GOBARDHANDAS Vs. GOPALDAS MODI

JUDGEMENT

(1.) Two appeals are before us-Nos. 22 and 24 of 1932. They are brought respectively by Lala Gobardhandas and Lala Dinanath, two persons, who, with other three, are the executors of the will of one Raghumull Khandelwal, who died on 5 September 1926, probate being taken of his will on 10 January 1927. Raghumall appears to have died a wealthy man and, by the provisions of his will, he, first of all, directed that the residue of his property should go to certain persons. The two appellants before us were his nephews and they were to get an equal one-fourth share, his wife was to get another and his daughter, married to one Hansraj, was to get another. They were to be entitled to carry on the business in equal shares and were to be entitled to the goodwill and so forth in equal shares, There were various legacies and five persons were appointed executors and trustees-the two appellants, Hansraj, who had married his daughter, one Gopaldas Modi, who afterwards became the plaintiff in this suit, and the widow. These persons were to act by majority, they were to,act by resolutions passed at meetings or by resolutions passed by circulation. The testator having died in September 1926, we find that trouble first began when the plaint in the present suit was brought on 29 July 1929, the plaintiff being Gopaldas Modi, one of the executors. The plaint asks for administration of the estate and the grounds, upon which the administration is asked for, are not only that the executors are quarrelling among themselves and not only that the administration of the estate is not proceeding, but that the estate is getting into difficulties, being unable to meet the claims on it and that the debts and liabilities are not being dealt with.

(2.) Among other reasons stated in the plaint of July 1929, one is that the executors-the defendants Dinanath and Gobardhandas-are wrongfully withdrawing large sums of money from the estate claiming to be entitled thereto as residuary legatees and to that allegation the appellant Dinanath says that he has not wrongfully withdrawn any money, but that he has taken small loans from the estate with the consent and approval of the plaintiff and his other co-executors and executrix. The appellant Gobardhandas, in his written statement, gives a traverse in which he denies that he ever wrongfully withdrew any money from the estate. Thereafter there was a, petition brought for the appointment of a receiver and the first order that was made on that matter was an order by consent. The application was by the widow, Srimati Bhagabati Debee, who was one of the defendants in the suit, and she made various charges, the gist of which is to be found for the present purpose in para. 27 of her petition. She said that Dinanath in collusion with Gobardhandas-although the suit was still pending and the debts and legacies had not been paid-had borrowed money in the name and on behalf of the estate at Delhi and had withdrawn a lakh of rupees out of the estate and that Gobardhandas had withdrawn a sum of about Rs. 60,000, that they had not repaid the moneys and that the estate was m a bad condition. So she was alleging that, pending the actual proceedings in the suit for administration, the two appellants had been helping themselves to the money of the estate by means of the Delhi firm. It may here be explained that, by a resolution of the executors, Gobardhandas, who lived at Delhi, was made responsible for the Cawnpore branch-Dinanath being responsible for the Delhi branch. As a result of that application, an order was made by consent, by which Hansraj who, as one may put it, was on the side of the plaintiff, and Dinanath were appointed joint receivers and the order gave these receivers liberty to divide the properties amongst the residuary legatees, after providing and securing payment for the liabilities of the estate and payment of general and pecuniary legacies; that order was dated 24 March 1931, and, shortly after that, another order was made removing these two persons as receivers and appointing the Official Receiver to be the receiver in their place and stead and to take possession of the estate immediately, that order being dated 16 June 1931.

(3.) Thereupon, in January 1932, Srimati Bhagabati Debee, the widow, brought a motion before the learned Judge asking that Dinanath be directed to bring into Court the sum of Rs. 1,49,000 and Gobardhandas the sum of Rs. 54,299. The case made by the affidavit in support of the motion is on the following lines. After the appointment of the Official Receiver, inspection has been obtained of the Delhi books of account and the Delhi books of account are discovered to show that, in the Sambat year 1987, Dinanath, who was in charge of the Delhi firm and whose books of account these are, is debited in that year with Rs. 1,23,339-money which he has taken from that firm. There is another sum debited in the workshop account book and there is a further sum in the account of this year taken from the Calcutta account book and debited to the Delhi office, where it should have been debited to Dinanath's account. It is further brought out that, in the year 1928, a sum of Rs. 7,025 has been paid out on account of Dinanath, though it has been wrongly put in the bad debts account. In this way, there is very nearly one and a half lakhs of rupees shown by Dinanath's own books in the Delhi business to have been taken by Dinanath from the estate. I may here point out that not only is there shown a sum of Rs. 7.025 transferred in the bad debts account, which appears to have been taken in 1928, but the largest item-an item of Rs. 1,23,339 does not come into these books to the debit of Dinanath, until the Sambat year 1987-presumably after that had been concluded-which corresponds to the period from 31 March 1930 to 31 March 1931. In the Delhi books, so far as Gobardhandas is concerned, we find some Rs. 2,000 odd in bad debts account taken in 1928; but the other items which come to his debit in the Delhi books are, first of all, a debit of Rs. 46,000, then afterwards a debit which has come to the Delhi office from Calcutta of some Rs. 5,810. It may here be observed that it is quite clear from these accounts alone that the original allegation in para. 27 of the application for the appointment of a receiver was only too plainly justified, namely that, apart altogether from any small sums that might have been taken in 1928 since the plaint was brought in July 1929, these two people would appear to have been repeatedly helping themselves to as much of the testator's estate as they could very well manage to take, after exhibition had been completely made of the risky condition of this estate and the chance that it would be insolvent in the end.