SREEMATI DAYAMOYEE DASSYA Vs. JATINDRA CHANDRA DAS

JUDGEMENT

(1.) The plaintiff in the suit in which the appeal has arisen, a minor represented by his mother and guardian as his next friend, prayed for administration of the estate of his grandfather Ganga Charan Das, claiming through his deceased father, Harendra Chandra Das, a legatee under the will of Ganga Charan Das, upon construction of the said will. The will of Ganga Charan Das was proved after contest, and the defendant Dayamoyi Dassya had taken out probate of the same; the suit was mainly directed against Dayamoyi Dassya, as executrix and prayer was made for rendition of accounts by Dayamoyi Dassya and for partition after she has made over the estate to the legatees under the will. It would appear that probate of the will of Ganga Charan Das was granted to Dayamoyi Dassya on 14 May 1929, and the suit giving rise to this appeal was instituted on 17 September 1930. The claim in suit was resisted by the defendant Dayamoyi Dassya against whom it was directed; and on the pleadings of the parties concerned, four issues mentioned below were raised on the merits of the case before the Court. Has the plaintiff any right, title or interest in the properties in suit? (Issue 4). Is the plaintiff a legatee under the will of Ganga Charan Das? Has the plaintiff any right to sue under the provisions of the will? (Issue 6). Are the contents of the will and the codicil ambiguous and require legal interpretations and construction? (Issue 10). Has defendant 1, the executrix, wasted and misappropriated the testator's properties as alleged in the plaint? (Issue 8). The decision of the learned Subordinate Judge in the trial Court on the question raised in the issues mentioned above was in favour of the plaintiff. Hence this appeal by defendant 1.

(2.) The controversy in the case before us, centered round matters referred in Issues 4, 6 and 10 mentioned above, although it was incumbent upon the plaintiff to establish waste and misappropriation as alleged by him and on which allegations of fact, Issue 8 was raised before the Court before any relief could be granted to the plaintiff. The case of the plaintiff, a minor suing through his mother, his uncles (father's brothers) being defendants in the suit, was that executrix appointed by the will of Ganga Charan Das, defendant 1, was not competent to administer the estate, and was entirely under the control of her sons, the step-brothers of the plaintiff's father; the plaintiff apprehended that unless the executrix was removed, the whole estate might be wasted. There was allegation made by the plaintiff that money belonging to the estate was being misappropriated by the executrix. On the materials on record, the conclusion has been arrived at by the Subordinate Judge in the trial Court that the plaintiff could not bring to the notice of the Court any instance of waste or misappropriation of the testator's estate by the executrix. The definite finding in evidence was that there was "neither wasting nor misappropriation," but the Judge in the Court below observed that whether any waste or misappropriation has been made by the executrix could be ascertained only after she has rendered accounts. The final decision on the question was to await the result of rendition of accounts by defendant 1, as directed by the trial Court. The procedure followed on this part of the case appears to us to be somewhat unusual, as in our opinion, direction for rendering accounts could only follow on a decision by the Court, that the plaintiff had established a case of waste and misappropriation as alleged by him, which must be the foundation of the relief granted to him, in the matter of rendering accounts, so far as the executrix was concerned. The position indicated before us in the course of argument on behalf of the plaintiff- respondent, claiming to be a legatee under the will, that in an administration suit of the present description a decree was to be passed against an executor for rendering accounts, even though no case of waste or misappropriation as alleged by the plaintiff was established at the initial stage of the litigation, cannot in our judgment, be supported either on principle or authority; and no authority for the adoption of such a course was placed before us for consideration.

(3.) The plaintiff claimed relief in the suit as a legatee under the will of Ganga Charan Das. Was he a legatee under the will? And the will of Ganga Charan Das had to be construed for the purpose of determining the question raised in Issues 4, 6 and 10 raised in the suit. The contents of the codicil executed by Ganga Charan Das were not of any importance for the purpose of construing his will, and with reference to the contents of the will, it had to be decided whether the plaintiff, claiming through his father, Harendra Chandra Das, had any right, title or interest in the properties in suit. The Judge in the trial Court decided the question raised specifically in Issues 4, 6 and 10 in favour of the plaintiff.