NOKAR DIBYASWARI DEBI Vs. NARAYAN LIN KUMARI DEBI

JUDGEMENT

(1.) The plaintiff sues for money paid at the request of the defendant. At the time when the suit was instituted the defendant was living at Dhankuta in the Kingdom of Nepal. The money was paid in Calcutta within the jurisdiction by means of cheques drawn upon the plaintiff's account with the Imperial Bank of India. Particulars are given in the plaint. The defendant contends that this Court has no jurisdiction to try the suit because the defendant is a non- resident foreigner and was not residing within the jurisdiction when the suit was instituted. Further she alleges that no part of the cause of action arose within the jurisdiction, that no money was paid to her and no request was made by her as alleged or at all, that; the money in the said account and Bank was and is the defendant's money, that the account was opened in the name of the plaintiff with a sum of Rs. 25,000 belonging to the defendant, and that the moneys drawn by the plaintiff were drawn under the directions of the defendant. Both plaintiff and defendant were born in Nepal but the plaintiff has not lived there since 1937. And the defendant has lived periodically in British India, both in Darjeeling and Calcutta, owns houses in Darjeeling and Bombay and shares in companies registered in British India and elsewhere. The plaintiff is the daughter of the defendant and of the late General Pratap Shamser Jung Bahadur Rana, who was the son of H. H. Bir Shamser Jung Rana Bahadur, late Prime Minister of Nepal.

(2.) In March 1934, General Pratap was exiled from Nepal proper and went to live at Darjeeling where he purchased the Rockwood estate. He took out a life insurance policy for Rs. 2,65,000 in the Scottish Union National Insurance Co., and invested large sums in shares in British Indian and other companies which were deposited with the Imperial Bank in Calcutta. He owned also considerable property in Nepal. In August or September 1934, he died at Darjeeling leaving his widow, the defendant, and six children - two sons Madhab and Gobind and four daughters, Madan who is married to Tarak Bahadur Shah, Rup Rajeswari who is married to Man Bahadur Sing, Nil Rajeswari who is married to Jay Bahadur and the plaintiff Nokar Dibyaswari who is married to Bhet Narayan. There was another daughter Durga who died. Before he died General Pratap wrote a letter addressed to H. H. the Maharaja of Nepal of which a copy was produced by the plaintiff (Ex. B) and the translation of it is as follows: To Father, Sri (3) Maharaja, Apprehending that a bad disease has appeared to me, your child, I have to your Highness's feet mentioned this which I have in my mind that, of what I have, let my children receive in this way. Let your Highness be pleased. All will get their shares according to law. Of that, my Rani will get her share and all the income from "tin patan" as long as she lives. She will not be entitled to give land to others. Half the land held with brother Pu. Ka. Ja. be separated. She will be entitled to do, regarding the rest according to her wish. As of the five daughters, three had been married, two be given marriage allowance. I have commenced building the houses for the three. As twenty-five thousand has been the estimate of each, that much be given to each of the five. Out of the income of timber of "tin patan" (it) be given. From the new "Abad" (settled land) there, land yielding income of Rs. 4000 be separated and given with your Highness's seal in each of their names on condition that in case they remain childless, my sons children were to get-if this be done, your child's mind would be satisfied. Maharaja's hukum. Ever devoted child to your Highness's feet. Pratap Sham Sher Jang.

(3.) After the General's death a dispute about his instructions arose between the defendant and Madhab and Gobind and the letter was sent to the Maharaja for his decision and later in 1936 he returned it with his official sanction of the directions contained in it. The plaintiff and defendant were then living in London Street, Calcutta and Madhab and Gobind signed the document saying that they agreed to it. These signatures are dated the 91 year 15th Kartick, 4 (Wednesday). Subsequently, when the plaintiff and defendant were living at Raghunathpur in Nepal, copies of the documents were made by Sree Ratna a clerk in the employment of the defendant, under her directions and in the presence of the plaintiff and Bhet Narayan and one copy was given to each of the daughters, the defendant keeping the original. According to the plaintiff, this was done for the protection of the defendant's daughters because friction had arisen between the defendant and Madhab and she had had to file a suit against him in Nepal. General Pratap's property was transferred by the Nepal Government into the name of Madhab in order to avoid heavy transfer fees. The insurance money was obtained by means of a succession certificate issued to Madhab by the Court of the British Legation in Nepal. In order to carry out the instructions contained in the General's letter regarding his daughters, Madhab gave Man Bahadur Sing a cheque drawn in his favour for rupees one lakh, and he opened an account with it and drew cheques on the Imperial Bank of India for Rs. 25,000 in favour of each of the sisters other than his wife Rup Rajeswari. The plaintiff with her Rs. 25,000 opened an account (ex. q) in her own name with the Imperial Bank in Calcutta. This was in March 1937 when she was at Raghunathpur and she sent the cheque to Calcutta by post (ex. k.) She alleges that her mother had nothing to do with the cheque or with the opening of this account and had no personal interest in these transactions. Man Bahadur Singh brought her the form and signature card required when opening an account with the Bank.