SAMARENDRANATH MITRA Vs. PYAREECHARAN LAHA

JUDGEMENT

(1.) The facts, out of which this appeal arises, are set forth in the early part of the judgment of Buckland, J. In order to make it clear however how it came about that only certain issues were decided by the learned Judge it is necessary that I should recite some of the salient facts. In the year 1931, one Krishnakatyayanee Mitra became entitled to the estate of her grandfather, Kumarkrishna Deb, in the right of a Hindu lady. It is said that her husband, Asokenath Mitra, was a man of dissolute habits, who had dissipated the properties which he had himself inherited from his own father. The story is that Krishnakatyayanee Mitra was induced by her husband, Asokenath Mitra, to borrow various substantial sums of money and to create mortgages and other securities on the estate which she had acquired from her grandfather, in order that the personal debts of her husband might be paid off, and also to provide him with funds for what is described as his "evil propensities." It is said that the result of these operations was that Asokenath Mitra and his wife were in such financial straits that they, in conspiracy with an attorney named N.C. Mandal, and a man named Amalkanta Sarkar, who was their son-in-law, entered into various projects for the purpose of raising large sums of money for discharging the antecedent liabilities whereby their infant sons were deprived of the interest which they would eventually have acquired upon the cessation of their mother's estate.

(2.) On 25 March 1927, Amalkanta Sarkar was appointed guardian of the person and property of the present plaintiffs, the two sons of Asokenath Mitra and Krishnakatyayanee, who are minors. Amalkanta Sarkar was ostensibly appointed for the purpose of safeguarding the reversionary interest of the plaintiffs in the property. The conspiracy alleged may be described thus: The solicitor N.C. Mandal, advised Asokenath Mitra to induce Krishnakatyayanee to surrender her interest in her grandfather's estate to the minors, which was done, and the solicitor arranged for a loan on the security of a mortgage of the properties. It is said that the defendants, Pyareecharan Laha and Anandacharan Laha, are relations of the solicitor. The surrender having been made, the solicitor then filed a petition on behalf of the then guardian of the plaintiffs, Amalkanta Sarkar, before the District Judge of the 24- Parganas, and obtained permission to raise a loan of Rs. 2,50,000 on behalf of the minors by means of mortgage of the properties. That was done on 16 August 1929. On 22nd September 1929, another petition was put in before the District Judge of 24-Parganas asking for approval of the draft mortgage to be prepared in favour of the Laha defendants. On 27th September 1929, a deed of surrender and a mortgage-deed for Rs. 2,50,000 in favour of the Laha defendants was executed by Amalkanta Sarkar. Part of the allegations against the defendants is that the whole of the money was retained by the solicitor defendant, N.C. Mandal, and that no part of it came into the hands of Amalkanta Sarkar, as guardian of the minors.

(3.) It was, subsequently, found that the surrender might not have been entirely valid in law because certain portions of the property inherited by Krishnakatyayanee Mitra had not been included in the original deed of surrender. Consequently, on 5 October, she executed an instrument which has been referred to as a Deed of Rectification of the Deed of Surrender. I would pause here to say that it is not material for our present purpose to discuss the question which might have arisen as to whether a surrender of this kind was properly within the contemplation of the provisions of Hindu law. That point has not been taken. But the surrender is challenged on the ground that the whole matter was in the nature of a plot to deprive these minors of their reversionary rights in regard to the property.