HEMANGINI DASSI Vs. BHAGWATI SUNDARI DASSI

JUDGEMENT

(1.) The facts which have given rise to this appeal and to the connected Rules, shortly stated, areasfollows:-One Mon mohan Das,. who was possessed of considerable properties both moveable and immoveable died, on the 2 March, 1908 leaving him surviving his two widows, Hemangini Dassi and Bhagbatti Sundari Dassi, and a son alleged to be of unsound mind, named Gobind Chand Dass by the said Srinati Bhagbati Sundari Dassi, a deceased daughter's son and two unmarried daughters named Nanibala and Khudibala by the said Bhagbati Sundari and Hemangini respectively. The said Khudibala died unmarried sometime in 1320 B.S. Gobind Chand Dass died on the 10 April 1908 without any issue leaving him surviving his widow Srimati Bundeswari Dassi. Manmohan Das left a Will by which he appointed six executors and the Will directed that, in the event of there being difference of opinion between the executors in respect of any matter relating to the estate of the testator, the opinion of the majority should prevail. Application having been made by the said six executors for Probate of the said Will, the said two widows intervened and applied to be appointed as executrixes on the ground that they had been appointed impliedly so under the said Will. On the 18 January 1909, probate of the said Will was granted by the District Judge of Rajshahi to the said six executors and to the said two widows. Sometime in 1912--13 two out of the said six executors died and thereafter the estate was administered by the surviving executors and by the two widows. In 1319 Nanibala was married to one Lalit Mohan Podder and a dispute subsequently arose between the two widows regarding the adoption of a boy named Shyamapada Das as a son to the testator. This dispute was compromised some time in Ashar 1325, when it was settled between the parties that the accumulations of the income of the estate amounting to Rs. 77,000 should be divideo between the two widows, Nanibala and the grandson (Sachirdra) of the testator in certain proportions and that Hemangini Dassi should execute an ekrar in favour of her co-widow acknowledging the validity of the adoption by her of the said Shyamapada Das. In Kartick 1325 the adopted son Shyamapada Das died. In 1919 Henrangini Dassi who had not been paid her portion of the said accumulations instituted a suit being Suit No. 361 of 1919, for construction of the said Will and for administration of the estate of the said testator. The defendants in that suit were no less than fourteen in number, i.e., the four surviving original executory and certain other parties, the relationship between whom appears from the following geneological table:

(2.) On the 16 September 1920,the plaintiff, Hemangini, filed a petition prayng that the suit may be disposed of in accordance with certain terms of compromise arrived at between her of the one part and three of the executors, namely, defendants Nos. 2, 4 and 5 of the other p Art. One of the terms of the said compromise was that a sum of Rs. 24,500 should be paid out of the estate of the said testator to Hemangini in accordance with the terms of Settlement of Ashar 1325. Along with this petition of compromise, an affidavit by one Rakhal Chandra Das was filed in which it was pointed out that although the proposed compromise was beneficial to the infant defendant No. 14 the defendant No. 1 as the guardian ad litem of the said infant had refused to give her consent to the said settlement and that in the circumstances it was necessary that defendant ho. 1 should be removed and another person, namely, one Girish Chandra Das, the natural father of the infant, should be appointed guardian ad litem in place of the defendant No. 1 Srimati Bhagbati Dassi. The defendant ho. 14, it may be noted here, was adopted as a son by Srimati Bhagbati after the death of Shyamapada Das who has been referred to above. On the 18 September 1920 the said Girish Chandra Das filed a petition praying that he may be appointed guardian ad litem of the minor defendant No. 14 in place of Srimati Bhagbati. By the terms of the proposed compromise the junior widow, i.e., the plaintiff, relinquished all claims to the estate of the said testator and admitted the validity of the second adoption recognising the minor adopted son of the senior widow namely, the defendant No. 14, as the sole heir to the said estate; but these admissions and the withdrawal were made conditional on the payment to the plaintiff of the said sum of Rs. 24,500. The applications referred to above were vigorously contested by the other widow Sreemati Bhagbati and the dissenting executor Madan Mohan Das before the Subordinate Judge before whom the administration suit was pending; but, meanwhile, a separate application had been brought by the plaintiff before the District Judge for permission to compromise the said suit in terms of the draft petition of the compromise filed before the Subordinate Judge and for sanction to the payment of Rs. 24,500 out of the said estate to the plaintiff. The District Judge called for a report from the Subordinate Judge. The latter reported on the 7 October 1920, that the petition of compromise should he approved of by the Court; but in disposing of the application filed by the plaintiff he recorded the following order on the 7 October 1920 in the order-sheet of the said Suit No. 361 of 1919:--"An application has been made before theDistrict Judge for permission to compromise this suit according to the draft Solenama filed before me and for sanction for the payment of Rs. 24,500 to the plaintiff. The District Judge has called for my report which will be submitted to-morrow. It is not desirable and proper that final orders should be passed by this Court in the matter until the application pending before the District Judge is disposed of. It is necessary that the matter Should be re-considered in the light of the older passed by the District Judge. Plaintiff is directed to file a certified copy of the District Judge's order. Put up on the 29 November 1920 for further hearing."

(3.) It appears that the learned District Judge, after perusing the report of tie learned Subordinate Judge, expressed himself in the following manner on the 8 October 1920 against the acceptance of the compromise: "Circumspection is very necessary owirg to the charges of maladministration urged by the junior widow herself as plaintiff. I also do not feel safe in expressing approval of the terms--the payment of Rs. 24,500 for which a somewhat dictatorial demand is made, such that it looks as if this were the ratson d etre of the Solenama. The questionably advisable payment of Rs. 24,500 will not save the estate from litigation and the safest course is to seek for a surer basis in the determination of the administration suit in regular course." Thereafter, afresh application to compromise the suit on the terms which had already been mentioned to the Court was filed before the learned Subordinate Judge on the 4 December 1920, on behalf of the plaintiff and defendants Nos. 2, 4 and 5, containing, among others, the following prayers:--"That an order may be passed that the defendant No. 1 may be removed from the guradianship of the minor defendant No. 14 in connection with this suit for the reason of her offering opposition to the amicable settlement against the interest of the said minor defendant No. 14, and that the aforenamed Girish Chandra Das, the natural father of the minor defendant No. 14, may be appointed his guardian ad litem."