PROFULLA KUMAR MULLICK Vs. FIROZA SUNDARI DASSI

JUDGEMENT

(1.) This is a suit instituted by the plaintiff originally against Manmatha Nath Mullick since deceased for an account of the trust properties created by Jadulal Mullick deceased, for necessary enquiries and directions regarding the said trust properties, for a decree for the sums found due to the plaintiff for self and as an heir of Pradyumna Kumar Mullick, for removal of Manmatha Nath Mullick as trustee and for other reliefs. The only question to be decided by me is whether Abhiram Mullick, son of one Pramatha Nath Mullick since deceased, a defendant in this suit, is liable to render accounts. The rest of the matters are, it is understood between the parties, to be referred to an Officer of this Court for an enquiry and for accounts.

(2.) The matter arises in this way: On 5-2-1894 one Jadulal Mullick died. A genealogical table showing the descendants of the said Jadulal Mullick is as follows: <IMG>JUDGEMENT_182_AIR(CAL)_1951Image1.jpg</IMG> On 12-12-1877 the said Jadulal Mullick had made a will and a codicial. Under the said will his widow Saraswati Dassi along with other persons were appointed executrix and executors. On 21-4-1894 probate of the said will was granted to Saraswati Dassi. On 1-6-1894 Saraswati Dassi pursuant to the directions contained in the said will conveyed certain properties to herself and to her sons Anath and Pramatha as trustees. Thereafter disputes arose amongst the heirs of Jadulal Mullick and the said disputes were referred to the arbitration of late W. C. Bonnerjee On 30-6-1899 an award was made by W. C. Bonnerjee. On 28-6-1900 Anath died. Thereafter a suit being Suit No. 783 of 1900 was instituted by Pramatha against Manmatha and others claiming partition and other reliefs. Late Bhupendra Nath Basu was appointed Commissioner of Partition. On 26-12-1903 the return of the Commissioner of Partition was filed and under the said return certain properties were set apart for the trusts mentioned in the will of Jadulal and the rest of the properties were divided amongst the parties. On 20-2 1902 Manmatha was appointed a trustee of the trust estate and continued to be such trustee till his death.

(3.) In 1916 Jadulal's widow Saraswati did. On 11-4 1943 Pradyumna died leaving his two sons Profulla and Provash as his heirs and legal representatives. Thereafter on 12 12-1943 Provash died leaving his brother Profulla as his heir. On 23-8-1943 Pramabha died and thereupon Manmatha became the sole trustee of the said trust. Sometime in the year 1945 this suit was instituted by Profulla for self and as legal representative of Pradyumna Kumar Mullick against Manmatha Nath Mullick. The original plaint, as I shall presently indicate, has undergone a number of amendments. Originally this suit was filed only against Manmatha and the case of the plaintiff as made out in the original plaint was as follows: In Para 19 of the plaint it was alleged that the defendant (i. e. Manmatha Nath Mullick) along with the said Pramatha had since the year 1916 the custody and possession of the trust properties and was in charge thereof and had been collecting rents, issues and profits thereof and managing the same. In Para. 20 it was alleged that the defendant failed and neglected to render an account-in respect of his dealings and to pay to the plaintiff's father Pradyumna Kumar Mullick his one-third share in the surplus of the income of the said trust properties and also the expenses incurred by the plaintiff's father on account of the Deb Sheba during his Pala and a considerable amount is left every year as surplus from the income of the said trust properties. In Para. 21, it was alleged that the defendant had also failed and neglected to render any account or to pay the plaintiff his share in the said surplus and committed a breach of trust in respect thereof. In Para. 22, the plaintiff claimed an enquiry and account as to the dealings of the defendant in respect of the trust properties and as to the amount due to Pradyumna in respect of his share in the said surplus and the Deb Sheba expenses and a decree for such sum as may be due. In Para 23, the plaintiff claimed an enquiry and account as to the dealings of the defendant in respect of the trust properties after the death of Pradyumna. Lastly in Para. 24 it was alleged that the defendant had committed breach of duty and trust in not furnishing accounts of the trust properties and giving information relating thereto. The material prayers of the original plaint were as follows: (1) Account; (2) All necessary enquiries and directions; (3) Decree for the sum found due to the plaintiff for self and as heir of Pradyumna Kumar Mullick; (4) Removal of the defendant as trustee and appointment of the plaintiff as trustee; (5) Discovery; (6) Administration.