SRISH CHANDRA MUKHOPADHYAY AND ON HIS DEATH HIS HEIRS AND LEGAL REPRESENTATIVES NIRANJAN MUKHOPADHYAY Vs. SRIMATI SAROJINI DEBI

JUDGEMENT

(1.) The suit out of which this appeal has arisen was originally, laid by the plaintiff No. 1 Sarojini Debi. Her adopted son Chandra Kanta Ganguly, who was originally apro forma defendant, was subsequently transferred to the category of plaintiffs, as plaintiff No. 2. The plaint set out a long history but for the purposes of the appeal now before us only a short statement of the salient facts alleged therein is necessary. They are as follows: The plaintiff No. 1 is the widow of one Nibaran Ganguly who died childless in 1306 B.S. leaving her as his only heir and giving her by a will authority to adopt a son and to possess his properties for her life. Nibaran's father Parbati left four widows of whom the youngest Swarnamoyi was the mother of Nibaran. Of the other three, the eldest Uma Sankari came, on Nibaran's death, to be in actual management of the properties. Uma Sankari and Swarnamoyi in concert with one Uma Kanta Ganguly, who was an agnatic relation as well as a debtor of Nibaran, managed to give put that Uma Kanta's son Chandra Kanta had been adopted by the plaintiff No. 1. In 1913 the plaintiff No. 1 instituted a suit to set aside the alleged adoption and having lost it in the trial Court preferred an appeal to the High Court in April 1915. While the appeal was pending the Chief Officer who was managing the properties died and Uma Kanta Ganguly went to the mofussil and created troubles for which she bad to seek the help of the Criminal Court. She was thus put to great difficulty; because collections were stopped, the accounts and other papers were taken away, no realisation could be made from the debtors and rents payable for the properties fell into arrears. Reduced to such straits she, in April, 1916, approached the defendant No. 1 Srish Chandra Mukherjee and the defendant No. 2 Beni Madhab Ganguly, two Pleaders who had acted for Nibaran and Parbati in the past and were well conversant with the estate. These two gentlemen, on looking into such papers as she produced, assured her that they would be able to free the properties of debts and liabilities if they were allowed to manage them for four years. They also said that they being professional men were unable to devote sufficient time for the purpose and so they advised her to associate with them the defendant No. 3 Ambica Churn Mukherjee who, they said, was intimately known to them and was a trustworthy man. These three defendants thereafter took from her the documents and papers that she had and they appointed the defendant No, 6 Bepin Behary Chakravarty as Tehsildar. Under the aforesaid arrangement the estate began to be managed by the aforesaid defendants. They then caused the appeal which was then pending in the High Court, disposed of on a compromise, by which an admission was obtained from her to the effect that the adoption was true and valid and that she would remain in possession of the estate only as executrix. They made her borrow monies which they themselves took, appropriated the collections that were made and went on in that way. They suggested to her that in order to avoid trouble and difficulties arising from the fact of joint ownership with co-sharers and also in order to facilitate collection of rents the properties should be allowed to be sold up for arrears of rent and purchased at auction by themselves, assuring her that there would be no change in the ownership of the properties inspite of the change in the name of the owner and agreeing that they would reconvey to her the properties so purchased by them at the time of settlement of accounts. Ten items of property were given in the plaint as properties so purchased by them; Nos. 1, 2, 3 and 4 were purchased by defendant No. 1 in the name of his clerk the defendant No. 5 Abinash Chandra Chatterjee; No. 5 was purchased by the defendant No. 1 in his own name; and Nos. 6, 7, 8, 9 and 10 were purchased by the defendant No. 3 in the name of his son the defendant No. 4 Shama Charan Mukherjee. For the purchase of properties Nos. 1 and 2 the defendant No. 1 took from her Rs. 310 and for the purchase of properties Nos. 6 to 10 the defendant No. 3 took from her Rs. 300. All the properties were purchased with monies belonging to the estate. The defendant No. 3 took usufructuary mortgage in the name of his son the defendant No. 4 Shama Charan from her tenants for monies due to her from them.

(2.) On the above allegation she prayed for accounts from the defendants Nos. 1 to 3 for their management from 1323 B.S. for declaration of her right to and confirmation of her possession in the ten items of property aforesaid and for other reliefs.

(3.) The Subordinate Judge having made a decree in plaintiff's favour, the present appeal has been preferred by the defendants Nos. 1, 3 and 4. To the pleas of these three defendants only, it will be sufficient to refer for the purposes of this appeal. The defendant No. 1 denied almost everything that was alleged against him and alleged that he had lent some money of his own to the plaintiff No. 1 and had also accommodated her by a loan raised by him by executing a hand-note jointly with the defendant No. 2, that the properties had been purchased in his own name and in the name of the defendant No. 5 either at the request of the plaintiff No. 1 or of the defendant No. 2 but not with the money of the plaintiff No. 1, and on the assurance that the plaintiff No. 1 would soon take back the properties on repaying him with interest.