PASHUPATI MUKHERJI Vs. SHITALKUMAR SARKAR

JUDGEMENT

(1.) In this case a woman of the name of Rajabala Dassee died on 1 June 1928. It is alleged that, on 31 May of the same year, she made a will. By the terms of that document, the present appellant before us, Pashupati Mukherji, was made the executor. He does not appear to be a relation of the deceased. The will itself gives certain pecuniary legacies by Clause 2, and thereafter it says that the executor and one Jeeban would be entitled to the residue of the estate. So that it is a very simple will, neither Pashupati nor Jeeban being a relation of the testatrix. It appears that one Shitalkumar Sarkar, the present respondent before us, is a relation of the woman, namely her brother and that, except for a pecuniary legacy of Rs. 500, he is excluded from participation in the woman's estate if the will is a valid will. On 7 June 1929 Shital applied before the Court at Alipur for letters of administration of the estate and effects of the deceased Rajabala on the footing of intestacy and this application was on 24 of that month dismissed for want of jurisdiction. On 10 June of the same year, Pashupati, the executor, applied in the High Court for probate of this will. The matter was coming on for hearing on 12 February 1930, and did, in fact, come on in the afternoon and the learned Counsel for the propounder had, in part, opened his case. It appears from the evidence that, on that evening, there was a meeting at the house of the leading counsel for Shital, who had filed a caveat against the executor's application for probate and was defending the probate suit. It is said that at that meeting there was a discussion as to the terms of a settlement between the caveator and his attorney and counsel. On the next day, 13 February, certain negotiations took place between the leading counsel on either side according to which it was ultimately settled between the counsel that Shital should get Rs. 20,000 and, on receipt of that amount, should withdraw his caveat. It appears that Shital had in the meantime executed a mortgage in favour of one Kanailal Pal of his interest in the woman's estate and it was necessary in order that the compromise should be secured that this mortgagee should be made a party to the petition of compromise. The terms of the compromise were typed out and they were signed by the leading counsel for the caveator defendant and they were signed by Shital himself on the counsel's table before the learned Judge, when the matter was mentioned to him on that day, 13th. The learned Judge, thereupon, treating the case as one in which all contentions had been withdrawn, heard the evidence of one doctor witness to the execution of the will and made a formal order that the terms of the agreement be recorded. Jeeban and Kanilal Pal were not in Court at the time and had not signed the document. So he gave liberty to those two gentlemen to sign. He discharged the administrator pendente lite, found the will proved, directed probate to issue and directed the administrator to make over the assets to the executor at once.

(2.) It appears further that there is evidence that the caveator defendant met his loading counsel later on in the day with the mortgagee Kanai at a time when Kanai signed the document. All the four parties signed the document in the course of the day. Thereafter, on 27 February 1930, Shital through certain attorneys wrote to his attorney Shailendranath Basu saying that he wanted a change of attorney and that he was going to apply for a revocation of the grant. He did apply on 5 March 1930, and, on 13 March 1930, he gave notice of an application to set aside the decree of 13 February. At that time it appears that the decree had not been brought into existence, that is to say there was a draft decree, but that the decree had not been completed. I understand that it was not signed by the learned Judge and was not filed. In effect, the decree had not been perfected. Thereafter, it appears that, on a representation being made to the learned Judge, ho was of opinion that it was only proper that the matter should be dealt with on the oral evidence and the matter came before the learned Judge in this form : first of all, there was a petition by the caveator Shital, in which he made various allegations. These allegations were to the effect that he had found certain conduct on the part of the executor which was suspicious and which raised suspicion as to whether his attorney Babu Shailendranath Basu had been playing him fair. He says that he never took any part in any negotiation for settlement at his counsel's house on the evening of 12th, that he never took any part in any negotiation on the morning of 13 and that when he came to Court on 13 he was asked if his witnesses were there, and, on telling his attorney that his witnesses were there, he was asked to put his name on a document which he now finds contains the terms of settlement. He says that he signed that document thinking that it was some paper which was necessary to further contest the case, that the paper was never read over or explained to him by anybody and that he did not know until he found that the suit was not being further contested that he was supposed to have settled the suit or that the paper was a paper containing the terms of settlement. He further says that he objected to the settlement from the beginning and that his attorney was acting collusively with the executor in the matter.

(3.) Now, at the hearing of this application before the learned Judge, an entirely different case was made. In fact it is abundantly evident to me that Shital is a person on whose oath no Court of law would be justified in placing any reliance at all. Not only has Shital made statements that are untrue, but he takes no care whatever to preserve any consistency in the various untruths he tells. He says in his evidence that the attorney said nothing to him about the paper being required for contesting the case. He says that the attorney never told him anything about the paper. Ha assumed that such a paper was required for the purpose of contesting the suit. He says that there never was any conversation between him and his attorney in respect of that paper, that his leading counsel, Mr. S. C. Bose, gave false evidence when he said that he (the caveator) was at Mr. Bose's house on the evening of the 12 and that it is false that he was at Mr. Bose's house on the morning of the 13th. Now, Mr. S. C. Bose, his loading counsel, says that on the 12 his client was not only met in the corridor outside the court-room but also in his house the same evening and that the client was present throughout the conversation as regards the desirability of a settlement. He says also that his client and the attorney were at his house on the morning of the 13th, when he came back after certain negotiations with the learned Counsel on the other aide. He further says that, at about midday of the 13th, the client and the mortgagee came to him and the mortgagee's signature to the agreement was taken, Mr. Hazra, the junior counsel for the caveator, says that he did not read out or explain the document to the client on the morning of the 13 but that he told him that he (Shital) was going to withdraw his caveat for Rupees 20,000. He says that the client was at Mr. Bose's house on the morning of the 13th, that they had a consultation on the evening of the 12lih, that his client was told all about it, that the client was asked by him about the value of the estate and was told by him that ho was really getting an equivalent of one-third of the estate under the proposed compromise.