AMIRTAMAYI DASI Vs. GROSE AND ANR

JUDGEMENT

(1.) On the 29th February 1836 Ramtanu Chandra died, leaving five sons who continued for some time to live in joint enjoyment of the paternal estate. On the 25th October 1847 Madhusudan Chandra, one of these sons, also died leaving Bamasundari his widow then 11 years old. There was no other widow and Bamasundari was childless, but be left besides an only daughter, Amirtamayi, the plaintiff in this suit, his child by another wife who had predeceased him. After his death the surviving brothers retained the enjoyment and use of the whole estate. At length disagreement arose between them and Bamasundari; but it is not necessary that I should go into details relative to what took place between October 1847 and April 1859. During this interval Bamasundari made certain claims on the brothers in respect of her husband's share in the family property, and I believe she instituted more than one suit against them; certainly one suit, before 1859. On the 4th April of that year she entered into an agreement with the defendant Charles Grose by which, after reciting the material facts as to the condition of the family and of the property, and as to the nature of her claim, and stating that she was unable from poverty to prosecute that claim, she assigned to him all which she might be entitled to recover and receive from the estate of Ramtanu in right of her deceased husband, together with all interest and accumulations which had accrued or might thereafter accrue thereon, and all benefit and advantage to be bad or derived from the suit about to be instituted, and she appointed Charles Grose her attorney to institute and carry on any suit or suits in her name for the purpose of recovering her right and share in this property; and it was then agreed that of the property which might be recovered, Gross should in the first place retain one moiety for his own absolute use and benefit by way of remuneration and reward for his trouble and labor in the conduct and management of the contemplated suits and proceedings, and as to the remaining moiety, that he should repay himself all such sums as be might from time to time have advanced and paid for the maintenance of Bamasundari, with interest at the rate of 12 per cent. per annum, and also all such sums and costs as be might from time to time have advanced or been put to in carrying on and managing the suits, with 12 per cent. per annum interest, and should pay over the residue to Bamasundari herself. Although this agreement does not make mention of any existing suit brought by Bamasundari, Grose in his evidence before me stated that such a suit was existing at the time of the agreement, but was almost immediately afterwards withdrawn. On 20th May 1859 Bamasundari acting through Grose filed a fresh bill against her husband's surviving brothers for recovery of her husband's share in the estate together with accumulations. On 19th August 1861, a decree was made by the Supreme Court in that suit to the effect that Bamasundari was entitled to one-fifth share of the accumulations which had been made by the brothers to Ramtanu's estate between the death of Ramtanu and the death of Madhusudan, and also to the gains and profits made by Madhusudan's brothers by the use after his death of this one fifth share of the accumulations, the whole to be enjoyed by her as a Hindu widow in the manner prescribed by the Hindu law;" and finally by a decree made on 8th August 1864, affirmed on 8th January 1866, the share of the accumulations belonging to Madhusudan at the date of his death was determined to be rupees 84,685, and in lieu of the subsequent gains and profits thereon 10 per cent. per annum on this sum was awarded to Bamasundari. In pursuance of this decree the defendants have paid into Court a sum which I am told amounts to rupees 2,40,000.

(2.) The plaintiffs in the present suit are Amirtamayi and her infant son. They, on behalf of the reversionary heirs, sue to have this agreement of 4th April 1859 between Bamasundari and Grose (together with any sub-assignments that may have been made on the footing of it set aside as being a void contract, and they further in substance ask for an order that the money should be paid into Court and there kept during the life of Bamasundari for the benefit of the reversionary heirs. It is obvious, passing by for the moment the misjoinder of Amritamayi's son with herself as plaintiff, that she has no personal rights to vindicate; she can only properly stand before the Court on two grounds. These are, firstly, she may be entitled as the present representative of the ultimate heirs to come into Court for the purpose of preventing the risk of losing evidence by lapse of time, and may ask that the validity of the deed considered as an alienation against the interest of the ultimate heirs may be tried now instead of waiting until the death of the widow for this purpose, or secondly, she may come into Court also in the interest of the ultimate heirs to protect the property from actual waste, and to keep it intact during the widow's enjoyment of it. The plaint in this case is unfortunately not framed with any clear conception of the plaintiff's rights of suit, neither is the history connected with it, and the words made use of in the body of it altogether creditable to the persons who were concerned in filing it. I think however that I ought to treat it as raising both the objections which I have mentioned on behalf of the ultimate heirs. Upon the foundation of this plaint and the subsequent written statement of the plaintiffs, which I am bound to say does not offend in the same manner as the original plaint, very many issues have been raised, as many as seventeen in all. Some of these have been abandoned and others are I think unnecessary on the facts which have come out, and it seems to me that substantially there are but four principal questions or issues to be determined in this suit.

(3.) I may however say, that as the money has in fact been brought into Court, this last issue is now confined to the question whether the money should be retained in Court for the purpose of preventing waste.