SUDHIR CHANDRA DAS Vs. KAMAL CHANDRA DUTTA

JUDGEMENT

(1.) These are 18 appeals filed by Sudhir Chandra Das, the infant adopted son of Srish Chandra Das, through his guardian ad litem Mr. A. C. Baherjee, and by Mr. K. B. Dutt, Receiver of the estate of Srish Chandra Das, against as many decrees of the First Subordinate Judge of Dacca. The 18 suits were heard by the Subordinate Judge and disposed of by him in one judgment. The main questions are common to all these suits but there are points peculiar to some of them which must be separately dealt with. The Subordinate Judge has held the estate of Srish Chandra Das responsible for the debts claimed in these 18 suits, absolving the executors from personal liability. It will be convenient to deal first with the questions which are common to all the suits and then to deal with any points peculiar to any one or more of them.

(2.) The fads are not seriously disputed. Srish Chandra Das was a zemindar and Banker carrying en business at Dacca and elsewhere. He had inherited the business from his grandfather Raj Chandra and his father Protap Chandra. The business was carried oft in the name of Issur Raj Chandra Protap Chandra Das. It is with this banking business that we are concerned in these appeals. The method of business appears to have been to take deposits from the public and pay them interest at the bank rate, while, presumably out of those deposits, loans were made to other persons at a higher rate of interest. The business undoubtedly had a good name in the district and many people were found willing to entrust their money to Srish Chandra Das. The method of taking deposits was on receiving money from a person to pass to him a hundi payable at 90 days sight or a promissory note or even a plain hatchitta. These documents appear to have been given rather as evidence of the deposits than as negotiable instruments; that is to say, the depositor was often willing to leave his money with Srish Chandra Das long after the due date of the hundi or promissory note had expired. But we understand that the hundis and promissory notes were, as a matter of form, renewed from time to time. Srish Chandra Dass died on 12th December 1904, having the day previous made his Will, by which he appointed his wife Raseswari Chowdhrani, defendant No. 1, executrix and his cousin and servant Rajani Mohan Das, defendant No. 2, executor. The Will is very short and simple, and no question turns upon its construction. He empowered his wife to adopt Nirmal Chandra Das, the son of his daughter, Sarojini, or failing him, any other person. To the son so to be adopted the testator left the whole of his estate, subject to an allowance of Rs. 100 a month to be paid to his two eldest daughters and two houses to be given to them. The testator left him surviving, besides his wife Raseswari, four daughters--- Sarojini, who married Bankim Chandra Chowdhury and whose son Nirmal Chandra was to be adopted; Indumati, who married Bipin Behary Biswas; Promila, who married Ghanoda Nath Roy Chowdhury (known as Raja of Dubalhati); and Sukumari. On 22nd February 1905, an application was made to the District Judge of Dacca for Probate of the Will by the executors. The testator s daughter Indumati filed a caveat and on 4th April 1905, Babu Chandra Kumar Dutt was appointed administrator pendente lite. The Probate case was soon afterwards settled. Indumati was paid Rs. 30,000 out of the estate, and withdrew her caveat. Probate was accordingly issued to the executrix and executor on 22nd May 1905. On 26th April 1906 Raseswari adopted the boy Nirmal Chandra Das, who was then given the name of Sudhir Chandra and who is one of the appellants before us. The executors continued to carry on the business of the testator and for that purpose appear to have borrowed very large sums of money. Their management was not successful and the estate became more and more heavily involved.

(3.) On 26th April 1912, a suit was filed on the Original Side of this Court (Suit No. 415 of 1912) by Sudhir Chandra Das, through his adoptive sister and next friend Promila, against the executrix and executor. In that case after contest a preliminary decree was passed by Chowdhury, J., on 6th May 1913. Notices were issued in that suit to all the 107 creditors of the estate and we are told that among the creditors all the plaintiffs now before us preferred their claims. The business had gone from bad to worse and in 1912 it was finally closed. In that year and in 1913, 75 suits were filed against the executors of the estate by various creditors, 6 in the High Court and 69 in the mofassil. Of these the High Court suits and 51 mofassil suits were stayed. The 18 suits now before us were not stayed and have gone to decree. We think that the Subordinate Judge did not exercise a wise discretion in declining to postpone the hearing of these 18 suits also, and allow these plaintiffs to prove in the administration suit along with the rest of the creditors of the estate. The matter was brought to his notice, but he appears to have declined to act without a specific order of this Court upon himself. If his decrees against the estate were in other respects proper and could be supported, even then it would give the present plaintiffs a somewhat unfair advantage over the other creditors of the estate, because they would come in with their claims already decided and increased by the costs of hearing in their several suits. It should be stated that in the administration suit Ghanoda Nath Roy Chowdhury was appointed Receiver. His place is now held by Mr. K. B. Datt. In the administration suit Promila was removed from the position of next friend and Mr. S. P. Bose was appointed on. 27th July 1912. Later, his place was taken by Mr. A. C. Banerjee. On 12th August 1912, Ghanoda Nath Roy Chowdhury as Receiver took possession of the estate, and it was at or about that time that the business was closed.