JAYANTA MOHAN CHATTERJEE Vs. JAGAT MOHAN CHATTERJEE

JUDGEMENT

(1.) This appeal is by the plaintiff against a (judgment and decree dismissing his suit. The case of the plaintiff as stated in the plaint is as follows:--

(2.) The grand-father of the plaintiff, Ramani Mohan Chatterjee (since deceased) left considerable properties in Government Securities, shares of Companies, debts payable by different parties as also landed properties. He left a will with a codicil whereby his two sons, Rajat and Jagat (defendant 1) were given specified annuities during their life time and there were provisions for others also. The trustees appointed by the will were directed to hold the residue of the estate upon trust during the natural life of the said sons and after their death to divide the estate with its accumulations of Income in equal shares amongst his grand sons through the said sons. The trustees were empowered to sell the properties belonging to the estate and invest them under such stocks, funds, shares, securities, landed properties or otherwise as they would think fit. The trustees or their survivors were empowered to appoint new trustees or trustees in place of deceased or retiring trustee or trustees. The will, which was executed on September 13. 1918, and the codicil were duly probated on March 8, 1919. The executors named in the will duly administered the estate since then till January 28, 1927 and by a deed dated January 29, 1927 new trustees namely Rajat, Jagat and Tapan Mohan, a cousin of Jagat were appointed and all the properties belonging to the estate were assigned to the said new trustees by the said instrument which was registered. Shortly thereafter, Tapan Mohan resigned from the office of the trustees and surviving trustees namely Rajat and Jagat began to administer the estate as such trustees. On or about March 6, 1931 a sum of Rupees 34,000 was withdrawn from the estate account with the Imperial Bank of India now the State Bank of India and was lent to Benoyendra Das and his brothers against the mortgage of premises No. 24-C, South Road, Entally being the suit properties (since known as 24-C and 24-D, Dr. Suresh Sarkar Road) Calcutta. The said mortgage was enforced by Rajat and Jagat by a mortgage suit and in execution of the decree they purchased the suit premises and obtained possession thereof in 1936 or 1937. Thereafter they made various improvements and additions to the said premises with the funds of the trust estate. The plaintiff averred that as the said properties were acquired with the estate funds and improvements made thereon with the same funds, they belonged to the trust estate of Late Ramani Mohan Chatterjee. Rajat and Jagat had no means, having no or small income, to acquire personally such valuable properties which were well worth rupees two and a half lakhs. In or about January 22, 1948 they mortgaged these properties as their personal properties to Hindus-than Co-operative Insurance Society Ltd. (Hereinafter referred to as Society) for securing its loan to them for a sum of Rs. 70,000/-, and the Society obtained the mortgage decree in enforcement of the said mortgage in Title Suit No. 171 of 1953. Thereafter the assets of the Society vested in the Life Insurance Corporation of India, the defendant No. 3 herein, hereinafter referred to as the Corporation. The decree had since been put into execution in Title Execution case No. 11 of 1957 of the Seventh Court of the Subordinate Judge at Alipore for realisation of the decretal dues by sale of the suit properties.

(3.) Under the provisions of the will, Rajat and Jagat had no right to the corpus of the estate and the grandson or grand-sons of the testator were the owners of the estate. Rajat died on April 2, 1958 leaving him surviving his widow, Smt. Jyotsna Devi. defendant No. 2. The plaintiff, the only son Jagat and also the only grandson of Ramani Mohan was entitled to the trust estate including the suit properties subj ect only to the annuity payable to the defendant No. 1 during his Life time. It was stated that neither Raiat and Jagat had any right to mortgage the suit properties which belonged to the estate of Ramani Mohan Chatterjee and the said properties were not affected by the mortgage created by them nor liable to be sold in execution of the mortgage decree. The plaintiff in or about November, 1957 came to know for the first time about this mortgage and filed a claim case being Miscellaneous Case No. 90 of 1957. Thereafter, on the plaintiff's application this Court which granted the probate, discharged Jagat from further acting as trustee as aforesaid, and, appointed the plaintiff as the sole trustee by order dated May 28, 1958 and since then the plaintiff had been in possession of the said premises as the sole trustee. The plaintiff filed the suit in the said circumstances for a declaration that the said premises were acquired with the funds of the estate of late Ramani Mohan and as such belonged to his estate and further the mortgage decree obtained by the Society did not affect the said properties which thus were not liable to be sold in execution of the said mortgage decree.