MANGTULAL BAGARIA Vs. DAYA SHANKER GOBARDHAN DAS BHATA

JUDGEMENT

(1.) The facts of the case out of which this second appeal has arisen are these: One Popat Velji had obtained from the Raja of Jharia a mining lease of village Parbad in the District of Manbhum. He then gave a mining sublease of 100 bighas of land of that village to defendant 1 on commission at a certain rate subject to a minimum royalty of Rs. 3,000 per annum. The plot of land so subleased is described as plot B in the schedule annexed to the plaint. This defendant, along with one Jethabhai Nira, also took from Popat Velji a sublease of another plot of land which is known as plot A, but we are not concerned with it in the present litigation. Popat Velji died on 9 November 1923. A dispute arose between his two widows on the one hand and his father Velji Mulji Rajdeo on the other. The former claimed that Popat Velji was separate from his father and consequently his properties devolved upon them, while the latter claimed that the deceased was joint with him and therefore he succeeded him by survivorship. In a certain suit (No. 1282 of 1923) pending in the original side of the Calcutta High Court in which Popat Velji was plaintiff, his widows were substituted in his place on 15 May 1924. Thereupon Velji Mulji Rajdeo, father of Popat Velji, filed a declaratory suit in the original side of the Calcutta High Court (suit No. 1307 of 1924) and in that suit, on 28 July 1924, Mr. N.N. Bose, Bar-at-law, was appointed receiver by the Court. Thereafter the two widows of Popat Velji (defendants 3 and 4 in the present suit) instituted an administration suit in the original side of the Calcutta High Court (suit No. 2156 of 1924). In that suit two creditors of Popat Velji, namely the plaintiff and one Sheochand Rai Khemka were appointed administrators on 23rd September 1924. On 24 November 1924, a preliminary decree was passed in the administration suit and the Court ordered certain enquiries and ascertainment of the assets and liabilities of the deceased. On or about 15 May 1925, the administrators were discharged and the Official Receiver was appointed manager of the estate of the deceased. He also was discharged on 11 March 1927, and the plaintiff was appointed manager of the estate and has been continuing as such since then.

(2.) Under the Jharia Water Supply Act Popat Velji was liable to pay certain cess to the Water Board in respect of the royalties which he was to receive from defendant 1. A certificate, No. 33 J.W.B of 1924-25, was filed on 25 July 1924, against the two widows of Popat Velji and his father. It was just three days before the appointment of Mr. N.N. Bose as receiver of the estate in the suit of the father. Notices under Section 7, Bihar and Orissa Public Demands Recovery Act, seem to have been served on the judgment-debtors on 14 August 1924. In March 1925, while the plaintiff and Sheochand Rai Khemka were in charge of the estate, they remitted a sum of Rs. 443-12-0 to Jharia Water Board for cess for the period subsequent to that for which the certificate had been issued. The Secretary of the Board informed the solicitors of the plaintiff and Sheochand Rai Khemka that a further sum of Rs. 920 on account of cess for the period of 1923 and 1924 was payable by the estate of the deceased. On receipt of this information the solicitors of the managers, the plaintiff and Sheochand Rai Khemka sent a cheque for Rs. 920 to the Certificate Officer of Dhanbad, requesting him that the costs and interest be remitted. On this the solicitors were informed that the interest was remitted but that the costs could not be remitted, and they were called upon to pay it. In the meantime, as already stated, the plaintiff and Sheochand Rai Khemka were discharged and the Official Receiver was appointed instead. The solicitors informed the Certificate Officer that the management of the estate had been transferred to the Official Receiver and requested him to communicate with him. Nothing seems to have been done and the balance of the certificate dues was left unsatisfied. The right of the judgment-debtors to realise commission and royalty in respect of Plot B of the land from Gobardhan Das Manishanker was attached on 19 December 1924, and sold on 2 November, 1925, for a sum of Rs. 160 and was purchased by defendant 2 who is the son of defendant 1. It is to be noted that at that time admittedly a sum of at least Rs. 6,000 in respect of royalty was payable by defendant 1 to the estate of the deceased Popat Velji.

(3.) The plaintiff after having obtained the sanction of the Calcutta High Court has instituted the present suit: (a) for a declaration that the sale of plot B described in Schedule 2 to the plaint in Certificate Case No. 33 J.W.B of 1924-25 is void and that defendants 1 and 2 acquired no title to the property by purchase in that sale; or (b) if the sale be held to be valid for declaration that the purchaser bought the property for and on behalf of the estate of the late Popat Velji; (c) for costs; and (d) for such relief as the plaintiff may be found to be entitled to. The plaintiff alleged that defendant 2, who purchased the property at the certificate sale, was in fact a benamidar of his father, defendant 1. The defendants denied the allegations of the plaintiff and urged that defendant 2 was the real purchaser of the property and that the sale was valid and legal. I will mention here in passing that in the plaint there is an allegation that on 4 August 1934 the Official Assignee of Bengal was appointed administrator of the estate of Popat Velji by the Calcutta High Court under Section 108, Presidency Towns Insolvency Act, and that the appointment of Mr. N.N. Bose as receiver referred to above was revoked on 19 August 1924, and that it was later on that the plaintiff and Shewchand Rai Khemka were appointed administrators on 23 September 1924 as already stated. This allegation of the plaintiff about the appointment of the Official Assignee was not admitted by the defendants and I do not find anything on the record to support it. Had there been any evidence that the official assignee was in charge of the estate by virtue of an appointment in insolvency proceeding the position would have been different and a number of questions which arise in this case would have been of no importance.