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Pulin Behari Dey v. Satya Charan Dey And Anr.
Structured Summary of the Opinion
Factual and Procedural Background
This appeal arises from a suit for administration, partition, accounts and incidental reliefs brought by Satya Charan Dey (the plaintiff) against Pulin Behari Dey (the first defendant) and Thakomoni Dasi (the second defendant), in respect of the estate of their father, Rakhal Chander Dey.
Relevant facts in the opinion are:
- Rakhal Chander Dey, the owner of the subject-matter, died on 31 July 1901. Two days before his death he made a Will appointing his eldest son, Pulin Behari Dey, as executor and directing that his second son Satya Charan Dey (then an infant) should become joint executor on attaining majority. He left a widow (Thakomoni Dasi) and three sisters.
- Probate was taken out by Pulin Behari Dey on 15 July 1903. Satya Charan Dey attained majority on 16 February 1917 and took out joint probate on 12 July 1918.
- On 20 August 1918 Satya Charan Dey instituted the present suit seeking accounts of estate management by Pulin Behari Dey (who had acted as executor during Satya's minority) and administration in accordance with the Will.
- The suit proceeded for about three years; after issues were framed and procedural steps taken, the case was not taken up for final disposal until 16 June 1921 when it was heard ex parte and a preliminary decree was made. The first defendant now appeals against that decree on four principal grounds.
Legal Issues Presented
- Whether the procedure adopted by the Subordinate Judge (leading to an ex parte hearing and preliminary decree) was unfair and prevented the appellant from establishing his defence.
- Whether the order directing accounts was unjust, incomplete or defective, and whether the Court should have specified principles governing the taking of accounts from the executor.
- Whether three properties alleged to be debutter were validly created debutter and thus not divisible (i.e., whether the consent decree of 25 June 1906 declaring the alleged debutter fictitious could be challenged).
- Whether the Subordinate Judge's order for maintenance in favour of the second defendant (the widow) was contrary to Hindu Law or otherwise incorrect.
Arguments of the Parties
Appellant's Arguments (first defendant)
- The Subordinate Judge's procedure was unfair and made it impossible for him to establish his defence (complaint about ex parte disposal and refusals of adjournment).
- The order directing accounts was unjust and incomplete; the Court ought to have enunciated the principles that should regulate the taking of accounts from him as executor.
- The three properties scheduled in the plaint had been validly created debutter and therefore were not liable to be treated as secular properties capable of division (he challenged the finding that the alleged debutter was fictitious).
- The order for maintenance in favour of the second defendant (the widow) was contrary to the provisions of Hindu Law.
Plaintiff's / Respondent-related factual position (as presented in the opinion)
- The plaint was lodged on 20 August 1918; after a written statement and issues being framed, the plaintiff applied on 15 April 1919 for a commission to examine his mother; the writ issued 30 April 1919 and examination was completed.
- The plaintiff was diligent in prosecuting the suit; by contrast the first defendant did not take timely steps to summon witnesses and allowed long periods to elapse while arbitration proceedings were attempted (from 11 August 1920 to 2 May 1921), and only made very late attempts to secure examination of a witness on commission (application on 1 June 1921 and adjournment requests on 13 June 1921).
- On the date the case was taken up for disposal the first defendant did not appear despite repeated calls; plaintiff's witnesses were examined and the second defendant was represented and had counsel cross-examine.
Table of Precedents Cited
| Precedent / Statute | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Aga Mahomed Rohim Sherazee v. Meerza Aly Mahomed Shoostry, 4 W.R.P.C. 106 | Explanation of principles regulating the extent of an executor's liability (as applied to taking and vouching accounts). | The court cited the case to show that principles governing executor liability are established, but held that it would be idle to discuss those principles until facts are ascertained by the Commissioner; the principles inform the later assessment of liability after accounts are proved. |
| Hemangini Dasi v. Kedarnath Kundu Chowdhry, 16 I.A. 115 | Judicial Committee decision concerning a widow's entitlement to maintenance and how that right interacts with partition shares under Hindu Law. | The court distinguished this decision on the facts: unlike that case, the widow here claims maintenance under the testator's Will rather than under Hindu Law against sons' shares. The court held the Will's directions properly supported the maintenance order. |
| Nistarini Dassi v. Nundo Lall Base, 26 C. 891 | Interpretation of Section 44 of the Indian Evidence Act (ability to show a decree obtained by fraud may be attacked on that ground). | The court acknowledged the principle that a decree obtained by fraud may be impeached, but noted the appellant failed to plead particulars of alleged fraud and had been a party to the consent decree and acted under it; consequently he could not be permitted to reopen the decree without specific allegations. |
| Rajib Panda v. Lakhan Sendh Mahapatra, 27 C. 11 | Also cited in relation to the explanation of Section 44 Indian Evidence Act regarding fraud on decree. | Applied similarly: the court observed the appellant did not set out specifics of the alleged fraud nor state when he became aware of it, and therefore could not disregard the consent decree dated 25 June 1906. |
| Section 44, Indian Evidence Act (statutory provision) | Principle that a party can show the true nature of a decree obtained by fraud despite not previously seeking cancellation; relates to admissibility of evidence to challenge decrees obtained by fraud. | The court accepted the statutory principle but required specific pleadings and particulars of fraud before allowing the decree to be impeached; absent such particulars and given the appellant's prior participation in and acquiescence to the consent decree, the appellant could not ignore it. |
| Sections 146 and 147, Probate and Administration Act (statutory provisions) | Set out the principles regulating the measure of an executor's liability (duties to keep, deliver and vouch accounts; extent of liability). | The court referred to these sections as the established statutory principles that will govern the eventual assessment of the executor's liability but held that application of these principles depends on facts to be found by the Commissioner once the accounts are produced and proved. |
Court's Reasoning and Analysis
The court examined each of the appellant's four principal grounds in turn and applied fact-specific reasoning informed by statutory provisions and cited authorities.
1. Procedural Fairness (ex parte hearing / adjournments)
- The court reviewed the procedural timeline: plaint filed 20 August 1918; issues framed 30 January 1919; plaintiff applied for a commission on 15 April 1919, writ issued 30 April 1919 and examination completed; arbitration attempts occupied 11 August 1920 to 2 May 1921.
- The first defendant failed to summon his witnesses in time and only much later (1 June 1921) applied for a commission for a witness; he sought adjournments on 13 June 1921 alleging illness of the witness, but the Subordinate Judge refused, deeming the applications not bona fide and frivolous.
- The court emphasized there was no justification for the appellant's absence at the final hearing: he neither appeared to give evidence nor instructed his pleader to cross-examine plaintiff's witnesses. Given the three-year pendency and the defendant's dilatory conduct, the Subordinate Judge's decision to proceed in absence of the defendant was the only realistic course.
- Conclusion: the appellant's complaint on this ground was rejected as unsustainable.
2. Order for Accounts
- The court set out the executor's duties as threefold: to keep accounts, to deliver accounts, and to vouch accounts after delivery.
- It held that statutory provisions (Sections 146 and 147 of the Probate and Administration Act) and authority (Aga Mahomed case) provide principles for measuring executor liability, but that such legal questions are premature until factual accounts have been produced and proved before the Commissioner.
- The appellant's specific contention that he was entitled to retain sale proceeds of his deceased mother's ornaments (converted by his father) was identified as a matter to be investigated by the Commissioner when taking accounts. The appellant bears the burden of proof on this issue, including proof that any claim was not time-barred when he became executor.
- Conclusion: the order for accounts was not defective in principle; factual investigation and proof before the Commissioner are required to determine liability and any claims by the executor.
3. Alleged Validity of Debutter
- The court recorded that a prior suit instituted in 1902 (on behalf of the plaintiff by his mother) for partition resulted in a consent decree on 25 June 1906 declaring the alleged debutter fictitious.
- The appellant now asserted the debutter was real, but the court observed that, although Section 44 of the Indian Evidence Act permits a decree obtained by fraud to be impeached, the appellant did not plead particulars of any alleged fraud in his written statement.
- Because the appellant was a party to the consent decree and subsequently acted in accordance with it, and because he failed to set out the circumstances constituting the alleged fraud or when he became aware of it, the court would not allow him to disregard the consent decree in the present litigation.
- Conclusion: no substance in the appellant's challenge to the consent decree; he cannot re-open the question of the debutter without specific pleadings of fraud.
4. Order for Maintenance
- The Will expressly directed maintenance of the second wife (Thakomoni Dasi) out of the estate and gave her a right to reside in the house; the court treated this as an operative testamentary provision rather than a mere enunciation of statutory Hindu widow rights.
- The court distinguished Hemangini Dasi v. Kedarnath Kundu Chowdhry on the facts and concluded the widow's claim here arises under the Will and is properly supported by it.
- Conclusion: the maintenance order was based on a correct interpretation of the Will and is proper.
Overall disposition and directions
- Subject to the direction that the Commissioner's investigation must determine the appellant's claim about the alleged sale proceeds of his mother's ornaments, the Subordinate Judge's decree was to be confirmed.
- Steps to carry out that decree were to be taken as early as practicable, and the appellant was ordered to pay the costs of the appeal.
Holding and Implications
Holding: The appeal by the first defendant is dismissed in substance and the decree of the Subordinate Judge is confirmed, subject only to a directed investigation by the Commissioner into the appellant's asserted claim (that certain sale proceeds of his deceased mother's ornaments were his). The appellant is ordered to pay the costs of the appeal and steps should be taken to carry out the decree as early as practicable.
Implications:
- The direct effect is that the preliminary decree made by the Subordinate Judge stands and the executor (first defendant) must comply with the order for accounts and the maintenance order in the Will, subject to factual determinations by the Commissioner on the specific claim about the ornaments.
- The court did not set aside established statutory or judicial principles; it applied existing authorities and statutes to the factual matrix and required proper pleadings and proof before allowing a consent decree to be impeached or adjusting executor liability. The opinion does not announce any new legal principle or broader precedent beyond the application of existing law to the facts presented.
This summary is confined exclusively to matters explicitly stated in the provided opinion. No additional facts or inferences beyond the opinion text were introduced.
1. This is an appeal by the first defendant in a suit for administration, partition, accounts and incidental reliefs against an executor. Rakhal Chander Dey, the admitted owner of the subject-matter of the litigation, died on the 31st July 1901. Two days before his death, he made a testamentary disposition of his properties. He appointed his eldest son Pulin Behan Dey as executor and directed that his second son, Sattya Charan Dey, at that time an infant, do become joint executor on attainment of majority. He left a widow, Thakomoni Dasi, the mother of Satya Charan Dey, and his three sisters. His first wife, the mother of Pulin Behari Dey, had died during his lifetime many years before. After the death of Rakhal Chandra Dey Probate was taken out by Pulin Behari Dey on the 15th July 1903. Satya Charan Dey attained majority on the 16th February 1917 and took out joint Probate on the 12th July 1918. On the 20th August 1918 he instituted the present suit against his step-brother Pulin Behari Dey and his mother Thakomoni Dasi who was joined as the second defendant. The object of the suit was to obtain from Pulin Behari Dey, who had acted as executor during his minority, accounts of the management of the estate. The plaintiff also asked for administration of the estate in accordance with the terms of the Will of his father. The suit lasted for three years and was not taken up for final disposal till the 16th June 1921. On that day the case was heard ex parte and a preliminary decree was made. That decree is now assailed by the first defendant substantially on four grounds, viz., first, that the procedure adopted by the Subordinate Judge was unfair and made it impossible for the appellant to establish his defence before the Trial Court; secondly, that the order for accounts is unjust and incomplete; thirdly, that the Subordinate Judge should have held that the three properties mentioned in the schedule to the plaint had been validly created debutter and were consequently not liable to be treated as secular properties capable of division and, fourthly, that the order for maintenance in favour of the second defendant is contrary to the provisions of the Hindu Law.
2. As regards the first point, it is plain that the appellant has no substantial grievance. The plaint was lodged on the 20th August 1918 and after the written statement had been filed, issues were framed on the 30th January 1919. The plaintiff was diligent and on the 15th April 1919 he made an application for the issue of a Commission for the examination of his mother. The writ was issued on the 30th April 1919 and the examination was completed in due course. The first defendant, however, did not take any steps to summon his witnesses. It has been stated to us in justification of his conduct that, as the matters in difference were referred to arbitration, he believed in good faith that no "steps in Court would be necessary. We find, however, that the proceedings for arbitration which ultimately proved infructuous occupied the period between the nth August 1920 and the 2nd May 1921. It was not till a very late stage of the suit, that is, on the 1st June 1921, that the first defendant made an application for examination of a lady Kishoreemoyee Dasi on commission. This application was granted and a writ was issued in due course. On the 13th June however the first defendant applied for extention of time on the allegation that, the lady had been taken ill and could not be examined on Commission. The Subordinate Judge refused this application for adjournment on the ground that the defendant had net taken steps in time. A further application for adjournment was made on the same day and was refused on the ground that it was frivolous. The Subordinate Judge further expressed the opinion that the case which had been pending for three years should be heard as early as practicable. On the next day, the case was taken up for disposal; the first defendant, though repeatedly called, did not appear. On behalf of the plaintiff witnesses were examined and the second defendant was also represented by her Pleader. In our opinion, the conduct of the first defendant cannot possibly be justified. Even if we assume for a moment that time should have been allowed to examine the lady on Commission, there is no conceivable reason why the first defendant should not have appeared to give evidence himself. s There is also no explanation why he should not have instructed has Pleader to cross-examine the witnesses produced by the plaintiff, particularly his uncle, Brojo Nath Dey, who went to the box as a witness on behalf of the plaintiff. There is no doubt, in our minds that the applications for adjournment on the 13th June 1921 were not bona fide and were intended to prolong the proceedings as far as practicable. The Subordinate Judge adopted the only course open to him in the circumstances, namely, to proceed with the trial of the suit in the absence of the first defendant. We hold accordingly that the first ground urged by the appellant cannot be sustained.
3. As regards the second point, it has been urged that the order for accounts is defective and that the Court should have enunciated the principles which should regulate the taking of accounts from the appellant. In our opinion, there is no substance in this contention. The first defendant as executor had a threefold duty to perform, viz., to keep accounts, to deliver accounts and to vouch accounts after delivery. If he has kept accounts, he should deliver them to' the Commissioner and prove them in due course. When the accounts are duly proved questions may arise as to, the measure of his liability. The principles which regulate the extent of liability of an executor are well known and will be found formulated in Sections 146 and 147 of the Probate and Administration Act. They are also explained by the Judicial Committee in the case of Aga Mahomed Rohim Sherazee v. Meerza Aly Mahomed Shoostry 4 W.R.P.C. 106 but it is plainly idle to discuss questions of law as to the measure of his liability as an executor till the facts have been ascertained by the Court. There is, however, one point urged before us on behalf of the appellant which deserves notice. The appellant has contended that in his written statement he stated that he was entitled to obtain out of the estate of his father the sale proceeds of the ornaments which belonged to his deceased mother and had been converted by his father into money. This question, in our opinion, should be investigated when accounts are taken by the Commmissioner. The point in fact raises the question of the extent of the' assets received by him when he became, executor to the estate of his father. The burden of proof; on this point, however, will lie entirely, upon him. He has to establish at this distance of time that his. mother did, in fact, possess ornaments, that those ornaments were converted by his father and that a certain sum of money was kept by his. father as the sale proceeds of those ornaments. He has, in addition to prove that at the time he became executor his claim against the estate of his; father on this basis had not already become barred by limitation. In other words, he has to prove that he was a creditor of, the estate of his father at the time when he became executor and that he was consequently entitled to retain the amount due to him. We are of opinion that he should have an opportunity to prove his allegation in this respect before the Commissioner. The question will ultimately be decided by the Court on the report of the Commissioner.
4. As regards the third point, we are of opinion that there is no substance in it. It appears from the record that in 1902 a suit was instituted on behalf of the plaintiff by his mother on the Original Side of this Court for partition of the joint estate. To this suit, the first defendant was a party as also his uncle and other members of the family. The suit was ultimately decreed by consent of parties on the 25th June 1906. The effect of the decree was to declare that the allaged debutter was fictitious. The appellant now contends that the debutter was real. His difficulty is the consent decree to which he was a party. No doubt, under Section 44 of the Indian Evidence Act, as explained in the cases Nistarini Dassi v. Nundo Lall Base 26 C. 891 : 3 C.W.N. 670 : 13 Ind. Dec. (N.S.) 1171 and Rajib Panda v. Lakhan Sendh Mahapatra 27 C. 11 : 3 C.W.N. 660 : 14 Ind. Dec. (N.S.) when a decree which has been obtained by fraud is sought to be used against a person, he is entitled to show the true nature of the decree notwithstanding the fact that he has not previously taken steps for cancellation of the decree. The appellant has not however, specifically set out the details of the alleged fraud in his written statement. He was a party to the decree and the materials on the record show that he did subsequently act in accordance with the decree. He cannot be permitted to challenge the decree unless he sels out specifically the circumstances which constituted the alleged fraud on him and on the Court.
5. He has not also stated when he first became aware of the alleged fraud. In these circumstances, it is impossible for us to hold that he is entitled to disregard the consent decree of the 25th June 1906 and tore-open in this litigation the question of the validity of the debulter.
6. As regards the fourth point, it is plain that the order for maintenance made by the Subordinate Judge is based upon a correct interpretation of the provisions of the Will of Rakhal Chandra Dey. The Will directs that the second wife of the testator Thakomoni will be maintained out of the estate and will have the right to reside in his house. This in our opinion, Js not a mere enunciation of the rights of maintenance and residence of the widow under the Hindu Law. Reference has been made to the decision of the Judicial Committee in the case of Hemangini Dasi v. Kcdarnath Kundu Ckowdhry 16 I.A. 115 : 16 C. 758 : 13 Ind. Jur. 210 : 5 Sar. P.C.J. 374 : 8 Ind. Dec. (N.S.) 502 (P.C.); that case, however, is clearly distinguishable. In that case A died leaving a widow B, & son C by B and two sons D and E by a predeceased wife. C sued D and E for partition. Each of the three sons was entitled to take one third share. It was ruled that B was not entitled to share the one third allotted to her son C with him, as she had only one son; but she was entitled to maintenance out of the one third allotted to her son C. Here the lady claims maintenance under the terms of the Will as the widow of the deceased testator. She does not assert a right of maintenance as against her step-son or even against her own son under the rules of Hindu Law. In our opinion, there is no room for controversy that the order for maintenance is proper and must be maintained.
7. The result is, that, subject to the direction we have given as to the investigation by the Commissioner of the claim put forward by the appellant against the estate of his father on account of the alleged ornaments of his mother, the decree of the Subordinate Judge must stand confirmed and steps taken to carry out that decree as early as practicable. The appellant must pay the respondent the costs of this appeal.
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