INDU PROVA DEBI Vs. DURGA CHARAN MITRA

JUDGEMENT

(1.) This is an appeal by the plaintiff against a decision of the learned Subordinate Judge of Deoghar dismissing the suit of the plaintiff which was instituted by her as a person to whom letters of administration were granted, for recovery of possession of the properties in suit belonging to the estate of the testator (who left a legacy in her favour) which passed to the possession of the respondent in the circumstances narrated below. The case of the plaintiff very briefly stated is this. One Gopal Chandra Chatterji had three sons, namely (1) Kali Prasanna Chatterji, (2) Siva Prasanna Chatterji and (3) Sarda Prasad Chatterji who died leaving the plaintiff as his widow and one Ganesh Chandra Chatterji as their son. Some time before 1923, Siva Prasanna Chatterji, after the death of his father, executed a will regarding his property in favour of his nephew Ganesh Chandra Chatterji and nominated him as his executor. Siva Prasanna died on 18th September 1923. In the same year on 8 December Kali Prasanna Chatterji executed another will in which he left a legacy to the plaintiff for Rs. 2000 and three other legacies for a total sum of Rs. 4200. By this will Ganesh was appointed as the executor. Kali Prasanna died on 13 November 1924 leaving the aforesaid will as his last will and testament which is Ex. 1 in this case.

(2.) In the will he after setting out the specific legacies stated by me just now, bequeathed all the rest residue and remainder of my estate...after payment of my funeral and testamentary expenses and just debts and the legacies bequeathed...unto and to the use of my said nephew Ganesh Chandra Chatterji for his own absolute use and benefit. In other words Ganesh Chandra Chatterji was both the executor and residuary legatee under this will of his uncle. On 10 September 1925 Ganesh Chandra, executed a mortgage (Ex. 2) by which he mortgaged the properties in suit in favour of the Hindustan Co-operative Insurance Society, Ltd., (hereinafter referred to as the society) who is defendant 2 and the only contesting respondent before us. The mortgage was to secure an advance of Rupees 1,05,000. The purpose of the loan was to administer the estate of Siva Prasanna, who appointed the mortgagor as his executor under the will of 18 September 1923, already referred to. So far as the properties in suit are concerned, the mortgagor expressly stated that he was absolutely seised and possessed of or otherwise well and sufficiently entitled to them and that he was executing the mortgage in his individual capacity.

(3.) So far as other properties of Siva Prasanna were included in this mortgage bond, the mortgagor expressly purported to give the mortgage in his own capacity as executor of Siva Prasanna. It was further stipulated in this document that the mortgagor will within six months obtain a probate of the will of his uncle Kali Prasanna under which he claimed the properties described in Schedule 3 and will execute a deed in favour of the mortgagees confirming these presents and in case the mortgagor failed to do that within the period of six months, he will repay to the mortgagees a sum of Rs. 30,000 out of the principal sum of Rs. 1,05,000 on the said terms. The mortgagor did not carry out this undertaking and the mortgagee instituted a suit in 1927 in the Calcutta High Court to enforce the mortgage of 1925. The society duly obtained a preliminary decree in January 1928, the decree was made final in December 1928. The properties mortgaged were ordered to be put to sale and the date fixed for the sale was 19 June 1931.