BARODA PROSAD BANERJI Vs. GAJENDRA NATH BANERJI

JUDGEMENT

(1.) This is an appeal on behalf of the first three defendants in a suit for construction of the last Will of Biswambhor Banerjee, for partition of his estate, for accounts, and for other incidental reliefs. Biswambhor Banerjee died on the 28 of August 1883 and left an estate of considerable value. The relationship between his descendants who are parties to the present litigation is indicated in the following genealogical table.

(2.) On the 6 of January 1886, three of his grandsons, Baroda, Kishori and Kunjobehari, who were at the time infants, applied through their mother and certificated guardian Binodini for probate of a Will alleged to have been executed by him on the 21 of December 1882. This application was opposed by four other grandsons viz. Bamacharan, Nemaicharan, Bijoy and Shashee, the last two then infants represented by their mother and guardian Manmatha. These latter persons on the 31 of March 1886 made an application for Letters of Administration to the estate of the deceased testator on the basis of a Will alleged to have been executed by him on the 25 of August 1883. The first suit for probate of the Will of the 21 of December 1882 was numbered suit No. 9 of 1886 of the Court of the District Judge of Hughly, the second suit was numbered suit No. 10. On the 27 of August 1887, the District Judge dismissed with costs suit No. 10. An appeal against his decision, preferred to this Court, was dismissed with costs on the 28 of December 1888. The result consequently was that Baroda, Kishori and Kunjo became entitled to a large sum of money from Nemaicharan as costs of the litigation which had terminated in their favour. Nemaicharan did not amicably pay up this sum, and in 1899, Binodini, on behalf of her infant sons, took out execution of the decrees for costs. On the 16 of February 1899, some properties of Nemaicharan, to which he had become entitled under the Will of his grandfather Biswambhor, were sold in execution, and purchased by the decree-holders. This sale was confirmed on the 19 of April 1899. Again on the 13 of November 1899, other properties of Nemaicharan, to which he had become similarly entitled under the Will of Biswambhor, were sold in execution and purchased by the decree-holders. This sale was confirmed on the 15 December 1899. We are informed that an application was made to set aside these sales on the ground of fraud under Section 244 of the Civil P. C. but the attempt proved infructuous, as the fraud alleged was not established. It is now necessary to go back for a moment to the proceedings in suit No. 9 of 1886, in which Binodini, on behalf of her infant sons Baroda, Kishori and Kunjo, applied for probate of the Will of the 21 of December 1882. In the course of this suit Nemaicharan applied on the 19 of February 1886 to be appointed administrator pendente lite. An order was made in his favour, but he failed to avail himself of the benefit of it, and on the 7 of August 1886, the District Judge revoked his appointment and cancelled the certificate previously issued to him. Subsequently, Binodini herself was appointed administratrix pendente lite, and she acted in that capacity from the 5 of September 1886 to the 21 of May 1888. Meanwhile, on the 30 of August 1887, that is, three days after the Will of the 25 of August 1883 had been pronounced invalid by the District Judge, an order had been made for issue of Letters of Administration to Binodini to continue during the minority of her sons who were executors under the Will of the 21 of December 1882. After enquiry into the value of the estate and approval of the security bond, Letters of Administration were issued to Binodini on the 22 May, 1888, and she continued to act in that capacity till her death on 5 of November 1901. We have called for, at the instance of the parties, the records of both the previous suits, one of which alone, as already stated, came up to this Court and was finally disposed of on the 28 of December 1888. From the record of the other suit, in which Binodini obtained Letters of Administration, we find that on the 4 of July 1890, she filed an inventory of the estate which had come into her hands, and also a statement of accounts, from the 5 of September 1886, that is, the date when she was first appointed administratrix pendente life, to the 12 of April 1890. On the 12 of August 1892, she filed a statement of accounts for the year, 13 of April 1890 to 12 of April 1891. On the 5 of July 1900, she again filed statements of accounts from the 13 April 1891 to the 12th April 1899. These inventories and accounts are all on the record and are duly verified by Binodini herself. No accounts appear to have been filed by her for the period which intervened between the 13 of April 1899 and the 5 of November 1901 when she died. Immediately upon her death her three sons, who had then attained majority, applied for issue of probate to themselves as executors. An order was made in their favour on the 21 of December 1901, and on the 4 January 1902, the probate was issued to them. On the 30 of April 1903, the District Judge called upon them to submit a full and true inventory as also the accounts of the estate as required by Section 98 of the Probate and Administration Act. On the 29 of May 1903, the executors filed an inventory as also statements of accounts for the period which intervened between the 4 of January 1902 and the 12 of April 1903. So far as we can gather, the executors do not appear to have filed a statement of accounts for any subsequent period.

(3.) The present action was commenced by the son of Bamacharan on the 10 of December 1906, for construction of the Will of Biswambhor, for determination of the rights of the parties thereunder, for accounts, for partition of the properties, and also for ad interim administration, or in the alternative, for the appointment of a receiver. The executors, who were the first three defendants, denied liability to render accounts, for the period during which their mother was administratrix, and also challenged the validity of the construction placed by the plaintiff upon various provisions of the Will and of the legal effect attributed by him to various transactions which took place during the time of the administratrix. The other defendants took up an independent position, and upon some points challenged the views put forward by the plaintiff as well as those of the defendants, executors. The learned Subordinate Judge framed twelve issues, and after decision on the merits, made a preliminary decree for partition and settlement of accounts.