SOHANLAL SEROWGIE Vs. GAMBHIRMULL SEROWGIE

JUDGEMENT

(1.) THE plaintiff filed this suit against the trustees Chainsukh Serowgie, Sewlal Jhawar, Gajraj Gangwal, Chouthmal Serowgie, for administration of the estate of Padamchand Pannalal. In the month of February 1938 Padamchand Sethi, Pannalal Sethi, Doolichand Sethi and Jhumarmal Sethi for selves and as kartas of a Mitakshara Hindu Undivided family carrying on business under the name and style of Padamchand pannalal executed a deed at Trust in favour of trustees for the benefit of creditors including the plaintiff Sohanlal Serowgie who was a creditor to the extent of Rs. 15,000/ -. The suit was filed in the month of June 1941. After the institution of the suit Chinsukhlal serowgie died and there was an order substituting Gambhirmal Sarowgie, son of Chinsukh Serowgie On June 1, 1950 a decree was passed against the defendants and they were directed to pay to the plaintiff Rs; 5761/4/3 with interest @ 6 per cent per annum and costs. A reference was directed as to accounts, an account of what the trust estate consisted of and an account of the dealings of the trust estate by the defendants. In the month of December 1955 Shivlal Jhawar died intestate leaving Madan Gopal and Multanchand, his two sons, as his heirs and legal representatives. In the month of september 1958, the plaintiff came to know of the death of Shivlal Jhawar. On April 4, 1959 Gambhirmal died. On December 22, 1959 there was an order amending the cause title of the plaint as well as body of the plaint and the heirs of Gambhirmal were substituted. On January 11, 1960 the plaintiff made an application for an order that the death of Shivlal Jhawar be recorded and Madanlal and Multanchand be brought on record in the cause title and register of suits and that the said two persons be substituted in place of Sewlal jhawar and that the plaint be amended in the manner as shown under lined in red ink in a copy of the plaint annexed to the petition and marked with the letter "a".

(2.) THE amendments proposed were as follows :- (a) In the cause title 2 (a) Madan Gopal 2 (b) Multanchand carrying on business at No. 13, Pageyaputty Street, Calcutta within the aforesaid jurisdiction, Sons of Shivlal Jhawar deceased. (b) Paragraph 13 of the plaint-On or about the 3rd December 1955 the defendant Shivlal Jhawar died intestate leaving him surviving madan Gopal and Multanchand his sons as his heirs.

(3.) THERE was an affidavit in opposition by Multanchand Jhawar and he contended that there should not be substitution because under the Deed of Trust the trustees have power to appoint new trustee in place of the deceased trustees and that on the death of Shivlal Jhawar proceedings should continue against the surviving trustees. Sohanlal Serowgie, the plaintiff affirmed an affidavit in reply. The affidavit were completed in the month of February 1960. On April 7, 1960 I made the following order: