MANOHAR MOOKERJEE Vs. RAJA PEARY MOHAN MOOKERJEE

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for the construction of a Will, for the administration of a trust (private debuttar) created thereby, for the removal of the trustee, for the appointment of a new trustee or receiver, for declaration that an execution sale of a portion of the trust estate held on the 14th January 1913, when it was purchased by the son of the trustee was invalid and inoperative, for proper investment of a sum of Rs. 11,500 alleged to form part of the trust estate, and for other incidental reliefs. The Subordinate Judge has found in favour of the plaintiff upon several of the questions in controversy, but he has dismissed the suit on the ground that the allegations of misconduct have not been established and the plaintiff is not entitled to ask for the removal of the trustee. To appreciate the substantial points in dispute, between the parties (whose relation, ship will appear from the annexed genealogical table), it is necessary to consider briefly the history of the trust which, since its foundation, has formed the subject of many proceedings in Court.

(2.) Jagomohan Mookerjee, the common ancestor of the parties to this suit, made a testamentary disposition of his properties on the 11th September 1840, and died a week later. By this Will, he dedicated certain properties to the sheva or worship of two Thakurs, Sridhar and Gopaleswar Siva, established by him, the annual celebration of the Durga Puja, the Sradh of ancestors, and other pious acts, such as the maintenance of childless widows, the construction of roads for public use and the excavation of tanks. The testator also provided for the order of succession to the office of shebait among his own descendants. The first shebaits were his eldest son, Jaykrishna Mookerjee and Haranath Chatterjee (not a member of the family). Haranath died on the 29th January 1862, and thereafter Jaykrishna continued as sole shebait till his death on the 19th July 1888. Rajkrishna who, according to the Will, was to have followed Jaykrishna had died in 1880. Consequently Jaykrishna was succeeded by his step- brother Nabakrishna who died on the 11th September 1890. On his death, the succession opened to his brother Bijaykrishna. Raja Peary Mohan, the second son of Jaykrishna opposed Bijaykrishna and threw every possible difficulty in the way of his obtaining possession of the debuttar estate and collecting the rents. After the usual preliminary contest in the Revenue and Criminal Courts, on the 10th June 1892, Bijaykrishna instituted a suit in the Court of the Subordinate Judge of Hughli to establish his title to the office of shebait under the Will of the founder, The suit was defended by the Raja, who denied the genuineness of the Will and the existence of the debuttar. On the 29th January 1894 the Subordinate Judge decreed the suit : and on that very day Bijaykrishna died. Raja Peary Mohan preferred an appeal to this Court on the 25th January 1895 (as apparently some considerable time was taken up by proceedings for amendment of the decree) and joined as respondents be sons of Bijaykrishna who had been appointed executors to the estate of their father under his Will, In the memorandum of appeal, he challenged the factum and validity of the debuttar and completely repudiated the trust created by his grandfather. The appeal came to be heard before Maclean, C.J, and Banerjee J. on the 24th August 1898 when the Raja took up the position that he had succeeded as shebait upon the death of his uncle Bijaykrishna on the 29th January 1894 and that, consequently many of the questions raised in the suit had caused to be of practical importance. The result was that the decree of the Court below was confirmed subject to modifications. One important variation made was that the then respondents, the executors to the estate of Bijaykrishna, could not proceed with the enquiry into the accounts of the debuttar estate as directed by the Subordinate Judge. But the litigation thus, brought to an end, did not and obviously could not terminate the controversy between Raja Peary Mohan and the representatives of Bijiykrishna. Raja Peary Mohan had successfully kept Bijaykrishna out of the debuttar estate from the 11th September 1890, when Bijaykrishna became entitled to succeed as shebait, up till the 29th January 1894, when Bijaykrishna died. Bijaykrishna had not been able to collect more than Rs. 4,607 during his incumbency : he had, on the other hand, spent considerable sums of money in protesting the debuttar estate and in performing his obligations as shebait during all the time that Raja Peary Mohan was in possession and enjoyment of the income. The consequence was that even before the Raja s appeal in the previous suit was heard in the High Court, the representatives of Bijaykrishna had, on the 25th January 1897 instituted a suit in the Court of the Subordinate Judge of Hughli to recover the sum of Rs. 77,964 from the debuttar estate to which Raja Peary Mohan had succeeded as shebait, or in the alternative, from him personally. The Sabordinate Judge made a preliminary decree for accounts on the 17th February 1899. The defendant appealed to this Court, and on the 28th November 1900 Banerjee and Brett, JJ., directed the plaint to be amended, and remanded the case to the Court below for a fresh trial Peary Mohan Mukherjee v. Narendra Krishna 5 C.W.N. 273.J. The suit was re tried, with the result that a preliminary decree for accounts was again made on the 10th February 1902, This was followed on the 30th June 1903 by a final decree for Rs. 45,960 against the debtor estate. Raja Peary Mohan appealed to the High Court, with the result that the decree of the Subordinate Judge was confirmed on the 24th February 905 by Ghose and Pargiter, JJ.: Peary Mohan Mukerjee v. Narendra Nath Mukerjee 32 C. 582 : 9 C.W.N. 421. The Raja was not satisfied and appealed to the Privy Council. On the 16th December 1909 the Judicial Committee dismissed the appeal and the judgment delivered by Lord Macnaghten commented upon his wrongful acts: Peary Mohun Mukerjee v. Narendra Nath Mukerjee 5 Ind. Cas. 401 : 37 C. 229 : 11 C.L.J. 220 : 37 I.A. 27 : A.L.J. 125 : 7 M.L.T. 63 : 14 C.W.N. 261 : 12 Bom. L.R 257 : 20 M. The decree-holders promptly applied for execution on the 1st May 1910 to realise a sum of Rs. 83,543 inclusive of interest and costs in all the Courts They claimed that the costs of the Court of first instance were realisable out of the debuttar estate, while the costs of the appeals to the High Court : and the Privy Council were realisable from the judgment debtor personally. Raja Peary Mohan took various objections to the execution on the 27th July 1910, including an objection that he was not personally liable to pay the costs of the High Court and the Privy Council. These objections were overruled by the Subordinate Judge on the 3rd December 1910. Raja Peary Mohan appealed to the High Court against the decision imposing a personal liability on him, and obtained an order for stay of proceedings during the pendency of the appeal. No appeal was preferred against the order overruling his objections to execution against the debuttar estate. The result was that while execution against him personally was held up by order of the High Court, it proceeded against the debuttar estate, and an order for the sale was made by the Subordinate Judge on the 10th January 1918 Farther objections were taken to the execution on the 15th January 1913, with a view to vary the order in which the attached properties were to be sold, but they proved infructuous. On the 14th January 1913, the most valuable of the properties comprised in the debuttar estate, namely, a four fifth share of lot Bahirgora was put up to auction and was purchased by Bhupendrarath, one of the Raja s sons, for a sum of Rs. 1,56,600. The appeal preferred by Raja Peary Mohan against the order for personal execution was heard in this Court by Jenkins, C.J. and Ray, J. on the 28th Marsh 1913, and was dismissed on the ground that, under the terms of the decree of the High Court and of the Privy Council, he was personally liable for the costs awarded thereby. The Court pointed out that there was nothing inconsistent in the fact that the claim sought to be enforced had been decreed against the debuttar estate with the direction that the shebait should be personally liable for the costs of the litigation conducted by him on behalf of the Thakurs.

(3.) Meanwhile, on the 17th February 1913, that is, about a month after the sale of Bahirgora in execution and its purchase by the son of the shebait, Monohar Mookerjee, a grandson of the founder and the eldest surviving son of Rajkrishna, had instituted the present suit for administration of the trust estate. The principal defendants were Raja Peary Mohan in his capacity as shebait as also in his personal capacity, and Bhupendranath his son who had purchased Bahirgora. The plaintiff further joined as proforma defendants members of the various branches of the family, all descendants of the founder Jagamohan Mookerjee The suit was defended by the Raja and Bhupendranath. The former challenged all the material allegations in the plaint, while the latter alleged that as he had purchased Bahirgora for himself with his own money, the property in his hands could not be declared to be trust property. The fourth defendant, Pratapnarain, the eldest son of Nabakrishna, also filed a written statement, which does not require further consideration : no relief is claimed against him and be has died during the pendency of this litigation : The following thirteen issues were raised on these pleadings : 1. Has the plaintiff right of suit and cause of action ? 20 Has this Court jurisdiction to try this suit ? Is the suit maintainable in the way in which it has been framed ? 3 Has the plaintiff the right to maintain this suit under Section 66 of the Civil Procedure Code ?