GANODA SUNDARY CHAUDHURANI Vs. NALINI RANJAN RAHA

JUDGEMENT

(1.) The plaintiff is the widow of Mohan Chandra Roy Chaudhury, zemindar of Atharbari, who was possessed of extensive zemindaries in Mymensingh. He died thirteen years ago in January 1895, leaving a will; of which he appointed the plaintiff executrix. The latter obtained probate on the 8 May 1895. Prior to his death he gave power to adopt and the plaintiff has adopted a son to him, Promode Charan Roy, now about 11 years old. The estate was at the testator's death and now is in debt and certain directions of the testator have not yet been carried out. The plaintiff says that she in May 1908 came to learn that the Court of Wards of Eastern Bengal intended to take possession of the estate. On the 3 June 1908 that Court issued a notification assuming charge of the estate in suit, which was described to be the property of the minor.

(2.) It is of this order that the plaintiff complains. She says that the estate is vested in her as executrix and it is not the property of the minor so as to enable it to be taken possession of under the Court of Wards Act. She seeks to avoid a threatened interference with her possession. The suit is not against the Court of Wards, but against those defendants, who are sued in their individual capacity. The first defendant is a Deputy Collector at present on deputation as Manager under the Court of Wards of the estate in suit. The second defendant is the Collector and District Magistrate of Mymensingh and is Managing Collector. The third defendant is the Commissioner of the Dacca Division and is Managing Commissioner. As I have said the suit is not against them in their official capacity, but in their private individual capacity as alleged trespassers. They are sued not because of, but in despite of the fact that they are public officers. The suit as originally framed proceeded on the assumption that the plaintiff was in possession. It asked for retention in and maintenance of possession and for an injunction restraining interference with such alleged possession. At the trial Counsel for the plaintiff asked to amend the plaint so as to ask for recovery of possession should the Court hold (which is not admitted) that the plaintiff was not in possession of the estate or some part of it. No notice of suit has been given. All the estate is without the jurisdiction with the exception of a small parcel, which is stated to belong to it and which was purchased for Us. 10,000 out of funds belonging to the estate some short time ago, namely, house in Calcutta, 6, Bechoo Chatterjee's Street

(3.) The first objection taken is that the suit is bad, because no notice has been given and it is contended that notice is necessary under Section 424 of the Civil Procedure Code. It is argued, however, that Section 424 has no application as the defendants are not sued in an admitted official capacity, but as individual trespassers. I think this contention is correct. But apart from this and assuming that the section was otherwise applicable, it would not, I think, apply, so as to render notice necessary so far as the suit seeks relief by injunction. The section doubtless says "in suit" but it also speaks of an act "done" and would not therefore apply to prohibit a suit for an injunction to restrain the commission of an act not done, but threatened to be done. And it has been so held. Were this not so a party would be deprived of relief: as the threatened act might and probably would take place before the expiry of the period of two months. I hold therefore that no notice is necessary. The second preliminary objection is that, even if notice is not necessary, the Court has no jurisdiction to entertain the suit. In my opinion it has. This is not a case in which jurisdiction is sought to be founded on the fact that a portion of the cause of action arose within the jurisdiction, in which case it might be necessary to prove that the threatened disturbance of possession took place within the local limits. Evidence has been tendered to meet the denial of the defendants that they are threatening to obtain possession of the Calcutta house and their allegation that the Court of Wards of Eastern Bengal have in fact no power to take charge of the house in this province except through the intervention of the Bengal Government; a matter, I may here interpose, of mere machinery. It is in fact charged that the allegation in the 13 paragraph of the plaint was made only with a view to give this Court jurisdiction to entertain the suit. The plaintiff has on the other hand sought to prove that the defendants have attempted to interfere with the plaintiff's possession of the Calcutta house.