MAHADEO JEW Vs. BALKRISHNA VYAS

JUDGEMENT

(1.) This is a suit for setting aside a consent decree in Suit No. 4156 of 1948, for a declaration that the second plaintiff Ratan Bala was and is still a trustee of the estate of Ranubala Dassi, and if necessary for a decree for administration of the trust estate and for a scheme. The plaintiffs are the Deity Sri Sri Mahadev Jew and Ratan Bala Dassi. Originally there were three defendants, defendant 1 was Dr. Benode Bahari Sen who was appointed the Managing Trustee under the said consent decree but who has since retired during the pendency of this suit. After the necessary amendment there are now two defendants, the first one being Bal Krishna Vyas and defendant 2 is Pran Ballav Saha. The amendment, was made under order of Court dated 15-3-1951.

(2.) The facts of the case are briefly these. One Banubala Dassi a woman of the town died on 22-6-1946 after leaving a Will of the same date in which she appointed the two present defendants as trustees of the trust created by the said Will. Probate was granted of the Will on 15-8-1946 to both these defendants. On 21-12-1948 the defendant Vyas instituted a suit being. Suit No. 4156 of 1948 against defendant 2 Pran Ballav Saha alleging maladministration and misappropriation of the trust estate. The suit came up for hearing on 13-7-1949 before my learned brother S. E. Das Gupta J. and the matter was ultimately settled on certain terms of settlement and a consent decree was made on or about 7-9-1949. That consent decree is now 6hallenged before me in this suit.

(3.) On behalf of the defendants the following Issues were raised and they were accepted on behalf of the plaintiffs. The Issues are : (1) Is the consent decree dated 7-9-1949 invalid on the ground of non-representation of the Deity? (2) Is the consent decree invalid on the ground that it is at variance with the terms of the Will ? (3) Is the consent decree invalid on the ground that there was no free and voluntary consent by Batan Bala? (4) To what scheme of administration, if any, are the plaintiffs entitled? The third Issue is the only issue of fact and the 1st and second Issues are Issues of law. The parties have naturally therefore led evidence on this Issue 3 of fact as to whether there was free and voluntary consent by the plaintiff Batan Bala to the consent decree which is impeached before me. I, therefore propose to take up this third Issue first as it is a question of fact.