SOMORENDRA NATH MITTER Vs. ASHUTOSH ROY

JUDGEMENT

(1.) On 12 April 1923, three persons Sourendra Nath Mitter, Satya Santi Mitter and Khokalal Mitter instituted a suit for partition and accounts against Tarubala Dasi in the Court of the Subordinate Judge at Hughli. They claimed two-thirds share of the estate left by their ancestor Rai Ishan Chandra Mitter Bahadur and in the accretions thereto, and admitted that Tarubala owned the remaining one-third share. The relationship between the parties will appear from the following pedigree:

(2.) The case made in the plaint is that on the death of Ishan intestate his three sons Bepin, Lal Behary and Charu inherited his estate in equal shares. Bepin and Lal Behary died intestate leaving plaintiffs 1 and 2 and plaintiff 3 their respective heirs. Charu Chandra, however, left a will by which he gave his properties to his only son Baidyanath. Tarubala obtained letters of administration and represented the estate of her husband. On the death of her son Baidyanath in 1920, she succeeded to the estate of her son. For the purpose of the appeal before us, it is not) necessary to recite the other facts stated in the plaint, nor the allegations on which the plaintiffs asked for accounts and sought to make the estate of Charu Chandra liable. An application for appointment of a receiver was made by Tarubala and during the hearing of the said matter her counsel Mr. N.N. Sircar (now Sir N.N. Sircar) made a compromise on her behalf and on the basis thereof the preliminary decree was passed on 31 March 1924. This decree is printed at pp. 6 and 7 of the paper book of Appeal from Original Order No. 600 of 1936. The terms of settlement were (i) all accounts waived, (ii) plaintiffs took over all liabilities shown in the books of the estate, (iii) defendant gave up all claims to moveables, decretal amounts, outstandings, deposits, arrears of rent, loans, shares, securities, etc., (iv and v) all the immovable properties except the family dwelling house were to be divided, the plaintiffs taking two-thirds share and the defendant one-third share in Hindu widow's estate. She was to have right of residence in the family dwelling house, (vi) the defendant's claim to ornaments was left to the arbitration of Mr. Sircar. Clause (vii) of the compromise which is material to this appeal ran thus: (vii) Prom 3 day of September 1923 and until partition is actually completed and possession taken, defendant will be paid by the plaintiffs the sum of Rs. 1400 (fourteen hundred) per month and the defendant will have no concern with the income or management of the properties of the estate beyond getting the said sum of Rs. 1400 (fourteen hundred) per month, the balance will belong absolutely to the plaintiffs, and no account of the income will be necessary for this period viz. from 3 September 1923 to the date when partition is effected and possession taken. Defendant will join, whenever required, the plaintiffs by signing proceedings for realization of rent, etc. and other assets, and that a sum of Rs. 36-8-0 be paid by the defendant to the plaintiffs on account of costs of this proceeding.

(3.) Shortly after the compromise Tanubala repudiated it. The proceedings started by her ultimately terminated on 23 January 1930, their Lordships of the Judicial Committee holding that she was bound by the compromise effected by her counsel, Mr. Sircar: Sourendra Nath v. Tarubala Dasi . After the year 1924, the properties in suit were placed in the charge of two joint receivers and are now in the possession of the official, trustee as receiver. The suit when filed was valued at over sixteen lacs of rupees, but now the bulk of the properties, more than three, fourths, have been lost to the parties by reason of sales in execution of mortgage decrees and for nonpayment of revenue and rent. The work of partition has not progressed far, and according to the recitals of the conveyance, on which the respondent Jitendra Nath Roy bases his claim, there is no prospect of the partition being effect, ed within a reasonable time. In the present circumstances when the income has shrunk considerably prima facie it is to his interest, as it was to the interest of the persons through whom he claims and on whose behalf he looked after the litigation, to delay the partition as long as possible. We do not however wish to apportion the blame, but only desire to say that it is eminently proper that the learned Subordinate Judge should expedite the work of partition and pass the final decree before the parties, most of whom are minors, are ruined. It appears that large sums of money payable to Tarubala under the terms of the aforesaid compromise decree remained in arrears. She started execution proceedings and three of those proceedings were pending in three Courts at the time of her death which occurred on 20 June 1936. On 17 February 1936, shortly before her death, she executed a deed by which she surrendered her estate in favour of the reversioners, her grandsons Ashutosh and Ajit Kumar Roy. On her death, the said grandsons were substituted in the suit in her place on 24 June 1936. They were and still are infants and their mother Umarani was appointed their guardian-ad-litem and is still representing them is the suit. On 9 August 1937 without obtaining leave of the Court she as "next friend and natural guardian of her infant sons" conveyed for a cash consideration of Rs. 15,000 the minors share in the immovable properties in suit, their right to large sums of money due to their grandmother Tarubala under para. 7 of the compromise, the arrears due to them and their right to receive in future the sum of Rs. 1400 a month from the plaintiffs under the said paragraph of the compromise decree. This conveyance is on the record. It has not been printed but typed copies were supplied to us. It is necessary to notice the main features of this transaction as they appear from the document itself.