BAKSHI RAM Vs. LILAN DEVI

JUDGEMENT

(1.) This appeal has been preferrd by Pt. Bakhshi Ram defendant No. 2 from the decree of the learned Senior Subordinate Judge, Kangra at Dharamsala, passing a decree against him for a sum of Rs. 6,650/-in favour of Smt. Lila Devi plaintiff who is respondent No. 1 in this Court. On 30th April 1945 one Mr. Harish Chander, a lawyer of Dharamsala, executed a will in which inter alia he bequeathed a sum of Rs. 5,000/-to the plaintiff Smt. Lila Devi who was at the time minor and whom the testator had brought up like his own daughter. This amount, according to the will, was to remain deposited in the name of the beneficiary in the Punjab National Bank, Lahore, through Pt. Bakshi Ram, Pleader of Kangra, and could be withdrawn by the beneficiary on attaining majority. This sum, according to the will, was payable out of the share of the testator's daughter Smt. Satya Devi in the joint business with Jagan Nath, Mulkh Raj and Bhodu Shah Khatri, deficiency, if any, to be made good out of the testator's other property. The business mentioned above by the testator was to go to his daughter Smt. Satya Devi and was to be carried on after his death by L. Charan Das Puri, Advocate, Ch. Hari Ram, Pleader, Dharamsala, and Pt. Bakhshi Ram, Pleader, Kangra, on behalf of and for the benefit of Smt. Satya Devi 'Hari Niwas' the residential house, belonging to the testator was bequeathed by him to the Rama Krishna Mission Lahore Branch for starting a charitable institution for the service of the poor. After making provision for some other minor bequests, with which we are not concerned, the remaining estate was bequeathed in favour of the testator's wife Smt. Shanti Devi. The relevant clauses of the will which concern us now had better be reproduced here. After the preliminary introduction the will provided as follows:-

(2.) Pt. Bakhshi Ram in his written statement raised several technical preliminary objections. On the merits he denied having received any amount from the business or from any part of the estate of the deceased. Defendants Nos. 1 and 3 in their written statements also denied their liability to pay the amount claimed by the plaintiff; Smt. Satya Devi defendant No. 1 expressly denied having received any movable or immovable property under her father's will; she pleaded that the liability, if any, was of the persons who had been directed in the will to manage the business. Smt. Shanti Devi defendant No. 3 denied having received any amount relating to the partnership business. She admitted the will, but denied knowledge of its contents, though defendant No. 1 denied even knowledge of the existence of the will. Certain preliminary issues were tried in the first instance and while deciding them on 4-4-1957 the learned Senior Subordinate Judge observed in his order that the suit had been filed against defendant No. 2, who is also one of the executors, because it is provided in the will that the sum of Rs. 5,000/-was to be deposited in the name of the plaintiff through him. The other two executors named by the testator in his will were thus not considered by the Court to be necessary parties to the present suit.

(3.) Issues Nos. 1, 2 and 4 were decided in favour of the plaintiff. Under issue No. 3 the plaintiff was held entitled to claim interest at Rs. 3/- per cent per annum, with the result that, as stated above, a decree for Rs. 6,650/-was passed against defendant No. 2 on the ground that as an executor defendant No. 2 had not carried out the directions of the will and had failed to safeguard the interests of the plaintiff by securing the amount for her as provided in the will; he was thus held liable for the amount to the plaintiff because of his negligence in the discharge of his duties as an executor. Defendants Nos. 1 and 3 were absolved from liability, the formed on the ground that no liability had been cast upon her in the will for the amount in suit and defendant No 3 on the ground that the estate which came into her hand, as a residuary legatee, was not liable since it was amply established that the amount due to the testator in the partnership account of the joint business was sufficient to enable the plaintiff to realise the amount of her legacy.