KALISHANKER DAS Vs. DHIRENDRA NATH

JUDGEMENT

(1.) This appeal, which has come before us, on a certificate granted by the High Court of Calcutta, under Article 133(1) of the Constitution, is directed against a judgment and decree of a Division Bench of that court dated the 29th March 1950, affirming, on appeal, those of the Subordinate Judge, Fourth Court, Alipore, passed in Title Suit No. 70 of 1941.

(2.) The appellants before us are the heirs and legal representatives of the original defendant No. 3 in the suit, which was commenced by the plaintiffs respondents to recover possession of the property in dispute, on establishment of their title, as reversionary heirs of one Haripada Patra, after the death of his mother Rashmoni, who got the property in the restricted rights of a Hindu female heir on Haripada's death to appreciate the contentions that have been raised by the parties to this appeal it would be necessary to narrate the material facts in chronological order.

(3.) The property in suit which in premises No. 6 Dwarika Ghose's Lane situated in the suburb of Calcutta admittedly formed part of the estate of one Mahendra Narayan Patra, a Hindu inhabitant of Bengal, owning considerable properties, who died on the 17th April 1903 leaving him surviving his widow Rashmoni, two infant sons by her, Mohini Mohan and Haripada and a grandson Ram Narayan by a predeceased son Shyama Charan. Shyama Charan was the son of Mahendra by his first wife, who died during his life time. On the 17th February 1901 Mahendra executed a will by which he made certain religious and charitable dispositions and subject to them, directed his properties to be divided amongst his infant sons Mohini and Haripada and his grandson Ram Narayan. Ram Narayan was appointed executor under the will. After the death of Mahendra, Ram Narayan applied for probate of the will and probate was obtained by him on the 6th October, 1904. Ram Narayan entered upon the management of the estate. He developed extravagant and immoral habits and son ran into debts. The bulk of the properties was mortgaged to one Kironsashi who having obtained a decree on the mortgage applied for sale of the mortgaged properties. Thereupon Rashmoni on behalf on her infant sons instituted a suit against the mortgagee and the mortgagor and got a declaration that the mortgage decree could not bind infants' shares in the properties left by their father. This judgment was given on the 31st March 1909. On the 13th August 1909 the two infant sons of Mahendra 'to wit' Mohini and Haripada, by their mother and next friend Rashmoni, instituted a suit in the court of the Subordinate Judge at Alipore, being Title Suit No. 45 of 1909, claiming administration of the estate left by Mahendra as well as partition and accounts on the basis of the will left by him. On the 14th of August 1909 one Baroda Kanta Sarkar, Sheristadar of the court of the District Judge, Alipore was appointed with the consent of both parties, receiver of the estate forming the subject-matter of the litigation. The receiver took possession of the properties immediately after this order was made. The management by the receiver, as it appears, was not at all proper or beneficial to the interest of the two sons of Mahendra. Mahendra himself left no debts and whatever debts were contracted, were contracted by Ram Narayan to meet his own immoral and extravagant expenses. The receiver however went on borrowing large sums of money upon 'ex parte' orders received from the court, the ostensible object of which was to pay off the debts due by Ram Narayan which were not at all binding on the plaintiffs. Fearing that the longer the suit continued and the properties remained in the hands of the receiver the more harmful it would be to the interests of the minors. Rashmoni on behalf of the minors compromised the suit with Ram Narayan and a Solenama was filed on the 13th June 1910. The terms of the compromise, in substance, were, that the properties in suit were to be held in divided shares between the three parties and specific allotments were made in favour of each, the properties allotted to the share of Haripada being specified in schedules 'Gha' and 'Chha' attached to the compromise petition. It was further provided that the receiver would be discharged on submitting his final accounts. It may be mentioned here that the property which is the subject matter of the present suit was, under the Solenama , allotted to the share of Haripada. On the very day that the compromise was filed, Rashmoni applied for discharge of the receiver. The court made an order directing the receiver to submit his final accounts within one month, or as early as possible, when the necessary order for discharge would be made. It was further directed that as the suit was disposed of on compromise the receiver should discontinue collecting rents and profits due to the estate from that day. This order however was modified by a subsequent order made on 23rd June 1910, which directed that the receiver was to continue in possession of the estate until he was paid whatever was due to him for his ordinary commission and allowance and until the parties deposited in court the amounts borrowed by the receiver under order of the court or in the alternative gave sufficient indemnity for the same. After this, Rashmoni on behalf of her minor sons filed two successive applications before the Subordinate Judges praying for permission to raise by mortgage, of a part of the estate, the money necessary for releasing the estate from the hands of the receiver. The first application was rejected and the second was granted, after it was brought to the notice of the Subordinate Judge that the receiver was attempting to dissuade prospective lenders who were approached on behalf of Rashmoni, to lend any money to her. On the 16th of January 1911 Haripada, the younger son of Rashmoni, died and his interest developed upon his mother as his heir under the Hindu Law. On the 18th January 1911 the following order was recorded by the Subordinate Judge.