ARATI RANI PAUL Vs. BALAI CHANDRA PAUL

JUDGEMENT

(1.) This application has been filed by Gour Chandra Paul for setting aside or varying the report of the learned Special Referee dated September 23, 1970. Similar prayers have also been sought on a separate notice of motion initiated by Arati Rani Paul on the basis of the said application of Gour. The respondents who are contesting the two applications are Balai Chandra Paul and Kanai Chandra Paul, other two brothers of the petitioners. As the same points have been argued by the Counsel for Gour and Arati, they are dealt with in this judgment. The material facts of the case may be stated as follows: One Shrish Chandra Paul died leaving his widow Pramila and four sons Balai, Kanai, Netai and Gour and four daughters, one of whom is the petitioner Arati. Pramila was appointed by this Hon'ble Court as the guardian of her minor sons in the goods of Motilal Paul, grandfather of the said Shrish Chandra Paul, and also in the gods of Shrish Chandra Paul. In 1946, Netai died unmarried. The estate of Shrish Chandra Paul comprises valuable properties including house properties in Calcutta. On September 27, 1946, Pramila executed a deed of gift in respect of Premises Nos.60/11 and 60/12, Gouri Bari Lane, in favour of Balai, Kanai and Gour. On March 30, 1957, a deed of family arrangement was also executed recording an amicable partition among Pramila, Balai, Kanai and Gour. On June 13, 1957, Pramila instituted the present suit against Balai, Kanai, Gour and Arati in which she prayed for a declaration that the said deed of gift and the deed of family arrangement was void and for enquiry as to what the joint family properties consisted of at the death of Shrish Chandra Paul and for declaration of shares of the parties and other reliefs. On August 26, 1957, Pramila executed a Will bequeathing her entire estate to Arati and Gour in equal shares. On January 1, 1958, Pramila died without filing any inventory or accounts and also without obtaining any discharge from this Court both in the goods of Motilal Paul, deceased, and Shrish Chandra Paul, deceased. On December 12, 1958, Arati was transported as the plaintiff in place of Pramila. Arati applied for grant of Letters of Administration with the copy of the Will of Pramila annexed on February 3, 1960. Balai and Kanai contested the said application and the matter was marked as Testamentary Suit No.12 of 1962. On December 17, 1962, both the testamentary suit and the partition suit appeared in the peremptory list of Mullick, J. and the testamentary suit was partly heard. Similarly, on January 2, 1963, and January 3, 1963, both the suits appeared in the list and the testamentary suit ws partly heard. While the oral evidence was being taken on January 4, 1963, parties agreed to refer all their disputes in both the suits to Mullick, J. acting extra cursum curae. On April 1, 1963, in pursuance of the said order dated January 4, 1963, a preliminary decree in the present suit was passed and under the said decree Mr. T. K. Dastidar was appointed as a Special Referee. On the same date, by a separate order, Letters of Administration were granted to Arati in the testamentary suit. Under the preliminary decree Mr. Dastidar was to act under the supervision of Mullick, J. Thereafter Mullick, J. retired and on July 15, 1969, a consent order was passed by me whereby Mr. A. N. Banerjee, Attorney for Arati and Mr. Ajit Kumar Ghosh, Attorney of Balai and Kanai, were appointed Special Joint Referees in place and stead of Mr. Dastidar. The said Joint Referees also were appointed the Commissioner of partition. On January 28, 1970, on the petition of Balai and Kanai, the new Special Referee Mr. R. N. Das, Barrister-in-law, was appointed as a Special Reference to make enquiries in terms of the preliminary decree in place of the said Mr. A. N. Banerjee and Mr. Ajit Kumar Ghosh. Mr. Das was also appointed the Commissioner of partition in their place. On September 23, 1970, the said Mr. Das filed his report, and on December 11, 1970, the present notice of motion was taken out on behalf of Gour and Arati separately.

(2.) Mr. I. P. Mukherji, on behalf of Gour Chandra Paul, has made elaborate arguments for several days in support of his client's case that the report of the Special Referee should be set aside. Mr. Mukherji has cited large number of challenged the said report may now be discussed. His first and main contention is that the preliminary decree passed by Mullick, J. and the various orders passed by him and, after his retirement, by this Court are nullities and, as such, the appointment of Mr. R. N. Das and the report filed by him are void and illegal. According to him, Mullick, J. had initial lack of jurisdiction in passing the said preliminary decree. The said testamentary suit was partly heard for about three days and evidence was not completed. No evidence has been taken in respect of the present partition and administration suit. Letters of Administration were granted by him to Arati in the testamentary suit without hearing the parties. Similarly, the preliminary decree passed by him on the basis of request by the parties to decide all matters in dispute in exercise of the so-called jurisdiction in extra cursum curiae is unwarranted in law. Mr. Mukerji concedes that Mullick, J. exercised the said jurisdiction by consent of all the parties, but he has strenuously argued that the consent of the parties cannot give jurisdiction to a Judge which is unknown in law. He has challenged the preliminary decree also on the grounds that the preliminary decree on the face of it is a nullity inasmuch as the contents of the same are contradictory to the principles of natural justice and also various statutes like the Indian Evidence Act, Indian Succession Act, Code of Civil Procedure and also Clause 17 of the Letters Patent and also the Rules of the High Court, Original Side. Relying upon the decision of (1) Kiran Singh and Ors. v.Chaman Paswan & Ors., AIR 1954 SC 340 (342) he has argued that a decree or an order which is void ab initio can be challenged by a party even in collateral proceedings where such illegal order is sought to be enforced.

(3.) Mr. Hazra, Counsel on behalf of the respondents has rightly referred me to the fact that all these contentions of Mr. Mukerji have not been specifically stated anywhere as grounds of the present petition. I could have disallowed Mr. Mukerji and Mr. Goho to argue on the same point. But inasmuch as they have contended that the order of Mullick, J. is a nullity and, as such, can be challenged at any stage of the proceeding, and as the point was extensively argued by them, I have thought it necessary to deal with the same. In this connection Mr. Mukerji has relied upon in (2) Gulab Sao v. Chaudhury Madho, 9 CalWN 956; (3) Bhowmickv. Bhagwandin, (1911) 14 CLJ 648; (4) Kalipada v. Hari Mohan, (1916) ILR 44 Cal 627 (632, 638) ; (5) Kunja Mohan Chakraborty v. Manindra Chandra Roy Chowdhury, AIR 1923 Cal 619; (6) Pearylal Ray Chaudhuri v. Secretary of State, AIR 1924 Cal 913 (915); (7) Gorachand Halder v. Prafulla Kumar Roy, (1925) 29 CWN 948 (F.B.); (8) Hiralal Patni v. Sri Kalinath, AIR 1262 SC 199 (200).