SM SARBASUNDARI DASSI Vs. SMNANDARANI DASSI

JUDGEMENT

(1.) This is an application by the attorney of a deceased plaintiff, by a commissioner of partition and special referee appointed in the suit, and by the commissioner's clerk, for an order for taxation of the commissioner's remuneration and expenses, for an order for taxation of the costs of the deceased plaintiff, for removal of the defendant Jogendra Nath Law as receiver in the suit, for appointment of the official receiver, and for payment by him on appointment of the costs of the petitioner. The plaintiff brought a suit on 20 June 1933, for administration of the estate of Beni Madhab Law deceased, for construction of his will, for partition, and for possession. The plaintiff was a daughter-in-law of Beni Madhab, being the widow of his son Bhupen who died in 1921. Bhupen had three brothers, Jogendra, Mahendra and Nagendra. Jogendra is the receiver. Jogendra and Mahendra were two of the defendants in the suit as were the sons of Nagendra who had died, and the other defendant was the widow of Beni Madhab. On 6 April 1936, there was a consent decree in which the shares of the parties were declared : The plaintiff Sm. Sarbasundari Dassi was declared entitled as a Hindu widow to one-fourth share. Jogendra was also entitled to one-fourth share, and he was appointed receiver of the secular property belonging to the deceased Beni Madhab, and empowered to collect the rents, issues and profits, of the debutter property. One of the present applicants, Hemanta Kumar Mitra was appointed commissioner and special referee, and there were directions for partition and division of the estate and for the usual enquiries and report. The decree further provided that the receiver do out of the estate pay the costs of the respective parties to this suit up to this decree, to be taxed by the taxing officer of this Court as between attorney and client as of a defended suit, to their respective attorneys and that the costs and expenses of the commissioner of partition, namely, of issuing and executing the same and of confirming the commissioner's report of the respective parties be paid by the respective parties in proportion to the value of their respective shares and that the same be paid to the respective attorneys by the receiver and be debited by the latter to the respective shares of the parties, with liberty to apply.

(2.) Hemanta Kumar Mitra was duly appointed, and held a number of meetings. With the consent of parties he appointed two surveyors, who are now supporting this application, and a clerk. The commissioner held his last meeting on 25 February 1938, and he states that most of his duties had then been completed except for the actual framing of the scheme and making the allotments and report. There were several interlocutory applications in which the plaintiff was awarded costs. On 26 February 1938, the plaintiff died. She left a will and her executors obtained probate and applied for substitution of their names in the place of the deceased plaintiff in the suit. That application has been adjourned from time to time and is still pending in circumstances which will be related hereafter. Nandarani, Beni Madhab's widow, died in 1939, and the other defendants contend that they are the sole reversioners and that the administration and partition suit which was brought by Sarbasundari was unnecessary. In December 1939 they brought a suit for a declaration that all causes of action and all rights to prosecute or further proceed with this suit had ceased on the death of Sarbasundari and had become vested in Jogendra and Mahendra, and further for a declaration that Sarbasundari had no right to dispose by her will of the rents, issues and profits, to which she was entitled as a Hindu widow. Having filed this suit, Jogendra then applied for an injunction restraining the executors from being substituted in the place of Sarbasundari in her suit. The result is that nothing further has been done in this suit, and the suit brought by Jogendra and Mahendra is still pending. The application for substitution has been directed to be heard after that suit is concluded.

(3.) The applicants point out that Jogendra as receiver was directed to file his accounts half yearly. He failed to do so, and an order was made at the instance of the plaintiff during her lifetime ordering those accounts to be filed. In spite of that order which was made nearly three years ago, the accounts are still in arrears. Apart from the question whether the applicants should receive the payments for which they ask it appears to me quite clear that Jogendra should no longer be retained as receiver. In addition to his failure to file his accounts his whole attitude is inconsistent with the attitude of a receiver. He has his own personal interests, and it is clear from the attitude which he has adopted on this application, and in fact ever since the death of the plaintiff, that he is considering his own personal interests to the exclusion of the interests of the parties whose representative he is and whose benefit should be his concern. There will be an order that Jogendra do file his accounts within one month from the date of this order, that he be forthwith removed from acting as receiver, and that the official receiver be appointed in his stead. The Registrar will report to this Court within five weeks from the date of this order whether the accounts have or have not been filed. If Jogendra fail to comply with this order the Court will consider the action that should be taken against him. The remainder of the application relates to the costs of the attorney and the commissioner of partition who was appointed in the partition suit. It is argued on behalf of Jogendra that no costs should be payable on the ground that on the death of the plaintiff the suit no longer exists and that the question whether or no any costs or fees are payable will depend upon the result of the suit which he has filed and which is now pending.