NABADWIPA CHANDRA SHAHA Vs. JUGOL DASI DASSYA

JUDGEMENT

(1.) This is an appeal against a preliminary decree, passed by the Subordinate Judge of Rajshahye on the 18th. July 1908,in an action for an account.

(2.) The facts leading up to the suit may be briefly stated. One Bishambhar Shaha was the younger brother of Nawadwipa Chandra Shaha (defendant No. 1) ; and they were members of a joint Hindu family. Bishambhar died in Falgun 1303 (some date in February 1897) leaving two daughters Jogal Dassee Dassya (plaintiff) by his second wife, and Koki Dasya (defendant No. 2) by his third wife. The first and second wives of Bishambhar both predeceased him. His third wife died in Assar 1304 (July 1897). In 1899 the maternal grandfather of the plaintiff and the maternal grandfather of the defendant No.2 applied to the District Judge of Mymensingh for certificates of guardianship, under Act VIII of 1890, in respect of the person and property of the two minors respectively. The defendant No. 1 also filed a similar application. The District Judge, however, on the 31 May 1901, appointed the defendant No. 1 as guardian of both the minors. The maternal grandfather of the plaintiff and the maternal grandfather of the defendant No. 2 both appealed to this Court. During the pendency of the appeal, the plaintiff swa married to one Benode Lal Shaha in Jaisto 1309 (May 1902). Thereupon, this Court, on the appeal coming on for hearing, appointed Benode Lal Shaha as guardian of the person and property of the plaintiff on the 26 March 1903 and confirmed the appointment of the defendant No. 1 as guardian of the defendant No. 2. The plaintiff's husband then applied to the District Judge to be put in possession of the property belonging to the plaintiff, and the defendant No. 1 was ordered to make it over to him. On the 23 March 1904, the District Judge made an order directing Babu Siris Chander Chowdhry, the Apleader on behalf of the guardian of the minor, to go to Nawadwipa Chander Shaha and make a demand for the one- fourth share which the latter was willing to deliver within a fortnight from that date. In accordance with this order, the guardian and the pleader, Baboo Siris Chander Chowdhry, both went to the house of the defendant No. 1 to take delivery of the one-fourth share of the property specified in the schedule to the application made by the defendant No.1.The guardian and Baboo Siris Chander Chowdhry, instead of taking possession of the one-forth share of the scheduled properties, obtained delivery of possession of one-fourth of the immovable properties, and, wich regard to the movable properties, entered into an arrangement with the defendant No.1 where by the guardian agreed to accept Rs.875 in lieu of a one-fourth share of the scheduled properties. This sum, however, was not paid in cash. A mortgage decree against one Khadim Shaikh was made over to the guardian in lieu of Rs. 125 and four simple bonds were executed by the defendant No. 1 in favour of Jagat Hari Shaha for the balance of Rs. 750, agreeing to pay the sum covered by these mortgages in Aswin following, and, as part of this arrangement, the defendant No. 1 expressly agreed that he would give up to the guardian any property belonging to the minor which might subsequently be discovered to be in possession of the defendant No. 1.

(3.) The defendant No. 1 has denied this arrangement and set up an entirely different one. But with this we shall deal later. The defendant No. 1, not having carried out the agreement, in spite of repeated demands and written notices to him, the plaintiff has through her guardian, brought the present suit for an account from the month of Falgun 1303, the date when the minor's father died, up to Jaista 1310 when the plaintiff's husband took over the management of the properties of the minor.