SM PATTA KUMARI BIBI Vs. NIRMAL KUMAR SINHA

JUDGEMENT

(1.) Rai Dhanpat Singh Nowlakha of Azimgunj died intestate in the year 1914 leaving him surviving his widow, Patta Kumari Bibi, the appellant before us two natural born sons and six daughters. Shortly after his death his two sons died. In pursuance of an authority given by him, Patta Kumari Bibi adopted Nirmal Kumar Singh Nowlakha, the respondent before us, in April 1918. The latter attained majority in 1919. In 1924 disputes and differences arose between him and his adoptive mother. Those disputes and differences were referred to the arbitration of two gentlemen, Dhannu Lal Sucbanti and Askaran Bhutaria. The arbitrators gave their award on 13-11-1924. Paragraph 9, which is the only material paragraph of the award for this appeal, dealt with the rights of the parties in respect of ornaments, jewelleries, gold mohurs, silver ware and utensils. No list, however, of the ornaments etc., dealt with in that paragraph was appended to the award or even made by the arbitrators. According to its terms those articles were left with Patta Kumari Bibi, A decree on the award was passed on 211- 1924. In 1926 Patta Kumari's youngest daughter was married and she left the Azimgunj house and mostly lived in Calcutta and elsewhere. From 1929 to 6-8-1936 she paid only occasional visits to Azimgunj. On 7-8-1936 she went to her Azimgunj house. On 17-8-1936 a report was sent to the local Police Station that valuable jewelleries had been burgled from the strong room in the Azimgunj house during her absence and that she discovered the theft on 10-8- 1936. The police reported the case to be a false one. On 13-2-1937 Nirmal Kumar, the adopted son, instituted a suit, being No. 10 of 1937 of the Court of the Subordinate Judge at Berhampore against her in respect of ornaments, jewelleries etc. described in Schedule Ka annexed to that plaint. He annexed another schedule, namely schedule Kha, which consisted of certain items of Schedule Ka, in respect of which the lady had set up the case of theft. The plaint proceeded on the allegation that according to the award the defendant had only a life interest in them and that he, the plaintiff, was the remainderman. The prayers made were for discovery by the defendant of the ornaments etc. mentioned in para. 9 of the award, and, if she failed to do so, for a declaration that the as mentioned in Schedule Ka were the ornaments etc., dealt with in that paragraph of the award and for keeping them in the custody of the Court or of a Receiver to be appointed by the Court. The story of theft was recited in the plaint and characterised as a false one. Other reliefs claimed need not be recited. Many defences were put forward, one of them being that the ornaments had been lost by theft. The learned Subordinate Judge decreed the suit in part on 31-5-1938. He found that the ornaments etc., described in Schedule Kha of that plaint, except certain items mentioned in his judgment, were those that had been dealt with in para. 9 of the award. He further found that the plea of theft set up by her was a false one and that she was Still in possession of them and directed a Receiver to be appointed to take charge of them for safe custody and preservation. The defendant took an appeal to this Court, being appeal from Original Decree No. 229 of 1938. The judgment of this Court, which is reported in Potto Kumari Bibi V/s. Nirmal Kumar Singh ( 42) 46 C.W.N. 333 was delivered on 2711-1941. This Court held?(1) that Patta Kumari bad only a life interest in the ornaments etc, in respect of which the learned Subordinate Judge had passed his decree and that Nirmal Kumar Singh Nawlakhaya had a vested remainder therein; (2) that her plea of theft was a false one and that she was still in possession of them; (3) that a life tenant owed a duty to the remainderman to see that the subject is preserved, reasonable wear and tear being excepted; (4) that if there is a breach of that duty or if it established that there is a reasonable apprehension on the part of the remainderman that that duty will not be performed by the life tenant he is not entitled to immediate possession but the Court must make suitable orders for the preservation of the property during the life of the life tenant. In the circumstances of the case, the order made by the learned Subordinate Judge for the appointment of a Receiver was discharged. Some articles were left in Patta Kumari's possession and the learned Subordinate Judge was directed to appoint a Commissioner and to call upon her to produce the remaining articles before him, who on production was to make a list, to put them in a strong box and to deposit the box in the safe custody of a Bank to be selected by the learned Subordinate Judge. The date of the cause of action in that suit was stated to be 19-8-1936 when the plaintiff came to know of the false story of theft.

(2.) It is admitted that after the decree of the learned Subordinate Judge passed in Suit No. 10 of 1937, and while Appeal No. 229 of 1938 filed by Patta Kumari against that decree was pending in this Court, Nirmal Kumar took steps for causing the jewelleries etc. in respect of which the Subordinate Judge had passed the decree to be produced by her before the Receiver. Patta Kumari, however, filed an application in this Court in the said appeal supported by an affidavit stating that it would be impossible for her to produce them before the Receiver as they were not in her possession but had been stolen. While the said appeal was pending in this Court but after the aforesaid application had been filed in this Court by Patta Kumari Nirmal Kumar filed on 28-6-1939 the suit in which this appeal arises. He prayed for compensation amounting to Rs. 15,00,00. In the plaint he recited the award in respect of the jewelleries etc the story of theft set up by Patta Kumari gave a summary of the plaint of Suit No. 10 of 1937 and reliefs claimed by him in that suit and the terms of the decree passed by the Subordinate Judge. He also stated that the appeal preferred by Patta Kumari against that decree and cross-objections filed by him were pending in this Court. In para. 8 he stated that Patta Kumari, the defendant, for the purpose of causing loss to him had after the institution of Suit No. 10 of 1937 kept concealed and removed most of the jewelleries. Paragraph 9 of the plaint runs as follows: That under the above mentioned circumstances and according to law and equity the defendant had been liable to the plaintiff for conversion, waste and breach of trust and the plaintiff is entitled to get from the defendant adequate compensation for the same. Two dates have been mentioned to be the dates when the cause of action arose, namely, 15 April 1937, being the date on which the defendant filed her written statement in Suit No. 10 of 1937, and 16 November 1938, being the date when she filed her application in this Court in connection with Appeal No. 229 of 1938 wherein she had stated that it was impossible for her to produce the jewelleries etc. before the Receiver as directed by the decree of the Subordinate Judge on the ground they were not in her possession having been taken away by a thief. The learned Subordinate Judge decreed the suit for Rs. 73,239-2-0 with costs. Patta Kumari has preferred this appeal. Her advocate has raised before us the following contentions and no others, namely, (I). That the suit as framed does not lie, (II). That at any rate it is not maintainable in view of the provisions of Order 2, Rule 2 Civil P.C. and (III) That in any event it is barred by time. The amount of the compensation decreed has not been questioued before us.

(3.) (I) In Suit No. 10 of 1937, it was decided that the defendant had a life interest in the properties in suit now and the plaintiff had a vested remainder therein. Those findings are res judicata. The duty which the defendant as life tenant owed and owes to the plaintiff, the remainderman does not make her a trustee for the plaintiff. There is therefore no breach of trust by her in secreting the chattels. The defendant cannot be charged for waste as that term is understood, for the subject-matter is not immovable property. It is therefore the case of a life tenant who with the intention of defeating the rights of the remainderman in moveable property has done away with the property. It is a case of permanent injury by the defendant to the plaintiff's vested reversionary rights. This has also been established by the evidence, for, even after the decree of this Court passed in Suit No. 10 of 1937 she refused to produce the things before the Commissioner when she was directed by the Court below to do so in pursuance of the decree passed, on the plea which was found to be false, namely, that the things had been taken away by theft. It is quite clear that the defendant has either effectively concealed the articles or has made them over to somebody or sold them to some one, and those persons cannot be traced by the plaintiff. In any of those cases the result to the plaintiff is the same, for he would not be able to find the articles by reason of a wrongful act of the defendant, when he would be entitled to have possession. The learned advocate appearing for her, however, takes his stand on the statements made in para. 9 of the plaint. He contends that breach of trust and waste being out of the way, the plaintiff has to rely on his case of conversion, and he cannot succeed on that case as he is not entitled to immediate possession.