BEJOY KRISHNA MAJUMDAR Vs. DWARIKA KRISHNA MAJUMDAR

JUDGEMENT

(1.) One Kali Krishna Mojumdar died leaving all his property by Will to his widow and to his adopted son, Bejoy Krishna Mojumdar. The boy was then only three or four years old. The Will provided for the management of the property by a number of executors, among whom one, the testator s nephew, Dwarika Krishna Mojumdar, was appointed the principal managing executor and was instructed to take out probate. Probate of the Will was accordingly granted to Dwarika Krishna in 1892 and the management of the property was in his hands. In 1908 the adopted son, Bejoy Krishna Mojumdar, applied to the Probate Court for an order revoking the probate granted to his cousin, Dwarika Krishna, in order that he might undertake the management of the property himself. The application was opposed by Dwarika Krishna. This litigation ended in a compromise under which the adopted son undertook to pay Dwarika Krishna the sum of Rs. 4,500 as reimbursement of expenses personally incurred and the latter consented to relinquish the property. Bejoy Krishna accordingly assumed the management. This was in September 1908. The present suit was instituted by the adopted son, Bejoy Krishna, in September 1909 against his cousin, Dwarika, for an order annulling the compromise and for accounts. The suit was dismissed in both Courts. The adopted son now appeals.

(2.) The case has been argued before us upon the ground of undue influence alone with special regard to the relationship between the parties at the time of the compromise. The relationship was that of trustee to cestui que trust. The facts of the transaction, therefore, required close examination. They have been dealt with in great detail both by the original Court and by the Court of first appeal.

(3.) The findings of the learned District Judge are that at the time of the compromise the plaintiff had the benefit of independent advice. The plaintiff had for some days before the compromise been in company of the defendant, but the terms were settled in the house of a taluqdar, an independent person, who asked the plaintiff at the time why he was making a compromise. Many friends and relations were present. Some advised against while others were in favour of the compromise. The terms were finally consented to and the document was signed in the house of a Rai Bahadur, another independent friend. The plaintiff was only 20 years of age, but he had attained majority and was able to make up his own mind in the matter. Almost simultaneously he entered upon other business transactions which indicated the provision of ability. Of the many advices all were finally reconciled except two. The parties were at the time in litigation and the Judge s conclusion is that the defendant cannot have been in a position to take unfair advantage". It is true that the learned District Judge has also found that there was not in fact an exhaustive examination of the defendant s accounts or any production of vouchers, but that by itself would not be sufficient to justify the Court in re- opening an account settled between a trustee and a cestui que trust In re Webb, Lambert v. Still ((1894) 1 Ch. 73 at p. 83 : 63 L.J.Ch 145 : L.T. 318 . To open an account settled between a trustee and a cestui que trust, some objection in substance must be shown, some error in the account must be established. No attempt seems to have been made to establish any such error in the present case. It may be that the plaintiff was partly influenced by consideration of the fact that the defendant had been managing the property for 16 years without and it is possible that the defendant got the best of the bargain. But these are mere possibilities and would not justify our interference in face of the Judge s finding that the plaintiff knew all the facts of the case and, after taking much independent advice, some for and some against, deliberately chose to enter into the compromise