The main legal point established in the judgment is the application of constructive res judicata and the interpretation of key provisions of the Indian Trusts Act, 1882 in determining the rights of the parties.

JUDGMENT

Mukerji, J. - This is an application for leave to prefer an appeal from a decree of this Court affirming on appeal a decree of the Subordinate Judge, 1st Court, 24 Parganas. The suit in which the said decrees were made was for recovery of possession of a garden and, in the alternative, for recovery of the money which the plaintiffs had paid as selami and also the costs which they had incurred in making improvements. The property in suit was one of the properties which were included in a deed of trust executed in 1880 by the then owners thereof, and in accordance with the terms of the said deed one Pratab Chandra Ghose came to be the sole trustee in respect of the trusts with his brother Sarat Chandra Ghose standing to come in as trustee on his death. While this was the state of things, Pratap's son Bhupendra Sri, in 1910, as attorney for Pratap, granted a maurasi mokurrari lease to the plaintiffs in respect of the garden, the property in suit. In the same year Sarat Chandra Ghose instituted a suit against Pratab as trustee and making the beneficiaries parties thereto. In the plaint in that suit the trust was impugned as a sham and colourable transaction and it was prayed that the deed of trust be declared void, and various sorts of misconduct being alleged against Pratap in his dealings as trustee, accounts were asked for against him. The Court held that the general trust, in the deed were too vague and uncertain for the administration thereof to be under any control and so declared them to be bad and inoperative; and as regards certain other specific provisions made in the deed which were in the nature of trust the Court declared that in respect of those matters the properties to which they related were merely charged with the expenses to be incurred in carrying out those directions. To avoid an expensive reference the parties agreed to a scheme of management which eventually was secured by a decree of the Court in 1912. The relevant portion of the said decree was as follows:

(1) Pratap was released from liability to account, it being said that "all accounts, including the premium in respect of the Talla garden (meaning the garden in suit) are waived, and all charges are withdrawn, by all parties against one another."

(2) It was provided that on Pratap's death the estate subject to the charges for debsheba, etc. would be partitioned, Pratap's share being one-third, and.

(3) Sarat was appointed Receiver to take charge of the estate and he was given liberty to institute a suit or suits for setting aside perpetual lease or leases granted by Pratap or any other trustee for the time being.

2. It is necessary to state here that in the plaint in the suit aforesaid the lease in favour of the present plaintiffs was challenged as one granted by Pratap for an inadequate premium and at a low rate of rent fixed in perpetuity in spite of better offers which he had received. In 1915 Sarat, as Receiver and acting presumably under the liberty reserved to him under the scheme decree aforesaid, instituted a suit against the present plaintiffs for khas possession of the garden and alleging that the property had been included in the trust estate and had been in the possession of Pratap as sole trustee, that taking advantage of Pratap's absence his son Bhupendra Sri, as attorney for his father, with a view to raise money for himself out of the trust estate and to cause injury thereto, granted the lease to the plaintiffs. The Courts in India dismissed this suit; but on November 1, 1921, it was decreed by the Judicial Committee on the ground that the power-of-attorney under which Bhupendra Sri had purported to act had not been produced and that there was no proper secondary evidence given of its contents and so the defence that Bhupendra Sri in granting the lease had acted as Pratap's attorney had failed, and also on the ground that even if Bhupendra Sri's authority as attorney was proved, that would be of no avail to the defendants in the suit