Binjraj Marwari vs Jogeswari Devi

S.K. Datta, J.—One Tejendra Narain Singh, owner of seven annas share in what is known as the Barwari Estate, died on March 25, 1921, leaving a will dated April 13, 1920, whereby he appointed one Tribeni Prosad Singh and Sahadev Prosad Singh as his executors. On February 18, 1929, the said Tribeni Prosad Singh and Sahadev Prosad Singh obtained probate of the said will. On January 16, 1932 Sahadev Prosad Singh died with the result that Tribeni Prosad Singh became the sole executor.

On March 16, 1936, the said Tribeni Prosad Singh borrowed a sum of Rs. 3,100 in Calcutta within the jurisdiction of this Court. On March 18, 1936, the said Tribeni Prosad Singh borrowed a further sum of Rs. 300 at Bhagalpur outside the said jurisdiction. On March 18, 1936, Tribeni Prosad Singh executed a promissory note at Bhagalpur for Rs. 3,400 payable with interest at the rate of Re. 1-4-0 per cent, per mensem with yearly rests.

On February 2, 1937 Tribeni Prosad Singh died leaving his son Rohini as his only heir.

In these circumstances on March 16, 1939, the Plaintiff sued I Rohini Prosad Singh, as heir of Tribeni Prosad Singh, Baldeo Prosad Singh as the then executor to the estate of Tejendra Narain Singh, deceased and the four daughters and/or heirs of Tejendra Narain Singh for the recovery of a sum of Rs. 5,171 made up of the said advance of Rs. 3,400 and interest thereon with further interest and costs payable by Defendant No. 1 out of the joint family estate and/or the estate inherited by him from his father and by Defendants Nos. 2 to 6, out of the estate of Tejendra Narain Singh, deceased.

In or about April 1939, Rohini Prosad Singh was served with the summons of this suit. He, however, did not enter appearance in time or file his written statement.

In or about July, 1939, Rohini Prosad Singh made an application asking for leave to enter appearance and file written statement on the ground that the summons was not served on him. The said application was allowed on terms, that is to say on payment of Rs. 200 as costs by Rohini Prosad to the Plaintiff. Rohini Prosad, however, did not make payment of the said assessed cost or enter appearance or file written statement.

On November 23, 1943, Rohini Prosad Singh died leaving his wife Jogeswari Devi alias Provabati Devi as his only heir and legal representative.

On May 31, 1944, the said executor Baldeo Prosad Singh died, the abatement of the suit as against Rohini Prosad Singh was set aside and Jogeswari Devi, widow and legal representative of Rohini Prosad, was directed to be brought on the record in the place of Rohini Prosad and the death of Baldeo Prosad Singh was recorded.

On July 27, 1949, Jogeswari Devi on the allegation that no writ of summons was served on her made an application to enter appearance and filed her written statement. The order, prayed for were made subject to the furnishing of security of Rs. 3,500 by Jogeswari Devi. She complied with the said order, entered appearance and on September 3, 1949, filed her written statement.

In the result, the present Defendants are Jogeswari Davi alias. Provabati Devi, widow and legal representative of Rohini Prosad Singh, deceased, Srimati Annapurna Dei, Srimati Tara Dei, Srimati Deoki Dei and Srimati Saraswati Dei, daughters of the said Tejendra Narain Singh and one Gangeswar Prosad Singh in whose favour the said four daughters of Tejendra Narain. Singh surrendered their estate during the pendency of the suit.

In the written statement filed by Jogeswari Devi she contended that the loan was made to the seven annas Barwari Estate, that the suit had abated, that the promissory note was not presented for payment and that there was an agreement between Jogeswari Devi and the daughters of Tajendra Narain Singh whereby it was agreed, inter alia, that this loan amount would be paid out of the estate of Tejendra Narain Singh.

In the written statement filed by the daughters of Tejendra Narain Singh and Gangeswar Singh they denied that the sum of Rs. 3,400 had been advanced to the said Tribeni Prosad Singh for the purposes and for the benefit of the said estate and that Tribeni Prosad Singh was not entitled to any indemnity for the said amount out of the estate of the said Tejendra Narain Singh that this Court had no jurisdiction as the estate was entirely in the State of Bihar and that in any event they were entitled to reliefs under the Bengal Money-lenders Act.

The written statement of Gangeswar Prosad Singh was in the same lines as that of the said daughters of Tejendra Narain Singh.

The following issues were settled:

(a) Did the Plaintiffs lend and advance any money to Tribeni Prosad Singh for the purpose and benefit of the estate as alleged in para. 5 of the plaint?

(b) Was the promissory note dated March 18, 1936, executed by Tribeni Prosad as executor of the estate?

Did Shib Charan Singh act as executor from March, 1936? If so, did he act lawfully?

Was Tribeni Prosad Singh entitled to be indemnified out of the Barwari Estate and were the Plaintiffs subrogated in the place of Tribeni Prosad and entitled to the payment of the claimed amount out of the estate ?

Are the Plaintiffs entitled to interest at the rate of Rs. 1-4-0 per cent., per month as claimed in para 11 of the plaint?

Are the Plaintiffs entitled to a decree against Defendant No. 1 as alleged in para. 12 of the plaint?

Did the suit abate as against Defendant No. 1?

(a) Was there a compromise as alleged in para. 8 of the written statement of Defendant No. 1?

(b) Has this Court jurisdiction to try this suit by reason of the fact that the Barwari Estate is entirely in the State of Bihar?

To what relief, if any, are the Plaintiffs entitled?

On behalf of the Plaintiffs one Nageswar Prosad was examined de bene esse on or about March 3, 1950. One of the Plaintiffs Benarsilal Marwari gave evidence before me and he spoke of matters which happened at Bhagalpore. One Bajranglal Sarma, a moonim of the Calcutta branch of the Plaintiff firm, gave evidence regarding matters which took place in Calcutta with reference to the loan of Rs. 3,100. One Prodyumna Prosad Singh, who was the resident manager of the Barwari Estate from 1942 to 1946, also gave evidence before me on behalf of the Plaintiffs. The Defendant No. 1 did not call any witness. The Defendants Gangeswar Prosad Singh tendered one Hari Narain Lal Das, an employee of the seven annas Barwari Estate, to support their case before me.

It was common case of the parties that in 1936 Tribeni Prosad Singh was acting as an executor to the estate of Tejendra Narain Singh. It was also undisputed before me that the sum of Rs. 3,100 was spent in purchasing a Chevrolet car in Calcutta.

Mr. Sen, Learned Counsel appearing for Defendant No. 1, firstly contended that Jogeswari Devi was not the heir of Tribeni Prosad Singh and, therefore, no decree can be passed against her.

On the death of Tribeni Prosad on February 2, 1937, his estate vested absolutely in his only son and heir Rohini Prasad. Rohini Prosad thereupon became liable to pay the debts of his father out of the assests inherited by him from his deceased father. Hence the Plaintiff made Rohini a Defendant.

On the death of Rohini, during the pendency of the suit on November 23, 1943, the estate of Rohini which included the estate of Tribeni or such part of it as was not frittered away by Rohini Prashad, passed to or devolved on Rohini''s sole heir and widow Jogeswari Debi.

On the death of Rohini, the Plaintiff''s "right to sue" did not die with Rohini for it did not fall within the ambit of the exceptions of Section 306 of the Indian Succession Act. In other words, the right to sue survived even after the death of Rohini.

Jogeswari Debi, the heir and legal representative, was added as a party to the suit and the trial proceeded in her presence.

Therefore, Jogeswari Debi who took the benefit of Tribeni''s estate cannot shake off the liability which is fastened to it. This is in consonance of the general principle of Hindu Law that he who takes the estate becomes liable for the debts of the estate. In this connection reference may be made to (1909) L.R. 36 I.A. 138 (Privy Council) .

I am, accordingly, unable to accept the submission of Mr. Sen. on this point.

The next contention advanced by Mr. Sen was that, since it was a simple contract debt the Plaintiff cannot obtain any decree against Jogeswari Debi until and unless the Plaintiff satisfies that the properties of Tribeni Prosad had come into the possession of Jogeswari Devi.

Section 52, Code of Civil Procedure, suggests that a decree may be passed against the legal representative without proof that properties of the deceased have come into the hands of the legal representatives. A large number of judicial decisions also point to that direction.

The question can be agitated in execution proceedings as is clear from Section 52 of the Code of Civil Procedure. It would have been different if Jogeswari Devi in her written statement asserted that no property which originally belonged to Tribeni Prosad came into her hands and the question was tried here. In such case, if it was found that no property of Tribeni Prosad had come in her hands, then it would have been useless to pass a decree against Jogeswari Devi. Hence, the suit cannot fail on this ground.

Mr. Sen further contended that the suit had abated for Rohini died on November 23, 1943 and the application for setting aside the abatement was not made until May 25, 1944, that is to say, well over five months.

Mr. Mitter, appearing on behalf on the Plaintiff, submitted that the order made on May 31, 1944, in this suit setting aside the abatement and the adding of Jogeswari Devi as a Defendant, though ex-parte is a complete answer to this plea of Mr. Sen.

The more important facts relating to this point are as follows.

On November 23, 1943, Rohini died. On May 25, 1944, thereupon the Plaintiff made an application for setting aside the abatement and adding Jogeswari Devi as a Defendant. The order was made on May 31, 1944. On October 2, 1944, the Plaintiff served the writ of summons on Jogeswari Devi, Jogeswari Devi did not enter appearance or file her written statement. In July, 1949, when the suit appeared in the peremptory list. for hearing, Jogeswari Devi made an application to enter appearance and file her written statement. In that application Jogeswari Devi did not state that the suit as against her had abated. On July 27, 1949, the application of Jogeswari Devi was granted on terms and on September 3, 1949, Jogeswari Devi filed her written statement where she took up the point that the suit had abated.

According to Order 17 of the Rules of the Supreme Court an ex parte application for setting aside an abatement and adding of a party can be made. There is provision in that order that if the party affected is dissatisfied with the order he or she can make an application within 12 days for discharging or varying the order made ex parte.

In our Code or the rules there are no such provisions. However, ex parte orders are made as a matter of practice sometimes in this Court possibly inspired by the provisions of Order 17 of the Rules of the Supreme Court. Be that as it may, an ex parte order was made in this suit.

An order or decree whether ex parte or otherwise binds the party. There is specific provision in the Code for setting aside an ex parte decree under Order 9, Rule 13, but there is no specific provision in the case of an ex parte order.

At one time it was thought that the injured party had a relief by way of a review but after Chajju Ram''s case (1922) L.R. 49. L.A. 14, it seems to me that the remedy is not open to the party.

The party adversely affected by an ex parte order, however, can challenge the order by way of an appeal. That was not followed in this case.

There is, however another remedy open to the party adversely affected by an ex parte order. This is by way of an application u/s 151 of the Code of Civil Procedure. So far as our High Court is concerned this right is well established and the cases, reported Vir Sundevi Devi v. Sovaram Agarwallah (1905) 10 C.W.N. 306, Tikait Ajant Singh v. F.T. Chisiw (1912) 17 C.W.N. 862, In the goods of Akshoy K. Ghose, deceased AIR (1949) Cal. 462 are helpful in this matter.

In this case no application u/s 151 of the CPC was made by Jogeswari Devi. Therefore, I am unable to set aside the prior ex parte order setting aside the abatement.

Mr. Gouri Mitter, Learned Counsel for the Plaintiffs, contended that one learned Judge could not set aside the order of another learned Judge and thereby sit on appeal.

In a case where an ex parte order is passed, it is the necessary implication of law, in my opinion, that on further materials being placed making out proper ground or grounds any other learned Judge who may be trying the matter is entitled to set aside the ex parte order. This is not sitting on appeal against the order of another learned Judge but modifying the order on the basis of further materials or facts not placed before the Court which made the earlier ex parte order.

In this view of the matter I reject the contention of Mr. Mitter on this point.

Mr. Sen further submitted that it is clear from the evidence before the Court that the motor car was purchased with the said moneys borrowed by Tribeni Prosad for the benefit of the estate, hence the liability had passed to the estate of Tejendra Narain Singh and the liability of Tejendra Prosad Singh or his estate, if any, became extinguished.

The law on the subject is well settled.

In Sudhir Chandra Das v. Gohinda Chandra Roy (1917) 21 C.W.N. 1043, Chitty, J., summarised the position in law as follows:

It has been held in several cases in this Court that the executor who borrows money in the course of administration for the purposes of the estate is personally liable for the repayment of such debts, though he is entitled to be indemnified out of the estate for such borrowing, if he shows that it was reasonably and properly made.

AIR 1949 218 (Federal Court) , Mukherjee, J., stated the law as follows:

The creditor, on the other hand, has no legal claim against the estate but he is allowed in equity to be subrogated to the executor''s right of indemnity while ha retains his claim against the executor personally.

Therefore, there is no question of the extinguishment of the personal liability of the executor and transfer of the liability from the executor to the estate in charge of the executor.

Hence, the above contention advanced on behalf of Jogeswari Devi cannot be accepted.

Therefore, Jogeswari Devi is liable to the extent of the estate of Tribeni Prosad Singh which had devolved on his son Rohini and on the death of Rohini had come in her hands.

Mr. Chatterjee, Learned Counsel for Gangeswar Prosad Singh, did not dispute that Tribeni Prosad purchased the car with the loan but submitted that the car was not utilised for the purpose of the estate as would be evident from the evidence of his witness Narayan Lal Das and the fact that the car was registered in the name of Tribeni Prosad Singh personally.

The evidence of Harinaralnlal Das did not impress me. I prefer to accept the evidence of Nageshwar Prashad. Nageshwar Prashad, the driver of the Chevrolet car, makes it amply clear that the car was utilised for the purpose of the estate and the expenses were borne by the estate. There has been no charge of misappropriation against Tribeni for moneys spent by him out of the estate to maintain the car. The car though out of order was in possession of the estate for about nine years. Tribeni had a car of his own. These indicates that the car was utilised for the estate.

The registration of the car in the name of Tribeni Prasad Singh, is offset by the fact that the exts. F, Gl and G2 filed by Baldev Proshad Singh who succeeded Tribeni Prosad Singh as executor indicates that the car was the property of the estate and was utilised by the estate.

Mr. Chatterje further submitted in the alternative that in any event the car was not utilised for the benefit of the estate.

Mr. Chatterjee, in support of his above contention, pointed out the estate was managed previously without the help of a ear and was again managed after the car was out of order without the help of a car. Moreover, the car could not benefit the estate for there was hardly any motorable road in that area.

In the case of (Maharaja Sir) Manindra Chandra Nandi Vs. Sudir Krishna Banerjee and Others, ., Mukherjee, J., as he then was summarised the law as follows:

From the cases cited above the proposition may be deduced that whatever differences there may be in the equity in favoure of a creditor who has lent money to an executor, according as it is applied for a purpose sanctioned by the will or a purpose not expressly sanctioned by it, the highest right such a creditor may claim against the estate on the finding that it has been enriched or benefited by the money is a right to be subrogated to the right of the executor to be indemnified out of the estate to the necessary extent and unless the right of the executor to the indemnity is established the creditor has none as against the estate.

The mere fact that the car was not used prior to 1936 and again not admittedly used by the resident manager of the estate from 1944 to 1946 does not by itself proved that the car could not benefit the management of the estate. It may be a factor which has to be considered in arriving at the finding whether the car was for the benefit of the estate.

The estate was a considerable one. The yearly income was between Rs. 50,000 and 60,000. The mahals were scattered in different districts within a radius of 40/42 miles of Supaul kutchery. The roads were motorable except during the rainy season. The use of a car would in my opinion encourage more frequent visits to the mahals, lead to closer inspection and quicker despatch of the affairs of the estate. The executor Tribeni Prosad as well as the then manager used the car for visiting or inspecting different mahals of the estate. The estate benefitted by such user of the car.

The car when out of order continued to remain in the possession of the estate. The resident manager took possession of the same, sold it and appropriated the sale proceeds to the estate. The estate enriched itself by the loan which was utilised in the purchase of the car.

Therefore, the executor Tribeni Prosad has a right of indemnity against the estate of Tejendra Narain Singh, that is to say in the events that have happened Jogeswari Devi has a right of indemnity against the estate of Tejendra Narain Singh which had passed to Gangashwar Prashad Singh.

There is no charge of misappropriation against Tribeni Prosad Singh, the executor. There is no allegation even that he is indebted to the estate otherwise. Hence Tribeni Prasad''s right of indemnity as executor against the estate has not been lost or impaired in any way.

At this stage, it may be helpful to refer to a portion of Art. 1146 of 14 Halsbury at p. 619 which deals with "Creditor of Executor":

... the creditor on the other hand has no legal claim against the estate, but he is allowed in equity to enforce on his own behalf the executor''s right of indemnity. He is subrogated to this right, while he also retains his legal claim against the executor, but in asserting the right, he is subject to any defences which would avail against the creditor.

Hence, in the facts of this case, the Plaintiffs are entitled in law to be subrogated to the executor''s right of indemnity against the estate.

Mr. Chatterjee submitted that the suit is a suit for land and hence this Court has no jurisdiction. The suit is for recovery of money advanced and/or on a promissory note executed on March 18, 1936. The suit is not a suit for land.

The fact that the decree if passed was executable against the estate of Tribeni Prosad which happened to consist entirely or largely of immovable property situate in Bihar cannot make it a suit for land. Clause 12 of the Letters Patent does not apply to such a case.

The Barwari Estate has been admittedly acquired by the State of Bihar during the pendency of the suit and hence the slender basis for this submission has vanished.

Mr. Chatterjee further submitted that this Court has no jurisdiction to try the suit as the Defendants do not reside within the jurisdiction and no cause of action arose within the jurisdiction.

The sum of Rs. 3,100 was lent and advanced in Calcutta on March 16, 1936 and the balance sum of Rs. 300 was advanced at Bhagalpur on March 18, 1936. There is some evidence to show that the money was advanced in Calcutta in terms of an agreement arrived at Bhagalpur.

The promissory note executed at Bhagalpur states, inter alia, as follows:

I promise to pay the principal with interest and compound interest on demand at Bhagalpur, Calcutta or at any other place by you or to any one else to your order and shall take back the promissory note.

No issue was raised on this point and hence the submission can not be entertained.

The words "I promise to pay... Calcutta" mean that the money is payable somewhere or anywhere in Calcuta. Therefore it was payable also within the Ordinary Original Civil Jurisdiction of the High Court.

Then words "I promise to pay on demand at any other place" also attract the jurisdiction of the Court for the demand was made for the payment of the money in Calcutta within the Ordinary Original Civil Jurisdiction of the High Court by filing the suit.

Hence this Court has jurisdiction to try this suit.

I answer the issues as follows:

Issue No. 1(a)

Did the Plaintiffs lend and advance any money to Tribeni Prosad Singh for the purposes and benefit of the estate as alleged in para. 5 of the plaints.

A.-Yes.

Issue No. 1(b)

Was a promissory note, dated March 18, 1936, executed by Tribeni Prosad as executor of the estate?

A.-The promissory note was not executed by Tribeni Prosad as the executor to the estate.

Issue No. 2

Did Shib Charan Singh act as executor from March, 1936, if so, did he act lawfully?

''A.-This issue was not pressed.

Issue No. 3

Was Tribeni Singh entitled to be indemnified out of the Barwari Estate and were the Plaintiffs subrogated in the place of Tribeni Prosad and entitled to the payment of the claim amount out of the estate?

A.-Yes.

Issue No. 4

Are the Plaintiffs entitled to interest at the rate of Re. 1-4-per cent, per annum as claimed in para. 11 of the plaint?

A.-The money was not a commercial loan and, therefore, the Bengal Money-lenders Act applies to the loan, and the rate of interest cannot exceed 10 per cent, simple

Issue No. 5

Are the Plaintiffs entitled to a decree against Defendant No. 1 as alleged in para. 12 of the plaint?

A.-Tribeni Prosad was primarily liable for the loan and on his death Rohini as the son was liable for the debt limited to the estate which he had inherited from his father. On the death the liability again of Jogeswari Devi cannot be personal and it will be limited to the estate of Tribeni Prosad which had come in her hands through her husband.

Issue No. 6

Did the suit abate as against Defendants No. 1?

A.-In view of the order, dated May 31, the suit has not abated against Defendant No. 1.

Issue No. 7(a)

Was there a compromise as alleged in para. 8 of the written statement of Defendant No. 1?

A.-There is no evidence before me and so I cannot hold that there was a compromise as alleged in para. 8 of the written statement of Defendant No. 1

Issue No. 7(b)

Has this Court jurisdiction to try this suit by reason of the fact that the Barwari Estate is entirely in the State of Bihar?

A.-Yes.

Issue No. 8

To what relief, if any, are the Plaintiffs entitled?

A.-There will he a decree for Rs. 3,400 with interest of equal amount, that is to say, Rs. 3,400, totalling a sum of Rs. 6,800 against Jogeswari Devi limited to the estate of Tribeni Prosad which has come into her hands. The Barwari Estate is represented by Gangeswar Prasad. Therefore, there will also be a decree for the same amount against the Defendant No. 6 payable out of the assets of the Barwari Estate. There will be no personal decree against them.

There was no application before me for instalment u/s 34 of the Bengal Money-lenders Act. Hence I am unable to give any relief under that Act.

In view of the Bengal Money-lenders Act the decretal amount will not carry any interest.

The Plaintiff will get the costs of the suit certified for two counsel out of the estate of Tribeni in the hands of Jogeswari Devi as also out of the assests of Barwari Estate in the hands of Gangeshwar Prashad.