SARAT CHUNDER MULLICK Vs. ADMINISTRATOR GENERAL OF BENGAL

JUDGEMENT

(1.) This is an application in a suit of 1876 which suit substantially was to decide upon the effect of certain provisions in the will made by a lady called Chitra Dasi for the endowment of a deity. The matter can only be understood by a reference to the genealogical table annexed to the affidavit of Monilal Mullick, dated 20 November 1936. There was a judgment and a decree in that suit, and a final decree after inquiry by an officer deciding that the persons entitled to act as shebaits or to worship were the five sons of Chitra Dasi and their heirs. All that took place a long time ago and the original parties to that suit are long since dead. From time to time however their descendants were substituted and at the time of his death in October 1936 one Sarat, the grandson of Chitra Dasi's fourth son, was the plaintiff having got there presumably by an order for substitution such as is sought on this application. This application is by Moni for whom Mr. Page has appeared and is brought about by the death of Sarat which I have mentioned. Moni and Manik (this is not disputed) are the heirs-at-law of Sarat. When I say Manik, there is a question whether Manik is dead.

(2.) The application originally, i. e., the position, raised a contest between Moni and Baladeb. The question depended upon whether Manik was or was not dead. That question is now not put in issue. Mr. Page does not rely upon the presumption of death of Manik and the whole question between Moni and Baladeb has fallen into insignificance by reason of the bigger question raised by the affidavits in opposition, namely succession to palas by heirship or by branches. It is said that succession to palas is not by heirship but by branches. It is said that this is so by reason of a family arrangement, and it is further said this family arrangement merely confirms the real intention of the provisions of the will. The application is in substance twofold, firstly for substitution of the heirs of Sarat in the place of Sarat as plaintiff in the suit. Apparently, an innocuous order such as has been made on many other occasions since the decree, and secondly an order regarding the palas of Sarat, an order to decide in some form or other what is to happen to it. The summons is unsatisfactory and has been departed from by Mr. Page. Mr. Page does not contend that I can decide the dispute which I have described on this application. He abandons therefore any question of declaration. He contends further so far as any family arrangements are concerned that is obviously a matter which those asserting it must establish. The line taken by him is this: that under the decree in this suit, he is entitled to some direction from the Court on the receiver or upon the trustee who has taken the place of the Receiver. (The official trustee by consent took the place of the Receiver with all the powers of the Receiver sometime in 1890 s.) He contends that pending any decision in a suit and until and unless the alleged family arrangement is established, or the construction contended for by the respondents is established, he is entitled to a direction that the heirs of Sarat should be treated as entitled to the pala of Sarat, and incidentally to a direction that the Official Trustee should make payment upon that basis. The respondents have addressed me on the merits and have contended that assuming jurisdiction to make an order, no order should be made. I am not of this view. But their main contention is there is no jurisdiction to make an order of any kind, their points being (1) that the suit is dead and that there can be no substitution, and (2) as regards directions, that no directions of this nature can be given under a liberty to apply even assuming that liberty to apply is still operative and that there is no other manner of giving directions, the application not having been made under any Act.

(3.) Now, taking the first point, dead suit Mr. B.C. Ghose for one respondent, and Mr. Chatterjee for another with almost shrill indignation threatened me with dead suit, carcass, and corpse for the purposes of contending that nothing of whatever kind can be done in this suit. Things have been done in this suit, done by everybody, but of course counsel are quite entitled to argue that they should not have been done. This is a matter on which I would have preferred not to express an opinion without having time to consider it, but my opinion for what it is worth, is as follows: In this kind of suit dealing with the right to worship and with palas, where, as the family develops, sub-division occurs, it has undoubtedly been our practice to include in the decree a liberty to apply, and as occasion arises on death and so forth to allow parties to avail themselves of the liberty to apply in order to obtain orders and directions, as it were, to deploy the decree. With regard to this question of dead suit, I am not attracted by the analogy of vertebrate life. A suit, no doubt, is determined by a final decree, but according to our view a decree of the kind in question is not wholly rigid, or incapable of further adaptation. The phrase "working out the decree," is somewhat equivocal. If it means simply making the decree as passed effective as between parties to the suit existing of course at this stage in a suit like this the decree has long ago been worked out. On the other view the decree theoretically is never worked out. But it is to be remembered that our system cannot be precisely the same as the English system; suits of this nature do not happen in England.