SAILENDRA NATH PALIT Vs. SYED HADE KAZA

JUDGEMENT

(1.) This is an appeal by the plaintiff from a decree dismissing his suit. The suit was described in the plaint as a suit for recovery of money, Rs. 15,000 odd, with declaration of a charge in respect of it on a certain trust estate. There were also other reliefs claimed in the plaint which will be presently stated.

(2.) The plaintiffs case shortly put was as follows: One Nawab Nazir Sidee Nazir Ali Khan by a will dated 25 February 1873 created a trust of his estate, and appointed one Mir Mohamed Kazim Jawahiri as trustee thereof. After the death of Mir Mohamed Kazim Jawahiri, other persons came in succession as trustees, till at last defendants 3 and 4 became such trustees. One of the properties of the trust was lot No. 79, appertaining to Sunderbans, bearing tauzi No. 143 of the 24-Pargannas Collectorate, which goes by the name of Abad Uchildaha. On 9th April 1923, defendants 1 and 5, as such trustees and for legal necessity of the trust estate, borrowed from the plaintiffs Rs. 5,000 at an interest of 15 per cent per annum, on a handnote and by deposit of title-deeds of the said lot No. 79 and they also assigned to the plaintiff the sum of Rs. 6,575-5.6 being the rent for the year 1331 B.S. payable by the Port Canning Company to the said estate in respect of the said lot.

(3.) The plaintiff was able to realize only Rs. 2,676-10-0 out of the said amount and not the balance. Defendants 4 and 5 obtained from the Court permission to sell the said lot and by showing the said permission to the plaintiff led him to believe that there was legal necessity for the sale and prevailed upon him to agree to purchase the said lot for Rs. 33,000 odd free from all encumbrances and charges, and on that an agreement of sale was executed on 23 October 1923 and the plaintiff paid Rs. 5,000 as earnest money. The plaintiff did all that he had to do to perform his part of the contract, but defendants 4 and 5 assured the plaintiff from time to time that they were trying to free and remove the charges and encumbrances, but really did nothing and only put off their part of the performance upon false pretexts. On 1st April 1924 defendants 1 and 5 executed another handnote as trustees for Rupees 3,000 at interest at the rate of 12 per cent per annum from loans taken on different occasions for paying Government revenue due on the estate and for defraying other necessary expenses. Defendants 1,2 and 3 thereafter instituted a suit for removal of defendants 4 and 5 and managed to get a consent decree passed therein as a consequence of which they got themselves appointed as trustees in their place.