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Gopal Dass Agarwallah v. Budree Dass Sureka And Another
Factual and Procedural Background
The Plaintiff filed a suit originally in his personal capacity to recover property belonging to the estate of Radha Bibee from the Defendant, Budree Dass Sureka, who had possession of the premises at No. 7, Banstolla Street. The Plaintiff is the legal representative (administrator with Will annexed) of Radha Bibee’s estate. The Plaintiff’s father, Purusottam Dass, had obtained letters of administration to Radha Bibee’s estate by suppressing the existence of a Will executed by Radha Bibee, which devised the property to the Plaintiff and his brothers. The Plaintiff’s father conveyed the property to the Defendant, who took possession and later mortgaged it. After the Plaintiff’s father died, the Plaintiff obtained letters of administration with the Will annexed and filed the suit in his personal capacity as alleged devisee under the Will. During the hearing, the Plaintiff applied to amend the cause title to sue as administrator of Radha Bibee’s estate, which the court allowed. The Defendant contended he was a bona fide purchaser for value without notice and that the conveyance to him was valid.
Legal Issues Presented
- Whether the Plaintiff could sue in his personal capacity to recover the estate of Radha Bibee or only as her legal representative.
- Whether the Plaintiff’s mistake in suing in the wrong capacity could be rectified under Section 27 of the Code.
- Whether the Defendant acquired a valid title to the property under the conveyance from the administrator of Radha Bibee’s estate.
- Whether the Will of Radha Bibee appointed executors expressly or by implication, affecting the validity of the letters of administration and subsequent conveyance.
- Whether the Defendant is protected as a bona fide purchaser for value without notice against the Plaintiff’s claim.
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff initially sued in his personal capacity as alleged devisee under the Will.
- The Plaintiff sought to amend the cause title to sue as administrator of Radha Bibee’s estate, which was granted.
- The Plaintiff contended that the Will implied appointment of executors, relying on the rule in Ellis v. Ellis.
- The Plaintiff argued the Defendant’s title was invalid because the conveyance was made by the administrator who suppressed the Will.
Defendant's Arguments
- The Defendant claimed to have acquired a good title from the administrator of Radha Bibee’s estate.
- The Defendant contended he was a bona fide purchaser for value without notice and should be protected.
- The Defendant opposed the amendment of the cause title, citing Section 53 and precedents Umbika Churn v. Nadir Sossein and Gopee Lall v. Musstt. Sri Chandraobe.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Seshamma v. Chennappa | Substitution of Plaintiff where suit was instituted by wrong party; distinction between executors and guardians; no probate by implication. | The Court applied this precedent to hold that the Plaintiff could not sue in personal capacity but could sue as legal representative; also used to reject implied appointment of executors in the Will. |
| Duckett v. Gover | Mistake in suing the wrong party may be one of law or fact and can be corrected. | Supported the Court’s order under Section 27 to substitute the Plaintiff’s capacity from personal to administrator. |
| Ellis v. Ellis | Rule regarding appointment of executors by implication in a Will. | The Court rejected the Plaintiff’s reliance on this rule, finding no executors appointed either expressly or by implication in the Will. |
| Boxall v. Boxall | Grant of letters of administration obtained by suppressing a Will without executors appointed is not void ab initio; sale by administratrix upheld. | The Court held the conveyance by the administrator was valid as the Will did not appoint executors, and the grant was not void. |
| Umbika Churn v. Nadir Sossein and Gopee Lall v. Musstt. Sri Chandraobe | Proviso in Section 53 regarding amendment of cause title and its limitations. | The Court noted these cases were cited by the Defendant to oppose amendment but held each case depends on its circumstances; amendment was allowed here as it did not change the nature of the suit. |
Court's Reasoning and Analysis
The Court observed that the Plaintiff had sued in his personal capacity but was also the legal representative (administrator with Will annexed) of Radha Bibee’s estate at the date of the suit. Although the Plaintiff held both titles in fact, in law the administrator and devisee are distinct persons. The suit was instituted under a mistake of capacity, which was bonâ fide. Applying Section 27 of the Code, the Court allowed substitution of the Plaintiff’s capacity from personal to administrator.
The Defendant’s objection to the amendment under the proviso of Section 53 was considered technical and not prejudicial, as the evidence and nature of the suit remained substantially the same. No surprise or adjournment was sought by the Defendant.
Regarding the substantive title, the Court found that the Will did not appoint executors expressly or by implication but only guardians and next friends. Therefore, the letters of administration obtained by the Plaintiff’s father, despite suppressing the Will, were not void ab initio under the principle in Boxall v. Boxall. The Defendant, who was ignorant of the suppression and had no notice, was not charged with fraud. The defense of bona fide purchase for value without notice was not available against the Plaintiff’s legal title claim, only against equitable claims.
Consequently, the real question was whether the Defendant acquired a good title from the administrator’s conveyance. Since the estate was vested in the administrator at the time and no evidence was presented to show the conveyance was improper, the Court dismissed the suit against the Defendant with costs.
Holding and Implications
The suit brought by the Plaintiff was dismissed with costs.
The Court held that the Plaintiff must sue in his representative capacity as administrator, not in personal capacity, and allowed amendment accordingly. The conveyance by the administrator to the Defendant was valid, and the Defendant’s title was upheld. The decision clarifies that a grant of letters of administration obtained in suppression of a Will without executors appointed is not void ab initio, and that bona fide purchasers without notice are protected against equitable claims but not legal title claims. No new precedent was set; the ruling applies the existing principles to the facts of the case.
Woodroffe, J.:— The Plaintiff does not state in the cause title whether he sues in his personal capacity or as representative of the estate of Radha Bibee.
I gather, however, from the body of the plaint and prayer (a) that the Plaintiff intended to sue in his personal capacity. He cannot, however, sue in this capacity to recover the estate of Radha Bibee from the Defendant, a stranger. Her legal representative alone can do this. The Plaintiff is, however, also her legal representative and was so at the date of the suit. The Plaintiff therefore united in himself the titles of administrator and alleged devisee under the Will of Radha Bibee of whose estate he is administrator with the Will annexed. He was therefore in a position to sue at the date the suit was brought.
He has, however, made a mistake in suing in a wrong capacity. Though in the present case both the administrator and devisee happen to be in fact the same person, in law, they are to be considered as different and separate persons and the case is therefore one where through a mistake (which I see at present no reason to regard otherwise than as bonâ fide),—the suit has been instituted in the name of the wrong person as the Plaintiff.
Sec. 27 of the Code and the corresponding English Rule have been considered applicable to cases where actions have been inadvertently brought by the wrong person, as by a cestui que trust instead of the trustee, by a mortgagor instead of the mortgagee, by agents instead of their principal, by a Receiver instead of the parties beneficially interested, by the Official Assignee of Bombay instead of the Official Assignee of Madras, by a manager instead of his employer, and in the case of Seshamma v. Chennappa a case which is the converse of that before me, the Plaintiffs wrongly sued as executors and the Court substituted as the Plaintiff the adopted son as beneficiary with one of the Plaintiffs as his next friend.
This mistake, it has been held, may be one of law as well as of fact. See Duckett v. Gover.
I order therefore under sec. 27 of the Code that the administrator to the estate of Radha Bibee who in this case happens to be the present Plaintiff, be substituted for the present Plaintiff suing in his personal capacity.
It has been argued for the Defendant that the grant of this application to amend the cause title by shewing that the Plaintiff sues as administrator, is obnoxious to the proviso in sec. 53, and two decisions have been cited, namely, Umbika Churn v. Nadir Sossein and Gopee Lall v. Musstt. Sri Chandraobe in support of this contention. Each case must, however, be decided upon its own particular circumstances.
A suit by the Plaintiff as administrator is in my opinion not in this case inconsistent with the suit as originally framed. This may be tested by the fact that the evidence to be offered will not in any substantial respect be different from what it would have been if the suit had proceeded as at present constituted.
I may add that the objection is one of a purely technical character, as learned Counsel for the Defendant does not plead surprise or ask for any adjournment of the case.
Woodroffe, J.:— The Plaintiff originally sued in his personal capacity. An application was made by the Plaintiff at the beginning of the hearing to amend the cause title as administrator of the estate of one Radhe Bibee referred to in the pleadings. That application was opposed, but I granted it on grounds which I stated in a separate judgment which therefore I need not repeat.
The suit is brought to declare the Plaintiff's title to the premises No. 7, Banstolla Street, which were formerly in the possession of the Defendant Budree Dass Sureka and are now vested in the Official Assignee who is the assignee of Budree Dass Sureka's estate.
The way that the Plaintiff seeks to make a title to these premises is this:—He says that Radha Bibee, to whom I have referred, was the widow of Mukunda Prasad Agarwallah and adoptive mother of the Plaintiff's father Purusottam Dass. Radha Bibee on the 12th June 1876 is said to have purchased the premises in suit from one Chotay Lal. On the 12th March 1885 Radha Bibee is alleged to have executed a Will containing among others the following provisions:
“As long as I am alive and in existence I shall remain owner of the whole and part of my properties moveable and immoveable as heretofore. On my demise, Gopal Dass, son of Purusottam Dass, (or he) and any full brother of Gopal Dass that shall be born, in equal shares shall become the owner (or owners) of the estate left by me, and until the said Gopal Dass attains majority Purusottam Dass and Mussamut Bindu Bibee, wife of Purusottam Dass, shall remain trustees, that is, guardians (and) next friends.”
It is alleged that on the 26th February the Plaintiff's father Purusottam Dass, suppressing the existence of this Will, applied for and obtained letters of administration to the estate of Radha Bibee who had died on the 14th March 1885, and that having so obtained letters of administration to the estate of Radha Bibee the Plaintiff's father Purusottam Dass, on the 6th March 1894, executed as administrator a conveyance of the premises in suit in favour of the Defendant for the sum of Rs. 16,500.
It was alleged in the plaint that the Defendant at the time of the conveyance was fully aware of the existence of the Will and that it was in collusion with him and under his advice that the Plaintiff's father applied for and obtained the letters of administration.
These charges, however, were withdrawn at the trial. Since the date of the conveyance the Defendant has been in possession of the property and states that he has expended, bonâ fide and without notice of the Plaintiff's claim, sums of money amounting to about Rs. 2,500 and that he, on the 19th September 1903, mortgaged the premises in suit for that sum to Mr. Galstaun.
On the 12th March 1902 the Plaintiff's father died and the Plaintiff has deposed that about eight months after his death he went to Brindaban and found amongst his father's papers the Will of Radha Bibee. After about two years and on the 28th July 1904 the Plaintiff obtained letters of administration with copy of Will annexed to the estate of Radha Bibee. On the 11th March 1905 he instituted this suit in his personal capacity as alleged devisee under this Will, the cause title being amended, as I have stated, to a suit in his representative capacity as the administrator of Radha Bibee's estate, to recover the property to suit.
The Defendant contends that Budree Dass Sureka acquired a good title to these premises from the administrator and that in any event he is a bonâ fide purchaser for value without notice and as such should be protected. But as regards the latter contention the defence of purchase for valuable consideration without notice is not available as a defence against the Plaintiff who relies on a legal title such a defence being only available as a shield to a claim based on an equitable title.
The real question in this suit is:—Did the Defendant acquire a good title under the conveyance executed in his favour by the administrator of Radha Bibee's estate?
The contention of learned Counsel for the Plaintiff has been that he got nothing because in the first place the Will must be taken to have appointed executors by implication and the rule laid down in the case of Ellis v. Ellis applies.
The short answer to this contention is that the Will did not appoint executors either expressly or by implication. In the passage in that portion of the Will in which it is said that the Plaintiff's father Purusottam Dass and the latter's wife shall remain trustees, the testatrix declares herself what is meant by that term by the addition of the words, “that is, guardians and next friends.” As regards this contention the case of Seshamma v. Chennappa may be referred to in which the learned Judges say:— “We are not satisfied that this is a case in which the Plaintiffs would be entitled to probate as executors by implication. The duties which the Plaintiffs are directed to perform are not specifically the duties of an executor. It is not the administration of the estate which they are told to carry out. But rather it is as guardians of the child whose adoption is contemplated that they are Intended to act. We think, it is quite clear, that there was not intention to vest any property in them. They were only directed to protect the property during the minority.”
In the present case also, the Will appears to have done nothing more than appoint the two persons I have named guardians and next friends. There being no appointment of executor or executrix in the Will, the case comes within the rule laid down in Boxall v. Boxall, in which it was held that a grant of letters of administration obtained by suppressing a Will containing no appointment of executors is not void ab initio and accordingly a sale of leasehold by an administratrix who had obtained a grant of administration under such circumstances to a purchaser who was ignorant of the suppression of the Will was upheld by the Court, although the grant was revoked after the sale.
It is not now suggested that the Defendant knew of the alleged suppression of the Will by the Plaintiff's father and as I have said all charges of fraud made against the Defendant Budree Dass Sureka have been withdrawn.
Then it has been said that if the Will did not appoint executors, the act of the Plaintiff's father in selling the property was in derogation of vested rights of the beneficiary under this Will.
The answer to this, however, is that at the date of the conveyance the estate was vested in the party making the conveyance unless, as was not the case, there had been an appointment of executors which would render a grant of letters of administration inoperative.
Then it is said that the conveyance was not made in due course of administration. It is sufficient, however, to say if there be any force in this connection, that there is no evidence before me to show that this was a fact.
Under the circumstances therefore and for the reasons I have given, this suit must be dismissed as against the Defendant with costs on scale No. 2.
Mr. A.C Bose, Attorney for the Plaintiff.
Messrs Gregory & Jones, J.N Dutt and Dutt & Guha, Attorneys for the Defendant.
A.N.C
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