Bhola Nath Banerjee v. Sarbamangala Debi

The Judgment of the Court was as follows:—

Mukherjea, J.:— This is an appeal on behalf of the Defendants and arises out of a suit commenced by the Plaintiff for recovery of arrears of a maintenance allowance payable to her under the Will of her grand-father, whose estate is now in the hands of the Defendants.

The facts are not in dispute. The Plaintiff's grand-father, one Kali Das Mukherji, died leaving behind him a Will which provided inter alia that a maintenance allowance at the rate of Rs. 25 per month should be paid to the Plaintiff out of the estate left by the testator. Whoever was in possession of the estate for the time being was enjoined to pay this allowance. Under the terms of the Will the properties of the testator were to vest in the 1st place in his daughter-in-law Bindurekha, the mother of the Plaintiff, who was to enjoy the same in the limited rights of a Hindu widow during her life-time. After her death, the testator's daughter, Sarat Kamini, was to possess the estate in similar rights, and when she died, it was to go absolutely to the present Defendants who are the sons of Sarat Kamini. Bindurekha had taken out letters of administration with a copy of the Will annexed and while she was in possession of the estate, a suit was instituted by the present Defendants and their mother for removing her from the position of an administratrix and for other reliefs. To this suit the present Plaintiff was also made a party. The suit ended in a compromise on the basis of which a decree was passed, and its terms, inter alia, were that both Bindurekha and Sarat Kamini would surrender their whole interests in favour of the present Defendants who were to get the properties under the Will of Kali Das after the death of these two widows. Bindurekha got, in lieu of surrendering her rights, an annuity of Rs. 800 a year charged on certain properties. Provisions were made in the solenama for paying up the arrears of maintenance allowance payable to the Plaintiff, and the present Defendants expressly undertook that in future they would go on paying regularly the sum of Rs. 25 a month to the Plaintiff as directed by the Will of Kali Das.

As this allowance was not paid, the Plaintiff was obliged to institute this suit, and she claimed allowance for a period of 10 years at the rate of Rs. 300 a year, together with interest upon it at the rate of 12 per cent per annum. The Plaintiff also prayed that the maintenance allowance might be declared to be a charge upon the estate of Kali Das now possessed by the Defendants. The Defendants, in their written statement, denied that the Plaintiff had any right to the legacy, and they set up the plea of limitation as a bar to the suit. They further pleaded that the Plaintiff was not entitled to a declaration of charge as prayed for by her and that the interest claimed was exorbitant.

The trial Court overruled all these defences, and decreed the Plaintiff's suit in its entirety. On appeal the decision has been affirmed.

Mr. Bagchi who appears in support of the appeal has raised three points for our consideration. In the 1st place he has argued that the suit is barred by limitation. His second contention is that no charge was created in the present case and no declaration of charge could be made in favour of the Plaintiff. The last point raised is that no interest on the legacy at a rate exceeding 6 per cent per annum can be allowed in law.

So far as the 1st point is concerned, both the Courts below have held concurrently that the suit being one for recovery of a legacy payable under the Will of Kali Das, is governed by Art. 123 of the Limitation Act, and the Plaintiff has a period of 12 years from the date when the legacy became recoverable. This view is challenged by Mr. Bagchi who argues in the first place that the rights of the Plaintiff under the Will were extinguished and became merged in the rights created by the compromise made between her and the Defendants in suit No. 234 of 1922. The suit was consequently one to recover money due on a compromise and the period of limitation would be three years under Art. 62 or Art. 115, Limitation Act.

I do not think that this contention is sound. The rights of the Plaintiff to recover the monthly allowance out of the estate left by Kali Das was created by the Will of Kali Das, and not by the compromise in the suit of 1922. Paragraph (6) of Kali Das's Will expressly laid down that whoever was in possession of his estate would be bound to pay the Plaintiff an allowance of Rs. 25 a month. The compromise simply referred to and re-iterated this clause. The Defendants acknowledged their obligations under it, and undertook that in future they would go on paying the Plaintiff the allowance of Rs. 25 a month in accordance with the terms of the Will. There is no question here of one debt being merged in another as is suggested by Mr. Bagchi. The compromise did not create any debt, the Defendants simply affirmed and acknowledged their obligation under the Will.

Mr. Bagchi then argues that Art. 123 is inapplicable inasmuch as the Defendants were neither executors nor administrators, and they were in possession of the estate in their own right as absolute owners. In support of this contention he has invited our attention to the decision of the Judicial Committee in Ghulam Mohammed v. Ghulam Husain .

Now the words “payable” and “deliverable” in the third column of Art. 123 indicate that there must be some person who is under a duty to pay the legacy or to deliver the distributive shares. It was accordingly held by the Judicial Committee in the above case, approving of a long series of decisions in India, that the Article applies only where a suit is brought against an executor or administrator or some person legally charged with the duty of distributing the estate. It is not necessary however that the Defendants must be executors or administrators. They must be persons in possession of the estate and legally bound to pay the legacy or hand over the distributive shares, vide Sri Nathji v. Parma Kunwar .

In this case the testator had bequeathed his properties to his nephew and directed him to pay an allowance of Rs. 500 a year to his daughter, Panna Kumari, who was the Plaintiff in the suit The nephew was already dead at the time of the suit, and he had by a Will, executed prior to his death, bequeathed the properties he got under the Will of his uncle, to an idol named Thakur Srinathji who was made the first Defendant in the suit. The other Defendants were the trustees of the idol. It was held, and in my opinion rightly, that the suit to recover this allowance was governed by Art. 123, as the Defendants were in possession of the estate of the original testator and were bound to pay the legacy to the Plaintiff. I think that this decision applies in full force to the facts of the present case. The Defendants are persons who are in possession of the estate under the provisions of the Will of Kali Das. They were given the remainder after the two previous life-estates in favour of the two widows, and the latter having surrendered their interests, there was an acceleration of the inheritance in favour of the present Defendants. The allowance claimed by the Plaintiff is a legacy payable under the Will of Kali Das, and the Will makes it a legal duty on the part of the Defendants to pay it to the Plaintiff. The decision in Ghulam Mohammed v. Ghulam Husain , in my opinion, does not in any way support the contention of the Appellant. There an argument was raised before the Judicial Committee that as both the waqf and the gift attempted to be created by the Will failed, the owner of the property must be deemed to have died intestate and consequently the suit being instituted by one son against another for his share of the inheritance, could be treated as a suit claiming a distributive share of the property and would be governed by Art. 123, Limitation Act. This contention was not accepted by the Judicial Committee as it was well settled that in a case of this description between co-heirs, the proper article applicable was Art. 144 and not Art. 123.

It must be noted that in the case before the Privy Council the suit was not for payment of a legacy but was one for recovery of the Plaintiff's share in the property said to have been inherited by him along with the Defendant and that is the reason why their Lordships observed that the Defendants must be persons legally charged with the duty of distributing the estate before the suit could be brought within Art. 123, Limitation Act. As between co-heirs, the possession of one is primâ facie the possession of the others, and consequently the suit by one co-heir against another is governed by Art. 144 and not by Art. 123, Limitation Act.

In my opinion, therefore, the Courts below were right in holding that the suit was governed by Art. 123, Limitation Act.

The next question is whether the Courts below were right in giving the Plaintiff a declaration of a charge in respect of her allowance, upon the entire property of the testator in the hands of the Defendants.

The answer to this question would depend upon the fact as to whether or not a charge was created by the Will. It is well established that no particular form of words is necessary to create a charge; all that is required is that there must be a clear intention to make the land a security for payment of money. The language used in the Will leaves no room for doubt that a charge was intended to be created. It is distinctly stated that the money was to be paid out of the estate left by the testator, and whoever was in possession of the estate under the terms of the Will would be bound to pay it. I am not impressed by the argument of Mr. Bagchi that as the properties were not specified, no valid charge could be created. The charge would attach to the corpus of the estate which was bequeathed by the testator successively to the two ladies and then to his daughter's sons who are the Defendants in the present case.

The last point relates to the rate of interest and here I think Mr. Bagchi is right in contending that interest at the rate of 12 per cent per annum should not have been allowed. In case of payment of a legacy the rate of interest has been fixed by statute at 6 per cent per annum, where the testator is a Hindu (vide sec. 353, Succession Act) and interest at that rate only can be allowed in the present case.

The result is that subject to the reduction in the rate of interest from 12 per cent to 6 per cent per annum, the decision of the Courts below would be affirmed. The costs allowed by the Courts below would stand. There will be no order for costs in this appeal.

Roxburgh, J.:— I agree.

P.C