DEBENDRA NARAYAN SINGH Vs. NARENDRA NARAYAN SINGH

JUDGEMENT

(1.) The litigation which has culminated in this appeal was commenced by the plaintiff respondent for adjustment of accounts, Tarini Charan Singh, the father of the plaintiff, died on the 5th November 1899. On the 4th March 1881 he had made a testamentary disposition of his properties and had nominated his wife, Rangini Dasi, the sixth defendant in this suit, as executrix to his Will. On the 27th April 1901 the widow obtained probate and took possession of the estate as executrix. Differences arose, however, amongst the members of the family, which consisted of the three sons of the testator (the plaintiff, Narendra Narayan, the first defendant, Debendra Narayan, and Surendra Narayan, the father of defendants Nos. 2-5) and a daughter, Basanta Kumari. The result was that in 1903, the present defendant, Debendra Narayan, instituted a suit for construction of the Will and for administration of the estate. The suit was decreed in the Court of first instance on the 28th July 1905. On appeal by Debendra Narayan a consent decree was made in this Court on the 18th March 1906. Under that decree Debendra Narayan became entitled to recover a sum of Rs. 15 000 from the estate and for that purpose to take possession for a period of five years. The decree farther directed that upon the expiry of this period, the estate would be held in equal shares by Debendra Narayan, Narendra Narayan and the sons of Surendra Narayan, who hid died meanwhile. Debendra Narayan took possession of the estate under this decree on the 29th October 1906. Narendra Narayan instituted the present suit on the 11th March 1909 for recovery of possession of his one-third share, on the allegation that Debendra Narayan had already realised more than his dues under the decree. Debendra Narayan was made the first defendant, the four sons of Surendra Narayan were made defendants Nos. 2 to 5 and Rangini Dasi was joined as defendant No. 6. On the 12th April 1911 the Subordinate Judge decreed the suit in the following terms: It is ordered that the plaintiff s right be declared to one-third of the disputed properties and he be given possession of the one-third share jointly with defendants Nos. 1-5; accounts will be taken to ascertain if the defendant, No. 1 has taken more than his own dues during the period of his possession; the plaintiff to get from defendant No. 1 the amount which he may be found to have taken in excess of his one-third share. Order as to costs to be passed after the decree is made final; the first part of the decree to be final and the second part preliminary. Defendant No. 1 to file accounts up to the date of the plaintiff s taking possession of the share decreed to him. It is further decreed that the plaintiff do take possession of the share decreed to him within 15 days from to-day, otherwise the second part of the decree about account to be null and void.

(2.) The plaintiff accordingly took possession on the 21st, 22 ad and 23rd April 1911. The mode of delivery of possession and the litigation which resulted therefrom will be found narrated in full in the judgment of this Court in Debendra Narayan Singh v. Narendra Narayan Singh 51 Ind. Cas. 976 : 29 C.L.J. 504 : 23 C.W.N. 900; Debendra Narayan appealed against the preliminary decree for account. That appeal was dismissed by this Court on the 9th May 1913. Daring the pendency of the appeal in this Court, the work of the Commissioner, who had been appointed by the Subordinate Judge to take the accounts, was suspended. On the 4th December 1913 the Commissioner was directed to resume his work and to investigate the accounts in suit, that is, from the 29th October 1906 (the date when Debendra Narayan took possession under the decree in his suit) to the 20th April 1911 (when Narendra Narayan obtained possession under the decree in this suit). Considerable difficulty was experienced by the Commissioner in the performance of his duties from the lack of papers. Possession had been delivered in execution to Narendra Narayan, but to no purpose, because Debendra Narayan had looked up the malghar. The room was not opened by the Execution Officer and all that Narendra Narayan and his nephews did was to place additional looks on the door. Ultimately, the looks were removed by order of the Court and the doors broken open. But many of the requisite papers could not be found inside the room. The Commissioner took such evidence as was adduced by the parties concerned and examined such papers as were available. On the 11th November 1914 while the matter was still pending before the Commissioner, defendants Nos. 2-5, the sons of Surendra Narayan, filed a petition before the Subordinate Judge, praying that the accounts might be adjusted for their benefit as well. On the 19th November the Subordinate Judge held that although these defendants had not entered appearance until after the preliminary decree had been affirmed by the High Court, they were entitled to have their names transferred from the category of defendants to that of plaintiffs. He accordingly directed the Commissioner to ascertain the dues and liabilities as between the principal and pro forma defendants. This order was carried out by the Commissioner, and necessarily widened the scope of the enquiry before him. After much delay and many extensions of time the Commissioner submitted his final report on the 29th February 1916. Objections were lodged by both parties on the 4th May following. Arguments were heard in support of and in answer to the objections and judgment was reserved on the 1st June 1916. On the 6th June, the defendants Nos. 2 to 5 paid the requisite Court-fees on the amount found due to them by the Commissioner from the first defendant. On the 29th June judgment was delivered and the suit was decreed in favour of the original plaintiff and the transferred plaintiffs; On the 5th July defendants Nos. 2-5 deposited the excess Court-fees required. This was accepted on the 15th July and the decree was ultimately signed on the 25th July. The present appeal is directed against this decree, which was in the following terms: The plaintiff No. 1 will get from defendant No. 1 the sum named by the Commissioner and Rs. 359-4-3, that is, one third of Rs 1,079 10-1 1/2, in all Rs. 2,845 12 8 3/4. The plaintiffs Nos. 2-5, who were previously defendants in the suit but have been made plaintiffs and have paid the Court fees, will also get from defendant No. 1 the sum of Rs. 2,169-4-8 3/4 Plaintiff No. 1 will set the cost of the suit from defendant No. 1 and defendants Nos. 2-5 will get their share of the cost. The plaintiff No. 1 will get from defendant No. 1 Rs. 2,845 12-8 3/4 as his claim and Rs. 4,712 9-5 as cost, that is, in all Rs. 7,538-6-1 3/4, and the plaintiffs Nos. 2-5 will get Rs. 2,169-4 8 3/4 as their claim and Rs. 361 8.0 as cost, that is, in all Rs. 2,530 12 8 3/4

(3.) This decree has been assailed on behalf of the first defendant appellant on two grounds, namely, first, that the plaintiff should not have been allowed the entire costs of the suit, when his claim has been successful only in respect of a relatively small amount, and, secondly, that no decree should have been made in favour of defendants Nos. 2-5, who applied to be joined as plaintiffs at a very late stage of the litigation. The plaintiff has filed a cross-appeal and has urged that the amounts have not been taken on a correct basis and that he is in reality entitled to a much larger sum than what has been awarded by the Subordinate Judge. The other respondents, the sons of Surendra Narayan, have not preferred a cross-appeal, but they have urged that if at the instance of the plaintiff the amount payable by the first defendant should be increased, they should be allowed to reap the advantage of such finding. The points which emerge for consideration from the arguments addressed to us may accordingly be thus summarised: first, have the accounts been taken on a correct basis; secondly, is the order for costs erroneous on principle, and thirdly, are the sons of Surendra Narayan entitled to the relief they have obtained.