1. This appeal, which has been preferred by some of the defendants in the Court below, is directed against the preliminary decree in a suit for construction of the Will of one Raj Mohan Nag Chowdhury, for administration of the estate left by him, for settlement of the accounts of the executor, for partition of such proper-ties as may be left after payment of the debts and for other incidental reliefs. The position of the parties will be clear from the annexed genealogy:
Raj Mohan Nag Chowdhury,
died 5th July 1880,
widow Ambica Moni, died November 1893.
_______________|______________________
| | |
Preonath Nag Chandra Nath Nag |
Chowdhury, Chowdhury, |
died before 1880, died 28th July 1907, |
widow widow Nishadim Dassi, |
Kali Kamini Dasi, defendant No. 4 |
defendant No. 3. |
_________| |
| _________________________________________|
| | |
| Kali Nath Nag Kristo Nath Nag
| Chowdhury. Chowdhary,
| widow Kumudini Dasi, died before 1880,
| defendant No. 5 widow
| | Nagendra Nandini Dasi,
| | defendant No. 6.
| |________________________
| | |
| Son Satish. Daughter
| Krishnamoyi Dassi,
| defendant No. 7.
|
|_____________________________________________
| | | |
Upendra Nath Surendra Nath Bhupendra Nath |
Nag Nag Nag |
Chowdhury, Chowdhury, Chowdhury, |
defendant defendant plaintiff |
No. 1. No. 2. No. 1. |
______________________________________________|
| | |
Purendra Nath Sailendra Nath Khagendra Nath
Nag Nag Nag
Chowdhury, Chowdhury, Chowdhary,
plaintiff defendant plaintiff
No. 2. No. 8. No. 3.
2. Raj Mohan died on the 5th July 1880. On the day previous to his death, he had made a testamentary disposition of his properties and appointed his second son Chandra Nath and his eldest grandson Upendra Nath successive executors. Chandra Nath took out Probate of the Will of his father and administered the estate till his death, which took place on the 28th July 1907. On the 18th May 1908, Upendra Nath obtained Probate and continued to discharge his duties as executor till his removal on the 20th April 1910. On the 30th August 1909, Bhupendra, Purendra and Khagendra, three of the sons of Chandra Nath, instituted the present suit for the purposes already specified. They joined as defendants their three brothers, their mother and also the other members of the family who were interested in the estate left by their grandfather as legatees or annuitants. The suit was based on allegations of mismanagement which were repudiated by the executor. Various questions also arose in respect of the title to some of the properties claimed by the plaintiffs as part of the estate of the testator and alleged by some of the defendants to be the exclusive property of the widow of Chandra Nath. The Subordinate Judge after a protracted trial, made a preliminary decree, which directed the executor to render accounts for the period subsequent to the death of Chandra Nath, that is, from the 29th July 1907 to the 20th April 1910. The latter date was fixed in view of the circumstance that from that date, by an order of the Court, Upendra Nath ceased to be executor and was appointed Receiver in charge of the estate during the pendency of the litigation. The preliminary decree also decided the disputed question of title and gave directions for the administration of the estate. Both parties were dissatisfied with this decree, three of the defendants, inclusive of the executor Receiver having preferred this appeal, while the plaintiffs-respondents have preferred a cross-appeal. After a careful scrutiny of the grounds selected by the appellants and the respondents for presentation to the Court, the following points emerge for consideration. First, did the Panchannagram properties form part of the estate of Raj Mohan or have they passed into the hands of Nishadini as beneficial owner; secondly did the Calcutta house form part of the estate of Raj Mohan at the time of the sale on the 9th November 1908, when it admittedly passed into the hands of a stranger; thirdly, did the gauti tenures, some of which have been found by the Subordinate Judge to belong to Nishadini, the widow of Chandra Nath, and the others to the estate of Raj Mohan, still form part of that estate; fourthly are the debutter properties capable of partition and is the executor liable to submit an account of their income; fifthly, is the executor liable for the sale of the Calcutta house in execution of the decree of the mortgagee; if so, what is the extent of Ms liability; sixthly, was there a real sale, by Sailendra Nath, of his interest in the estate of his grandfather to his mother Nishadini, on the 16th December 1896; seventhly, what direction, if any, should be given with regard to the provisions in the eleventh paragraph of the Will of Raj Mohan for the marriage expenses of his great-grandsons and great-grand-daughters; eighthly, what direction should be given for the costs of the suit in the Court below and of the appeal in this Court.
3. It is necessary to explain, before we deal with these questions in the order stated, that all the parties are now agreed that the executor should be called upon to render accounts, only from the 29th July 1907 to the 20th April 1910. They have intimated to us that they abandon the claim for accounts for the period of the executorship of Chandra Nath. The reason for this attitude is obvious. As ruled by this Court in the case of Baroda Prasad Banerji v. Gajendra Nath 1 Ind. Cas. 289; 9 C.L.J. 383; 13 C.W.H. 557, the second executor as such is not liable for the accounts of his predecessor or for his wrongful acts, but it is incumbent upon him to call upon the representatives of his predecessor to render an account and respond in damages for devastavit, mismanagement or breach of duty whereby any property of the deceased testator was diverted from a due course of administration. Consequently, it would be the duty of Upendra Nath to realise from himself arid his five brothers whatever might be found due to the estate of their grandfather on an examination of the accounts of their father as executor. Such an investigation is obviously not beneficial to the parties and although they are by no means friendly to each other, they are united upon one point, namely, that the accounts of their father as executor should not be taken. A different attitude, we may add, was adopted in the Court below and some of the sons of Chandra Nath sought to fasten a special liability upon the others on the allegation that they were the trusted advisers of their father during the period of his executorship, and shared his responsibility for due administration of the estate. This endeavour was not successful, and as we have said, in this Court all the parties by common consent have agreed that the accounts are not to be investigated for the period antecedent to the 28th July 1907 when Chandra Nath died.
4. The first ground raises the question of title to the lands known as Panchannagram properties. They originally formed part of the estate of Raj Mohan and are still included therein, if it is not established that they have passed into the hands of a stranger. On the 25th June 1885, Chandra Nath, for an alleged consideration of Rs. 1,000, executed a conveyance in respect of these properties, which comprise 25 bighas of land and are situated in the neighbourhood of Calcutta, in favour of one Srinath Bose who was his intimate friend subsequently, on the 13th June 1895, the purchaser executed a conveyance in favour of Nishadini, the wife of Chandra Nath, for a consideration of Rs. 500 only. The plaintiffs contend that these transactions were fictitious and that the properties never ceased to form part of the estate of Raj Mohan. The Subordinate Judge has found that Srinath did not get himself registered in the Collectorate and did not take possession of the properties, though he continued to be the ostensible owner for a period of eight years. During this interval he never paid rent to the Collector, and although tenants are said to have attorned to him, no documentary evidence has been produced in that behalf. There is also no reliable evidence to prove that Nishadini was ever in possession of these properties. No account papers have been produced to show that the profits of these properties were realized and spent by her. Against all this, it is urged by the appellants that the Court is bound to give effect to the ostensible title and should not base its decision on mere suspicion. But the obvious answer is that, except the recital in the conveyance, there is no trustworthy evidence that any consideration was paid by Srinath. If consideration bad been paid, the money would have been credited to the estate, and an entry to that effect would have found a place in the account books presumably kept by Chandra Nath. No account books, however, have been produced, nor is it alleged that Chandra Nath did not keep regular accounts of the estate whereof he was the executor. The inference is that the account books have not been produced because they do not favour the contention of the appellants. We feel no doubt whatever that the Subordinate Judge is correct in his conclusion that the conveyances by Chandra Nath in favour of Srinath and by Srinath in favour of Nishadini were both fictitious transactions.
5. The second ground raises the question of title to the Calcutta house. It is the common case of all the parties that the house belonged to Raj Mohan, and on the 12th May 1874: was mortgaged by him to Mary Ratter. After the death of Raj Mohan Mary Ratter sued to enforce her security and obtained a decree on the 1st September 1884. The house was sold in execution of this decree on the 20th June 1885 and was purchased for Rs. 8,700 by one Shama Charan Ballabh, a friend of Raj Mohan. The family of Raj Mohan, notwithstanding this sale, continued in occupation of the house as they took leases from the purchaser on the 5th August 1885 and 5th December 1886. On the 30th April 1887, Shama Charan conveyed the house to Nishadini, the wife of Chandra Nath, for a consideration of Rs. 11,000. The question in controversy is whether this transfer to Nishadini was for the benefit of the estate of Raj Mohan or whether by this transaction the house became her private property According to Nishadini she had Rs. 3,000 with her at the time of the purchase of the house, and she borrowed Rs. 8,000 from her daughter to make up the requisite amount of purchase-money. There is no documentary evidence to support the alleged advance by her daughter, and the statements made by Upendra Nath on this point Are, as the Subordinate Judge has pointed out, not self-consistent. It is quite improbable that Nishadini could borrow this money without Security and without even a written instrument. We may also refer to the subsequent conduct of the parties which, as the Judicial Committee have said, affords valuable evidence as to whether the person in whose name the conveyance is taken is intended to be the beneficial owner or a mere name-lender [Ram Narain v. Muhammad Hadi 26 I.A. 38: 26 C. 227 (P.C.); 3 C.W.N. 113, Thakor v. Ganga Prasad 15 I.A. 29; C A. 197 (P.C.); 5 Sar. P.C.J. 133, Dalip Singh v. Nawad Kunwar 35 I A. 104; 30. A. 258; 12 C.W.N. 609 (P.C.); 4 M.L.T. 141; 10 Bom. L.R. 600; 14 Bur. L.R. 151]. Thus there is the significant circumstance that when the house was mortgaged to Harendra Lal Roy on the 20th September 1887, the document was executed not by Nishadini alone, but also by Chandra Nath and Upendra Nath This is consistent with the view that the house at the time was deemed to form part of the estate of Raj Mohan in the hands of Chandra Nath as executor. This mortgage also militates against the theory put forward by Nishadini that she re-paid the advance from her daughter out of the sum received from the mortgagee. The mortgage-bond clearly shows that the security was given on account of advances made to Upendra Nath to enable him to carry on a banianship business. We have also the significant fact that when the property was subsequently mortgaged to Twidale to raise money to pay off Harendra Lal Roy, the document was executed not by Nishadini alone but by Nishadni and Chandra Nath. Here again the property was treated as if it still formed part of the estate of Raj Mohan. The same inference is deducible from the fact that on the 27th February 1904, the property was mortgaged to Sib Charan Laha by Nishadini and Chandra Nath (the ostensible owner and the executor to the estate of Raj Mohan) jointly to satisfy the dues of Twidale. It is consequently plain that there is no trustworthy evidence to prove that the purchase-money for the house was paid by Nishadini from her own funds or from sums borrowed by her. This by itself is sufficient to justify the inference that the purchase in her name was not for her benefit, This conclusion does not rest on mere suspicion which, as their Lord-ships of the Judicial Committee have repeatedly held [ Sreemanchunder Dey v. Gopaulchunder Chuckerbutty 11 M.I.A. 28; 7 W.R. 10 (P.C.); 1 Suth. P.C.J. 651; 2 Sar. P.C.J. 275; 20 E.R. 11, Nawab Azimut Ali Khan v. Hurdwaree Mull 13 M.I.A. 395; 14 W.R. 4 (P.C. ); 5 B.L.R. 578; 2 Suth. P.C.J. 343; 2 Sar. P.C.J. 571; 20 E.R. 599, Faez Buksh v. Fukeer-ood-deen Mahomed Ahassun Chowdry 14 M I.A. 234; 9 B.L.R. 456; 2 Suth P.C.J. 490; 2 Sar. P.C.J. 733; 20 E.R. 775, Uman Parshad v. Gandharp Singh 14 I.A. 27; 15 C. 20; 1 Ind.Jur. 474; 5 Sar P.C.J. 71; Rafique and Jackson's P.C. No. 98, Suleiman Kadr Bahadur v. Nawab Mehndi Begum 25 C. 473 (P.C.); 23 I.A. 15; 2 C.W.N. 186, Nirmal Chunder Banerjee v. Mahomed Siddik 25 I.A. 225; 26 C. 11] cannot be made the foundation for a judgment in cases of this description But the plaintiffs have been able to carry the matter further. They have established that on the 31st March 1886, Chandra Nath obtained the sanction of the District Judge with a view to raise a loan of Rs. 16,000 for the purpose of re-purchasing the Calcutta house. This purpose, indeed, was said to have been abandoned in subsequent applications to the District. Judge for his sanction to raise loans. But it has been suggested, not with out good grounds, that this was a mere blind, as subsequent events show. On the 29th March 1887, Chandra Nath entered into an agreement with Shama Charan Ballabh for the purchase of the Calcutta house. On that very day, he borrowed Rs. 20,000 by execution of two mortgages in favour of Shama Sundaree and Dakshyani, two relatives of Shama Charan Ballabh. This money was taken from the firm of Shaw and Company whereof Shama Charan himself was a partner. It is proved that on the day following, that is, the 30th March 1887, Chandra Nath received from the firm Rs. 12,800; this is significant when we remember that the price for the house had been fixed approximately in the agreement at Rs. 12,451. Much stress has been laid on behalf of Nishadini upon the circumstance that the serial numbers of the currency notes as entered in the conveyance are not identical with the serial numbers of the currency notes received by Chandra Nath from Shaw and Company. But as has been pointed, out by the Subordinate Judge, the notes could easily be changed so as to render difficult a future investigation into the true nature of the transaction. We have also the important circumstance that the allegations of necessity made in the applications of Chandra Nath to the District Judge for sanction of the loan are demonstrably untrue in material particulars. One of the purposes mentioned was the satisfaction of a debt due to Bharat Chandra Ray, who, it has been conclusively established, was at the time not a creditor of the 'estate We have, consequently, on the one hand incontestable proof that Chandra Nath intended to re-purchase the house, that he raised money ostensibly for other purposes which had no real existence, and that no explanation is available as to the mode in which the sum borrowed was actually applied. We have, on the other hand, the fact that Nishadini is not proved to have funds requisite for the purchase of the house nor was she ever in possession of the property. When, therefore, we apply the two principal tests of benami, namely, source of the purchase money [Dhurm Das Pandey v. Shama Sondri Debiah 3 M I.A. 229; 6 W.R. 43 (P.C. ); 1 Suth. P.C.J. 147; 1 Sar. 1. C.J. 271; 18 E.R. 484, Gopeekrist Gosain v. Gungupersaud Gasain 6 M.I.A. 53: 4 W.R. 46 (P. C); 1 Sar. P.C.J. 493; 19 E.R. 20] and possession of the property [Imambandi Begam v. Kamleswari Pershad 13 I.A. 160; 14 C. 109; 10 Ind. Jur. 468; 4 Sar. P.C.J. 732] we find that the inference may legitimately be drawn that the house was purchased by Chandra Nath for the benefit of the estate in the name of his wife Nishadini. We must also remember that there were strong motives for a step of this description as Sir Arthur Wilson said in Dalip Singh v. Nawal Kunwar 35 I A. 104; 30. A. 258; 12 C.W.N. 609 (P.C.); 4 M.L.T. 141; 10 Bom. L.R. 600; 14 Bur. L.R. 151 reliance must be largely placed, not only upon the surrounding circumstances and the position of the parties and their relations to one another, but also upon the motives which could govern their actions and their subsequent conduct. Kalinath, the brother of Chandra Nath, had under the Will of his father a right of residence in this house, a right which he subsequently sought to enforce by litigation. It is not improbable that Chandra Nath would allow the house to be sold in execution of the decree of Mary Ratter with a view to defeat the claim of his brother. It is also not improbable that he would entertain a wish to purchase the ancestral family dwelling house, and if he accomplished his project, it would be obviously desirable to place the property in the name of his wife, not only to defeat the claim of Kali Nath but also to save the property from the creditors to whom the estate was heavily indebted Against all this reliance has been placed upon statements made on the 10th November 1905 by five of the sons of Chandra Nath in the plaint in a suit instituted by them against the executrix to the estate of Kali Nath Reference has also been made to the deposition of Purendra in that suit given on the 24th April 1907, to a letter from Bhupendra to Upendra written on the 27th November 1908, and to the terms of settlement dated the 5th December 1894 in the suit instituted by Kalinath against Chandra Nath for the establishment of his right of residence. The last document is of no real assistance in the solution of the question raised before us, and does not justify the inference that the house was the private property of Nishadini; on the other hand, it tends the show that Kali Nath, though he admitted that the house belonged to Nishadini, practical released his right of residence to Chandra Nath for a sum of Rs. 3,800 to be paid out of the estate of Raj Mohan. The other statements are admissions by parties to the present suit and might have been used to contradict their testimony in this case under Section 145 of the Indian Evidence Act. They were, however, not so used. The specific statements were not put to the parties sought to be contradicted. Consequently as pointed out by the Judicial Committee in the case of Bal Gangadhar Tilak v. Shri Shriniwas Pandit 29 Ind. Cas. 639; 22 C.L.J. 1; 13 A.L.J. 670; 19 C.W.N. 729; 17 Bom. L.E. 527; 29 M.L.J. 34; 18 M.L.T. 1; (1915) M.W.N. 484 2 L.W. 611 39 B. 441 (P. C), they cannot be used in evidence. Previous statements, unless used to contradict or discount the evidence of a witness given in the suit cannot be legitimately used, and even then the particular matter or point must be placed before the witness as one for explanation in view of its discrepancy with the evidence tendered. Apart from this circumstance it is plain that no reliance can be placed upon the previous statements mentioned. It is no serious disparagement to the parties to this litigation to state that they have not been particularly scrupulous in their dealings, and assertions appear to have been made from time to time just as the needs of the moment required. We feel no doubt, on the whole, that the Subordinate judge has Correctly held that the transfer of the Calcutta house by Shama Charan Ballabh to Nishadini on the 29th April 1887 was for the benefit of the estate of Raj Mohan and that the ostensible transferee did not acquire any beneficial interest thereunder.
6. The third ground raises the question of title to the gauti tenures which stand in the name of Nisbadini, either because they were created by Chandra Nath in her favour or were acquired in her name. According to the plaintiffs, all these tenures are fictitious and have no real existence. According to Nishadini and such of her sons as have taken her side, the tenures are real and are binding on the estate of Raj Mohan. The Subordinate Judge has decided partly in favour of the plaintiffs and partly in favour of the defendants. His decision is consequently assailed by both sides. After some discussion at the Bar, it was agreed that these gauti tenures should be deemed to hold good during the life-time of Nishadini and should terminate on her deaths so that the lands will then revert unencumbered to the estate of Raj Mohan. This arrangement is, in our opinion, eminently satisfactory, and we sanction it; our approval is necessary, as one of the plaintiffs, Bhupendra, has died during the pendency of the litigation and has been succeeded by his infant son. The decree of the Subordinate Judge will be varied in this respect and a declaration as stated will be inserted therein by consent of parties. On behalf of Nishadini, an undertaking has been given that no encumbrances have been created by her or with her assent on these gauti tenures, nor have any permanent under-tenures been created by her. A description of the gauti tenures is appended to this judgment and will be annexed to the decree.1
7. The fourth ground raises the question of the nature of the parcels of land described as debutter properties (schedule ka Nos. 26 and 27). The controversy between the parties is whether these lands constitute debutter or shebatar. The determination of this question is immaterial for the purposes of the present suit. Whatever the nature of the dedication, they are endowed properties and cannot consequently be partitioned. But if Upendra has enjoyed their income, he must account therefor.
8. The fifth ground raises the question of the liability of Upendra for sale of the Calcutta house. The Subordinate Judge has imposed a liability on Upendra on the ground that the sale was held in satisfaction of a debt originally incurred by Chandra Nath for the benefit of Upendra. This view has been attacked by the appellants and has not met with unqualified support from the respondents. In this connection, four alternative points of view have been placed before us for acceptance by one or other of the contesting parties, and each of them requires careful examination.
9. In the first place, it has been contended that Upendra as executor should have saved the property from sale and that his failure to do so amounts to a grave dereliction of duty. In our opinion, this position has not been established. The suit was instituted by the mortgagee, Shib Charan Laha, against Chandra Nath who mortgaged the property to him. Upon the death of Chandra Nath during the pendency of the litigation the mortgagee brought on the record all his six sons. The sons other than Upendra apparently took no objection to this course. They did not contend that the mortgage had been executed by Chandra Nath in his capacity as executor and that consequently his successor in that office alone was liable to be placed on the record. The result was that a decree was obtained against the six sons, and in execution thereof the property was put up to sale. There is nothing to show that the price obtained at the sale was inadequate, consequently it cannot be contended that the sale of the house and its conversion into money have been prejudicial to the estate, nor is there any evidence to show that, at the time, Upendra had funds of the estate in his hands which might have been applied to avert the sale. The estate which had come into his hands only a few months before, was admittedly in a condition of considerable embarrassment, and failure to raise money on interest with a view to save the property from sale was not necessarily a dereliction of duty, unless it is proved that damage has actually resulted to the estate from the sale. Consequently Upendra cannot be held liable merely on the ground that he did not prevent the sale of the house at the instance of the mortgagee.
10. In the second place, the view has been put forward that Upendra is liable as the sale was occasioned by a debt ultimately traceable to loans incurred by Chandra Nath for the benefit of Upendra himself. The position is clearly unsustainable. The parties have agreed that accounts are not to be taken in respect of the period of executorship of Chandra Nath, the reason for this attitude has already been explained. Now let us assume that the mortgage in favour of Shib Charan Laha was created to pay the mortgage of Twidale, which, in its turn, had been effected to satisfy the security given to Harendralal Rai in respect of money received by Chandra Nath for payment to Upendra Nath. It is plain that Chandra Nath may be liable to the estate of Raj Mohan for all sums raised by him in his capacity as executor and not applied for the benefit of the estate. Consequently, the present representatives of Chandra Nath, that is, his six sons, are responsible to the extent of the assets, if any, of their father in their hands, to indemnify the estate of Raj Mohan for losses sustained by unwarrantable acts of their father. This matter, in all its bearings, they have declined, by common consent, to submit for investigation by the Court. Five of the brothers cannot clearly be permitted to single out one transaction of Chandra Nath and to hold Upendra liable in respect thereof. There is considerable force in the contention that if all the accounts of the period of executorship of Chandra Nath were taken, it might transpire that he had made advances to his other sons in respect whereof each of them on the same principle might be held responsible to the estate. We are of opinion that as the parties have agreed not to investigate the accounts of the period of executorship of Chandra Nath, they cannot impose a liability on Upendra Nath on the ground that the money raised by this particular transaction was applied by the then executor for the benefit of one of his sons.
11. In the third place, the contention has been put forward that as the money raised by Chandra Nath from Harendralal Rai was Applied for the benefit of Upendra, the transaction was in essence a loan to Upendra and that inasmuch as Upendra subsequently succeeded Chandra Nath as executor, he is liable to recoup the estate to the extent of the benefit received by him therefrom. In support of this view, reference has been made to the well-established principle that the effect of the appointment of a debtor to the office of executor is that the debt due from the debtor executor is considered to have been paid to him by himself and that the executor is accountable for the amount of his debt as assets: Freakley v. Fox 9 B. & C. 130; 4 Man. & Ry. 18: 7 L.J.K.B. (o.s.) 148; 109 E.R. 49; 32 R.R. 605; Ingle v. Richards 28 Beav. 366; 6 Jur. (N.S.) 1178; 8 W.R. 697; 54 E.R. 406; 3 L.T. (n.s.) 116; 126 R.R. 170; Carey v. Goodinge (1790) 3 Bro. C.C. 110; 29 E.R. 439; Berry V. Usher 11 Ves. 87; 32 E.R. 1021; Tomlin v. Tomlin (1841) 1 Hare, 236; 66 E.R. 1019 and Administrator-General of Bengal v. Kristo Kamini Dassee 31 C. 519; 8 C.W.N. 500. This doctrine is of no assistance to the respondents. On this theory, the money must be deemed to have been advanced by Chandra Nath to Upendra on or before the 20th September 1887, at any rate, not later than the 1st April 1888, if we accept the statement by Harendralal Rai in his plaint in mortgage suit dated the 27th January 1889. But Upendra did not succeed as executor till the 28th July 1907. There are no materials on the record to show that as between Upendra and the estate of Raj Mohan, the debt was kept alive during all these years Prima facie, there was no enforceable claim against Upendra when he succeeded to the office of executor, and consequently, the principle that a debtor executor is accountable for the amount of his debt as assets cannot be applied. We are not unmindful that when an executor obtains probate, the grant operates retrospectively from the date of the death of the testator. But that principle is of no avail here, because there was an intermediate executor who created the debt, it is on his act that Upendra is sought to be made liable, and Upendra cannot by a fiction be deemed to have been an executor at a time when there was another executor lawfully in possession of the estate. The decision in Ingle v. Richards 28 Beav. 366; 6 Jur. (n.s.) 1178; 8 W.R. 697; 54 E.R. 406; 3 L.T. (n.s.) 116; 126 R.R. 170 is consequently distinguishable and does not assist the respondents.
12. In the fourth place, it has been contended on behalf of the appellants that the true view of all the facts is that the money was advanced by Chandra Nath to Upendra Nath, not in his personal capacity but as a member of a joint Hindu family composed of himself and his sons. From this point of view, all the six sons of Chandra Nath would be responsible for the re-payment of the loan to the estate of Raj Mohan. The Subordinate Judge has held that the money was paid by Chandra Nath to Upendra to enable him to carry on a baninanship business; from the surrounding circumstances, there is no room for reasonable doubt that the loan was to Upendra as a member of a joint Hindu family, and that if he had been successful in his business, a share of the profits could have been rightly claimed by his brothers. From this point of view, Upendra would not be liable for the whole debt. After an anxious consideration of the possible aspects of the case, we are of opinion that the sums advanced to Upendra and secured by the mortgage of Harendralal Rai must be deemed to have been advanced to him in his character as a member of a joint Hindu family and that in this suit he cannot be held responsible for the whole of that sum at the instance of his brothers. The question of the liability of Upendra for the sale of the Calcutta house in execution of the mortgage decree of Shib Charan Laha must consequently be decided in his favour. The surplus sale-proceeds, however, shall be deemed part of the estate, as we have held that the house itself formed part of the estate of Raj Mohan, though it had been transferred by Shama Charan Ballabh ostensibly to Nishadini.
13. The sixth ground raises the question of genuineness of the transfer made by Sailendra of his interest in the estate of his grandfather to his mother Nishadini. The question was raised in the Court below by the plaintiffs, and they obtained an adjudication that the conveyance represented a benami transaction. In the present appeal that conclusion has been assailed by Nishadini. But the plaintiffs have taken up the position that they are not interested in the decision of this matter. Consequently the dispute reduces to a controversy between the two co-defendants, In this view the parties have agreed, and in, our opinion, very properly, that the decision of the Subordinate Judge on this point should be set aside and that the matter should be left open for determination in a subsequent suit but that in the meanwhile the decree in this suit should be made on the assumption that the appellant represents the real estate of things. We, therefore, allow the appeal on this point, set aside the decree of the Subordinate Judge, and direct that allotments be made on the footing that the conveyance of the 16th December 1896 was intended to be a genuine and operative transaction. But liberty is reserved to Sailendra to institute a separate suit for declaration against his mother that the transaction was benami and that he himself is beneficially interested in the allotments made to her.
14. The seventh ground raises the question of the marriage expenses of the great-grandsons and great-granddaughters of the testator. The Subordinate Judge has held, on the authority of the decisions in Nafar Chandra Kundu v. Ratnamala Debt 7 Ind. Cas. 921; 13 C.L.J. 85; 15 C.W.N. 66 and Dinesh Chandra Roy Chawdhury v. Biraj Kamani Dasi 11 Ind. Cas. 67; 39 C. 87; 14 C.L.J. 20; 15 C.W.N. 945, that the directions given by the testator in respect of this matter are valid in law. This view has been accepted by both sides. Consequently the Subordinate Judge will give directions, so that sums may be set apart from the annual income from time to time to be applied to meet the marriage expenses as occasion might arise. It has been suggested that the most satisfactory arrangement would be to set apart a portion of the patni rent, but we cannot give at this stage definite instructions on the subject.
15. The eighth ground raises the question of costs. The Subordinate Judge has directed that costs already incurred be borne by the parties and that costs subsequent be borne by the estate. The respondents contend that costs should be paid out of the estate and they rely upon the decision in Fenton v. Wills 7 Ch. D. 33; 47 L.J. Ch. 191; 37 L.T. 373; 26 W.B. 139. We are if opinion that no grounds have been established in favour of a departure from the ordinary rule and that costs in the Court below as also the costs of this Court must be paid out of the estate [in re Love, Hill v. Spurgeon 29 Ch. D. 348; 54 L.J. Ch. 816; 52 L.T. 398; 33 W.R. 449].
16. There is one other matter which requires a brief notice. The Subordinate Judge directed that immoveable properties of the estate should be sold to satisfy the debts due therefrom. We have already held in our judgment, dated the 28th August 1914, that it would be more beneficial to the estate to grant permanent leases rather than to effect a sale of valuable properties. This order has been carried out and a patni has been granted. We directed at the same time that the decree of the Subordinate Judge should be modified so as to authorise the Receiver not merely to sell but also to dispose of by lease or ether mode of alienation a part of the estate as might be found most advantageous. The decree of the Subordinate Judge will consequently be modified in this respect.
17. The result is that this appeal is allowed in part and the decree of the Subordinate Judge modified in respect of the matters mentioned. A self-contained decree will be drawn up in this Court so as to avoid future dispute.
1This is omitted from the judgement, as it is not material for the report.--Ed.