Ranee Chandra Rally Deby v. Edmund Pelly Chapman — 1905 DIGILAW 27 (CAL)

JUDGMENT 1. The Plaintiff in this case. Ranee Chandra Rally Deby, sues the Registrar of the Appellate Side of the High Court, the Secretary of State, and one Jiban Kristo Roy in respect of a Government Promissory Note No. 020176 of 1842 43 for Rs. 4,100. The substantial part of her claim is for a declaration that the Registrar is entitled to recover the Promissory Note from Jiban Kristo Roy, the third Defendant, or its equivalent, from the Secretary of State, and, also for the interest paid on a Promissory Note No. 1886 of 4730 of 1825-26, dated the 27th May 1828, for Rs. 3,800 or any note issued in lieu thereof after the 5th May 1857. The facts of the case are not, as far as we are at present concerned, very complicated. They are, however, a good deal obscured by the length of time that, from one cause or another, has elapsed since their commencement and, as far as they depend for their elucidation on documentary evidence, by the form in which that evidence has been laid before me. It appears that in 1829 a suit in the Sudder Dewani Adawalut was compromised by the payment into Court of Company's paper of the value of Rs. 60,000 for the benefit of one Rajah Womesh Chunder Roy and others. Womesh Chunder died in 1834 and Ganesh Chandra, among others, became entitled to the benefit of the fund in Court and it is from him that the present Plaintiff claims as his sole surviving widow. He applied to the Court for the partition of the maintenance derivable from the funds in Court; and an order was made, dated the 3rd of August 1837, that "in lieu of the Promissory Note of Rs, 60,000 deposited in the general Treasury, to whomsoever the same may have been credited from before three Promissory Notes be purchased (issued)" of various amounts, one for each of the beneficiaries, " it being noted that they shall receive interest on the amount of the said notes according to usual practice, and that they shall have no power to negotiate and transfer the same without, order of this Court." Now this order is plainly based on the assumption that the Registrar was in possession of one Promissory Note and contemplated that he would get 3 others instead. The Advocate-General suggests that this assumption was incorrect and that the Registrar never obeyed the order in the sense suggested. This view has not been disputed by the representatives of the other parties to the case and seems to me to be as sound a view of the facts of the case as can be arrived at on the information before me. The point is of importance when we come to consider whether the action of the Registrar has been such as to cast any liability on the Secretary of State, but it does not seem to have been noticed before. What actually happened seems to have been that when Rs. 60,000 was originally paid into Court in 1829 it was paid in the Company's Promissory Notes, of which No. 1880 of 4730 of 1820-26 was one. This note which is dated the 27th May 1828 is expressed as being payable to Ishan Chandra Roy and is for a sum of Rs. 3,800. It is the first of a series of nine, which have throughout the case been referred to by the numbers from 1 to 9. In May 1833, Mr. Macnaghten, an officer of the Court, seems to have received 20 quarters' interest on No. 1 and the note was cancelled in October in the same year. This note was renewed by No. 2 on the 16th October 1833, and up to February 1837,--the endorsements on the back of it show that Mr, Macnaghteu regularly received the interest on it. This note was renewed into No. 3 on the 26th April 1837, and, after signatures by Mr. Macnaghten, up to the 27th of August, we come to various signatures relating to the payment of the interest to the order of Ganesh. Across the face of this note is written, plainly as being in accordance with the order of 3rd August 1837, " pay the interest to Rajah Ganesh Chuuder Roy or order Sd. J. Hawkins" and this is followed by an order signed Ganesh for payment to his representative. No. 3 note was renewed by No. 4 on the 13th September 1850 and this seems to have remained in Ganesh's possession till 1853. The entry relalting to the payment of interest on the face of No. 3 was not repeated on No. 4. J. Hawkins" and this is followed by an order signed Ganesh for payment to his representative. No. 3 note was renewed by No. 4 on the 13th September 1850 and this seems to have remained in Ganesh's possession till 1853. The entry relalting to the payment of interest on the face of No. 3 was not repeated on No. 4. There is, however, an endorsement on the back containing a reference to a letter to the Registrar of the Sadder Court, dated the 31st July 1848. This letter, the date of which seems really to be the 1st August 1848, amounts to an admission by the Comptroller-General of his liability to pay interest to Ganesh on the note No. 1886, and taken with the preceding correspondence (so far as it has been laid before me) seems to constitute a notice, whatever such notice may have been worth, to the Comptroller-General, of the facts that the principal amount of the note in the hands of the Court, and that no holder of it was entitled to more than the interest accruing thereon. In August 1853, the note No. 1886 of 4730 of 1825-26 was paid off by the issue of No. 5, a note on a new loan being No. 15935 of 1842 43. After this date as far as appears from the notes themselves Ganesh's interest disappears; and the notes Nos. 5 to 9 and subsequent renewals of them seem to pass to a succession of persons till the second Defendants are reached. The notes are drawn out in the name of Ishan Chandra Roy as payee till No. 6. The receipt for the principal and interest on note No. 4 on the occasion of its transfer to a new loan of 1812 43, on the loan of 1825-26 being paid off, is signed in the name of Ganesh, an obviously subsequent addition being made to the body of the receipt that it is made "in the name of Isban Chandra Roy." It seems probable that this addition was made to meet the requirements of the Accountant General's Office, and was treated by them and Ganesh as a mere formality. There is evidence, which though uncorroborated, 1 see no reason for doubting, that Ishan Chandra, who was Ganesh's uncle, died some time before 1852. There is evidence, which though uncorroborated, 1 see no reason for doubting, that Ishan Chandra, who was Ganesh's uncle, died some time before 1852. There is also evidence which may, 1 think, be safely neglected, that Ganesh died in the May previous to the date of his signature on this note; and that the signature is not in his hand writing. 2. Now as the case has been argued, the foundation of the Plaintiff's case is contained in the foregoing facts, because it is undeniable that funds to which the Plaintiff has a right to look for her support have been lost, and they seem to have been lost, from the Plaintiff's point of view, when note No. 4 was exchanged for note No. 5. There appears to be no doubt that the loss is due primarily to the dishonesty of Ganesh, or persons fraudulently using his name, and I have to consider whether the negligence of either the first or second Defendant contributed to the result. Fraud is imputed to the servants of the Comptroller-general in the plaint; but of this there is clearly no evidence and the allegation has been dropped. 3. The claim against the Registrar of this Court, who of course represents his predecessor in the Sudder Dawani, is that he should exercise rights that he is supposed to have against the third Defendant. But the propriety of his predecessor's conduct can only be considered in so far as his proceedings justified those of the Comptroller-General, and from this point of view the effect of the order of the Court of the 3rd August 1837 may be properly considered though its propriety cannot of course be questioned. Now had that order not been made it is plain that the present ease could not have arisen. If that order had been exactly obeyed, and if the Registrar had procured the issue of a Promissory Note in his own name, it also seems certain that the corpus of the property, we are concerned with, would have been saved. The question then arises, did the Registrar sufficiently carry out the order by making the enfacement on the note which I have described as No. 3? The answer to that question depends on the effect that that enfacement would have. The question then arises, did the Registrar sufficiently carry out the order by making the enfacement on the note which I have described as No. 3? The answer to that question depends on the effect that that enfacement would have. Now it seems to me that that enfacement was intended to form a part, of the note; and in spite of the evidence of Babu Sarat Chandra Bose, I am unable to understand why it was not repeated when No. 3 was renewed into No. 4, and had it been so repeated 1 do not suppose that Ganesh would have been treated as entitled to the capital sum when No. 4 was called in to be paid off. Had any question been raised at this time the red ink endorsement on No. 4, " Vide the letter to the Registrar, etc.," should have enabled the Comptroller-General to discover the true position of affairs. 4. At this distance of tine, and in view of the uncertainty of what it was that the Registrar actually did, I am not prepared to hold that the steps he took to carry out the order of 1837 were improper; I certainly do not think that they were so plainly improper as to say that his conduct directly contributed to the loss of the funds in question. On the other hand they have undoubtedly been lost and I hold that the fact that the enfacement on No. 3 was not repeated on No. & did contribute to that loss, and amounts to negligence on the part of the Comptroller-General. I am confirmed in this view by the fact that the first four renewals which I have referred to seem to have taken place without any reference to the nominal payee of the note Ishan Chandra Roy, which, according to present practice, seems to have been an irregularity. Had proper enquiries about him been made it seems probable that the property would have remained with its proper owners, 5. Had proper enquiries about him been made it seems probable that the property would have remained with its proper owners, 5. This being the position in 1853, and taking it that Ganesh was alive when the new note was granted in that year, the rest of the material facts of the case are as follows:--Leaving the date of Ganesh's death uncertain it is admitted that the Plaintiff and another widow were left as his heirs, and that in 1866 this Court in its Appellate Side made a division of his property between them, except that note No. 1886 and another No. 65 of 1832-33 of the loan of 1832 for Rs. 3,400 were not available having disappeared. 6. In 1885 the latter of those notes having been traced, the present Plaintiff instituted a suit for its recovery, and the Registrar of the Appellate Side was ordered to be joined as a Plaintiff but this was not done. By consent, however the Plaintiff was declared entitled to the note and it was ordered to be delivered to the Registrar. In the same proceedings the Registrar WAS ordered to take steps to stop the circulation of note No 1886 and to recover it. 7. After these proceedings a correspondence ensued between the High court and the Government of India in 1887 and 1888 in relation to note No. 1886 which was then still missing. The correspondence in itself is not particularly relevant, except that at that time it is plain that the two bodies represented by the first and the second Defendants each regarded the other as to blame for the loss that the Plaintiff has incurred. It concludes with a letter from Government, dated March 1883, in which they state that they consider the loss of what they call "the Trust" as due to the conduct of the officers of the Court, and that they accept responsibility in the matter. On this letter was recorded the following order:--"The matter will have to stand over until it is ascertained, what the Ranee intends doing." 8. The matter then remained as it was till the 10th September 1896 when Prosonna Chunder Ray, on behalf of the Plaintiff, applied to the English Department of the High Court, with a request that the missing note No. 1886 might be traced, and dealt with in the Plaintiff's interest. The matter then remained as it was till the 10th September 1896 when Prosonna Chunder Ray, on behalf of the Plaintiff, applied to the English Department of the High Court, with a request that the missing note No. 1886 might be traced, and dealt with in the Plaintiff's interest. After careful consideration it was apparently decided that, pending the institution of a suit by the Plaintiff, all the information possible on the subject should be given to her. Eventually on the 25th February 1898 the Registrar gives Prosonna Chunder Roy information of the address of the third Defendant whose note now retained by the Comptroller seems to represent the note No. 1886 and those given in substitution of it, and the present action is brought on the 16th December in the same year. 9. Under these circumstances 1 have to decide what is the present position of the Defendants in relation to the claims put forward by the Plaintiff. The claim made against the first Defendant, whom we may treat as representing all his predecessors and successors is that he should as a trustee perform certain acts to vindicate the Plaintiff's rights. My finding as to the propriety of his conduct in 1837, however absolves him from all the consequences which would attach to a breach of trust in that year, and even if it is possible to regard him as a trustee before that date, I cannot see how he can be treated as a trustee after he has properly parted with all control over the property which it is sought to treat as trust property. It is true that this Court has seen fit to direct him to take certain steps in this matter, going so far as directing him to sue as a Plaintiff, but I do not see that this can in any case justify making the declaration as to his rights mentioned in the prayer of the plaint. 10. It is sought to make the Secretary of State also liable as a trustee. Assuming that it is possible that he ever should be a trustee, a proposition to which I by no means assent, I do not see how he can be a trustee in this case. 10. It is sought to make the Secretary of State also liable as a trustee. Assuming that it is possible that he ever should be a trustee, a proposition to which I by no means assent, I do not see how he can be a trustee in this case. No authority has been quoted before me to show that he can have a trust imposed on him by the Registrar either of this or of the Sudder Dewani. I do not understand how the evidence can be taken as supporting such an imposition. I also quite fail to see how the Comptroller General or any other officer charged with the payment of the obligations of the Government can be regarded as a trustee, or consequently how the Secretary of State, as in any way representing them can be so regarded. Their duty is simply to pay the Government's debts in a certain way, according to certain rules, and were they held bound to do more than this their position would become impossible. I hold, therefore, that no property has been vested in either of the first two Defendants in trust for any purpose that neither of them can be treated as a trustee, and that the note in question cannot be treated as trust property. 11. This makes the negligence of which I have found Comptroller-General to have been guilty in 1853 the sole ground for any claim which the Plaintiff may have against the Secretary of State. And to this it seems to me that the Statute of Limitation is a complete bar. From what I have already held it follows that the Secretary of State is not debarred from availing himself of the Statute of Limitation by sec. 10 of that Statute. The facts on which the charge of negligence may in my opinion be based may not have been communicated to the Plaintiff in 1866, though our knowledge as to what happened then 13 by no means full, but in the absence of any other evidence I should suppose that the Plaintiff must have had the facts as known to the Defendant, placed within her reach in 1885. My opinion on this point is based on the contents of the Plaintiff's petition to this Court of 10th June 1885, and the order of the English Committee of this Court of the 26th June. My opinion on this point is based on the contents of the Plaintiff's petition to this Court of 10th June 1885, and the order of the English Committee of this Court of the 26th June. Were it certain that, the letter from the Government of India to the Registrar, dated the 20th March 1888, was communicated to the Plaintiff, as it seems that it might have been under that order, it would be clear that the Plaintiff received notice at. that date, which would seem to bar her right of action against the Secretary of State under any articles of the Statute possibly applicable. The endorsement of the Registrar, however leads me to suppose that this was not done. The evidence of Kumar Nath Roy, who now manages the Plaintiff's affaire, goes to show that the proceedings consequent on the petition of June 1886 never came to his knowledge till long after that date. He, however, only began to manage her affairs in 1892, and I cannot regard what he says as excluding the natural inferences to be drawn From the action of the Plaintiff's accredited agents. 12. I therefore hold that the Plaintiff's claim against the Secretary of State in so far as it is based on the negligence of the Comptroller General is barfed by the Statute. 13. As regards the third Defendant also, Jeeban Krishna Roy, the Plaintiff's claim seems to me to be barred by the Statute of Limitation and probably by sec. 58 of the Negotiable Instruments Act. The Plaintiff, in the view of the facts I have expressed above relating to the existence of a trust, seeks to avoid the operation of the Statute by treating the suit as one under Art, 18, that is one for specific moveable property acquired by theft or misapproprition or conversion or for compensation for wrongfully taking or detaining the same. This article is inapplicable to the facts as I hold them to be. This article is inapplicable to the facts as I hold them to be. The Plaintiff's claim against Jeeban is not that she is entitled to the note which Jeeban has but that Jeebin's predecessors were not originally entitled to have the note it represents, and that his possession of It ought not to be allowed to prevent the Plaintiff from recovering compensation for the negligence of the second Defendant, in making it possible for her to be cheated out of the benefits she was entitled to in respect of another note It may be that she was not aware of Jeeban's existence till within sis year of the bringing of the suit. Bu in the view I take of the case the e could have claimed real remedy, which in the first instatance of against the second Defendant without any demand against Jeeban, although Jeeban may now be property joined. 14. As regards the operation of sec. 58 of the Negotiable Instruments Act the Plaintiff relies on the case of Hunsraj v. (sic) ILR 24 Bom. (1899), which goes to show that that section affords no protection to the holder of a note which has passed to him or his predecessors by a forged dorsement, The judgment in this case depends on the distinction so well-known in English law between no title, and a defective title, and reads it into the operation of the Indian Act. On the language of the Indian Act I am not prepared to follow the line of argument in this case which seems to me to over-look the force of the word "possessor" in sec. 9 and 58 of the Act. The present case is also distinguishable from the former on the facts. There a note purported to be transferred by an endorsement which was a forgery of the signature of a previous holder. It seems to me impossible now to hold that the signatures of Ganesh " in the name of Ishan Chandra" on note No. 4, and of Ishan Chandra on note No. 5, were actual forgeries. 15. The addition of the name of Ishan Chandra on No. 4 I take to have been treated as a more formality by the Comptroller, and this may have justified the writing of Ishan Chunder's name by some one not Ishan Chunder on No. 5. 15. The addition of the name of Ishan Chandra on No. 4 I take to have been treated as a more formality by the Comptroller, and this may have justified the writing of Ishan Chunder's name by some one not Ishan Chunder on No. 5. The fraud perpetrated by whoever endorsed No. 4 in Ganesh's name was representing Ganesh as entitled to the capital sum due on the note, and this seems to me a substantial difference between the two cases. In the view 1 take of the application of the Statute of Limitation, however, it is not necessary that I should decide the case on the section in question. Judgment must accordingly be given for the Defendants. 16. As regards costs, the Plaintiff must pay his own costs, the Secretary of State his own costs, the costs of the third Defendant and of the Registrar. Cost to be taxed on Scale No. 2.