Sashi Kantha Acharjee And Others v. Promode Chandra Roy And Others

1. The properties concerned in the suit out of which these appeals have arisen are seven in all, the first six of which are described in Sch. 1 to the plaint being certain taluks or shares therein, and the seventh one which is described in Sch. 2 being a quantity of khamar lands lying within item 6 of property of Sch. 1. They belonged at one time to one Lala Ram Chandra. Lala Ram Chandra died on 19th Pous 1276 (2nd January 1870) having executed a will on 15th Pous 1276 (29th December 1869), and leaving him surviving his widow Hara Kumari Dasya, a daughter Shyam Kumari Dasya, and the husband of the latter, one Sital Chandra Lala. After his death his widow Hara Kumari on 16th Sravan 1283 (30th July 1876) on the strength of the authority conferred on her by the will, adopted the plaintiff Lala Ram Shankar as her son. By the will (Ex. 27) spoken of above, Lala Ram Chandra Roy gave authority to Hara Kumari to adopt five sons in succession unless a son so adopted would be living and bequeathed his moveable and immovable properties to Hara Kumari with the exception of a half of property No. 2 which he gave to his daughter Shyam Kumari for maintenance. The will provided that during the lifetime of Hara Kumari the adopted son, if any, should get an allowance of Rs. 20 a month and that on Hara Kumari's death he would get all the properties. The other terms of the will need not be set out here. Shyam Kumari died in Aswin 1320 and her husband Sital Chandra is also dead. Hara Kumari died on 12th Falgun 1326 (24th February 1920). On 26th February 1921, the plaintiff Lala Ram Shankar Roy commenced the present action on the allegation that on the death of Hara Kumari there being no other preferential heir he became absolutely entitled, under the provisions of the aforesaid will, to the properties left by Lala Ram Chandra Roy. He alleged that on Hara Kumari's death he attempted to take possession of the properties but found that Maharaja Sashi Kanta was in possession, as heir of his father the late Maharaja Surjya Kanta, who had got himself registered as having purchased or having got ijara settlement of the properties from Hara Kumari and Shyam Kumari. He averred that he had not been able to ascertain the real title of the Maharaja as there was a fire in the registry office, in consequence of which the papers therein had been destroyed. The suit was originally instituted against two persons, Maharaja Sashi Kanta as defendant 1 and another person in whose favour Maharaja Surjya Kanta had made a nishkar brahmattar grant in respect of some khamar lands lying within property No. 6. The prayers were for recovery of khas possession and mesne profits on declaration of the plaintiff's title.

2. Defendant 1 filed a written statement on 9th July 1921. On an objection taken by him and on his supplying the names of defendants 3, 4 and 5, the latter were made parties to the suit on 12th August 1921. These defendants filed a written statement on 5th June 1922. They raised a similar objection on which defendants 6, 7 and 8 were added as pro forma defendants on 29th July 1922. Defendant 6 is the same person as defendant 1. On 17th April 1923, defendant 8, filed a written statement. Thereafter defendants 9 and 10 applied to be made parties; and this application was opposed on behalf of the plaintiff Lala Ram Shankar Roy, but was eventually granted on 14th August 1923, on condition that they paid some costs. On 20th September 1923, the plaintiff Lala Ram Shankar Roy applied for and obtained an order that defendants 9 to 18 be all added as proforma defendants. On 31st May 1924, defendant 9 filed a written statement, which defendant 10 subsequently adopted as his own. Defendant 8 having died defendants Ska and 8kha were brought on the record as defendants. Defendant 8 ka by a petition filed on 26th August 1924, accepted as his own the written statement which had been filed by defendant 8, and defendant 8kha filed a written statement on 6th September 1924. On 19th May 1925, one Promode Chandra Roy Choudhury applied to be added as a plaintiff. This application was consented to by the plaintiff Lala Ram Shankar Roy and was allowed, the original plaintiff Lala Ram Shankar Roy now becoming plaintiff 1 and the added plaintiff Promode Chandra Roy Choudhury plaintiff 2.

3. The above facts appear upon the order-sheet of the case and in the petitions filed by the parties on which the orders concerned were made and they would give an idea as regards the constitution of the suit as it gradually developed from its institution until its termination. But to understand the interests of the different parties, it is necessary to state a few facts which, for all practical purposes, are no longer disputed. As already indicated the plaint was of the simplest possible description in which plaintiff's right by virtue of his being the adopted son and under the terms of the will of Lala Sam Chandra Roy was pleaded, and it was alleged that plaintiff 1 had no definite knowledge about the particulars of title under which defendant 1 claimed beyond this that his father had made purchase or taken ijara settlements from Hara Kumari and Shyam Kumari and that he claimed relief in the shape of recovery of possession with mesne profits upon declaration of title. From the written statements of the defendants however the following transactions appear to have taken place in the meantime.

4. On 11th Sravan 1291 (25th July 1884) a mimansa patra (or deed of settlement, Ex. J) was executed by plaintiff 1 in favour of Hara Kumari, by which on Hara Kumari paying Rs. 60 in cash and agreeing to increase the monthly allowance of Rs. 20 which plaintiff 1 was receiving under Lala Ram Chandra's will to Rs. 24 a month, plaintiff 1 admitted an absolute title in Hara Kumari with power of gift and sale in respect of a half of property No. 4 and in the whole of property No. 5 and that Shyam Kumari would continue to own and possess during her life the half of property No. 2 given to her by the will, and further agreed that Hara Kumari would continue to possess during her lifetime the remaining properties, namely, No. 1 the other half of No. 2, No. 3, the other half of No. 4 and No. 6 and that on Hara Kumari's death plaintiff 1 would own and possess these properties. On 10th Chaitra 1293 (23ra March 1887) Hara Kumari made a gift of a half of property No. 4 in favour of Shyam Kumari by a deed (Ex. I) in which it was recited that she had previously sold the other half of that property to her. By a kabala (Ex. G) executed on 21st Assar 1294 (4th July 1887) Hara Kumari sold to Maharaja Surjya Kanta properties No. 1, a half of No. 2, No. 3 and No. 6 for a consideration of Rs. 2,000 in cash and an annuity of Rs. 2,075 payable to her during her life. On the same day another kabata (Ex. G) was executed by Shyam Kumari in favour of Maharaja Surjya Kanta in respect of property No. 4, and a half of property No. 2 for a consideration of Rs. 1,000 in cash and an annuity of Rs. 575 for her life. On 1st Bhadra 1294 (17th August 1887), plaintiff 1 executed a nadabinama (Ex. H) in favour of Maharaja Surjya Kanta by which he relinquished his lights in property No. 6 for a consideration of Rs. 2,240 and on condition that properties No. 1, a half of No. 2 and No. 3 would revert to him on Hara Kumari's death. On 3rd Bhadra 1295 (18th August 1888) Hara Kumari executed a kabala (Ex. G) in favour of Maharaja Surjya Kanta in respect of property No. 5 for consideration of Rs. 7,000 Maharaja Surjya Kanta thus acquired the interest in the six items of properties of Sch. 1 to the plaint.

5. On 28th September 1907, Maharaja Surjya Kanta as donor made a gift of the said six items of properties together with 29 others, in all 35 items of properties to himself and one Sree Nath Roy as trustees upon trust to pay Rs. 10,000 annually out of the income thereof to the National Council of Education, an Association registered under Act 21 of 1860, the surplus of the income, if any, be payable to the donor himself. The endowment was created by a deed Ex. M. Maharaja Surjya Kanta died in 1909. Under the terms of the deed of endowment Ex. M, Maharaja Sashi Kanta became trustee in his father's place, and continued as such till by a letter (Ex. K) dated; 14th September 1920, written to the Honorary Secretary to the National Council of Education he regained his trusteeship from 1st Kartic 1327 (18th October 1920). By an indenture dated 28th February 1921 (Ex. L) Sree Nath Roy as the then sole trustee conveyed the trust properties to defendants 3, 4 and 5, who were constituted a new body of trustees under the endowment with the approval of the National Council of Education. Defendants 7 and 8 were trustees on behalf of the National Council of Education, and the latter, who was-also its President, having died, the next President and the Honorary Secretary of the Council were brought in his place as defendants 8ka and 8kha respectively. On 21st June 1923, defendants 9 and 10 obtained a permanent lease (Ex. E) of all the endowed properties from defendants 3, 4 and 5 with the sanction of Maharaja Sashi Kanta, agreeing to pay, in addition to the revenue and the rents payable to the superior landlords and all other dues and charges, a rent of Rs. 10,000 a year to the Council and a malikana of Rupees 1,000 a year to the Maharaja and the stipulation further was that:

“the leasees shall be bound to carry on and conduct at their own cost and to indemnify the lessors and the Council against the costs thereof and the results of such litigation shall not in any way affect the terms and provisions of the lease.”

6. The remaining defendants are members of the family of defendants 9 and 10. Maharaja Sashi Kanta confirmed the aforesaid lease by an indenture (Ex. F) dated 1st September 1924. Plaintiff 2 purchased properties No. 1, No. 2, No. 3, No. 4 and a half of No. 6 together with structures, etc., from plaintiff 1 for a consideration of Rs. 55,000 by a kabala (Ex. 6) dated 13th Falgun 1331 (25th February 1925). The Subordinate Judge has made a decree declaring the plaintiffs' title to properties Nos. 1 to 5 of Sch. 1 to the plaint and entitling them to recover possession thereof from the defendants. He has also made a decree for mesne profits the details of which will be set out hereafter. He has dismissed the plaintiffs' claim as regards the property No. 6 of Sch. 1 and also as regards the property described in Sch. 2.

7. From this decree three appeals have been preferred to this Court: No. 387 by defendants 3, 4, 5, 7, 8ka and 8kha, 9 and 10 the first three, as already stated, being the trustees of the endowment, the next three representing the Council and the last two the lessees; No. 389 by the defendant 1 Maharaja Sashi Kanta; and No. 458 by the plaintiffs. In order to deal with these appeals it would be convenient to set out here the relevant terms of the will, because the rendering of it as it appears in the paper-book requires a little variation here and there. It runs thus:

“The said moveable and immovable properties eh all remain in my possession so long as I shall be alive. After my death my widow Hara Kumari Dasya being in possession as owner of all the properties, shall administer and enjoy the came, and having repaid all such debts as I have and having performed (my) Sradh and other rites as (my) future heiress (she) shall be competent to adopt up to five sons unless one be alive. Out of affection for my daughter Sreamati Shyam Kumari Dasya and for her maintenance I give ‘tappeh hazardi’ etc., (here a half of property No. 2 is described) to the said Sreemati. On the death of my widow my adopted son, if adopted, will get all the properties. If no adopted son can he had then on the death of my widow, my daughter the said Sreemati will get all the properties if she resides in my dwelling house. During the lifetime of my widow, my daughter the said Srimati would get a moiety share of my interest in the aforesaid taluk only, and if a son be adopted then the said adopted son will, during the lifetime of my widow, get an allowance of Rs. 20 a month from my widow… (They) shall get only according to the provisions made by me. If no adopted son is secured then on the death of my widow and daughter the said daughter's husband (literally son-in-law on account of the daughter) Sital Chandra Lala shall get all the properties provided he lives in my own house and preserves (my ancestral institutions by maintaining (my) Gum and priest. May God forbid, if the said Sreemati dies without leaving any issue, then it is the sons adopted by her or by the said Sreeman (meaning son-in-law) who will get all the said properties on the death of Sreemati and Sreeman and my widow will be competent to sell a portion of the said properties for payment of my debts… Whoever will get the properties mentioned above shall observe the above conditions.”

8. The first question which has to be determined is, what were the rights which Hara Kumari and Shyam Kumari acquired under the will. On behalf of the appellants other than the Maharaja the competency of Ram Chandra to make the will has not been disputed. But on behalf of the Maharaja it has been argued in liming that Ram Chandra, having been a Hindu governed by the Mitakshara law, was not competent to dispose of the properties by a will, as the properties were not his self-acquired but ancestral properties. On behalf of the plaintiffs it has been said that Ram Chandra should be taken to belong to the Dayabhaga School and that the properties have not been proved to have been acquired by Ram Chandra's ancestors. The question whether Ram Chandra was a Hindu governed by the Mitakshara or the Dayabhaga School of Hindu law does not appear to have been put in issue in the Court below, but the materials which the parties brought on the record would sufficiently indicate that it is the Mitakshara law that should be held to apply to Ram Chandra and his family. Ram Chandra was a Lala, a Sribatsava Kayeatha, some ancestors of whom migrated from the United Provinces and settled in the District of Mymensingh in which the properties are situate. The presumption that the family carried with it its laws and customs a to succession and family relations [see Soorendra Nath Roy v. Mt. Heeramcnee . [1867] 12 M.I.A 81 and Saroda Prosad v. Uma Kanta . A.I.R 1923 Cal. 485] far from being rebutted, has been confirmed by such evidence as to rites and observances as there is on the record. Plaintiff 1 himself belonged before his adoption to the district of Rai Barielly in the United Provinces, and his natural parents were also Lalas, Sribatsava Kayesthas. Sacred thread is taken at the time of marriage and is not a separate ceremony, impurity on account of death is observed for thirteen days, and when the husband of a woman is alive it is he and not the son who performs her sradh. It is possible that a family who had so migrated may retain its religious rites and observances, and yet acquiesce in a devolution of property in the common course of descent amongst persons of the same race in the district in which they have settled. But of such a thing having happened, so far as his family is concerned, there is not the slightest indication. The evidence that the properties were ancestral properties of Ram Chandra Roy is practically one sided. These two premises therefore on which this contention of the Maharaja rests must be taken as established. Even then however it would not necessarily follow that the contention should prevail. In the first place, the Maharaja in the Court below never challenged the validity of the will, but on the other hand took his stand on it. In para 3 of his written statement it was said:

“This defendant begs to submit that although Hara Kumari Dasya had life interest in the said properties under the will of her husband, she as the executrix to the said will had full rights to sell absolutely the said properties;”

and in para 5 it was said:

“Sham Kumari Dasya obtained an absolute right to a moiety of property No. 2 of the plaint under the will of Lala Ramchandra Roy.”

9. The Subordinate Judge has remarked in his judgment:

“The Maharaja does not challenge the will but on the contrary derived his title from Hara Kumari and Sham Kumari whose title was founded upon the will.”

10. It cannot be contended that Lala Ram Chandra, who had no male descendants at the date of the will and when the properties were not co-parcenary properties but separate though ancestral, was incompetent to make a will in respect of them simply for the reason that he was governed by the Mitakshara law (see Nagalutchmee Ammal v. Gopoo Nadaraja Chetty . [1855] 6 M.I.A 309 at p. 344 and Baboo Beer Pratap Sahee v. Rajendra Pratab Sahee . [1867] 12 M.I.A 1 at pp. 37-38. It may be pointed out that such a will was upheld by the Judicial Committee in the case of M.M Shumsool Hooda v. Shewukram . [1875] 2 I.A 7. Nor can it be said that because an adoption by the widow after the testator's death was in contemplation the disposition by the will was in any way affected; “for,” as pointed out by the Judicial Committee in the case of Krishna Murthi Ayyar v. Krishna Murthi Ayyar . A.I.R 1927 P.C 139:

“the will speaks at the date of the testator's death and the property is carried away before I the adoption takes place.”

11. Another contention put forward on behalf of the Maharaja alone is that under the will Hara Kumari acquired an absolute title to the properties bequeathed to her by it. In support of this contention the following cases have been cited: Toolsi Dass Kurmokar v. Madan Gopal Dey* . [1901] 28 Cal. 499., Suresh Chandra Palit v. Lalit Mohan Dutta . [1915] 31 I.C 405. and Faiz Mahommad Khan v. Mahommad Saeed Khan . [1898] 25 Cal. 816. In the first of these cases it was said that when by the will an authority to adopt is given to a Hindu widow, it does not necessarily follow that the widow takes only a life estate in the property left to her under the will, especially when the power of disposition over the property is given to her, but that the intention of the testator is to be gathered from the terms of the will. In the second case it was said that the use of the word “malik” may not by itself create an absolute interest, but where a power of absolute disposition was conferred on the donee the provision indicates that it was intended to create an absolute interest in his favour; and where such interest has been given the Court will not cut it down on the strength of subsequent words unless they clearly have an effect to restrict it. The third case is an authority for the proposition that in the absence from the context or the circumstances affecting the properties of all evidence of a different intention, an unlimited gift of the profits is equivalent to an absolute gift of the corpus of the estate. Bearing these and other well-settled principles in mind we have to read the provisions of the will. As regards Hara Kumari the word “malik dakhalikar” (owner in possession) is used and the word “uttaradhikarini” is also used, but no power of absolute disposition is given, and on the other hand only a power to sell a portion of the properties for payment of the testator's debts is provided for; and it is further provided that on her death, the adopted son, if any, or if there be no adoption then the daughter, would take the properties. Hara Kumari was thus made not an absolute but a limited owner, and a widow's estate was all that was created in her favour.

12. As regards Sham Kumari the contention of the appellants is that she too had an absolute estate. Reference in this connexion has been made on their behalf to certain decisions, viz; Jogeswar Narain Deo v. Ram Chandra Dutt . [1896] 23 Cal. 670, where in the case of a bequest to a widow and a son with the words “for your maintenance” coupled with a power to alienate by sale or gift the property bequeathed it was held that the words “for your maintenance” did not reduce the interest of either legatee to one for life only [Biprodas Goswami v. Sadhan Chandra . A.I.R 1929 Cal. 801], in which relying upon the cases of Surajmani v. Babi Nath Ojha . [1908] 30 All. 84 and Sasimani Choudhurani v. Shib Narain Choudhuri . A.I.R 1922 P.C 63, it has been said that it is now a well established principle that if an estate were given to a man simply, without words of inheritance, it would, in the absence of conflicting contest, carry, by Hindu law, an estate of inheritance, and that this principle would also apply if the donee was a woman; Shaligram v. Charanjit . A.I.R 1930 P.C 239 in which a will of a Hindu testator after providing for certain bequests proceeded to lay down that the two wives of the testator and his daughter-in-law “are the heirs to whatever is left from the property” and there was no provision for dealing with the residuary property after the deaths of the three devisees and it was held that under the words used and the circumstances the will conferred upon the three devisees full rights of ownership in a one-third share of the residue of the estate; and a decision in Original Side Appeal No. 31 of 1930, Abhilash Chandra Haidar v. Dulal Chandra Dutt, decided on 16th July 1930 in which the gift having been “for maintenance,” and it being provided that the devisees would receive all the rents and profits which “they would enjoy as long as they lived,” it was observed that no power of disposition having been granted no absolute estate was conveyed. One cardinal principle in the construction of wills is that clear and unambiguous dispositive words are not to be controlled or qualified by any general expression of intention: Lalit Mohan v. Chuhhun Lal . [1897] 24 Cal. 834. But in the case of Bameswar Baksh v. Arjun Singh . [1901] 23 All. 194, their Lordships of the Judicial Committee held that:

“there seems also to be no doubt that in the case of a gift for maintenance the words “proprietor” and “for ever” will not per se create an inheritable estate,”

and their Lordships also observed that:

“in the case in Abdul Majid v. Fatema Bibi . [1846] 8 All. 39 where this was held the gift by a will was of the management of property, but it is also applicable in the construction of the gift in this case.”

13. In the decision of the Judicial Committee in the case of Sarajubala Debi v. Jyotir Moyee Debi . A.I.R 1931 P.C 179, the grant was for the maintenance of the grantee, the grantor's daughter, and there were the words:

“you and your sons born of your womb and the sons born of their loins in succession, and the daughters born of your womb ‘shall continue to enjoy, etc.,”

and it was held that full ownership was conferred. Proceeding to consider the terms of the “will” in the present case we find that the gift to Shyam Kumari was “for her maintenance.” The purpose of the grant being thus the maintenance of the grantee, that is a prima facie indication that the grant was intended to be only for her life: Rameswar Baksh Singh v. Arjun Singh. In our opinion the true construction of this grant could not be extended even by the use of the word “malik,” which in fact was not used in respect of her as it was in respect of Hara Kumari. No words of inheritance were used and no diapositive power was given, while on the other hand provision was expressly made to whom the property would go on her death. In our opinion there can be no question that the interest created in favour of Sham Kumari was not intended to extend beyond her life.

14. The next question to be considered is what is the character of the right that was created in favour of plaintiff 1. On a plain reading of the will it appears to have been intended that so long as Hara Kumari was alive plaintiff 1 would be entitled to get from her only an allowance of Rs. 20 per month and it was only on the death of Hara Kumari that he would get all the properties. The question as to what would happen in case Sham Kumari was alive after Hara Kumari's death, or in other words, whether the devise in favour of Sham Kumari which was for her life would prevail over the devise in favour of plaintiff 1, under which he would get all the properties on Hara Kumari's death, has not arisen and need not cloud the issue. It has been contended on behalf of the appellants that plaintiff 1 was not an heir expectant but, as an adopted son, had a vested right from the moment of his adoption. Reference has been made in this connexion to the cases next noticed. Bamundas Mukherji v. Mt. Tarinee . [1857-59] 7 M.I.A 169, in which it was held that where a childless Hindu in Bengal gives authority to his widow to adopt a son at his decease, but the widow does not exercise that power but claims succession, the mere fact of there having been authority given to her by her husband to adopt did not, before the adoption took place, supersede or destroy her rights as widow; Mt. Bhuban Moyi v. Ram Kissen . [1863-66] 10 M.I.A 279 P.C., in which it was held that an adopted son, taking by inheritance and not by devise, succeeds to the last full owner, namely the father, and when the adopted son dies leaving a widow who takes possession of the properties of the father for her widow's estate she acquires a vested interest of which she cannot be divested by a subsequent adoption (Padmakumari v. Jagat Kishore . [1882] 8 Cal. 302 and Kali Komul v. Uma Shankar . [1884] 10 Cal. 232 were also cited in this connexion); and Bipin Behari v. Brojo Nath . [1882] 8 Cal. 357. in which case a Hindu gave a power of adoption to his wife directing that so long as the wife should live she should remain in possession of all his properties, moveable and immovable, ancestral as well as self-acquired, and it was held following Bhugobotti Daee v. Chaudhuri Bhola Nath . [1876] 1 Cal. 104 that the widow took a life interest in her deceased husband's properties with remainder to the adopted son.

15. Other cases have also been referred to in which it has been held that where a Hindu widow alienated properties for a purpose not binding on the inheritance and thereafter adopted a son, the alienation was not binding on the adopted son and he could sue, during the lifetime of the widow to set aside the alienation and recover the properties so alienated, his cause of action having arisen at the date of his adoption (Vaidya Nath v. Sabitri Ammal . [1918] 41 Mad. 75, Rai Bonomali Roy v. Jagat Chandra . [1905] 32 Cal. 669 and Bachoo Har Kissen Das v. Mankore Rai . [1907] 31 Bom. 373 were also cited in this connexion). Pratap Singh v. Agar Singhji Rai Singhji . A.I.R 1918 P.C 192 has been referred to, in which it was held that a Hindu widow can exercise a power to adopt which is vested in her as long as the power is not extinguished and although her husband's estate is not vested in her, and that the rights of an adopted son except so far as they are curtailed by express texts, are in every respect the same as those of a natural born son. The case of Bhagabati Barmanya v. Kali Charan Singh . [1911] 38 Cal. 468 was referred to as showing that the rights of plaintiff 1 were those of an “after taker,” or of one with a vested remainder.

16. In dealing with this question the distinction between vested interest, contingent interest and spes successionis has to be carefully noted. An estate or interest is vested, as distinguished from contingent, either when enjoyment of it is presently conferred or when its enjoyment is postponed the time of enjoyment will certainly come to pass; in other words, an estate or interest is vested when there is an immediate right of present enjoyment or a present right of future enjoyment. An estate of interest is contingent if the right of enjoyment is made to depend upon some event or condition which may or may not happen or be performed, or if in the case of a gift to take effect in future, it cannot be ascertained in the meantime whether there will be anyone to take the gift; in other words, an estate or interest is contingent when the right of enjoyment is to accrue, on an event which is dubious or uncertain and as regards certainty, the law does not regard as uncertain the event of a person attaining a given age or of the death of somebody beyond which his enjoyment is postponed, because if he lives long enough the event, is sure to happen.

17. A spes successionis is merely an expectation or hope of succeeding to the property, a chance or possibility which may be defeated by an act of somebody else. In the case of a will such as the present, which was executed before the Hindu Wills Act 21 of 1870, came into force the mere appointment of an executor did not cause any property to vist in him and if as an executor he was entitled to hold the property he held it only as manager. But the will having constituted Hara Kumari not merely an executrix for administering the property with power to sell a portion thereof in order to pay off the testator's debts, but also the owner for her lifetime, and having postponed the succession of plaintiff 1, till after her death, the property since the testator's death and so long as she alive vested in her. That however does not mean that plaintiff 1 when he came to be adopted had only a spes succession is and nothing more. In the case of Bhupendra Krishna Ghose v. Amarendra Nath Dey . A.I.R 1915 P.C 101, in a, will testator appointed his wife as his sole executrix and after giving her authority to adopt a son provided:

“in case of death of an adopted son my said wife shall adopt one after another five sons in succession. If my said wife dies without adopting a son, or it such adopted son predeceased her without leaving any male issue my estate after the death of my said wife shall pass to the sons of my sister Sreemati Binodini Dasi who may be living at my death.”

18. The testator was survived by his wife; she adopted a son who died without issue; and the wife died without making a further adoption. Their Lordships pointed out that:

“under the Dayabhaga the testator had not only the power of authorizing his widow to adopt a son to him, and in case of the death of such adopted son to make other adoptions in order to ensure the performance of those religious rites on which depends his salvation in after life, but he can attach to such authority a direction that her estate should not be interfered with or divested during her life, just as he can postpone the succession of his natural born son by interposing a life estate.”

19. Their Lordships further observed:

“the estate was in the widow during her life; the gift over is expressly declared to take effect after her decease in case of the failure of the adoptions without securing the object the testator had in view.”

20. These observations sufficiently show that if the case before us was a Dayabhaga case, the estate would have remained vested in Hara Kumari till her death. From the decision in the case of Krishnamurthi Ayyar v. Krishnamurthi Ayyar, it is also clear that in respect of other schools of Hindu law also when the disposition is by will and the adoption is subsequently made by a widow who has been given power to adopt no light of a son who is subsequently adopted can affect that portion which is already carried away under the will. The result must be that under the Mitakshara law also the adoption of plaintiff 1, in the present case would not divest Hara Kumari of the estate which she had obtained. The question still remains whether, notwithstanding this position, plaintiff 1's interest during the lifetime of Hara Kumari was:

“the chance of an heir apparent succeeding to an estate, the chance of a relation obtaining a legacy on this death or kinsman or any other possibilities of a like nature,”

within the meaning of Section 6, Clause (b) of the Transfer of Property Act. Revemoners under the Hindu law are expectant heirs with a spes successionis: Sham Sundar v. Aohhan . [1899] 21 All. 71, Bahadur v. Mohar . [1902] 24 All. 94, Hamath v. Indar Bahadur . A.I.R 1922 P.C 403, Mataprasad v. Nageswar Sahai . A.I.R 1925 P.C 272. In the last mentioned case their Lordships observed:

“Reversioner possess individually what has been called a spes successionis, the bare possibility of succeeding to the estate of the last owner in case the widow dies leaving any one of them surviving entitled to take immediate possession after her, unless, of course, the husband has left the power to her to adopt a son.”

21. The estate remained vested in Hara Kumari till her death and the adoption of plaintiff 1 under the terms of the will did not divest her of the estate. The interest of plaintiff 1 nevertheless was a vested interest in the remainder capable of being transferred under the law. The estate or such portion of it of course would fall on plaintiff 1 on the demise of Hara Kumari, only a contingency being fulfilled, namely, that it was left after sale of such portion as Hara Kumari might make for paying off her husband's debts as the will authorized her to make. But the interest which plaintiff 1 had was a vested interest and in any event, whether vested or contingent, it was quite different from what is known in law as a spes successionis. A contingent interest or ownership is not always a mere chance or possibility of becoming the owner, that is to say, it is often more than a mere spes acquisitionis. In the case of Ma Yait v. The Official Assignee . A.I.R 1930 P.C 17, their Lordships of the Judicial Committee held that a person entitled under a deed of settlement made in his lifetime to a vested interest in the income of the trust fund and to an interest in the corpus contingent upon his surviving at the period of distribution can validly assign his interest upon the settlement, and his interest, whether vested or contingent, is something quite different from a mere possibility of the nature of the chance of an heir apparent succeeding, and something quite different from a mere right to sue, which are untransferable by the Transfer of Property Act, S. 6(a) and (e). In the present case, it is perhaps not possible to read the will as creating in favour of the adopted son a charge on the income of the properties which remained vested in the widow-But even then the will created a fixed right of future ownership in the properties in his favour.

22. The third question that falls for determination is how far were the rights of Hara Kumari and of plaintiff 1, affected by the mimansapatra. As already stated the mimansapatra was executed by plaintiff 1 in favour of Hara Kumari on the 11th Sravan 1291 (25th July 1884). It states:

“According to the terms of my father's will I have not nor can I have any title to or possession of any property, moveable or immovable, except to a monthly allowance of Rs. 20, as stated before, so long as you are alive.”

23. It states that there were various sorts-of quarrels between the mother and the son because the latter was demanding more money than what he was entitled to. It states further that the mother by efficient management had cleared the-heavy debts left by the testator and had succeeded in augmenting the income of the estate. It then states:

“As I cannot manage, unless I get a little-more monthly allowance than what is directed in my father's will and some cash money, you have according to my prayer and proposal agreed-to grant me from the estate during your lifetime an allowance of Rs. 4 more than what has been allowed to me under the will, and to pay me Rs. 60 cash for the present in case you get absolute title with power of gift and sale to the property (here is described property No. 5 and a half of property No. 4) etc.”

24. There is a further provision which runs in these words: “You have selected the site” (lying within the Khanabari or dwelling house certain boundaries described)

“for my residence in respect of which I shall have no power to make a gift or sale. I shall reside there regularly but I shall not be competent to transfer it by sale, gift or otherwise, neither shall it be liable to auction sale, etc., on account of the debts incurred by me; you are debarred from claiming that share in any way.”

25. By the document plaintiff 1 purported to create absolute title in favour of Hara Kumari in the said two properties and it was further provided that Hara Kumari would, according to the terms of the will, continue to possess and enjoy during her lifetime properties No. 1, a half of No. 2 (excluding the other half of it given to Sham Kumari), No. 3, No. 6 and a half of No. 4 and that on her death plaintiff 1 would own and possess all these last mentioned properties. The Subordinate Judge has held that this document is inoperative because regarded as a document by which Hara Kumari's right as a limited owner were enlarged to an absolute title it was hit by Section 6(a) of the Transfer of Property Act, and regarded as a deed of family settlement it was not valid as there was really no dispute between the parties at the time and there was no honest settlement of any bona fide claim on either side. As already stated plaintiff 1 did not mention this document in his plaint. In his evidence before the Court he denied that he executed it and further said that as he was a minor at the time he was incompetent to do so. The Subordinate Judge has held that this denial on the part of plaintiff 1 was untrue and that the evidence as to its execution such as has been given by the only attesting witness to it now surviving should be believed. We are of the same opinion. He has found that plaintiff 1 attained majority before its execution, and with this conclusion also we agree.

26. As regards his view that the rights of plaintiff 1 was of the nature contemplated by Section 6(a) of the Transfer of Property Act, we have already held otherwise. If a reversioner proposes to relinquish his interest in favour of the widow the widow's interest is not thereby enlarged since the reversioner had nothing to relinquish and a contract by a Hindu to sell immovable property to which he is the nearest reversionary heir expectant upon the death of the widow in possession and to transfer it upon possession accruing to him is void. The Transfer of Property Act, 1882, S. 6(a) which forbids the transfer of expectancies would be futile if a contract of the above character were enforceable: Annoda Mohan Roy v. Gour Mohan Mullick . A.I.R 1923 P.C 189. But the interest of plaintiff 1 not having been an interest contemplated by S. 6, Cl. (a) of the Act, the deed, both as a relinquishment and as creating an estoppel would, in our opinion, be operative. On the question whether the document was valid regarded as a deed of family settlement, we have been referred to such cases as Williams v. Williams . [1867] 2 Ch. A. 204., Hellan Dasi v. Duxga Das . [1906] 4 C.L.J 323., Satya Kinkar v. Satya Kripal . [1909] 3 I.C 247., Upendra Nath v. Bindeswari . [1915] 32 I.C 468., for the proposition that a family arrangement might be upheld although there were no rights actually in dispute at the time when it was made that it is a mistake to suppose that the principle is applicable only of arrangements for the settlement of doubtful or disputed rights but it also extends to arrangements made among members of a family for the preservation of its peace and that where no fraud, mistake inequality of position, undue influence or coercion or ground of a similar nature has been established, Courts would not be bound to scan with much nicety the quantum of consideration.

27. Reference has also been made to such cases as Mata Prasad v. Nagesivar Saha, in which it has been held that where a Hindu widow in possession of her husband's estate has entered into a compromise of a claim by a reversioner and the compromise is in the circumstances of a family settlement which is prudent and reasonable, it is binding upon the estate; Kanhai Lal v. Brij Lal . A.I.R 1918 P.C 70, in which an appellant who had entered into and taken the benefit of a compromise into which he had entered at a time when he had no right of any kind to any share in the property but had the mere expectancy of a reversioner was held precluded from claiming as reversioner subsequently and Ramgowda Annagowda v. Bhau Saheb . A.I.R 1927 P.C 227 in which alienation made by a Hindu widow under a transaction which was regarded as a family arrangement was held binding on the reversioner who had attested the deeds by which the alienation had been made and had himself acquired a part of the estate by one of such alienation, all such alienation being regarded as parts of one and the same transaction. On behalf of the respondents reference has been made to such cases as Krishna Chandra v. Hemaja Shankar . [1918] 45 I.C 477., Shamlal Ghose v. Bameswari Basu . [1916] 56 I.C 273. and Satis Chandra v. Kalidasi . A.I.R 1922 Cal. 203, for the proposition that a deed of family settlement presupposes a bona fide claim on either side and an honest settlement thereof.

28. On reading these decisions with care it seems to us that if there is one principle that follows from all of them un-mistakeably, it is this that the arrangement must be one concluded with the object of settling bona fide a dispute, arising out of conflicting claims to property, which was either existing at the time or was likely to arise in future. Bona fides are the essence of its validity, and from this it follows that there must be either a dispute or at least an apprehension of a dispute, a situation of contest which is avoided by a policy of giving and taking or else all transfers or surrenders will pass under the cloak of a family arrangement. Three cases of the Judicial Committee may be cited in this Connexion. In the case of Siweswar v. Mahesrani . A.I.R 1921 P.C 107 a surrender partial as distinguished from a total relinquishment of the widow's interest in the property, which would be otherwise invalid, was upheld on the ground that it was an arrangement made in performance of a family compromise following upon a dispute between the widow and the next reversioner. In that case their Lordships observed:

“An arrangement by which a reversioner as a consideration for the surrender promised to convey a portion of the property to a nominee or nominees of the lady surrendering might fall under the description of a device to divide the estate. It is here that the fact of the arrangement being of the nature of a compromise becomes of importance. Once the bona fides is admitted we have the situation of a contest under which if the decision were one way, the estate was carried to the daughters away from the family, and a litigation in the course of which the estate would probably be much diminished. The situation made it a perfectly good consideration for the lady, in order to avoid these results, to consent to give up her own rights by surrender. On the other hand it was a good consideration for the reversioner to get rid of the will and in a question with the daughters, who would take all by the will, to agree to give them a half of the property.”

29. Man Singh v. Nowlakhbati . A.I.R 1926 P.C 830, was a case in which there was nothing to show that there was any dispute, and a partial surrender by the widow was not upheld on the ground of its being a family arrangement. In the case of Ramgowda Annagowda v. Bhau Saheb in which their Lordships observed:

“It was argued that Annagowda's contingent interest as a remote reversioner could not be validly sold by him as it was a mere spes successionis and an agreement to sell such interest would also be void in law. It is not necessary to consider that question because he did not in fact sell or agree to sell his reversionary interest. It is settled law that an alienation by a widow in excess of her powers is not altogether void but only voidable by the reversioner, who may either simply or as a body be precluded from exercising their right to avoid it either by express ratification or by acts which treat it as valid or binding.”

30. Their Lordships further observed:

“Their Lordships conclude that the circumstances strongly point to the three documents being part and parcel of one transaction by which a disposition was made of Akkagowda's estate, such as was likely to prevent disputes in the future and therefore in the best interests of all the parties.”

31. So far as the case before us is concerned, if the words used in the deed are taken at the foot of the letter, it is difficult to construe it as suggesting that there was a dispute or a claim on either side, and lesser still that any settlement of a dispute or claim was intended. The deed recites the motive for it in these words:

“Whereas bad feelings between mother and son may cause injury in future to the father's estate and cause various inconvenience to both of us.”

32. The document purports to acknowledge that Hara Kumari had excellently administered the properties, that plaintiff 1 had no title, that the quarrel which he made was confined to demands of some extra moneys for his allowance and that the deed was executed because Hara Kumari was in need of having from plaintiff 1 something that she had not and which was in the power of plaintiff 1 to confer on her, namely, an absolute title to two of the properties. The evidence as regards a supposed dispute which was adduced on behalf of the plaintiff has been, and in our opinion, rightly disbelieved by the Subordinate Judge. It is true that notwithstanding the words of the deed we may, if materials be available, find in excess of or contrary to its terms that other circumstances existed. But we can find none such upon the record before a family arrangement binding upon the estate or upon persons who were not parties to it, the deed in our opinion was inoperative. But we do not see why the deed would not bind plaintiff 1 to the extent that he, for consideration which he received and presumably continued to receive under it, created an absolute right in favour of Hara Kumari. We can find nothing on the materials on the record which would go to vitiate the deed or do away with its operative character. No inadequacy of consideration, no unfairness of the bargain, no vitiating cause, no question as to the good faith of a transaction as between parties one of whom stood in relation to the other in a position of active confidence, was pleaded; and the defendants were never called upon to meet any such case. Stray circumstances that plaintiff 1 had come of age only a year before or that the deed was executed in the house of Joy Narayan, who, upon the evidence, appears to have been a dominating factor in all that used to be done by Hara Kumari or in her name, would hardly raise such a presumption as would justify us in holding that the transaction should not be upheld. Moreover, during the long series of years that Hara Kumari lived since the date of the deed, plaintiff 1 never repudiated it, never raised a finger by way of protest, and on the contrary in 1294 (1887) when he executed the Nadavinama and when there fore an opportunity arose to have the rights of the parties further adjusted, or when, at any rate, he could have asserted his right to question the mimansapatra he did not consider it worth his while to do so.

33. In our opinion therefore the effect of the mimansapatra was to create in favour of Hara Kumari an absolute title in property No. 5 and a half of property No. 4, and that plaintiff 1, and for the matter of that plaintiff 2 who derives his title from him, is not competent to challenge that title. The fourth question is, what rights did Maharaja Sashi Kanta acquire by his purchase from Hara Kumari and Sham Kumari and under the Nadabinama executed by plaintiff 1. The Nadabinama was executed by plaintiff 1 on 1st Bhadra 1294 (17th August 1887) at a time when the latter had already, by a kabala Ex. G 2, purchased from Hara Kumari properties Nos. 1, a half of 2, No. 3 and No. 6. The other half of property No. 2 had been bequeathed to Sham Kumari by the will. In all the properties so purchased by Maharaja Surjya Kanta, Hara Kumari under the mimansapatra had no absolute but only a limited right. Under the Nadavinama plaintiff 1 for a consideration of Rs. 2,240 admitted that the sale by Hara Kumari in favour of the Maharaja was for justifying necessity and it was agreed between the parties, that is to say, plaintiff 1 who executed the document and the Maharaja who accepted the document, paid the consideration for it, and acted under it, that, property No. 6 would belong permanently to the Maharaja, plaintiff 1 having no right to it thereafter, and that the other properties, namely, No. 1, a half of No. 2 and No. 3 would reevrt to plaintiff 1 on Hara Kumari's death. The Subordinate Judge has held that so far as property No. 6 is concerned the document embodies a consent on the part of plaintiff 1, for consideration, to the alienation which Hara Kumari had made in respect of this property and we agree in this view. The Maharaja's title to property No. 6 therefore thus became an indefeasible one. As regards properties No. 1, a half of No. 2 and No. 3 the document embodies an admission on the part of plaintiff 1 that the sale by Hara Kumari was for legal necessity, but this admission was coupled with a stipulation that the sale would stand good only during the lifetime of Hara Kumari and that the properties would revert to plaintiff 1 on Hara Kumari's death.

34. It has already been stated that Hara Kumari obtained an absolute title to a half of property No. 4 under the mimansapatra. She however conveyed to Sham Kumari a half of property No. 4 by a deed (Ex. 1). On 10th Chaitra 1293 (23rd March 1887) in which it was recited that the other half of that property had already been acquired by Sham Kumari by purchase. Sham Kumari had obtained a half of property No. 2 under the will. On 21st Assar 1294 (4th July 1887) by a kabala (Ex. G-1) she sold to Maharaja Sashi Kanta the half of property No. 2 and the whole of property No. 4. Out of these properties she had absolute title in only a half of property No. 4 on the strength of Hara Kumari's title under the mimansapatra. By a kabala (Ex. G) dated 3rd Bhadra 15395 (18th August 188b) Maharaja Surjya Kanta purchased property No. 5 from Hara Kumari in which she had absolute title under the mimansapatra. The result of these transactions was that Maharaja Surjya Kanta acquired an absolute title to a half of No. 4, and to No. 5, but in the other half of No. 4 he acquired Hara Kumari's (widow's) interest only and in the half of No. 2 only Sham Kumari's life interest.

35. The purchase which Maharaja Surjya Kanta made in respect of a half of property No. 2 in which Sham Kumari had a life interest only cannot be justified on any ground whatever. As regards his purchases in respect of properties in which Hara Kumari had a widow's estate, for the purchase to have conferred on him an absolute title it must be established either that there was, in fact, legal necessity or at least that he had made proper and bona fide inquiry as to the existence of such necessity. The Subordinate Judge has dealt with this part of the case in great detail and with commendable care. We entirely agree in the conclusion at which he has arrived as a result of a very careful and sifting investigation. On the question whether in fact there was justifying necessity, the evidence is practically nil, while the collection papers of the period, the existence of which is established, have not been produced on excuses which are puerile. The responsibility for such non-production must, upon the materials on the record, rest with the Maharaja, and defendant 10, and the presumption is legitimate that if produced they would have shown the contrary. The recital in the mimansapatra as regards the condition of the estate at the time strengthens and supports this presumption.

36. There is nothing to suggest that the legitimate expenses of the ladies and the purposes for which the moneys were required as recited in the deeds could not be met out of the income of the properties; at least there is no evidence to show that they could not. It is not disputed that there is absolutely no evidence that Maharaja Surjya Kanta made any inquiry as regards the necessities for which the sales were made, but what is relied on behalf of the appellants is the principle enunciated by the Judicial Committee in the case of Banga Chandra v. Jagat Kishore . A.I.R 1916 P.C 110. For three reasons the principle in our opinion should not apply: firstly, because although the witnesses to the transactions are not available, documentary evidence in the shape of collection papers are still available but have been withheld; secondly, because all the probabilities and circumstances that appear in the case are utterly inconsistent with the recitals in the documents; and thirdly, because the recitals themselves appear to have been made with an ulterior purpose and not as representing the truth. A perusal of the oral evidence in the case cannot fail to impress one with the idea that plaintiff 1, so far as Hara Kumari was concerned, was a sort of a castaway son, with vices which made him obnoxious and that he was not in the good graces of Hara Kumari or of her guiding spirit Joynath Rai. Plaintiff 1's statements in the Nadabinama upon which stress has been laid on behalf of the appellants cannot therefore be implicitly relied on.

37. The result of our conclusions on the four questions that we have dealt with so far is that the Maharaja should be held to have acquired an absolute title, which it is not open to the plaintiffs to challenge, so far as a half of property No. 4 and properties Nos. 5 and 6 are concerned, but not as regards the other properties. The other objections urged on behalf of the appellants will now have to be considered. But before dealing with them we think it necessary to state that in the Court below there were two issues raised challenging the legitimacy and adoption of plaintiff 1. Under these two issues a mass of evidence was adduced and there was an elaborate trial. They were found in favour of plaintiff 1 and against the defendants who raised it. Before this Court the Maharaja has expressly disavowed all connexion with those issues and his learned advocate has told us that it was mainly because such defences were taken that he has dissociated himself from the other defendants and has preferred a separate appeal. We congratulate him on the honourable course that he has adopted.

38. It should also be mentioned here that not one word has been said before us on behalf of the other defendants as against the findings of the Court below upon those issues. Those findings have not been challenged before us in any manner whatsoever.

39. An objection has been raised on behalf of the Council that the suit, in so far as it was against the Council, was not properly constituted. It appears that on the objection of defendants 3 to 5 plaintiff 1 on 29th July 1922 applied for amendment of the plaint by adding the persons named in the petition as pro forma defendants, and this application was granted, so, that Maharaja Sashi Kanta, Mr. Brojendra Kishore Roy Choudhuri and Sir Asutosh Ohoudhuri, trustees on behalf of the National Council of Education, were added as pro forma defendants 6, 7 and 8. On 17th April 1923 Sir Asutosh filed a written statement. Sir Asutosh died thereafter and on that on 20th June 1924 on the application of plaintiff 1 Sir Profulla Chandra Roy and Mr. Hirendra Nath Dutt were substituted or rather brought on the record, the former as the President and the latter as the Honorary Secretary of the Council. Mr. Dutt in his written statement filed on 6th September 1924 pleaded that

“the National Council of Education being a Society registered under the provisions of Act 21 of 1860 the present unjust suit instituted without giving notice to the Society under the provisions of S. 6 of the Act is fit to be dismissed”

and this objection was urged before the Court. Thereupon the plaintiffs sent notice to the President and the Honorary Secretary of the Council to appoint a person who could be sued on their behalf. The Council thereupon nominated a gentleman for the purpose and communicated the fact of such nomination to plaintiff 1. That gentleman being unwilling to act communicated his refusal to the Council and also spoke about it to plaintiff 1's pleader and it is admitted that no other person has since been appointed in his place.

40. Plaintiff 1 thereupon put in a petition on 19th December 1924 informing the Court of the fact that the gentleman nominated had communicated his refusal to the Council, and praying that the suit might be allowed to proceed against the Council with the President and the Honorary Secretary representing them. It is not said that there are any Rules and Regulations of the Council determining in whose name the Council is to be sued. But what is argued is that though the gentleman nominated communicated his refusal to act as such to the Council, he had not done so to the Court, and that therefore plaintiff 1 should have brought him on the record, and if he said before the Court that he was not willing to act then plaintiff 1 should have again asked the Council to nominate another person and so on. We cannot agree in this view of the law. We think that no effective nomination having been made by the Council, the suit, constituted as it then was with the President and the Honorary Secretary as defendants, was validly constituted so far as the representation of the Council was concerned.

41. A contention has been urged on behalf of the other appellants that the suit in respect of properties No. 1, a half of No. 2 and No. 3 was not maintainable in its present form, but the plaintiffs' proper remedy was by a suit for specific performance and that the plaintiffs have been deprived of that remedy by reason of the principle enunciated in the decision of the Judicial Committee in the case of Srish Chandra Roy v. Bonomali Roy . [1903] 31 Cal. 584. A passage in the Nadavinama is referred to in this connexion. It runs in these words:

“After mother's death you will relinquish your title and possession of properties of Sch. 2 in my favour. If after mother's death you fail to give up the properties of Sch. 2 in spite of my asking for it in a proper way then I shall be competent to take possession of the properties of Sch. 2 by taking proper steps.”

42. The properties in Sch. 2 to the deed are the properties named above. In the case on which reliance has been placed as above what happened was this: two parties had made a compromise comprising an agreement, the chief consideration for which was the execution of an ekrar by one party acknowledging the title (as adopted son) of the other party to the agreement, and the former had subsequently by his conduct (in bringing a suit to set aside the adoption and alleging that the ekrar had been obtained from him by fraud) attempted and in a great measure succeeded in depriving the latter of the benefit of the agreement; and it was held in a subsequent suit by the heirs of the party, who had tried to rescind the agreement, that there had been a failure of consideration and the conduct referred to was at variance with and amounted to a subversion of the relations intended to be established by the compromise, and that specific performance of the agreement could not be enforced. In the present case an application which the plaintiff made for amendment of the plaint by inserting therein an allegation of undue influence and minority in connexion with the mimansapatra was disallowed by the Court on 13th August 1925 on the ground that the amendment was asked for after an inordinate delay since the institution of the suit and the framing of the issues, and that the amendment prayed for would change the character of the plaint and put the defendants to inconvenience. The consideration for the Nadavinama, in so far as it was a consideration receivable by the Maharaja, has not failed so far. It is difficult to see what bearing the decision in the case cited can have upon the present case on the facts just stated. It would be enough, we think, for us to say that even if plaintiff 1 may have had a remedy in the shape of specific performance open to him, the present suit for declaration of title and recovery of possession was also open to him as an alternative remedy.

43. Another ground urged, though somewhat faintly, was that the suit was barred by limitation. Instituted as it was within 12 years of the deaths of Hara Kumari and of Sham Kumari we cannot see how it may be held to be barred. Articles 140 and 141, Sch. 1, Lim. Act, both prescribe that period for a suit of this nature. It has also been suggested that the suit was not maintainable without a prayer for setting aside the mimansapatra and the Nadavinama, and as a suit for that purpose would be governed by Article 91, Lim. Act, the present suit is barred. The question, in our opinion, does not arise, inasmuch as the plaintiffs under our judgment, will get only such relief as they are entitled to on the footing of the said deeds being binding on them. It has further been contended that plaintiff 2 having purchased, on 25th February 1925, some of the properties under a transaction which is of a champertous character, the suit should not have been allowed to be proceeded with. We have examined the nature of the transaction. It is only some of the properties, namely, Nos. 1, 2, 3, and 4 and a half of No. 6, that were purchased, and there was nothing in the bargain which may be regarded as extortionate, unconscionable or inequitable and nothing that may be regarded as gambling in litigation or oppressive to the opponents by helping in an unrighteous litigation. In any case plaintiff 1 having continued as a plaintiff, there can be-no possible objection to a decree being passed in the suit in favour of the two-plaintiffs jointly.

44. The result then is that the plaintiffs, in our judgment, are entitled to a decree declaring their title to properties Nos. 1, 2 and 3 and a half of No. 4 and entitling-them to recover possession thereof from the defendants in respect of those properties. The suit, in so far as it related to the other half of property No. 4 and properties Nos. 5 and 6, should be dismissed. There remains only the decree-for mesne profits to be considered. The-Subordinate Judge has made a decree for Rs. 23,000 odd (as due for the period 13th Ralgun 1326 to 5th Assar 1330) jointly and severally against the trustees in their representative character, viz., defendants 3, 4 and 5 and against the beneficiaries, viz., the Maharaja defendant 1 and the Council as represented by defendants 7, 8ka and 8kha. He has also made a decree for Rs. 28,000 odd (as due for the period 6th Assar 1330 to 1334) jointly and severally against the aforesaid parties and also the lessees, defendants 9 and 10. He has also ordered that the plaintiffs would be entitled to-mesne profits from all these parties from the date of the decree to the date of recovery of possession. This decree in our judgment cannot be supported.

45. In the first place, the issue that was framed on the question of mesne profits was in these words: “No. 9—Is the plaintiff entitled to mesne profits?” There was nothing in the issue to indicate that an inquiry into the quantum of mesne profits was at all contemplated. The plaintiffs adduced no evidence on the question. The defendants filed the Record of Rights to prove, as far as can be gathered, the values of the properties. This Record of Rights gave certain particulars as regards rents recoverable and revenue payable and it is only on the basis of these materials that the mesne profits have been assessed. As there has been no proper investigation with proper-opportunity to the parties to adduce evidence the assessment cannot stand. Then again, the foundation of liability for, mesne profits is the fact of dispossession, of the plaintiffs and possession by the trespassers. This position does not seem to have been borne in mind in making the decree. Two periods have been formed: one from 13th Falgun 1328, i.e, the date of death of Hara Kumari to 5th Assar 1330, i.e, the date prior to the lease of defendants 9 and 10, and for this period the trustees and the beneficiaries have been made liable; and the other, from 6th Assar 1330, i.e, the date of the lease of defendants 9 and 10 up to the date of the decree, and for this period the trustees, the beneficiaries and the lessees have been made liable. It is not possible to defend the decree in be far as it is against the beneficiaries, because as beneficiaries they were not concerned in the plaintiffs' dispossession and it is not and cannot be suggested that they were ever in possession. They may have received moneys under the trust deed out of the collections but the trust deed included these as well as other properties.

46. It is quite true that the source of the moneys which the Council did or would receive was partly, at any rate, the collections from these properties, but when they did or would receive the moneys, there would be nothing to show from which of the properties covered by the trust deed they came. In no sense can they be regarded as having intercepted the profits which should have gone to the real owner. The decree as against the Council and as against the Maharaja also, in so far as he was a beneficiary, cannot possibly stand. But the Maharaja was in possession as a trespasser though he subsequently resigned his trusteeship on 14th September 1920. By so resigning he could not absolve himself, as against the plaintiffs, of his liability for mesne profits which arose by reason of the fact that he was a trespasser, though this fact has to be taken into account in apportioning the liabilities of the different trespassers inter se. Thirdly, when the trustees, defendants 3, 4 and 5, were added as defendants on 12th August 1921, the plaint was amended on a prayer contained in a petition filed on behalf of plaintiff 1 on that date, and the effect of this amendment was to extend the claim for mesne profits as against those defendants as well. But the Council as well as the lessees weie brought on the record as pro forma defendants only. It is true that there is no such thing in the Code as pro forma defendants, but the distinction is obvious and material because as against pro forma defendants the plaintiff claims no relief and they are added only because it may be proper to have the adjudication made in their presence. The plaintiffs therefore in the present case are not entitled to any relief in the shape of mesne profits as against the lessees, defendants 9 and 10, though it may be that those defendants are liable for contribution to other defendants under the terms of the lease under which they hold. These complications have caused us considerable anxiety. In the case of a claim for mesne profits two courses are left open to the Court. A decree for mesne profits may be passed jointly and severally against all the trespassers who may have jointly kept the plaintiffs out of possession for any particular period, leaving them to have their respective rights adjusted in a separate suit for contribution. Or the respective liabilities of such trespassers may be ascertained in the plaintiff's suit against them, and a decree on the basis of such several liabilities may be passed as against the respective trespassers in plaintiff's favour.

47. It is doubtful if Merry Weather v. Nixam . [1799] 8 T.R 186, which denied a right of contribution as between joint wrong-doers, is still good law in England (see the observations of Lord Herschell in Palmer v. Wick Steam Shipping Co.)51 (at p. 324). The rule enunciated in this decision has since been considerably modified: see the cases cited in Kamala Prosad v. Kishori Mohan . A.I.R 1928 Cal. 180 at p. 355. In any case, the applicability of the doctrine to this country has been repeatedly questioned, e.g, Siva Panda v. Jujusti Panda . [1902] 25 Mad. 599, Nihal Singh v. Collector of Bulandshar . [1916] 38 All. 237 and Kamala Prosad v. Kishori Mohan, Mookerjee, J., dealt with the question in an elaborate judgment in the case of Ramratan Kapali v. Aswini Kumar Dutt . [1910] 37. Cal. 559. He observed:

“It cannot be laid down as an inflexible rule-that in every case of tort, the Court is bound to pass a joint decree against the wrong-doers making each jointly and severally liable for the whole amount decreed…. In cases therefore in which the controlling general principle, namely, that where acts of several persons by design, or by conduct, tantamount to conspiracy contribute to the commission of a wrong they are jointly liable, is not applicable, the rule of joint liability also ceases to be applicable.”

48. In that case it was held that in respect of means profits which accrue during the pendency of a suit for possession the liability of different tenure-holders of the same degree, and of separate under-tenure-holders of different degrees, should be apportioned according to the shares of the profits intercepted by each. This decision has been dissented from by Page, J., in the case of Promoda Nath v. Secy. of State . A.I.R 1927 Cal. 182, but the correctness of the dissent has been questioned in Kamala Prosad Sukul v. Kishori Mohan Pramanih at p. 354 (of 48 C.L.J). It may be mentioned here that the decision in Promoda Nath Roy's case has since been reversed by the Judicial Committee: see Qurudas Kundu v. Hemendra Kumar . A.I.R 1929 P.C 300 which will presently be noticed and which is undoubtedly an authority in support of the view that separate decrees on the footing of several liabilities may and sometimes should be made.

49. On behalf of the Maharaja it has been broadly contended that he can only be liable for the period since the date of resignation of his trusteeship, for such amount as might have actually come to his hands, and reliance for this purpose has been placed upon the decisions of the Judicial Committee in the cases of L.P.E Pugh v. Ashutosh Sen . A.I.R 1929 P.C 69 and Gurudas Kundu v. Hemendra Kumar. The former case was an action of trover, the plaintiffs claiming damages for the conversion by the defendants of specific moveable property, namely, coal gotten by the defendants from the plaintiffs' mines. The facts were that the appellants having acquired a coal-mining lease of certain property had encroached upon the neighbouring lands of the plaintiffs' landlords under whom the plaintiffs held the same; and then the appellants sublet the lands of the coal mining lease to certain other persons who, while holding under the sub-lease did similar encroachments. The plaintiffs sued the appellants and their sub-lessees and in that suit it was held that the appellants were not jointly liable with their sub-lessees for the coal which the latter had taken. Their Lordships observed’.

“But in any case this appellant was not liable. The suit was not for an account of profits received by him, but a suit for damages for trover. He was not however the principal of the other defendants nor a joint tortfeasor with them. There was not evidence that the appellant knew of the encroachment by the other defendants. Although he received royalties upon all the coal extracted there was nothing to show him that part of the coal was from the land encroached upon. The sub-lease given by the appellant provided for royalties upon coal for the demised land only.”

50. In the latter case the facts were these. Land to which three families of zamindars were entitled in certain shares became diluviated. On reformation the Government took possession and let it out on a patni lease. One of the three families recovered the land from the Government and continued the patnidar in possession. Subsequently members of the other two families sued the family who had recovered the land and the patnidar, claiming possession of their shares and mesne profits. The suit was decreed in these words:

“It is ordered that the claim of this suit with costs and mesne profits and interest against the principal defendants and the defendants subsequently added…. The amount of mesne profits to be ascertained in execution.”

51. Two questions arose: first the period for which mesne profits should be allowed; and second on what basis mesne profits should be computed. On the first question it was held that the decree meant that mesne profits were to be recoverable up to the date of the plaintiffs' re-admission to the land. On the second question it was held that mesne profits recoverable from the principal defendants who had recovered the land would be on the basis of the rent they received from the patnidar and not upon the produce value of the land. Their Lordships were of opinion that the patnidar could hardly be regarded as a trespasser and in one sense the principal defendants also were not trespassers, but whatever it was the decree was not a proper joint and several decree. Their Lordships observed:

“They do not view the decree as a joint and several decree. They think it is to be construed applicando singula singulis. Lot this test be taken. Suppose any one of the numerous defendants had refused to quit possession, could all the other defendants have been put in prison because the one defendant was in contumacy to the decree? What authority is there for saying that under such a decree as against any one particular defendant you are entitled to say: I will hold you liable not for mesne profits which you got according to the terms of the Act, but for mesne profits which somebody else got and with whom under the decree, you are liable? Their Lordships think it would be the height of injustice to hold that and they do not see they are bound to hold it.”

52. These two decisions, in our judgment, do not support the broad proposition for which the Maharaja's learned advocate has contended and although it is true that as amongst the defendants inter se, when their rights are to be adjusted, none can rightly claim from others what the latter could not possibly have received, it is not possible to hold that because one particular trespasser did not actually receive more than some particular amount the plaintiff's claim must, in all circumstances, be limited to that particular amount. The principles on which mesne profits have to be calculated have been further explained by the Judicial Committee in the case of Harry Jzempson Gray v. Bhagu Mian . A.I.R 1930 P.C 82, in which their Lordships have said that under the definition of “mesne profits” in S. 2, sub-S. 12 of the Code the sum to be awarded is not what the plaintiff has lost by his exclusion from the land, but what the defendant has made or might with reasonable diligence have made by his wrongful possession.

53. It has already been said that the plaintiffs are not entitled in the present suit to have a decree for mesne profits as against the lessees defendants 9 and 10. This however does not mean that the other defendants who will be liable for mesne profits in the present suit will have no right of contribution as against them, should the lease under which the said lessees, defendants 9 and 10, entitle them to such contribution, a question on which we express no opinion as no arguments have been addressed to us on the rights of the different defendants inter-se. It is unfortunate that these two defendants were at all allowed to come in the suit. They took the lease on 6th Assar 1330 (=21st June 1923) when the suit was pending. On 19th July 1923 they applied to be added as defendants. Plaintiff 1 objected. The Subordinate Judge by an order made on 14th August 1923, held that the lessors of defendants 9 and 10 having been made parties, the said defendants too were necessary parties and that although the doctrine of lis pendens would apply yet the Court should look to the interest of these defendants and add them as parties. In the same order the Subordinate Judge further observed thus:

“The plaintiff is quite justified in urging that the addition of new parties will cause great delay in the disposal of the suit…. The plaintiff may therefore be reasonably apprehensive of further delay, worries and troubles if the applicants are now made defendants……This applicant (meaning defendant 10), it seems, insisted on the taking of the perpetual lease, in the hope of a compromise, finding that the plaintiff is in pecuniary embarrassments. It would naturally follow that the applicants would attempt to the out the plaintiff to submission by dilatory practices.”

54. Yet the learned Judge ultimately made an order for the addition of these two defendants conditioned upon their paying certain costs. The costs were paid, but they were not allowed to be withdrawn by plaintiff 1. Eventually plaintiff 1 made defendants 9 and 10 and the other members of their family, viz., Nos. 11 to 18 all pro forma defendants. The apprehension as to delay and harassment has been amply justified and yet the plaintiffs get no relief in the shape of mesne profits against these defendants. A little more of firmness on the part of the Court would have at least avoided the protracted investigation on questions which were raised at the instance of these two defendants only. The result of all these considerations, in our judgment, is that the decree of the Court below would be varied in the following manner: A decree should be passed of the nature contemplated by O. 20, R. 12, sub-R. (1) of the CPC, declaring the plaintiffs' title to properties Nos. 1, 2, 3 and half of 4 of Sch. 1 and entitling them to recover possession of the said properties against all the defendants with the exception of defendant 2.

55. The suit in so far as it related to the other half of properties No. 4 and properties Nos. 5 and 6 and the property in Sch. 2 should be dismissed. An inquiry should be directed as regards mesne profits to be recovered from defendant 1 and defendants 3, 4 and 5 for the period commencing from 13th Falgun 1326 (the date of Hara Kumari's death) and ending with 5th Assar 1330 (prior to the date of the lease in favour of defendants 9 and 10), the two sets of defendants being made severally liahle to the plaintiffs for such amounts as they may under the law be justly liable for. An inquiry should also be directed as regards mesne profits to be recovered from defendant 1 and defendants 3, 4 and 5 for the period commencing from 6th Assar 1330 (the date of the lease in favour of defendants 9 and 10) the two sets of defendants being made severally liable to the plaintiffs for such amounts as they may under the law be justly liable for. The said two sets of defendants should also be held liable for mesne profits to the plaintiffs from the date of the decree till the date of recovery of possession. The plaintiffs' claim for mesne profits against the National Council of Education represented by defendants 7, 8 (ka) and 8 (kha) should be dismissed. And the question of contribution in respect of mesne profits recoverable under the decree from the said two sets of the defendants for the period commencing from 6th Assar 1330 (the date of the lease of defendants 9 and 10) and onwards as between them and defendants 9 and 10 should be expressly left open. On the inquiry being completed a final decree as contemplated by O. 20, R. 12, sub-E. (2) of the CPC will be passed by the Court below. As regards the costs of the Court below the plaintiffs and the defendants who appeared in that Court will get their costs in proportion to their successes, the proportion being calculated on the basis of the values of the properties as given in the schedules to the plaint. As regards the appeals, No. 387 of 1928 and No. 389 of 1928 will be partly allowed and No. 458 of 1928 will be dismissed. Having regard to the proportion of success of the parties in this Court we think the proper order to make is that each party should bear his or their own costs. The costs of the paper-book have already been apportioned and we do not vary that order.

B.V/R.K

56. Order accordingly.