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1958 Supreme(Cal) 78
HIGH COURT OF CALCUTTA
Renupada Mukherjee, B. N. Banerjee
HRISHIKESH DAS - Appellant
Versus
KHANTAMANI DASI - Respondent
A. F. A. D. 661 Of 1954
Decided On : MARCH 11, 1958
AMARENDRA MOHAN MITRA, ARUNENDRANATH BASU, ASOKE CHANDRA SEN
Executors are not acting qua executors when they accept a deposit for the purpose of investment in a money lending business, and the estate is not liable for the repayment of such deposit.
Headnote:
LIMITATION ACT - ARTICLE 60 - DEPOSIT - DEMAND - MONEY LENDING BUSINESS - EXECUTORS - JURISDICTION - TERRITORIAL JURISDICTION - CIVIL PROCEDURE CODE, 1908 - SECTION 20(B), (C) - INDIAN EVIDENCE ACT, 1872 - SECTION 11(2), 13(1) - AWARD - ADMISSIBILITY - ACQUIESCENCE - DOCTRINE OF ACQUIESCENCE - RELEVANCY - EVIDENCE - EXECUTORS' LIABILITY - BENEFIT TO ESTATE - IRRELEVANT CONSIDERATION.
Fact of the Case:
Plaintiff Khantomani claimed to have deposited Rs. 3950/- with the executors of Girish Chandra Das's estate in 1933 for investment in mortgages jointly with the estate's funds. The executors accepted the deposit and made investments. Khantomani received payments of Rs. 1500/- as principal and Rs. 600/- as interest. In 1939, a partition suit was filed, and arbitrators were appointed to ascertain the extent of the estate. The arbitrators found that the sum of Rs. 2450/- was due to Khantomani from the estate. However, the decree passed in the partition suit did not contain any direction for repayment of the deposits. In 1947, Khantomani filed an application before the court that passed the decree for partition, praying for directions on the Receivers to pay her the sums of money. The application was contested by the Receivers, and the court ordered them to pay the sums. One of the Receivers filed a revision petition in the High Court, which held that the opposite parties could not apply for payment of these sums under the award and the decree made thereunder. Khantomani then filed a suit in the First Court of the Subordinate Judge at Alipur, claiming a decree for Rs. 2450/-. The suit was contested by the Receiver, who argued that the plaintiff had never deposited the sum of Rs. 3950/-, that the award was not admissible in evidence, that the court had no territorial jurisdiction, and that the claim was barred by limitation.
Finding of the Court:
The court held that the award was admissible in evidence under Section 11(2) and 13(1) of the Indian Evidence Act, as it contained recitals showing that the plaintiff had claimed the money before the arbitrators. The court also held that the First Court of Subordinate Judge at Alipur had territorial jurisdiction to try the case under Section 20(b) and (c) of the Civil Procedure Code, as the cause of action had arisen at least partially within its jurisdiction. The court further held that the claim was not barred by limitation, as Article 60 of the Limitation Act would be the proper article applicable to the claim, and the period between the demand made on the Receivers and the rejection of the application by the High Court could be excluded under Section 14 of the Limitation Act. However, the court held that the executors were not acting qua executors when they accepted the deposit from the plaintiff and that the estate should not be made liable for the repayment of the deposit.
Issues: 1. Whether the award was admissible in evidence. 2. Whether the First Court of Subordinate Judge at Alipur had territorial jurisdiction to try the case. 3. Whether the claim was barred by limitation. 4. Whether the executors were acting qua executors when they accepted the deposit from the plaintiff. 5. Whether the estate should be made liable for the repayment of the deposit.
Ratio Decidendi: 1. The award was admissible in evidence under Section 11(2) and 13(1) of the Indian Evidence Act, as it contained recitals showing that the plaintiff had claimed the money before the arbitrators. 2. The First Court of Subordinate Judge at Alipur had territorial jurisdiction to try the case under Section 20(b) and (c) of the Civil Procedure Code, as the cause of action had arisen at least partially within its jurisdiction. 3. The claim was not barred by limitation, as Article 60 of the Limitation Act would be the proper article applicable to the claim, and the period between the demand made on the Receivers and the rejection of the application by the High Court could be excluded under Section 14 of the Limitation Act. 4. The executors were not acting qua executors when they accepted the deposit from the plaintiff. 5. The estate should not be made liable for the repayment of the deposit.
Final Decision: The court affirmed the decree passed by the Court of appeal below with modifications. The suit shall stand decreed against defendants respondents Nosection 3, 4, 5, 8 and 9 only and shall stand dismissed against the other defendants respondents. The decretal money shall be realised from the estate of Girish Chandra Das deceased in the hands of defendants respondents Nos. 3, 4, 5, 8 and 9.
( 1 ) ONE Girish Chandra Das, owner of considerable properties and a money lending business, died in the year 1918, leaving a will. Girish was survived by his widow Kalimoni, four sons Briudaban, Harish, Brisk and Suresh, and a grandson Hrishikesh by his predeceased son Nandalal. Plaintiff Khantomani is a daughter of Girish.
( 2 ) NANDALAL, Harish and Kalimoni had originally been appointed respectively executors and executrix to the will. After the death of Nandalal Girish published a codicil by which Brindaban, and Srish were also appointed executors.
( 3 ) THE executors Harish, Brindaban and Srish took out probate of the will and carried on administration of the estate. At all times material for the purpose of his appeal Harish and Srish acted as executors. Brindaban died in 1923.
( 4 ) DURING the period of administration of the estate by the executors abovenarned, Khantomani claims to have deposited with the executors, in or about the year 1933, a sum of Rs. 3950/ -. The executors accept such deposit for the purpose of carrying on the money-lending business of the estate.
( 5 ) IN the year 1939, Tapan (defendant No. 6), son of Brindaban filed Title Suit No. 50 of 1939, in the fifth Court of the Subordinate Judge at Alipur, praying for the partition of the estate of Girish amongst the legatees under the will and for other reliefs. The matter in dispute, amongst the parties in the partition suit, was referred to two arbitrators, both lawyers of Alipur Court. The reference required the arbitrators to ascertain the extent of the estate of Girish of the time of his death and also its extent at the time when the reference to arbitration was made.
( 6 ) IN finding out the extent of the estate of Girish, it became necessary for the arbitrators to exclude therefrom the deposits or investments made by others in the money lending business, because those were not assets but liabilities of the estate. It appears from exhibit 1, the final decree passed in Title Suit No. 50 of 1939 of which the award is a part, that the arbitrators ascertained the extent of the estate of Girish with great care. We quote below the relevant passages from the award:". . . . . . After the ledger was completed we took evidence of the relations of the parties who claim to have invested their personal monies jointly with the estate and also of the parties who had made similar investments of their personal monies jointly with the estate and after finishing the same we proceeded to take evidence of the parties. ""we find and award that the sums claimed by the relations as detailed in the schedule 'e' herewith annexed belong to the respective claimants and do not form part of the estate of Girish Gh. Das deceased. "schedule E "detailed list of relatives' monies invested along with the estate investments. Name of the relative Invested in the matter of Amount. 7. Sm. Khantomoni Dasi Shorab Bhuiya and Ors. D/11/5/1934 2350-0-0
8. Do. Md. Hahem D/12/5/1935 100-0-0
The decree, that was passed in the suit, however, does not contain any direction for repayment of the deposits and other sums mentioned in Schedule E, to the parties concerned.
( 7 ) IT may be mentioned here that after the completion of the arbitration proceedings Suresh and Hrishikesh (defendants Nosection 1 and 2) became the joint Receivers to the estate in or about May. 1943.
( 8 ) ON 17--12 -. 1947, Khantomani and several others, who were not parties to the partition suit, filed an application before the Court, which passed the decree for partition, praying for directions on the Receivers to pay them the sums of money, which the arbitrators found as belonging to them.
( 9 ) THE application was contested by the Receivers. The learned Subordinate Judge, however, came to the conclusion that as the arbitrators had held that these sums were due and owing by the estate of the deceased to the persons claiming, the Receivers should pay the sums and made an order accordingly.
