaintiff has no right or power to obtain their specific restitution. But when a decree is in the form contemplated by Order 20, R. Civil P. C, and there is no question of deterioration in value of the articles decreed to be recovered, the decree-holder is not entitled to execute the money part of the decree before applying for delivery of the articles Balmakunda Bisseswarlal v. B.N. Ry. Co., Ltd. 1927 Cal 652 and Manavikraman v. Moyan Kutti (1903) 13 MLJ 444. The technicalities of English forms of action, e.g., trover, detinue, conversion or replevin, need not concern us. But in a case where conversion is proved, and it is on the supposition that the article will not be delivered that the question of assessment of its value becomes necessary,-it is well settled that the value recoverable should be the value at the date of the conversion. So it has been said:

The values recoverable in an action for conversion is in general the value of the property at the date at the conversion and not its value at any earlier or later date.

[Salmond on Torts, Edn. 7, p. 413.]

Also,

The damages to which 'a plaintiff who has been deprived of his goods is entitled are prima facie the value of the goods, together with any special loss which he may have incurred in consequence of the wrong * * *. Where the value has fluctuated it must be taken as it stood at the time of the wrongful act. In Greening v. Wilkinson (1825) 1 C & P 625, where the cotton which formed the subject-matter of an action for trover rose in value between the date of the conversion and that of the trial, Abott, C.J., held that the jury in estimating the damages were not limited to the mere value of the property at the time of the conversion, but were at liberty to find as damages the value at a subsequent time at their discretion. There does not appear to be any reported decision in which Greening v. Wilkinson (1825) 1 C & P 625 has been either questioned or followed, but it has been frequently laid down, and the rule now appears to be established, that the proper measure of damages is the market value of the goods at the time of the conversion. [Clerk and Lindsell on Torts, Edn. 8, p. 250.]

49. Under the English law,

If the plaintiff obtains a verdict for the value of the chattel it is common to provide that it shall be reduced to a nominal sum on return being made. But this is simply a matter of arrangement between the parties. Even though no such provision is made, yet if in fact the plaintiff gets his property back again, the Court will treat this as pro tanto a satisfaction and reduce the verdict accordingly. (Ibid, p. 256.)

50. Inventories, Ex. 153 and Ex. Z 270.-We pass on now to another contention that has been urged on behalf of the defendant, namely, that the plaintiffs by their conduct have precluded themselves from going behind the inventories which the defendant had filed; In other words, it has been urged, that the plaintiffs are not entitled to ask the Court to launch into an investigation as regards moveables other than those of which the existence is admitted in the said inventories. One answer to this argument is that such a contention goes against the directions expressly given by this Court in its previous judgment. But apart from that the position is the following: After the institution of the suit the plaintiffs on 11th September 1919, applied for a receiver. On 28th October 1919, when that application was pending, the Court on a further application of the plaintiffs issued an interim injunction prohibiting the defendant from transferring any part of the properties in suit. On 28th January 1920, a joint petition was filed by the parties for a consent order disposing of the receiver application upon an agreement between the parties upon certain terms, one of which was,

that the defendant would within three months deliver to the plaintiffs or their agents an inventory of all valuable moveables in his possession out of that left by Raja Durgaprasad Singh and the defendant agreed not to dispose of the same.

51. An inventory (Ex. 153) was accordingly made over to the plaintiffs' pleader on 12th May 1920. To this inventory, an objection was taken, on behalf of the plaintiffs, by a petition dated 1st June a920, on the ground that it was untrue and incomplete. On 23rd June 1920, a petition was put in on behalf of the defendant explaining the omission. It is not necessary to go into details over the controversy that arose then, for we are not deciding here whether the explanation was acceptable or not; and it would be enough to say that as a result of the controversy, the Court, by its order dated 23rd June 1920, called for a further inventory, and in pursuance of that order, a petition together with a fresh inventory (Ex. Z. 270) and certain affidavits, of Smith and of Mahendranath Chatterji, together with certain annexures explaining certain matters in connexion with the inventory previously filed, were filed on 12th July 1920. The Court had previously ordered that,

if the plaintiffs consider the list to be filed by the defendant to be incomplete they should move the Court then for deputing a Commissioner for the preparation of the list.

52. The plaintiffs never took any further action in the matter and the fresh inventory filed (Ex. Z 270) was allowed to rest as it was. On these facts, it has been contended on behalf of the defendant that inasmuch as the plaintiffs took no further action, as ordered by the Court, they are not entitled to challenge the correctness of the said inventory. This contention has also been emphasized on the principle of conclusiveness of affidavits of documents, which is this: that if a party states in his affidavit of documents that he has no document relating to the matters in question in the suit other than that set forth in the affidavit, his oath is conclusive and the other party cannot cross-examine upon it, nor adduce evidence to contradict, nor administer interrogatories asking whether he has not in his possession or power documents other than those set forth in his affidavit: Hall v. Truman, Hanbury & Co. (1885) 29 Ch D 307 and Nicholl v. Wheeler (1886) 17 QBD 101. Mr. Chaudhuri's argument on this matter however is based upon an entire misconception. For it would appear from the order of the Subordinate Judge, dated 23rd June 1920, to which reference has been made, that the inventory that was called for from and undertaken to be produced by the defendant was to contain a list of the articles left by Raja Durgaprasad, which the defendant had been in possession of on the date of the petition of compromise, that is to say, the 28th January 1920, and Ex. Z. 270 itself says so.

FORM OF THE DECREE AS REGARDS MOVABLES.

53. A question has been raised as regards the form of the decree that should have been passed as regards the movable articles. Mr. Chaudhuri has contended that the decree in respect of all such articles should have been 'made by the Subordinate Judge in the form contemplated by Order 20, Rule 10 of the Code, and he has pointed out that is the correct form of the decree to be passed in this case which would appear from what their Lordships have said as regards the furniture, furnishings and equipments left by Raja Durgaprasad, in respect of which the High Court had refused the plaintiffs a decree. Their Lordships have said in Clause (4) of their directions in the decretal part of their decision:

That the defendant should be directed to deliver them to the plaintiffs, or to pay the value thereof as determined by the High Court.

54. Our attention has also been drawn to the words of Clause (5)(d) and Clause (6) in the judgment of this Court as laying down the kind of decree that should be passed, because it is said there that the plaintiffs will get all movable properties, etc., and they will get 'a decree for such of them, etc' That such is the form in which the decree is to be ordinarily passed has already been stated. But in the present case, the defendant, by his own petition of 20th December 1926, made such a decree unnecessary. By that petition, he notified his intention to deliver to the plaintiffs some movables and documents specified in two schedules (A and B) appended thereto. As a result of this petition, a commissioner was deputed to inspect the articles and make a report of their condition, and on that being done, a compromise was reached; some of them were delivered to the plaintiffs and the others were allowed to go to the defendant on his agreeing to pay Rs. 21,000, as their value, and it was agreed that the said amount was to be included in the decree. With this arrangement we are not concerned, but what is important is para. 2 of the 'said petition, in which the following statement appears:

That your petitioner is ready and willing, in obedience to the decree of the Honourable Court, and without prejudice to his appeal to His Majesty in Council, to deliver possession to the plaintiffs of such of the movables as actually came into the possession of your petitioner and are now in his possession, in the same condition in which they were left by the said Raja Durgaprasad Singh.

55. In making this statement, the defendant clearly and deliberately assumed the attitude that besides the articles mentioned in the two schedules (A and B) to the petition, he had in his possession no others which had belonged to Raja Durgaprasad Singh. It is quite possible, as Mr. Chaudhuri has suggested, that the statement is not true or correct. Indeed, Mr. Chaudhuri, at one stage of the argument, produced some articles before us and offered delivery; but, as could only be expected, there was no acceptance of them on the side of the plaintiffs, on the ground that they were not the articles under claim. It is obvious that it would be quite wrong after the defendant had adopted such a clear attitude in 1926 to give him a chance now, seven years after, of giving delivery. Such an opportunity would only open up a wide field of controversy on the question of identification, deterioration and other matters, and would be productive of no real good. So far as the documents are concerned they stand on a very different footing, and rightly enough a decree for delivery thereof has been made. We think the learned Judge was right, in view of the circumstance to which we have referred, in making the decree as regards the moveables in the form in which he has made it. As regards certain items of moveables in respect of which delivery was offered but not taken, the Judge below has taken care to make a decree for the moveables themselves, and in the alternative for their values.

56. Order 20, Rule 10, Civil P.C., does not say that a person who is entitled to delivery of specific moveables must in all cases sue for such delivery and not for their value or for damages; for in many cases the moveables themselves would be of no use to him after conversion or detention. Nor does the rule say that the Court must invariably decree the articles claimed and not their value only. It has been held also that in order to entitle the plaintiff to obtain delivery of specific moveable property by suit and to enforce the decree so obtained by the stringent methods provided for in Order 21, Rule 31, Civil P. C, it is necessary that he should allege and prove that the moveable concerned is in defendant's possession: (see Jaldu Venkatasubba Rao v. Asiatic Steam Navigation Co. 1916 Mad 314 and Murugesa Mudali v. Jotharam Davay (1899) 22 Mad 478. And it would be something very strange, if the law would require that even in a case where the defendant asserts that the articles are not in his possession, or not in existence, and it is not possible for the plaintiff to prove that the defendant's assertion is untrue, the Court would still be bound to pass a decree for the articles in the first instance and in the alternative only for their value. The question as regards the form of the decree has also arisen in connection with one of the grounds taken in the plaintiff's cross-objection. But it will be convenient to deal with it later on and at its proper place.

STATEMENTS OF CLAIMS

57. We shall now pass on to the various items of claim. But only as preparatory to the consideration thereof a few more words need be said. On the case going back to the Subordinate Judge on the order of remand made by this Court, and in pursuance of the order for discovery that was made, the defendant, on the 28th May 1926, filed a verified petition with annexures alphabetically marked. On 1st June 1926, another petition was filed on his behalf praying that the plaintiffs be called upon to file a detailed statement of their claims. On 29th July 1926, the plaintiffs filed a petition together with a number of statements in the shape of annexures to the said petition and marked numerically. On 16th August 1926, certain issues were proposed on behalf of the plaintiffs and on behalf of the defendant; and additional issues were proposed on their behalf, respectively, on 24th and 26th August 1926. Thereafter the learned Judge settled the issues on 26th August 1926. Some of these issues underwent some amendment later on at the instance of the parties; and thereafter the enquiry was held and completed.

58. The learned Judge has recorded his conclusions in 18 paragraphs at the end of his judgment, consecutively numbered, the paragraphs dealing separately with claims falling under different categories. For us to deal with the case, the most convenient way would be to take these paragraphs, one by one, and to consider, as regards each of them, the appeal and the cross-objection that may relate to it.

* * * *

ITEM NO. 8-MORTGAGES-MONEY-LENDING.

59. The direction of the High Court in its secretal order, Clause (v)(c), so far as this item is concerned, is contained in these words:

The plaintiffs will get all monies on account of mortgages and the money-lending business of Raja Durgaprasad which have been realized by the defendant after the death of Raja Durgaprasad, up to the date of institution of the suit, together with interest thereon at 6 per cent from the dates of such realisation.

60. The claim which the plaintiffs put forward on this head is detailed in their annexure 4. Amongst the items in respect of which the Judge has made a decree in plaintiffs' favour, objection is taken on behalf of the appellant to 4 only, viz., 2, 95, 96 and 155.

61. 2. A rokar entry, Ex. 780, dated 28th Chaitra 1316 B.S., shows that Rs. 8,000 was lent to Nandagopal Banerji on a mortgage bond dated 23rd Chaitra 1316. Ex. 12/19, an entry, dated 28th August 1917, in the Register of bonds, etc., of the estate, shows that the bond was made over, on satisfaction of the amount due on it, to the khajanchi to be returned to Nandagopal Banerji. The Judge has given the plaintiffs a decree for Rs. 8,000 and Rs. 2,015, being the amounts of the principal and of the interest due on the bond up to the date of satisfaction. The appellant's argument is that under the decision of the High Court the plaintiffs are entitled only to the amounts actually realized and so a claim on a bond which has been remitted cannot be taken into account.

62. In England, the law formerly pressed very hardly on executors and administrators who, in the exercise of an honest discretion, released or compounded debts due to the testator or the intestate. Subsequent legislation, viz., Lord Cranworth's Act (23 & 24 Vict. c. 145, Section 30). and the Conveyancing and Law of Property Act (44 & 45 Vict. c. 41) modified the rigour of the law to a very large extent, but these Acts applied only to executors and not to administrators, and to the latter, those decisions still applied in which it had been previously held that if an executor releases a debt due to the testator or cancels or delivers to the obligor a bond of which the testator was the obligee, this shall charge him to the amount of the debt, whether in point of fact he received it or not: see Williams on Executor, 11th Edn., Vol. 2, p. 1419; and that debts or damages due to the deceased will be regarded as assets, although never in point of fact received, if they be released by the executor, for the release in contemplation of law shall amount to a receipt. (Williams on Executor, 11th Edn., 'Vol. 2, p. 1284). The Trustee Act 1893(56 & 57 Vict. c. 53, s. 21) expressly gave powers to executors, administrators as well as trustees, to compromise, compound, abandon, submit to arbitration or otherwise settle any debt, account, claim or thing whatever, relating to the testator's or intestate's estate or to the trust. Recent legislation in England, in the shape of the Trustee Act 1925, and the Administration of Estates Act 1925, see Lewin on Trusts, 13th Edn., pp. 353, et seq, have also confirmed and enlarged those powers. But even under present conditions an executor or administrator under the English Law who desires to avoid liability for a debt released must, we take it, give some explanation for the course he adopted. Reference was made in this connexion to Section 43, Trusts Act (2 of 1882), which is much on the lines of the English Trustee Act of 1893. It was admitted that the Act would not apply to the case, but it was the principle underlying the section that was relied on. To the application of the principle, regarded as an equitable principle there can be no objection unless any statutory provision stands in the way. But the essence of the principle is that the trustee has acted honestly and reasonably, in which case only can he fairly claim to be excused. For founding such a claim not a particle of evidence has been adduced and nobody knows why this release was granted. 'We agree with the learned Judge in the view he has taken.

* * *

ITEM 9-RENTS AND ROYALTIES.

63. As regards rents and royalties the direction contained in the High Court's judgment, decretal order, Clause (v)(c), was in these words:

The plaintiffs will get all rents and royalties, which fell due during the life-time of Raja Durgaprasad which have been realised by the defendant up to the date of institution of the suit, together with interest thereon at 6 per cent, per annum from the dates of such realisation.

64. In the Court below, the most important question, that arose in connection with this item, was as regards the principle to be adopted in calculating the dues of the parties. On behalf of the plaintiffs it was urged that rents and royalties accrued from day to day and they are entitled to such as accrued to Raja Durgaprasad till his death on 7th March (=24th Falgun). The defendant on the other hand contended that since the Raja died before the year 1322 B.S. was out, rents and royalties for that year did not fall due to him, because though under the leases rents were payable in four kists (end of Ashar, end of Ashwin, end of Poush and end of Chaitra), such payments were payments in part of an entire rent, really payable for the entire year, and as regards royalties they were commissions which could only be determined at the end of the year. The Subordinate Judge has held that the plaintiff's are entitled to only such rents and royalties as had fallen due before the death of Raja Durgaprasad according to stipulated kists, and has thus overruled the contentions of both the parties, and he has made a decree for such amounts in respect of the first three kists of 1322 B.S., as were proved to have been realised by the defendant.

APPEAL AND CROSS OBJECTION.

65. Both parties have challenged the decision of the learned Judge and their respective contentions are on the lines on which they were put forward in the Court below. On behalf of the appellant reference has been made to Walsh v. Lonsdale (1882) 21 Ch D 9. This was a case where there was an executory agreement for lease, one of the terms of which was that a certain minimum rent or dead rent was to be payable in advance and the balance of the rent was to be determined at the end of the year upon the number of looms that would be worked by the lessee and upon other conditions. The question that arose was what should be the terms as regards the rent in the lease to be executed. We do not see how this decision is in point. It has also been argued on behalf of the appellant that if the words in a decree are ambiguous they should always be construed in favour of the judgment-debtor. This principle need not be controverted. The words used are 'fell due during the life-time of Durgaprasad', and the question is what can be their meaning. 'We have been asked to construe these words in the light of Article 110, Lim. Act, where the words are 'when the arrears become due'. And a learned argument based on Section 108, Clause (c), T.P. Act, as to what is the 'rent reserved' which secures quiet enjoyment to the lessee, has been addressed to us by Dr. Gupta, who has argued this part and one of the other parts of the appellant's case with considerable care and skill, and he has also referred us to the case of Tiloke Chand v. J.B. Beattie & Co. 1926 Cal 204, where it was held that rent paid in advance amounted to a loan for the purposes of Section 50, T.P. Act.

66. In our opinion, some indication as to what was meant by the expression 'which fell due' used in the decretal order of this Court, quoted above, is afforded by this Court's judgment itself. The learned Judges, in dealing with the question of moneys realized after Raja Durgaprasad's death, referred to the case of Aparna Debi v. Shiba Prasad Singh 1924 Pat 451 and observed:

In that case the present defendant Shivaprasad Singh, sued a tenant for arrears of rent and royalty, a portion of which related to Raja Durgaprasad's time and the High Court held that the right to recover rents which fell due during the life-time of the holder of an impartible estate, but which are not realized such, by holder passes to the latter's heirs and not to the person who succeeds to the estate.

67. It will be seen that in the decision, thus referred to, the rents were apportioned as up to and as after 7th March 1916, the date of Raja Durgaprasad's death. But it is not wholly impossible that the expression fell due' as used in this passage was not meant to be taken in the same sense in which it was used in the decretal order. We shall therefore have to consider the question on its merits.

68. The Subordinate Judge has observed that Section 36, T.P. Act, does not, having regard to Section 2, Sub-section (d) of the Act, apply to the case, and has referred to the case of Mathewson v. Shyam Sunder Sinha (1906) 33 Cal 786 as covering the point in dispute. So far as Section 36, T.P. Act, is concerned the learned Judge is right. As regards Mathewson v. Shyam Sunder Sinha (1906) 33 Cal 786, Mr. Das has contended that case is distinguishable. In that case one R. was a hikim and as such was entitled to certain mouzas which were held by one M. as mortgagee in possession under him; on a particular date in Sraban 1307 Fasll, R ceased to be the hikim and the plaintiff became hikim and took possession of the mouzas by ousting M. M had collected rents from the tenants of the mouzas, the entire rent for 1307 Fasli. The plaintiff sued M for the rent of the period commencing from that date to the end of the year. The learned Judges held that Section 36, T.P. Act, not being applicable, the plaintiffs could not succeed. In that case, under the contract between M and the tenants, the rent for the entire year 1307, Fasli, was payable in the month of Jaistha, Fasli, and M had realized the entire rent in advance though the year had not run out. The learned Judges observed that the plaintiff may have had a claim against the tenants for that over-payment and the tenants may perhaps be entitled to be recouped by M, but they expressed no opinion on those questions. The case, it cannot be disputed, is distinguishable because the excess amount had been realized by M, before the plaintiff ever came on the field. The learned Judges referred to two decisions. Satyendra Nath Thakur v. Nilkanta Singh (1893) 21 Cal 383 and Lakshminaranappa v. Melothraman Hair (1902) 26 Mad 540, the former as supporting their view and the latter as distinguishable and, if anything, also as a decision against the plaintiff, Satyendra Nath Thakur v. Nilkanta Singha (1893) 21 Cal 383 was a case in which a landlord had instituted a suit for rent for the entire year against the auction-purchaser of the tenant's interest, though the said auction-purchaser had made his purchase before the year had closed, and it was held that he was liable for the whole instalment of rent, which had accrued due after the date of his purchase, but before the confirmation of the sale. It was held that rent was to be regarded not as accruing, from day to day, but a as falling due only at stated times according to the contract of tenancy, or, in the absence of any contract, according to the general law laid down in Section 53, Ben. Ten. Act. The case, therefore, was as between a landlord and a tenant and governed by the principles of the law applicable to that relationship. The case of Lakshminaranappa v. Melothraman Hair (1902) 26 Mad 540 is one of the cases upon which Mr. Das has relied in his support. In that case a tenant for life had leased an immovable property to sub-tenants on rents which were payable in half-yearly instalments; four days before the instalment fell due the tenant-for-life died; the plaintiff, who held an assignment of the right of the tenant-for-life to recover the rent due to the latter from a person who had purchased that right at a Court sale, then instituted a suit against the sub-tenants for rent of the entire instalment. The plaintiff, in the Court below, obtained a decree for the rent for the six months' less four days. This decree was upheld by the High Court. Davies, J., held that as the rent was due in the month in which the tenant for-life died the right to the rent accrued to him on the first day of the month though he might not have sued for it till the end of that month. He held that no question of apportionment really arose, but if it did he would not be inclined to go beyond the statute law in force in this country, and would be reluctant to apply any principles of English statute law to the case.

69. But Subrahmania Ayyar, J., held that in absence of a specific rule, applicable to cases like this in India, the Courts are entitled to follow the broad and just principle underlying the English statute law, which culminated in the Apportionment Act of 1872, and held that, as a matter of equity and good conscience, the assignee of the tenant-for-life was entitled to an apportionment of the rent due up to the date of the death of the tenant-for-life. It may be, and on this question we express no opinion, that the learned Judge went somewhat too far in holding that as between the tenant and the assignee of the landlord's right the equitable principle of apportionment may be applied, notwithstanding the covenant as to instalment. The view taken by Subrahmania, J., in the case just referred to appears to have been adopted in Kunhi Sou v. Mulloli Chathu 1916 Mad 768, in which it was held that on principle there was no reason why an assignee from a lessee should not be entitled to apportionment as between himself and the lessor and why rent should not be deemed to accrue due from day to day as between them.

70. It was observed that in England the law of apportionment has long been regulated by statutes, and all rents, etc., are, like interest on money lent, considered as accruing from day to day and apportionable in respect of time accordingly, and that there is no reason for not applying in India, in case of rent, the principle of apportionment which obtains in England as to interest. Snbbaraju v. Seetharamaraju 1916 Mad 323 was a case in which a mortgagor in possession, after the mortgage-decree, had leased the property to a lessee for one year, i.e., from July 1907, to June 1908, with a covenant for payment of rent on 10th January 1908. In ignorance of this lease and the reservation of a rent, the mortgaged properties and the crops were brought to sale in November 1907, and the plaintiff purchased the lands together with crops thereon and the sale was confirmed in December 1908. The crops were harvested in January 1908 by the lessee. The plaintiff then sued the mortgagor and the lessee for rent for the year July 1907 to June 1998. It was held that the auction-purchaser was entitled to the whole rent reserved which was the thing substituted by the mortgagor for the crops. As regards the plea for apportionment it was held that neither Section 8 nor Section 36, T.P. Act, applied to a purchase at a Court auction and further, that the stipulation to pay a year's rent on a particular date is a contract to the contrary within the meaning of Section 36, T, P. Act, which enacts that the right to rent as between the transferor and the transferee ordinarily accrues from day to day. This decision, complicated though it is, by reason of the equities as between a mortgagor and his mortgagee, is undoubtedly against Mr. Das' contention. In the case of Rangiah Chetty v. Vajravelu Mudaliar 1918 Mad 557, however it was held that though according to Section 2(d), T.P. Act, the Act does not apply to sales in execution, the principle of Section 36 of the Act, which embodies a rule of justice, equity and good conscience, can be applied and rent apportioned from day to day as between a lessor and the transferee of his interest in execution.

71. The learned Judges distinguished the case of Satyendra Nath Thakur v. Nilkanta Singha (1893) 21 Cal 383, as a case of transfer of the lessee's interest, and observed that they were unable to follow the decision in Mathewson v. Shyam Sunder Sinha, (1906) 33 Cal 786. Several other cases have also been referred to in this connexion by Mr. Das, but as they are not directly in point we do not propose to discuss them. One of the cases is that of Nand Kishore v. Ram Sarup 1927 All 569, in which, as far as may be gathered, Section 36, T.P. Act, was applied to the case of an auction-purchase. Satya Bhupal Banerjee v. Rajnandini Debi 1924 Cal 1069, in which Satyendra Nath Thakur v. Nilkanta Singha (1893) 21 Cal 383 and Mathewson v. Shyam Sunder Sinha, (1906) 33 Cal 786, were followed, was a case between a zamindar and his patnidar. Reference has also been made before us to the decision of the Judicial Committee in the case of Phirozshaw Bomanjee Petit v. Bai Groolbai 1923 PC 171. What was actually decided in the case was a question of intention, as evidenced by a deed of settlement, as to whether income derived from rents and shares was apportinable de die in diem: (i) between the estate of the deceased settlor (who had retained a life-interest) and persons beneficially entitled for a period of thirteen months after his death, (ii) between those persons and persons beneficially entitled after that period, and it was held that the income was not so apportionable, as such an intention did not sufficiently appear from the words 'arising or accruing' used in the deed. The decision however is not wholly irrelevant, because in that case both the parties assumed a common ground that the law of apportionment applicable to India was the old law in England, as referred to in 1818 by Lord Eldon in Ex parte Smyth (1818) 1 Swans 337. It was an admission on a point of law made by the two parties, antagonistic before the Courts, and if such an admission was erroneous or wrong it may perhaps be reasonably expected that their Lordships would have said something against it. Their Lordships have said:

The English Apportionment Act of 1870 provides that after its passing, all rents, annuities, and other periodical payments in the nature of income are, unless it is expressly stipulated that no apportionment is to take place, to be considered as, like interest on money lent, accruing from day to day, and shall be apportionable in respect of time accordingly. But this Act does not apply in India, nor do any of the earlier English Apportionment Acts. It is common ground that the principle which applies in the present case is that of the original English law as it stood apart from statute. The older English law on the subject was stated by Lord Eldon in Ex parte Smyth (1818) 1 Swans 337, and is amplified in the learned note appended to the report of that case by Mr. Swanston. The latter traces it to the two propositions, that an entire contract cannot be apportioned, and that under such an instrument as, for instance, a lease with a reservation of periodically payable rent, the contract for each portion is distinct and entire. The rule however while applicable to periodical payments becoming due at fixed intervals, did not apply to sums accruing de die in diem...

The distinctions drawn were often fine. But it is not necessary for their Lordships to discuss them....

It is common ground that the old law in England, as referred to in 1818, by Lord Eldon in Ex parte Smyth (1818) 1 Swans 337, was the law applicable in India to the present case.

72. Mr. Das has referred us to the English statutes dealing with apportionment, but we do not propose to refer to them as we can only be concerned with the old English law, 'as it stood apart from Statute, the 'English Statute law not applying to this country. Lord Eldon in Ex parte Smyth (1818) 1 Swans 337 expressly referred to the decision in Paget v. Gee (1753) Amb 198, in which Lord Hardwicke said:

I do not mean to give this as an absolute opinion, for that must be against the tenant; though I am strongly inclined to it. But in the present case, I found my opinion on the tenant having actually paid the rent, and out of conscience and equity waived any strict right he might have. The payment has been for the use and occupation during all the half-year. Defendant cannot be entitled to more than for one week. It is against conscience for him to retain the whole money. Many cases, where a man pays money from equity and conscience, and though not bound at law, such money shall be divided according to equity. Suppose two traders, partners or correspondents and a man pays money to one of them, though not obliged but by conscience, the other trader shall have his proportion of it. A case to that purpose was before Lord Macclesfleld.

73. Mr. Swanston thinks that the case last referred to was probably that of Earl of Stafford v. Lady Wentworth (1722) 9 Mad 21. We are inclined to think that Section 36, T.P. Act, itself embodies a rule of equity and that principle should be applied to a case of this nature even though the section in its terms be not applicable. In any case, the much higher doctrine of equity, which is the foundation of Lord Hardwicke's dictum just quoted, is directly applicable and should be applied to this case, which is not a case between persons standing in the relation of lessor and lessee or persons who are bound by covenants relating to payment of rent at stated intervals. Dr. Gupta has argued as if Section 2, Clause (d), T.P. Act, excepts the application of this doctrine, but we are not prepared to accept such a contention.

74. We are therefore of opinion that the plaintiffs are entitled to such rents and royalties due up to date of the death of Raja Durgaprasad, that is to say, till 7th March 1916, corresponding to 24th Falgun 1322, B.S. No distinction is necessary to be made between agricultural tenancies and colliery leases; both will be treated on the same footing, the plaintiffs being held entitled to a further decree for 54/90ths-3/5th share of such amounts payable for the last (Chaitra) kist of 1322 B.S. as may have been actually realised before suit. As regards royalties, they really represent the price of coal taken from the mines, and the proper way to calculate them should be on the basis of the quantities of coal despatched till * * * * that date. The royalties also would be calculated in favour of the plaintiffs on the basis of the said 3/5ths, upon such amounts due for the last kist of 1322 B.S., as may have been realised by the defendant before the date of the suit * * * * * In the cross-objection another point has been urged in connexion with decrees for claims for damages which accrued to Raja Durgaprasad in his lifetime. The learned Judge has disallowed these items on the ground that they relate to claims for damages which were unascertained at the death of the late Raja... * * * * * We are in agreement with the learned Judge in the view he has taken.

ITEM 10.-MAHARAJA MANINDRACHANDRA NANDI'S PAYMENT.

75. The claim as regards this item was for a realization made by the defendant, before the institution of the suit, on account of royalties due from the Maharaja and certain decrees obtained against him by Raja Durgaprasad, with interest thereon up to the date of such realisation.

* * * *

76. The plaintiff's case was that the full amounts due on Raja Durgaprasad's account (principal, together with such interest, as was payable and was running) had already been satisfied by the amounts of Rs. 5,10,000 received till April 1917, and so they are entitled to such full amounts. The Judge has accepted this contention. The decision of the High Court enabled the plaintiffs to get the amounts realized by the defendant on this debt up to the date of institution of the suit together with interest thereon at 6 per cant from the dates of such realization. The Judge has made a calculation of interest, on this basis, and has found that, up to the date of the decree, the dues would amount to Rs. 6,20,271-9-3.

77. Dr. Gupta, on behalf of the appellant, has urged, in the first place, that the High Court decree meant that only such amounts as had been actually realized, according to the true meaning of the word 'actually,' as used in English, should be taken into consideration and the decree that has been made by the Subordinate Judge was not on the footing of what was actually realized but of what should have been realized. His contention is that for such interest as was not actually realized the defendant could not be made liable because the High Court never intended that interest which had not been realized on a debt, which was due, should be regarded as interest actually realized. In other words, he has contended that while the High Court decree meant to make the defendant liable on the footing of actual realizations, the Subordinate Judge has made him liable on the footing of what he should have realized, that is to say on the footing of wilful default or devastavit. This argument is ingenious but not sound. It overlooks the fact that the debt itself was carrying interest, and the principal and the interest payable thereon formed the entire debt. And if what the defendant did in connexion with the debt did, in fact or in law, amount to its realization, the defendant was liable.

78. Dr. Gupta has also argued that a certain amount of latitude and discretion must be allowed to a person who, situated in the position in which the defendant was then placed, had to realize the dues of the late Raja. It is said that a remission of interest was allowed for speedy realization of the debt: such a thing indeed was not impossible, but there is no evidence or explanation to that effect. The question, looked at as an act of release, stands on the same footing as other items of release of debts already dealt with and need not be discussed again. But, in our opinion, this item stands on a different and on a much worse footing so far as the defendant was concerned. It is not suggested that the payment of Rs. 3,10,000 and Rupees 2 lakhs, when made, were earmarked for the defendant's dues. Indeed, there are, on the other hand, some indications to the contrary and showing that the payments were for the decretal dues of the late Raja. But leaving that aside, the position is that there were two debts owing from a debtor, one to the estate which the defendant was handling as executor de son tort and the other to himself. Dr. Gupta has referred, on the subject, to the power of trustees to release or compound debts under the English Trustee Act 1925, and the power of personal representatives as to appropriation under the Administration of Estates Act 1925(Lewin on Trusts, Edn. 13, p. 352, et seq.), and also the provisions of the Trust Act 1885, Section 43 and the principle underlying it. This matter has been already dealt with in connection with other items of releases discussed above. He has also referred to the case of Thompson v. Harding (1853) 22 LJ QB 448, in which it was laid down, a principle which has never been disputed, that where an executor de son tort really acts in the character of executor and out of the assets in his hands makes a payment in satisfaction of a debt from the deceased, to a person who at the time might reasonably suppose that he had authority to act as executor, such payment is valid and binding upon the person 'who afterwards becomes the rightful administrator. So:

though an executor de son tort cannot by his own wrongful act acquire any benefit, yet he is protected in all acts, not for his own benefit, which a rightful executor may do. And accordingly, if he pleads properly, he cannot be made liable beyond the extent of the goods which he had administered, and therefore under a plea of plene administrative, he shall not be charged beyond the assets come to his hands, and in support of the plea he may give in evidence payments made by himself of debts of the deceased of equal or superior degrees and, even after action brought, he may dispose of the assets in discharging a debt of a higher degree. [Ingpen on Executors, Edn.2, p. 68].

79. The case of Nagendrabala Dasi v. Dinanath Mahish 1924 PC 34, to which our attention has been drawn, does not seem to us to have any bearing on this matter.

Where the assets are sufficient to answer the debts and specific legacies, but not the general legacies, the latter are subject to abatement.

This abatement must take place among all the general legacies in equal proportions. An executor has no power to give himself a preference in regard to his own legacy as he has with his own: debt (Williams on Executors, Edn. 12, Vol. 2,. p. 883).

80. If it were a question of the executor paying off his own debts out of the assets getting in, he could perhaps have, under the general law, given preference to his own debts and was not bound to pay off the debts of others before satisfying his own. It may be stated here that according to the present practice under the English law, the bond required to be given by a creditor on a grant to him of administration binds him to pay the debt rateably and proportionately and according to their priority in law, and not preferring his own debt by reason of his being administrator (see Ingpen on Executors, Edn. 2, p. 377) and in England an executor de son tort cannot retain for his own debt though he be a creditor of a higher degree. (Ibid, p. 69).

81. On 24th April 1919, the amount due on Raja Durgaprasad's account was far less than the five lakhs and ten thousand, which was the total amount which had, by that date, been realised. If the payments were made specifically in satisfaction of these debts the defendant had no right whatsoever to keep that account open so as to appropriate any part of that money towards his own account. On the assumption that no appropriation towards Raja Durgaprasad's dues-was specifically intended by the debtor the position is in no wise better. On paying money to his creditor the debtor may at the time of payment, appropriate it to any particular debt, even though the creditor says he takes it in payment of another debt. If the debtor makes no appropriation to particular items, the creditor has the right of appropriation. If no express appropriation be made by either the debtor or the creditor, it may be implied or presumed that payments to and drawings against a running account are to be attributed to the earliest items on the opposite side of the account (Clayton's case (1816) 1 Mer 572, Pennell v. Deffell (1853) De GM & G 372, and In re Stenning. Wood v. Stenning (1895) 2 Ch 433). But as between trustees and their beneficiaries and as to every person in a fiduciary character, the rule is modified, and so long as the trustee has money standing to his account drawing by him will be attributed to his own money, the trust money being intact. (In re Hallet's Estate. Knatchbull v. Hallett (1879) 13 Ch D 696). So where a solicitor paid into his own account moneys of different clients, but the balance of the account always exceeded the amount first paid in, though less than the amount of other client's moneys, it was held that the money of the client first paid in must be taken to have been drawn out Wood v. Stenning (1895) 2 Ch 433): see also Lewin on Trusts, 13th Edn., p. 933.

82. The defendant, even if he was an executor or trustee, must on these principles be held to have had no right to remit any part of the amount that was legitimately due to Raja Durgaprasad and give preference to that extent towards satisfaction of his own dues. We therefore agree with the Subordinate Judge in holding that the plaintiffs are entitled to a decree, so far as this item is concerned, for the full amount of Raja Durgaprasad's dues from Maharaja Manindrachandra Nandi, irrespective of any deduction or remission which the defendant may have allowed to the latter. Another question of interest has also been raised but that will be dealt with hereafter.

CROSS-OBJECTION.

83. From what has been said above in connexion with 'Item 9-Rents and Royalties,' it would follow that in addition to the decree which the Subordinate Judge has made the plaintiffs would be entitled to a further decree for the portion of the royalty for 54 days of the quarter ending 13th April 1916, that is to say, up to 7th March 1916, on the three-fifths basis explained under that item, such amount being taken to have been realized by the defendant notwithstanding any deduction or remission that he may have allowed to Maharaja Manindrachandra Nandi.

ITEM 11-MISCELLANEOUS ITEMS IN ANNEXURE 6. APPEAL.

84. The appellant's objection as regards this item is directed against item 13 of annexure 6, namely the value of paddy in the different granaries. The main argument is that the High Court's judgment did not contemplate any inquiry about the paddy in the granaries. With this we are unable to agree, because we do not see why paddy should not be included in movables' for which discovery and inquiry were ordered... It has also been argued that some deduction should have been allowed for such quantity as must have been spent for maintenance of live-stock, consumption for the family, and sidhas. The second of these items cannot be allowed, because the defendant as the holder of the impartible estate was bound to maintain the family out of the income of the estate as it came into his hands, as we shall afterwards see. The case as regards the other two items lacks precision. But there is some evidence from which it is found that sidhas were given to servants as wages of servants for the period prior to Raja Durgaprasad's death and some paddy was also used for maintaining the elephant and other live-stock.

85. If a rightful executor or administrator brings an action of trover or trespass against the executor de son tort, the latter may give in evidence in mitigation of damages, payments made by him in the rightful course of administration. (Ingpen on Executors, 2nd Edn., p. 69.) That also is the law in India under Section 304, Succession Act, for it cannot be maintained that the maintenance and upkeep of live-stock is not in due course of administration. So also would an executor or administrator be bound to pay the debts of the deceased. These principles however will only apply to the wages of servants for the period of Durgaprasad's lifetime and the feeding of the elephant which subsequently died of lightning stroke and of the several items of live-stack which have been delivered. As regards those which have not been delivered and for the non-delivery of which no explanation has been offered the defendant, from the moment of conversion, became a wrong-doer. To a wrong-doer or trespasser, in our judgment, a different principle, should apply. For example where the proprietor of land seized an animal, as damage feasant, under circumstances which made the seizure wrongful, and after feeding it for several days sold it, the owner was held entitled to the full value of the animal in trover, without any deduction for the feeding. [Wormer v. Biggs (1845) 2 Car & Kir 31]. On all these 'considerations, and taking into account what Gostha has said, we think we must disallow 1,500 maunds of paddy, with the result that the Judge's decree on this head should be reduced by Rupees 3,000. There is also a question of interest, which will be dealt with later.

ITEM 12-BONDS AND PROMISSORY NOTES.

86. This item relates to a number of bond and promissory notes which the Subordinate Judge has ordered the defendants to deliver to the plaintiffs. The plaintiffs in the course of their arguments in the Court below gave up their claims with regard to such bonds and promissory notes as were time-barred. The decree, therefore purports to be in respect of such only of the bonds and promissory notes as are not time-barred, This however is disputed on behalf of the defendant.

APPEAL

87. Dr. Gupta's argument is, as was his client's argument in the Court below, that the bonds and promissory notes do not come within any of the items for which enquiry was ordered by the High Court. The Subordinate Judge was of opinion that they would come within the words all moveable properties' in Clause (g)(d) of the decretal order of the High Court, as, under the General Clauses Act, all properties which are not immovable are moveable. Before him a construction on the 'ejusdem generis' basis was put forward, based on the words 'jewelleries', 'cash,' and 'moneys' which followed (and not preceded) in that clause, but the learned Judge overruled it. The learned Judge also pointed out how absurd it would be to suppose that while moneys realised on bonds, etc., were taken into consideration and provided for, such bonds, etc., in respect of which no realisation had been made were lost sight of by the learned Judges. We entirely agree with the reasons which the Subordinate Judge has given for overruling this contention. A bond, as a physical object is, in our judgment, moveable property.

* * * *

CROSS-OBJECTION.

88. Mr. Das in his cross-objection has urged that the Subordinate Judge should have assessed the values of these bonds and should have made a decree in the alternative for the said values, in the form contemplated by Order 20, Rule 10. He has pointed out that issue 16, which related to bonds and promissory notes, had these words: 'Are the plaintiffs, entitled to get them or their money value,', and that the defendant had moved the Subordinate Judge to delete the words or their money value,' but the learned Judge has refused to accede to this prayer and that upon that the defendant moved this Court for the same purpose but failed. He has therefore argued that the learned Judge was wrong in refusing to assess the money value of these bonds.

89. The Subordinate Judge has disposed of the matter in these words:

If the bonds, etc., that came into the defendant's hands were discovered, the plaintiffs could bring suits as successors to the interest of Raja Durgaprasad on these bonds for the recovery of the moneys due thereon. They may still do so, even without filing the bonds, provided the necessary particulars are available, and it is open to them to claim damages from the defendant, in the alternative, if the defendant fails to deliver the bonds to them and they suffer any loss in consequence. But I think that an enquiry regarding the damages which the plaintiffs would be entitled to recover from the defendant in the event of non-delivery of the bonds and promissory notes which may be found to have come into his hands does not come within the scope of any of the enquiries directed by the High Court. If the plaintiffs suffer any loss on account of non-delivery of the bonds and promissory notes there will arise a cause of action quite independent of the cause of action for the present suit. I therefore find that the plaintiffs cannot at this enquiry claim by way of damages the value of the bonds and promissory notes in the event of non-delivery thereof by the defendant.

90. Mr. Das has pressed us to have a money-value assessed for these bonds and promissory notes. He has said that in view of Order 20, Rule 10, Civil P.C., it was obligatory on the Judge to make such assessment, that the learned Judge was wrong in reviewing his own order previously made and that there is no just reason why his clients should be driven to a fresh suit and compelled to incur additional trouble and expense or be obliged to remain satisfied with an infructuous decree which the defendant will not hesitate to disobey.

91. It is quite true that under Order 20, Rule 10, the decree shall also state the amount of money to be paid, in the alternative, if delivery cannot be had. But in a case of this kind if the Court has to assess the money-value of the bonds, it will have to embark on an enquiry as regards each bond in order to find out what money should be paid for it if no delivery be offered. Such an enquiry may often prove unnecessary, in the end, because the bond itself may be delivered or it may prove inadequate, for events may happen between the date of the enquiry and the date of the decree which may alter the whole basis and complexion of the liability on the footing of which the liability of the defendants is to be assessed. As a mere piece of moveable property, and irrespective of its character as representing an actionable claim, the value of the bond is only nominal, but the measure of the damages would be upon the basis of its character as representing an actionable claim. As regards the contention that the Subordinate Judge had no power to review his own order, we are not prepared to give too much weight to it; for since the Code of 1908 with its provision as regards inherent jurisdiction of Courts came into being, the old theory of finality of interlocutory orders has been almost wholly exploded. And as regards the harassment that the plaintiffs will have to undergo if they are relegated to a future suit, the matter requires no very serious consideration, for the legislature has provided in Order 21, Rule 31, a remedy which seems to us to amply meet the requirements of the case. That rule after laying down in Clause (1) the different modes in which the decree may be enforced, says in Clause (2) that

the Court may award to the decree-holder in case where any amount has been fixed by

the decree to be paid, as an alternative to delivery of moveable property, such amount and, in other cases, such compensation as it thinks fit. This provision itself shows that a decree for delivery of a specific moveable need not necessarily, in all cases, be in the alternative form. That an enquiry as to damages in cases of this kind may more profitably be started by the Court in execution, cannot, in our opinion, be disputed.

92. The principles on which such damages have to be assessed, are not very difficult of appreciation. Dr. Gupta has argued that it is only on the footing of wilful neglect or devastavit, that such damages may be assessed. But with this we do not agree.

If the security is void at the time of conversion, and not by any act of the defendant, only nominal damages can be recovered, because if the document, which was itself valueless, was detained by the defendant after his right to it, ceased, the plaintiffs would be entitled to a verdict with nominal damages for the parchment (Mayne on Damages, 9th Edition, pages 387-388)

93. Otherwise, the plaintiffs having been, by the defendant's wrongful act, prevented from realizing their dues, damages will have to be assessed on the footing of the injury or loss. [Ibid] Remarkable instances of the estoppel which arise against the defendant in such circumstances are given in the book after the passage quoted above.

94. The cross-objection should be overruled.

ITEM 13-DEDUCTIONS.

95. A. Shop-debts and outstanding bills (Annexure D).-In the judgment of the High Court's ordering portion, Clause (v)(c) it was ordered that the defendant would be entitled to get a deduction of any shop-debts and other outstanding bills and debts of Durgaprasad paid by the defendant up to the date of the suit, otherwise, than for the estate or the other immovable properties incorporated thereinto. The defendants's claim on this head was contained in his Annexure D. The Subordinate Judge has allowed Rs. 43,681-11-0 on this account.

APPEAL

96. The defendant's appeal relates to a number of items which have been disallowed by the Judge.

97. The argument is that no distinction should have been made between personal contracts and estate contracts, but that the liability for all such contracts should fasten on the heirs who, and not the successor, were bound to bear the consequences of such contracts. The words Shop-debts and other outstanding bills and debts of Durgaprasad, otherwise than for the estate, etc.,' have been sought to be interpreted as meaning such debts as would be chargeable on the'estate.

98. Mr. Chaudhuri has argued in substance that where there is an impartible estate and the holder dies the estate becomes extinct, and so his successor succeeds to a new estate free from all liabilities except such as may have fastened on to the estate under the law: in other words, that the holder for the time being of an impartible estate with liabilities arising out of contracts, entered into with strangers, by him personally. He has argued that ordinarily such a distinction is not necessary to be made, because ordinarily the person succeeding to the impartible estate is the person who, as heir, would be liable for such contracts, but where, as here, the heir is one person or one body of persons and the successor another, the distinction becomes necessary and has to be made. To put it in another form, his argument has been that contracts which have a concern with the estate should be treated as creating liability on the estate in the hands of the successor only, in the same way and to the same extent as alienations made for the benefit of the estate are binding-an argument which, if pursued, gives rise to a vexed question, namely, what is the true meaning of the words 'for the benefit of the estate' which occur in the judgment of the Judicial Committee in Hunoomanpersaud Panday's case (1854-57) 6 MIA 393-18 WR 81n. (See Mulla's Hindu Law, Edn. 7, pp. 243-243-A.) Several cases have been cited in this connexion-Kali Krishna Sarkar v. Raghunath Deb (1904) 31 Cal 224, Inder Sen Singh v. Harpal Singh (1911) 34 All 79 and Harpal Singh v. Bishan Singh (1909) 3 IC 907. In these cases following the observations contained of the Judicial Committee in Kutama Natchiar v. Rajah of Shivagunga (1863) 9 MIA 539 (P C) and Jogendro Bhupati v. Nityanand Man Singh (1890) 18 Cal 151 and other cases, it was held that where ancestral property is impartible and is held by a single member of the family all the members of the family must be deemed to be joint in estate and the rule of succession to the property is the same as that which governs the case of impartible property, so that a junior member of the family who gets maintenance from the person holding the impartible estate succeeds to the estate by right of survivorship. It was held that where an impartible estate devolved, by right of survivorship, on a member of the family or any male lineal descendant, not being the son or grandson of the last male holder, it cannot be regarded as assets of the deceased so as to entitle the holder of a decree against him to proceed against such property in execution. Sartaj Kuari v. Deoraj Kuari (1888) 10 All 272 and Rao Venkata Surya Mahipati Rama Krishna Rao v. Court of Wards (1899) 22 Mad 383 were distinguished in these cases as only referring to the power of the next taker of an impartible raj to question the validity of alienations (in the former case by way of gift, and in the latter case by way of will) and as not having touched the question of mode of descent or the incidents of succession. On the other hand, in the case of Ram Das Marwari v. Braja Behari singh (1902) 6 CWN 879 the learned Judges, relying upon Rao Venkata Surya Mahipati Rama Krishna Rao v. Court of Wards (1899) 22 Mad 383 and particularly the passage therein which runs in these words:

where the Mitakshara law prevails and there is the custom of primogeniture the eldest son does not become a co-sharer with his father in the estate, the inalienability of the estate depends upon custom which must be proved, or it may be in some cases upon the nature of the tenure.

held that where the right of primogeniture exists, in a Mitakshara family, the son who takes the estate does not become a co-sharer in the estate and does not take by survivorship, and such an estate is not prima facie inalienable and that the son takes the estate with the burden of the decree against the father and is liable to be proceeded against in execution. In Madras also there has been a conflict of judicial opinion on the question, Nachiappa Chettiar v. Chinnayasami Naicker (1006) 29 Mad 453, taking the former view, while the latter view was taken in Rajah of Kalahasti v. Achigadu (1905) 30 Mad 454, Zamindar of Karvetnagar v. Trustee of Tirumalai, Tirupati, etc., Devastanams (1909) 32 Mad 429. An exhaustive and illuminating review of the case law on the point will be found in the decision in the case of Shyam Lal Singh v. Bijay Narayan Kunda 1917 Pat 616 in which it was held that the interest of the holder of an impartible estate is liable for his debts, in the hands of his heir, and that it is only for the purpose of ascertaining the person entitled to succeed to an impartible estate that recourse must be had to the rule which would have governed the succession, if the estate had remained partible. The decision of the Judicial Committee in Baijnath Prasad Singh v. Tej Bali Singh 1921 PC 62 in an attempt to reconcile the different decisions of the Board [with the exception of the decision in Bishun Prakash Narayan Singh v. Janki Koer 1920 PC 34 which was said to have been the result of acceptance of an off-hand view without argument and without citation of authorities] has predicated for succession to an impartible estate, governed by the Mitakshara law, a rule by survivorship not based on the theory of co-ownership by birth. This has created a tangle which it will be for their Lordships to settle some day, and no result will follow from pursuing the point any further here

99. But an examination of the items, as regards which the decision of the learned Judge has been taken exception to, relieves us of the necessity of arriving at a definite conclusion on the aforesaid question. It appears that Nos. 1, 5, 6 36 to 41, 311, 312, 334, 337a, 338, 338a, 341, 348 and 349 are clearly in respect of the impartible estate. Nos. 2, 3 and 310 are bills in connexion with law suits, which presumably were in connexion with the impartible estate; and in any case the defendant has not shown that they were for Durgaprasad's personal matters. No. 273a is for clothes supplied for the Rajbatee and no evidence is available to show when the purchases were made. In such circumstances, we think the Judge was right in disallowing the deductions. There is a question of interest to be considered and that will be done later on. * * * *

D.-INCOME-TAX.

100. An agreement was reached in the Court below according to which the income-tax was calculated, but this was without prejudice to the plaintiffs' contention that the defendant is not entitled to any deduction for it at all. The contention is that income-tax was not legally payable on what was the unrealized income of Raja Durgaprasad's time realized afterwards by the defendant. The contention is that it was a voluntary payment because there was at the time a decision of the Calcutta High Court (of Greaves, J.) in the case of Mitchell v. Macniell 1927 Cal 518, (Ex. 9a), which supported such a contention. The previous judgment of this Court in this case, in our opinion, concludes the matter, because it has laid down that the defendant will be entitled to get a deduction of income-tax, etc., 'which may have been paid by the defendant on account of sums,' meaning sums which fell due during Raja Durgaprasad's lifetime, and might have been realized by the defendant. It has been argued that the word 'paid' in this direction means 'legally payable and actually paid,' and it is also pointed out that the correctness of the decision of Greaves, J., cannot be questioned because it led to the amendment of the Act. We do not see the force of these contentions because the evidence is that the income-tax people examined the books and assessed the tax and the defendant was in consequence obliged to pay. He was entitled to assume that the tax was rightly assessed and he then made the payment, for which in our opinion he is clearly entitled to be reimbursed.

A.-ITEM 18-INTEREST AND B.-MODE OF ACCOUNTING; A-Interest. Appeal.

101. The contentions of the appellant as regards interest, from the date of the liability up to the date of decree, are in the following three heads:

First.-That the Judge was wrong in compounding interest, from the date of liability up to date of decree, with the principal amount of the liability, and then decreeing interest on the total amount, at 6 per cent per annum, from the date of the decree until realization. This contention relates only to it items 6, 7, 8, 9, 10 and 11.

Second.-That there should have been a stoppage of interest from some point of time till now. This contention relates to all the items on which interest has been allowed.

And Third.-That the rate of interest should not be 6 per cent, per annum but much less.

102. The third contention is wholly untenable. Nothing less than 6 per cent per annum can be thought of Besides, the High Court and the Judicial Committee have already allowed that rate. The second contention requires consideration. In support of this contention, the facts to which our attention has been drawn are the following. Soon after the institution of the suit, that is to say, on 28th October 1919, the defendant was, at the plaintiffs' instance, prohibited by an ad interim injunction from transferring any part of the properties in suit. By the order that was passed, by consent, on 28th January 1920, though the appointment of a receiver was put off, yet the defendant continued to be under a restraint, in the matter of dealing with the properties and of resorting to such means as might be necessary for paying off the plaintiffs' dues. It is said that the end of 1919 or the beginning of 1920 was the first point of time from which there should have been a cessation of interest. It is then said that if this cannot be allowed, then, at any rate, interest should cease to run from 22nd December 1927, when the receiver was appointed. The circumstances under which the last mentioned order was passed were these. After the Subordinate Judge had made his decree on remand, the plaintiffs commenced execution and there was in this Court, on behalf of the defendant, an application for its stay. On 22nd, December 1927, this Court made an order appointing a receiver for the immovable properties and gave certain directions. The order opens with: these words:

We acknowledge the help which both sides have given us in this vexed matter, because neither of the parties is in a position to furnish security to the extent of what ordinarily this Court directs in such matters.

103. Nextly, our attention has also been drawn to the fact that the High Court, in its judgment, contemplated that the proceedings on remand should be concluded within four months from the date of the judgment and those proceedings, notwithstanding such direction, went on till 7th May 1927. It was shown that from Mr. M.N. Das' decision the appeal was lodged on 17th August 1927 and the appeal first came on the list on 13th December 1932. It has also been urged that on 10th February 1933, the plaintiff's obtained an adjournment of the appeal sine die, without placing proper materials before the Court, and that it was not until March 1933 that a date could be fixed for the hearing of this appeal. On all these facts, Mr. Chaudhuri has contended that there should be a stoppage of interest from such point of time as to us may seem just and equitable. He has referred in this connexion to certain cases which we shall now notice. Torre v. Browne (1855) 5 HLC 555, which was a bill for distribution of a testator's estate. One of the questions was whether interest should be charged on arrears of an annuity. The Lord Chancellor, while holding that the general rule of the Court was that arrears on an annuity do not carry interest, observed:

The cases in which, in later times, the Court, in the absence of express contract, has allowed interest have been confined to those where the annuitant has held some legal security which, but for the interference of the Court, he might have made available for the obtaining of interest; or where the accumulation of arrears have been occasioned by the misconduct of the party bound to pay. * * * But on the best consideration of the facts, I am unable to fix the blame of delay on those who were to pay the annuities rather than to those who were to receive them.

104. Curiously enough, one great and perhaps the only point of similarity between that case and the case before us is that each was or has been 'a lamentably protracted litigation.' The rule of Court in England, in this matter, is not the same as the statute law in this country (vide Sections 351 to 354, Indian Succession Act). Peruvian Guano Co. v. Dreyfus Brothers & Co. (1892) AC 166 is a very different case. The question was one of damages for detention of some cargoes, and one of the periods for which such damages were to be determined was subsequent to the date when the cargoes came into the possession of a receiver appointed by the Court. Lord Watson in his speech said:

The order of 17th December 1880, for the appointment of a receiver had the immediate effect of making the company bare custodians for the Court; and the appointment of 23rd February 1881 transferred the actual possession of the cargoes or their proceeds from the company to an officer of Court, In my opinion, detention by the company, whether it had been legal or illegal, ceased at the first of these dates. When possession of the subject of controversy is with the Court, the competing parties arc simply preferring their claims in the ordinary course of law; and any damages which the successful party may suffer from the continuance of the litigation are due to the law's delay, and not to any wrong perpetrated by the unsuccessful competitor.

105. In the present case no receiver was appointed of the movables or the cash. In Stirling v. Wynne (1834) 1 Jo 51, (Mews' Digest, Vol. 2, Col. 265), one creditor had, by appointing a receiver, obtained preference in respect of his debt, and the interest claimed by the latter against the debtor was refused.

106. None of the cases abovementioned have any analogy to the present case. Neither the interim injunction of 28th October 1919, nor the consent order of 28th January 1920, nor the appointment of a receiver on 22nd December 1927, could have prevented the defendant, if he was so minded, from obtaining an order for dealing with his properties in any way he liked, if only such dealing was meant to raise funds to pay his liabilities. Nor again was the time taken up in the disposal of the proceedings on remand, nor the period taken up by the appeal, which the defendant himself preferred to this Court from Mr. Das' decision, and the conduct and preparation of which were in his hands, a matter which can be put against the plaintiffs, so long as it has not been shown that the plaintiffs in any way have stood in the way of the speedy disposal thereof. The defendant could well have applied to the Court to give him liberty to raise funds and could at least have offered to pay off his liability in full or in part. The adjournment that was obtained on 10th February 1933, was, as far as we can gather, not on the application of one side only.

107. One important principle, under which running of interest may be suspended, is where the delay in the payment of the principal debt is caused by some improper act or omission of the creditor, Gopeshwar Saha v. Jadav Chandra 1917 Cal 630, in which several authorities have been cited), because in such a case the wrong is with him. So if a creditor, by his own act, puts it beyond the power of the debtor to make payment, no interest should be recoverable for the period during which the creditor was thus prevented. This principle is based on the plainest principles of justice equity and good conscience. Again in Mohammad Ali Mohammad Khan v. Ramzan Ali 1921 PC 100, the Judicial Committee disallowed interest for the period taken up by appeals by the mortgagee, the case having been hung up by his persistence in asserting an unwarrantable claim for interest. In the present case we can see none of such circumstances existing. The order for the appointment of a receiver, as far as we can gather, was made by this Court to relieve the defendant from execution and the order itself looks like an order by consent, though it does not expressly say so. As regards the first contention, namely, that relating to the allowing of interest up to date of decree and compounding it with the principal on the date of the decree and allowing of interest thereon at the Court rate, Section 34, Civil P.C. of 1908, justifies such a course. Even under the Code of 1861 the law was the same. But their Lordships of the Judicial Committee have never said anything and, on the other hand, have said much to indicate that the matter is purely one of discretion. It is quite true that

the rate of interest however to be allowed on the principal debt up to the date of the decree ought to be that, if any, which has been fixed by contract, express or implied, between the parties: Sophia Orde v. Alexander Skinner (1880) 3 All 91.

108. Also, where there is no contract;, express or implied, there is a discretion as to what interest, if any, has to be allowed: Panna Lal v. Nihal Chand 1922 PC 46. There is a divergence of judicial opinion on the question whether in the case of a mere detention of a debt, where there is no contract, express or implied, to pay interest or no statute or mercantile usage allowing it, interest can be awarded as interest. But that in a proper case it may be awarded by way of damages has been the view generally taken. Section 34 of the Code of 1908, also expressly sanctions the form of the decree that has been passed. But if one looks into the section a little closely one finds that while, except in cases in which the contract rate, for some reason or other, fails, that rate should be enforced up to date of suit, so far as the period pendente lite and also the period post decree are concerned reasonable rates of interest are to be allowed. This clearly shows that the plaintiff cannot, as of right, ask for the contract rate of interest for the period pending the suit, though Courts have always held that rate should be adhered to unless it would be inequitable to do so. So far as post decree interest is concerned, there again the Court has a discretion. But the object of allowing such interest on the aggregate amount, compounded of principal and interest up to decree, is twofold. One is to enable the debtor to know the exact amount of his liability, which as soon as it is found in the decree it is his duty to discharge; for, under the law, it is the duty of the debtor to find his creditor out and to make the payment. The other object is what was pointed out by the Judicial Committee in the case of Sophia Orde v. Alexander Skinner (1880) 3 All 91:

A practice, indeed, of giving upon the aggregate sum decreed for principal, interest, and costs, interest at only 6 per cent, does seem to have grown up; but that may have been in order to prevent the parties from enforcing their decree, and allowing their demand to roll on at 12 per cent.

109. In the present case, there was no contract, implied or express, and the interest ante lite as well as pendente lite has been allowed at 6 per cent, because presumably the Subordinate Judge considered that was a fair rate. There was no point therefore in compounding the principal and the interest due up to the date of the decree, and making interest to run on the aggregate sum at that rate. Section 34 of the Code or its principle was never intended to be used as a means for providing for compound interest: see Jodoonath Roy v. Dwarkanath Chatterjee (1864) 1 WR (Misc) 15, but to relieve the debtor of a hard rate of interest for a contract rate, express or implied, is seldom 6 per cent or less. And if the decree is maintained, it will only mean that the Court is allowing compound interest, compounded at the point of the decree. The Judicial Committee has pointed out that

the plaintiff getting the security of a decree has his interest reduced in the generality of cases.' Umes Chunder Sircar v. Zahur Fatima (1890) 18 Cal 164.

110. The present decree, far from reducing the burden of interest, has immensely, increased it. We are aware that the discretion exercised by a Court of trial should not be lightly interfered with by a Court of appeal. But the compounding in our judgment is based on no principle, and we must accordingly set it aside. Indeed we feel, as will appear from what we propose to say now, that we are bound to interfere with this part of the learned Judge's decision.

* * * *

B.-MODE OF ACCOUNTING.

111. Closely connected with the question of interest is the question as to how the payments made by the defendant are to be credited. Here again, as has already been pointed out, under Mr. Bose's decree, such payments, as he dealt with, were credited against the principal amounts due and this manner of accounting was upheld by this Court: Clause (v)(a). This has also been affirmed by the Judicial Committee and their Lordships in dealing with Rs. 48 259-3-9 have ordered the deduction of this amount with 6 per cent per annum with interest from the date of its payment, from the amount payable by the defendant to the plaintiffs 'as provided by the decree of the Subordinate Judge': Clause (3).

112. The Subordinate Judge has adopted another mode. He has, for instance, as regards the bank money credited the payments of Rs. 2,00,000 and Rs. 50,000 in the first instance against the interest due. This is in clear contravention of what is provided for in Mr. Bose's decree and in the High Court's decision and what has been approved and confirmed by the Judicial Committee. As regards the items (14) and (16) of the decretal order in his judgment, the learned Judge has not given details as to how the credit was to be made, but if the same process has been resorted to, in arriving at the figure, which is to be found in item (16) of the decree which was drawn up in pursuance of his judgment, the decree cannot be upheld. The interest that has been awarded in plaintiffs' favour in this case is not an interest provided for in any contract between the parties, express or implied, but by way of damages only. The payments that were made were not payments made against interest expressly, and there has been no agreement between the parties and no order of Court under which such payments or any of them, if made, were to be credited against interest. A right of a creditor to appropriate a payment against unliquidated damages and when no interest was in fact running under any contract, express or implied, is a thing unknown to law. The payments were made subject to adjustment in future. In these circumstances, all payments made before the decree of the Subordinate Judge, dated 7th May 1927, must necessarily be regarded as payments on account and on the same footing as the payment of Rs. 48,259 referred to above. Payments made since that day are also to be regarded on that footing, because they have not been made in execution of the decree but as advances under order of the Court, which never said that they were, if made, to be credited against interest.

113. In our judgment, all payments made by the defendant for which he will get deduction must be credited against the principal amount due, that is to say they should be credited in the same way as this Court had ordered as regards Rs. 2,50,000 and the Judicial Committee has ordered as regards Rs. 48,259-3-9, namely that they should bear interest at 6 per cent per annum as from the dates on which they were made and should be deducted from the amounts payable by the defendant to the plaintiffs under the decree.

CROSS-OBJECTION.

114. The plaintiffs' cross-objection relates to items 1 to 5 with respect to which no, interest has been allowed, either since conversion up to suit, or from the date of suit up to date of decree. Mr. Das has relied upon Peruvian Guano Co. v. Dreyfus Brothers & Co. (1892) AC 166, in support of his case that the plaintiffs are entitled to damages for the detention of the goods. This claim however was never made in any of the annexures and not put forward as a ground in the memorandum of appeal. Such a claim was never made as regards the value of movables in Mr. Bose's decree, when that decree came up before this Court. It has been put in as a supplementary ground at the hearing of the case before us. We would disallow this claim, especially as we have, bearing this matter in mind, not interfered with the Judge's valuation on the point of depreciation.

APPLICATION FORA SUPPLEMENTAL DECREE OR FOR FURTHER DIRECTIONS.

115. The High Court, as already stated, had made a decree in plaintiffs' favour ordering discovery and in respect of all rents, royalties and moneys on account of mortgages and money-lending which had fallen due to Raja Durga Prasad and had been realized by the defendant 'up to the date of institution of the suit.' The Court below, as appears from its judgment, was asked to give the plaintiffs a decree in respect of some amounts realized by the defendants after the institution of the suit. The Subordinate Judge, in his judgment, held that such realization, whether amicably or by obtainment of decrees, did not come within the scope of the inquiry ordered by this Court.

116. The plaintiffs have taken exception to this decision, by way of a cross-objection; but it has been conceded by Mr. Das that the objection, as a cross-objection, cannot succeed, because the High Court's decree having limited the inquiry, in the manner stated above, it was beyond the competency of the Subordinate Judge to override it and to enlarge the scope of the inquiry and to give the plaintiffs a decree for realizations made after the institution of the suit.

117. The plaintiffs however have, at the hearing of this case before us, put in a petition asking for a supplemental decree or further directions, in respect of such realizations. They say that when, after Mr. Bose's decree, the question of stay of execution was brought up to this Court there was an order made by this Court (Mookerjee and Cuming, JJ.) on 9th February 1922, maintaining an injunction which had been previously issued and which restrained the plaintiffs from executing the decree upon certain terms, one of which was that the defendant was to forthwith deposit in Court all sums which he might from time to time realize out of moneys invested in various money-lending businesses. They say also that, as no such deposit was made, they had, at the time when the High Court passed its decree in 1925, no knowledge that the defendant had made any realization after suit. They say further that it was only after they had obtained discovery, in pursuance of the order of this Court in its previous judgment, that is to say, in 1926, and while the inquiry was being held by the Subordinate Judge, that they came to know that such realizations had in fact been made by the defendant. They refer to their plaint and contend that the prayers therein are such as would include a claim in respect of all realizations, whether made before or after suit. On these grounds, they pray that the decree, which the Court has already made, being an administration decree they are entitled to a supplementary decree or further directions entitling them to these realizations.

118. In support of the application, and to establish the proposition that his clients are entitled to such a decree or such directions, so that they may not have to seek their remedy in another litigation, and so that complete justice may be done between the parties in this suit, Mr. Das has referred to a number of decisions. He has in the first place pointed cut that the decision of the Judicial Committee, in this very case, is an instance of the application of this principle; for, as regards the plaintiffs' claim for maintenance and the defendant's claim for deduction for certain payments that he had made, their Lordships have said:

Their Lordships see no reason why the defendant's claim should not be considered in the present proceedings and why, if the plaintiffs claim maintenance in addition to the properties awarded to them, their case also should not be considered together with the plaintiffs' claim. A separate suit would involve a repetition of good many facts already recorded in this suit.

119. In In re, Symons. Luke v. Tonkin (1882) 21 Ch D 757, it was held that when the statement of claim, in an administration action, against an executor, alleges that he has committed wilful default, but the judgment at the trial gives no relief on that finding (the claim to such relief not being however dismissed), the Court can at any subsequent stage of the proceedings, if evidence of wilful default is adduced, direct further accounts and inquiries to be taken and made on that footing. In Edmonds v. Robinson (1885) 29 Ch D 170, which was a partnership action for dissolution and accounts and in which accounts and inquiries having been ordered a further direction was asked for in order to credit premium which had been paid, the prayer was refused. Kay, J., laid down the rule in these terms:

That which is asked now is a very important addition to the decree indeed. The first question, when leave is asked for to bring a supplemental action is, when were the facts discovered? The answer here would be that the plaintiff discovered them before he obtained judgment in his action. This is a very serious objection to granting leave to bring an action for a supplemental relief.

120. Instances where, in order to shorten litigation and best attain the ends of justice by preserving the rights, events subsequent to the suit, or even posterior to the decree appealed from, have been taken cognizance of by the Court, have been cited: Balakbala, Dasee v. Jadunath Das 1931 Cal 45, (administration suit), Ram Ratan Sahu v. Bishun Chand (1907) 11CWN 732, (mortgage suit). The case of Peary Mohan v. Manohar Mookerjee 1924 Cal 160 has also been referred to, in which, in pursuance of the order of the Judicial Committee Peary Mohan v. Manohar Mookerjee 1922 PC 235, an accounting on the footing of wilful default was ordered, by way of further directions or supplemental decree. As regards the delay in making the application, it has been urged that where the delay does not amount to acquiescence, waiver or abandonment of right, it does not disentitle a person to a relief which he is otherwise entitled to: Kissen Gopal v. Kally Prosonno Sett (1905) 33 Cal 633, Jamnadas Shankarlal v. Atmaram Harjivan (1877) 2 Bom 133. And the decision of the Judicial Committee in Lindsay Petroleum Co. v. Hurd (1874) 5 CP 221 is cited in which it has been observed:

Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet, put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable.

121. The plaintiffs have asked us, if we are willing to accede to their prayer to make a decree in respect of the following items in annexure 4:

(A) 3. Items of money realised from, debtors.

1. Rs. 33,052-16-6 realised from the Barabhnm Coal Cc. in different instalments between 9th May 1919, and 21st July 1921; 2. Rs. 37, 692 realised from Mr. Smith in different instalments between 15th July 1919, and 22nd July 1926; 3. Rs. 8,224-10-9 realised from Hardayal Singh on 22nd December 1933.

(B) 2. Items of money realised upon decrees.

Item 52.-Rs. 450, and Item 53-Rs. 800. In these cases decrees were obtained by the defendant before suit, but the moneys were realised after suit.

122. This application has been strongly opposed on behalf of the defendant, and Mr. Chaudhuri has urged that, if the plaintiffs were desirous of having a decree of the character which they have now asked for, it was for them to have asked for it when the case was before Mr. Bose, or, at all events, when it was before this Court, on the previous occasion; and that it was because no such thing was attempted that this Court, expressly, limited its decree and directions to realisations made by the defendant before the institution of the suit. All rokars up to 1325 (pueca rokars from 1300 to 1308 and cutcha rokars from 1309 to 1325), it was found by the High Court, had been filed, on behalf of the defendant, in the original trial. In the decretal order of this Court's judgment, discovery was ordered in respect of matters up to date of suit, as is plain from the wording of Clause (7) taken with the other clauses. When, in pursuance of the order of remand, the case went back to the Court below, documents up to 1325 only were called for (vide Order 542, dated 21st November 1925). The documents produced were inspected on behalf of the plaintiffs, and the parties then went on filing statements of their claims. On 15th February 1926, the plaintiffs made a further petition for discovery, and an order was made by the Subordinate Judge, which made it clear beyond the shadow of a doubt, if there could possibly be any doubt before, that it was only for the period up to the date of institution of the suit that the discovery was to be granted and enquiry made. On 16th August 1926, the plaintiffs suggested their own issues, 15 in number, all limited to discovery and enquiry before institution of the suit. On 24th August 1926, they proposed two additional issues as 5 (e) and 5 (f), to which reference will have to be made hereafter, in another connexion, but never suggested that the issues already proposed should be extended to cover any period subsequent to the suit. It is important to note that these additional issues 5 (e) and 5 (f), were meant to include a period up to decree, the former impliedly and the latter expressly. The issues were settled by the Court on 21st August 1926, and such of them as bear upon the realisations were issues 6 and 13, and they both deal with the period before suit. It was only during the arguments that the subsequent period was sought to be taken into account. As regards the plaintiffs' want of knowledge till 1926, Mr. Chaudhuri has referred to certain materials. One of them is that the Barabhum loan could not have been unknown to the plaintiffs because they called for papers and examined witnesses from that quarter: vide P.W. 18. As regards Hardayal Singh, he, Mr. Chaudhuri states, was the first witness for the plaintiffs themselves in the original trial. As regards the order of this Court (Mookerjee and Cuming, JJ.,) dated 1922, which related to moneys realised out of money-lending business and not to other realizations, he has not explained why the defendant did not comply with it, but has pointed out that it was known to this Court, when it dealt with the case in 1925, as a reference to it is to be found in this Court's judgment.

123. We have already said in a previous part of this judgment that the present suit, in our opinion, is not in the nature of an administration suit. Under the orders of remand, which this Court made, no accounts had been directed. So, cases in which, after a general account was ordered, further accounts on the footing of wilful default have been directed are in our judgment not quite relevant. There is, of, course, the inherent power, which the Code has reserved to every Court, under Section 151 to make such orders as should be made ex dibito justitae, and every Court should have in view the shortening of litigation preventing duplication of proceedings, and saving the parties from harassment and expense. And delay, by itself, is not sufficient to deprive a party of his remedies, if such delay does not amount to waiver, acquiescence or abandonment of his claim or has not created a corresponding right in his opponent on extinguishment of his own.

124. But boaring these principles in mind, we find ourselves unable to hold that we should be justified in granting this application. Even assuming that the plaintiffs came to know of these realisations in 1926, and not earlier, what action did they take to have their right enforced? They never asked the Court below in proper time to enlarge the scope of the enquiry, but themselves proposed issues that limited it. And if it be said that such a prayer would have been fruitless because that Court was only carrying out the order of remand, one is justified in asking, what prevented them, from 1926 to 1933, from coming up to this Court and praying for a supplemental decree or further directions such as they are now praying for? Even when the hearing of the appeal commenced before us no such application was made, and though the hearing began on 19th June, the present application was put in with the Bench officers only on the 30th and was actually moved after Mr. Das had been addressing on behalf of the plaintiffs for two days. This delay, since 1920, disinclines us to make an order which, if it is to do the plaintiffs any good, must protract this already protracted litigation. For we do not see how we can accept Mr, Das' contention that upon the documentary evidence that we already have on the record we can make a decree in his favour. Such a contention ignores the other side of the case, because the defendant can justly say that if any period subsequent to the institution of the suit is to be included in the inquiry, he should have, besides other defences, an opportunity to put in and prove his claims for deductions for such period. Then there are various other matters also, e.g., the question of limitation, the question under Section 11, Expl. 5 and other questions which may be raised by the defendant, by way of defence, in a suit properly framed. While we are not pronouncing any opinion on any such question, and desire to guard against being understood as doing so, we are not inclined to shut out these objections against the defendant by an order in plaintiffs' favour. The application is, accordingly, refused. * * * *

APPLICATION FOR DISCHARGE OF THE. RECEIVER

125. On 16th August 1932, the appellant put in an application for the discharge of the receiver and that application has stood over pending the appeal. The receiver was appointed by this Court, by its order of 22nd December 1927, in order to get rid of a situation that arose when execution of the decree of Mr. M.N. Das was commenced, because this Court was moved on behalf of the defendant, as judgment-debtor, to stay the execution until the disposal of the appeal and neither party was in a position to furnish security to the extent of what ordinarily this Court directs in such matters. [Vide order of this Court, dated 22nd December 1927, in Civil Rule 1134(P) of 1927]. He was not a receiver appointed for levying execution as provided for in Section 51, Clause (d) of the Code. His appointment was limited until the final disposal of the litigation then pending, by which we understand the present appeal with its cross-objection. The appeal and the cross-objection now being disposed of, we can see no reason why the receiver should not be discharged. The defendant has complained, and we think there is very substantial ground for his complaint, that he has had no fair chance of raising funds to pay off the decree which was made against him, and that while the receiver is managing the properties the burden of the interest accumulating on the debt is increasing every moment. He, through his counsel Mr. Chaudhuri, has expressed his willingness to remain bound by the condition that was imposed on him in the order referred to above, namely, that:

The defendant will withdraw his application to the encumbered estate authorities and that he undertakes not to make any such application till the dues of the plaintiffs in the present litigation as finally adjusted are paid off.

126. The defendant must file an application containing such undertaking in this Court as early as possible and on his doing so our order will be that the receiver be directed to submit his final accounts so that he may be forthwith discharged.

RESULT

127. As the result of the appeal and the cross-objection, and of the determination of the matters arising on the remand, ordered by the Judicial Committee, the following decree emerges, in modification of the decree of the Court below (with reference to Clauses 16 of the decree of that Court, wherever such reference has been given) and in addition to the declarations contained in the decision of their Lordships of the Judicial Committee, and in the order of His Majesty in Council in this case, dated 10th June 1932 and in addition to so much of the decree of the High Court, dated 17th August 1925, as has been affirmed thereby:

I. That in lieu of Clause (1) it should be declared that the plaintiffs are entitled to the property, coal-field, 100 bighas in mauza Chandore, pargana Jharia, district Manbhum, described in Item 1 of the plaintiffs' annexure 1 (a) lying within the boundaries given in the said description, and that they do recover possession thereof from the defendant.

II. That in lieu of CIs. (2), (3), (4) and (5) it should be declared that plaintiffs are entitled to recover from the defendant (Rs. 1,44,000 Rs. 45,311-12as Rs. 21,000 Rs. 6,060 Rupees 7,270 Rs. 5,784-15-6)=Rs. 2,29426-11-6 with interest thereon at 6 per cent per annum from 7th May 1927 (i.e., the date of the decree of the Court below) till realisation.

II (a). That the plaintiffs should get delivery from the defendant of the two Swiss cottage tents, Item 54 of plaint schedule Kha 20, within, a month from to-day and in default of delivery, the plaintiffs be entitled to recover from the defendant the amount of Rs. 500 with interest thereon at six per cent per annum, from 7th May 1927, (i.e., the date of the decree of the Court below) till realization.

III. That in lieu of Clause (6) it should be declared that the plaintiffs do recover from the defendant Rs. 4,34,531-10 as with interest thereon at six per cent per annum from 7th March 1916, (i.e., the date of Raja Durgaprasad's death) till realization.

IV. That in lieu of Clause (7) it should be declared that the plaintiffs do recover from the defendant the following amounts:

(a) Rs. 5,82,168-7 as with interest thereon at six per cent per annum from 22nd. September 1917, (i.e., the date of withdrawal) till realization;

(b) Rs. 73,212-6 as with interest thereon at six per cent per annum from 2nd October 1917, (i.e., the date of withdrawal) till realization; and

(c) Rs. 56,117-12 as with interest thereon at six per cent per annum, from 24th. September 1917, (i.e., the date of withdrawal) till realization.

V. That in lieu of Clause (8), it should be declared that the plaintiffs do recover from the dedant the two principal sums of Rs. 60,195-11-9 and Rs. 338-2 as with interest on the constituent parts of the said sums at six per cent per annum as from the dates on which such parts were realized, and till realization.

The Commissioners will prepare a statement showing the calculations.

V-(a). That it should be further declared the plaintiffs are also entitled to a sum of Rupees 5,025 with interest thereon at six per cent pec annum from 22nd February 1918, (i.e., the data of sale) till realization.

VI. That in lieu of Clause (9), it should be declared that the plaintiffs do recover from the defendant the amounts of rents and royalties realized by the defendant, for any period ending with 7th March 1916, less six per cent as collection and management charges, together with interest thereon at the rate of six per cent per annum from the dates when any such amount may have been collected and till realization.

The Commissioners will prepare a statement showing the calculations,

VII. That in lieu of Clause (10), it be declared that the plaintiffs do recover from the defendant such amount as the defendant may have realized, in satisfaction of Raja Durgaprasad's dues, together with interest thereon, at the rate of six per cent per annum, from the date of each payment and until realization, the method of accounting being that Raja Durgaprasad's dues were to be satisfied first, before any part of the defendant's dues were satisfied.

The Commissioners will have to make the calculation on the basis of Ex. J (1), and bearing in mind, also, the directions already given in this judgment, that rent and royalties calculated up to 7th March 1916 are to be considered as having been due to him. As regards interest chargeable on royalties no evidence having been given of the terms of the contract, none need be taken into account. The Commissioners will prepare a statement showing the calculations.

VIII. That in lieu of Clause (11), it should be declared that the plaintiffs do recover from the defendant the sums of money found to have been realised by the defendant on the miscellaneous items of annexure 6, except item 13 thereof, with interest thereon at six per cent per annum from each payment till realization.

The Commissioners will prepare a statement showing the calculations.

VIII-(a). That it should be declared that the plaintiffs do recover from the defendant Rupees 6,000 from 7th March 1926, (i.e., the date of the decree of the Court below) till realization.

IX. That Clause (12) should be affirmed subject to the modification that items 16, 17, 77 and 79 be deleted therefrom,

X. That in lieu of Clause (13), it should be declared that the defendant is entitled to get credit for Rs. 38,619 with interest thereon, at the rate of six per cent per annum, from the date of payment of each of the items, comprised therein, from the amount payable by the defendant to the plaintiffs under this decree.

The Commissioners will prepare a statement showing the calculations.

XI. That in lieu of Clauses (14) and (16), it should be declared that defendant is entitled to get credit for the sums of money mentioned in the defendant's statement filed in this Court on 28th July 1933, with the exception of the items of Rs. 48,259-3-9 (bantannama money for which a declaration has already been made by the Judicial Committee and approved of by the order of His Majesty in Council, and Rs. 18,569-3 paid by the receiver on account of the collection of mouzas Bowa and Baghmari), with interest thereon, at the rate of six per cent per annum, from the amount payable by the defendant to the plaintiffs under this decree.

The Commissioners will prepare a statement showing the calculations.

XII. That Clause (15) should be affirmed.

XIII. That the decree in the form of Order 20, Rule 10, should be made in respect of the furniture furnishings and equipments, as ordered above.

XIV. That a decree for maintenance be passed as ordered above.

The amount of arrears of maintenance will be ascertained by the Commissioners on calculation and such amount will be incorporated in the decree.

XV. That the order as to costs made by the Court below will stand.

XVI. That there will be no order for costs in the appeal or in the cross-objection, each party bearing his or their own costs therein.

Terms of the decree to be drawn up.

We think it would be convenient to draw up the decree in the following form:

That in addition to the declaration contained in direction (1) in the judgment of the Judicial Committee delivered on 7th April 1932, and order of His Majesty in Council, dated 23rd April 1932, and to so much of the decree of this Court, dated 17th August 1925, as has been affirmed by the Judicial Committee the following declarations are made:

(1) ... ... I of result.

(2) ... ... IX

(3) ... ... XII

(4) ... ... XIV

(5) ... ... IIa

(6) ... ... A decree for money in

favour of the plaintiffs

made in the following manner:

(a) in respect of the aggregate of the principal amounts of [II | III | IV | V V-(a) | VII VII | VIII | VIII-(a) XIII] minus the principal amounts of (X | XI 1 Rs. 48,259-3-9) and with an order that the same shall bear interest at six per cent per annum from this day till realization.

(b) in respect of the balance of interest on the said items calculated in the aforesaid manner up to this day but with no direction as to interest thereafter. The Commissioners will arrive at the figures on calculation.

(7) ... ... XV of result.

(8) ... ... XVI

The statements of calculations prepared by the Commissioners will be appended to the decree.


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