RAJLAKSHMI DASEE Vs. KATYAYANI DASEE

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff in a suit for declaration that a consent-decree to which she was not a party, is in no way binding upon her in respect of the estate dealt with by that decree. The subject-matter of the litigation out of which this appeal has arisen, belonged at one time to Rajballav Seal, a wealthy I Hindu of the Subarnabanik caste, who died on the 1 June, 1870. Two days before his death, Rajballav made a testamentary disposition of his properties, moveable and immoveble, which were of considerable value and were situated principally in the suburbs of this city. He left him surviving his widow, Mati Dasee, and three grandsons by a daughter born of another wife, both of whom had predeceased him. The relationship between the principal parties to the present litigation 0may be illustrated by the annexed genealogical table:

(2.) Upon the death of Rajballav Seal, probate of his will was taken out on the 16 July, 1870, by his executors, one of whom was his widow, Mati Dasee. On the 6 March, 1872, Mati Dasee adopted Jogendra Nath, who subsequently married Katyayani Dasee, the daughter of Kanai Lal Sen (the fourth defendant in the present suit). Jogendra died on the 30 November, 1886, when he is said to have been about 17 years old. He left him surviving his widow and an infant daughter, Rajlakshmi Dasee, at that time less than a year old. Rajlakshmi Dasee has subsequently married one Bholanath Dhar, and sons have been born to her; she is the plaintiff in the present litigation. After the death of the first adopted son, Jogendra Nath, Mati Dasee, purporting to act in accordance with the provisions of the will of her husband, took in adoption Amulya Charan, the son of Kanai Lal Sen. In other words, Kanai Lal, who had previously given his daughter in marriage to the first adopted son of Mati Dasee, upon the death of his son-in- law gave away his son to be adopted by Mati Dasee. Amulya Charan was never married, and died in April, 1905. Rajballav, as we have already stated, had, before his marriage with Mati Dasee, taken another wife, by name Chandra Mani, who predeceased him. By her he had a daughter Lakhya Hira, who also predeceased him. Lakhya Hira left three sons - Kali Das Sen, Bhola Nath Sen, and Sarthak Chandra Sen. The youngest of these, Sarthak, died unmarried on the 26 July, 1880, and whatever interest had been taken by him in the estate of his maternal grand-father Rajballav, vested in his brother Kali Das and Bhola Nath. Kali Das died in 1905, and left a son Bankim Chandra, who is the second defendant in this suit. Bhola Nath is the third defendant. Kanai Lal Sen is the fourth defendant. Katyayani Dasee, the widow of Jogendra and mother of the plaintiff, is the first defendant. The fifth defendant, Shib Krishna, is a mortgagee from the second and third defendants, while the sixth defendant, Barada Kanta, is a receiver appointed by the Court in a previous suit relating to the subject-matter of the present litigation. The plaintiff seeks for a declaration that a consent-decree which was made in a previous litigation between the first four defendants, is in no way binding upon her as the reversionary heir to the estate of her father, Jogendra Nath Seal. In order to make the relative positions of the parties intelligible, and to enable us to appreciate the questions raised in the present litigation, it is essential to set out in full detail the circumstances of the previous litigations relating to the estate of Rajballav Seal, and to explain how the consent-decree now impeached came to be made. We may add that the facts we are about to narrate are all matters of record, and have been derived from the records of the previous litigations, which, at the request of the parties, we have called for and minutely examined.

(3.) Upon the death of Rajballav Seal and after probate of his will had been taken out by the executors mentioned therein, the estate came into their hands. Under the provisions of the will the income of the estate had to be divided in certain proportions between the grandsons of the testator on the one hand, and the widow on the other. On the 21 July, 1890, the surviving grandsons, Kali Das and Bhola Nath, commenced an action on the Original Side of this Court (Suit No. 336 of 1890) for construction of the will of Rajballav Seal, for determination of the rights of all parties there under, for administration of the estate, for accounts and for other incidental reliefs. The defendants to this action were the widow, Mati Dasee, executrix to the will of the testator, Henry Remfry and Bholanath Chunder, the other two executors mentioned in the will, Amulya Charan Seal, the second adopted son taken by Mati Dasee, and Katyayani Dasee, the widow of the first adopted son, Jogendra Nath; Mati Dasee resisted the claim substantially on the ground that the charges of misconduct were wholly unfounded, that, upon a proper construction of the will, the then plaintiffs were not entitled to a fourth share of the income claimed by them, that they were at best entitled to maintenance, and that they had been properly maintained by her since the death of the testator. The other executors, Remfry and Chunder, denied all liability on the ground that they had retired from the office of executor, and that the estate had been managed by Mati Dasee alone. Amulya Charan Seal, represented by his natural father, Kanai Lal Sen, as his guardian ad litem, contended that he was not a proper or necessary party to the suit, and a similar position was taken up by Katyayani, who admitted in the second paragraph of her written statement that, since the death of her husband, she and her infant daughter lived with, and had been maintained by, her mother-in-law, Mati Dasee, up to the month of August, 1890. On the 8 April, 1892, Mr. Justice Trevelyan made a preliminary decree in the suit. He dismissed the suit against the defendants other than Mati Dasee, that is, as against the two executor- defendants, the second adopted son and the widow of the first adopted son. He declared, however, that the plaintiffs, Kali Das and Bhola Nath, were entitled to an one-fourth share of the properties belonging to the estate of Rajballav Seal, and he directed enquiries upon three points, namely, first, as to the extent of the estate of the testator, secondly, as to the net income of the residuary estate for the three years antecedent to the institution of the suit, and, thirdly, as to what portion of the income had been paid to the plaintiff and what, if anything, remained due to them. We have found from an examination of the records that a fair copy of the judgment upon which this decree was based was never drawn up and signed by Mr. Justice Trevelyan, and the only record of it in existence is the entry in the Court Minute Book of the 4 April, 1892. This entry shows that the question of construction of the will was argued on behalf of the plaintiffs, while on behalf of Katyayani and Amulya Charan, who were represented by the same learned Counsel, it was contended that they were not necessary parties. The Court thereupon delivered judgment : "Declaration that the sons (grandsons) of the testator are entitled to this share (?) of the testator, which is one-fourth share of the property. They are entitled to such share absolutely. That being so, they are entitled to a decree against Mati Dasee. As to Mati Dasee, there must be an enquiry as to what the estate of the testator consisted of at the time of his death and what the income of the residuary estate has been during the last three years, before the filing of the plaint, and what portion of the income has been paid to the plaintiffs and what remains due to them. Court is disposed to think that the suit ought to be dismissed as against Mr. Remfry and also dismissed as against Mr. Sales clients (Amulya Charan and Katyayani Dasee), but Court will consider that question and will also consider the question of costs." The question was, however, not further considered, and on the 8 April, 1892, although the suit was expressly dismissed as against the executor Bholanath, the only order made as to Amulya and Katyayani was that they should receive their costs out of the estate. Subsequently, the decree we have mentioned was filed on the 13 February, 1894. The enquiries directed by the preliminary decree were made and the accounts taken. In due course, a report was submitted on the 31 January, 1896, which showed that, so far from anything being due by Mati Dasee to the plaintiffs, Rs. 217 was due to her by the plaintiffs, together with certain costs. On the 8 September, 1896, Mr. Justice Ameer Ali made a supplementary decree, which defined the properties comprised in the estate of Rajballav at the time of his death and declared that the plaintiffs had been over- paid. The decree, however, reserved to the plaintiffs liberty to apply to the Court for payment to them of an one-fourth share of the income of the estate. Directions were also given in the matter of costs, to which detailed reference is not needed for our present purposes. Subsequently, upon the death of Mati Dasee, Kanai Lal Sen, who claimed to be the sole executor under a will alleged to have been executed by her on the Kith February, 1899, applied to the Court on the 30 November, 1899, to be substituted on the record as her representative in interest. A Rule was issued, and the matter came to be heard by Mr. Justice Sale. On the 26 March, 1900, that learned Judge held that the preliminary decree had been made by Mr. Justice Trevelyan on the 8 April, 1892, and what must be deemed as the final decree, had been made by Mr. Justice Ameer Ali on the 8 September, 1896. He further observed that this latter decree was intended to be a final decree, except as to one matter which was held over; that is, that, except in so far as Mr. Justice Ameer Ali had reserved liberty to the plaintiffs to have the one-fourth share of the income of the estate paid to them, his decree must be taken to have finally disposed of the suit which could no longer be treated as a pending suit, except for the payment of costs and such sums as might be due to the plaintiffs on account of the income accrued due during the lifetime of Mati Dasee. The Court also observed that new matters had arisen owing to the death of Mati Dasee, and amongst these were the questions as to who was entitled to the estate and whether it might now be distributed among the persons entitled thereto, questions which must be dealt with, if at all, in a fresh suit supplemental or otherwise. In this view, Mr. Justice Sale discharged the Rule, and, so far as we have been able to gather from an examination of the entire records of that suit, no further proceedings have been taken in the matter up to the present stage.