Judgement Law. Rep. 37 Ind. App. 27 ( 1909- 1910) Raja Peary Mohan Mukerji V. Norendra Nath Mukerji 132 Appeal from a decree of the High Court (February 24, 1905) affirming a decree of the Subordinate Judge of Hooghly (June 30, 1903). This suit was filed by the respondent on January 25, 1897, against (1.) the appellant in his personal capacity; (2.) as receiver of the estate of two idols appointed in suit No, 40 of 1892 in the same Court; and (8.) various other persons, members of the same family, descendants of one Jaga Mohan Mukerji, deceased, the grandfather of the appellant and respondents. On September 11, 1840, the said Jaga Mohan Mukerji made a will, by which he dedicated certain properties to the sheba of two thakurs for the annual celebration of durgapuja and other pious acts, and Laid down the order of succession of the shebaits from among his own descendants. The first shebait was the father of the appellant. He was succeeded by his step-brother Babu Naba Krishna Mukerji, and when the latter died in 1890 his successor was another step-brother named Babu Bijoy Krishna Mukerji, the father of the plaintiffs. Bijoy Krishna Mukerji to some extent obtained possession of the debottar estate. The appellant, however, disputed his title as a shebait and seriously interfered with his possession, and eventually a suit was brought by the father of the plaintiffs to establish his right as a shebait and to recover possession of the estate. While the suit was pending the appellant was appointed receiver of the debottar estate. On January 20, 1894, the father of the plaintiffs obtained a decree in his favour, and on that day he died. The defendant in the suit preferred an appeal to the High Court, the respondents to it being the plaintiffs, as representing the estate of their deceased father. The appeal was virtually dismissed by the High Court, and on January 25, 1897, the plaintiffs brought the present suit against the appellant as receiver of the debottar estate, and also in his personal capacity; and they also made all the surviving heirs of Jaga Mohan Mukerji defendants, as there was a dispute as to who was the proper person to be appointed shebait of the debottar estate according to the terms of Jaga Mohans will. The plaintiffs alleged that owing to the interference of the appellant, and the obstacles thrown in the way of their father, Bijoy Krishna Mukerji, in the realization of the rents and profits from the debottar estate, he was able to realize only Rs.4706.4.5, and had to spend Rs.71,522.5.10 from his private funds on account of the debottar estate, and that after the death of their father they had to pay Rs.6392.4 on account of the debts of the debottar estate. In all the plaintiffs claimed the sum of Rs.77,964 as due from the debottar estate. They prayed for a decree for the recovery of that sum from the said estate, and in the alternative that if, in the opinion of the Court, it were found that Raja Peary Mohan Mukerji, the principal defendant to the suit, was, by reason of his improper acts, bound to pay the money claimed or any portion thereof, a decree might be passed against him personally. The appellant defended the suit on various grounds, pleading inter alia that the suit was barred by limitation, that the accounts produced by the plaintiffs were false and fabricated, and that neither the debottar estate nor the defendant personally was liable to pay the money claimed. The Subordinate Judge held that the suit was not barred by limitation, and that the appellant was personally liable for the claim so far as he had realized money belonging to the debottar estate, and that, for the rest of the claim, that estate was Liable for such costs and losses as, on inquiry by a commission, should be found to be reasonable. The High Court decided that the claims against the defendant personally could not be maintained, and that it was also barred by limitation against him personally. With regard to the claim against the debottar estate, the learned judges held that it was not so barred, but, as the debottar estate was not represented in the suit, they remanded the suit, in order that the plaint might be amended so as to include the prayer that a shebait of the debottar property might be determined and that the debottar estate might be represented by him. They held that they had power to allow this amendment to be made under s. 582 read with s. 53, G. C. P., Law. Rep. 37 Ind. App. They held that they had power to allow this amendment to be made under s. 582 read with s. 53, G. C. P., Law. Rep. 37 Ind. App. 27 ( 1909- 1910) Raja Peary Mohan Mukerji V. Norendra Nath Mukerji 133 for it would not alter the character of the suit, which after amendment would remain a suit for money due to the plaintiffs from the debottar estate, the modifications made being only ancillary to the principal prayer of the plaintiffs being granted. The plaint was accordingly amended by an order dated July 8, 1901. That order substituted in paragraph 19 of the plaint the following words " The defendant Peary Mohan Mukerji claims to be and, as the plaintiffs have been advised, is under the will of the Jaga Mohan Mukerji present shebait of the thakur aforesaid, but there being a dispute as to the person who is now the real shebait, the plaintiffs have been obliged to make parties all the surviving descendants of the late Jaga Mohan Mukerji, and pray that this suit may be decided in their presence." The prayer was amended by adding " that it may be determined for the purpose of this suit, who is the shebait of the said thakurs and that the debottar estate be represented by the person who may be so determined as shebait by the Court." A further written statement was filed by the appellant, and the case came for hearing of certain issues which had been filed by consent. Eventually the Subordinate Judge decreed that the sum of Rs.45,960 was recoverable from the debottar estate then in the hands of the appellant. That decree was affirmed by the High Court, which decided that the claim was not barred by limitation, and found with regard to the question of the extent of the liability of the debottar estate that there was no just reason to interfere with the decree which had been made. That decree was affirmed by the High Court, which decided that the claim was not barred by limitation, and found with regard to the question of the extent of the liability of the debottar estate that there was no just reason to interfere with the decree which had been made. Upon the point of limitation the High Court said " The next point that has been urged before us is one of limitation, the contention being, as it was the contention in the Court below, that, having regard to the provisions of s. 32, Code of Civil Procedure, and s. 22 of the Indian Limitation Act, the suit against the debottar estate must be deemed to have been instituted when for the first time the plaintiffs, by their petition of amendment, dated July 8, 1901, impleaded Raja Peary Mohan Mukerji as shebait of the said estate, and that such petition having been made more than six years after the death of Bijoy Krishna Mukerji, the claim against the debottar estate is barred by limitation. "Sect. 32 of the Code, among other matters, enacts that The Court may at any time order that any plaintiff be made a defendant, or that any defendant be made a plaintiff, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon, and settle all the questions involved in the suit, be added, and that all parties whose names are so added as defendants shall be served with a summons in the manner hereinafter mentioned, and subject to the provisions of the Indian Limitation Act, 1877, section 22, the proceedings as against them shall be deemed to have begun only on the service of such summons. And s. 22 of the Indian Limitation Act enacts When after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party. The rest of the section does not bear upon the question which we hav to deal with. The rest of the section does not bear upon the question which we hav to deal with. "The question here is whether by the amendment of the plaint that was made on July 8, 1901, a new defendant was added to the suit, so that upon such addition being made, and upon service of summons being made upon him, the suit should be deemed to have then begun against him. It will be observed that in the original plaint Raja Peary Mohan Mukerji was impleaded as a defendant in a double capacity, first as receiver of the debottar estate of the idols Gopaleshwar and Shib Thakur, and secondly in his personal capacity, and a decree was asked for against the debottar estate, and in the alternative against Raja Peary Mohan Mukerji in his personal capacity. This Court, while dealing with the appeal preferred by Raja Peary Mohan Mukerji, held that the suit was a suit directed against the debottar estate, but, being of opinion that that estate was not represented in the suit, set aside the decree of the Court below. It will be remembered that in the concluding part of their judgment the learned judges distinctly held that even after the amendment, which they allowed, Law. Rep. 37 Ind. App. 27 ( 1909- 1910) Raja Peary Mohan Mukerji V. Norendra Nath Mukerji 134 the suit would still be a suit for money due to the plaintiffs from the debottar estate, and that the modifications of paragraph 19 of the plaint and the insertion of the additional prayer were only ancillary to the principal prayer of the plaintiffs being granted, the determination of the question who the shebait for the time being was being necessary to enable the plaintiffs to obtain relief against the debottar estate. What the amendment made by the petition of July 8, 1901, purports to do is simply to make the debottar estate properly represented as it had not been so represented in the original plaint. This, in our opinion, is not adding a new defendant to the suit. In the case of Manni Kasaundhan v. Crooke (( 1879) I. L. R. 2 Allah. This, in our opinion, is not adding a new defendant to the suit. In the case of Manni Kasaundhan v. Crooke (( 1879) I. L. R. 2 Allah. 296.), where a suit was originally brought against a municipal committee, repre sented by their secretary instead of by their president, as it should have been, and where the plaintiffs applied more than three months after the accrual of the cause of action, for substituting the name of the president for that of the secretary, it was held that, by reason of such substitution, the suit could not be deemed to have been instituted against the municipal committee when such substitution was made, and s. 22 of the Indian Limitation Act applied to the case of a person personally made a party to the suit, and not to a case like the one before the Court. Whether the construction put upon s. 22 of the Limitation Act by the Allahabad High Court can be altogether supported, the case in question is an illustration shewing that where relief was originally claimed against a party who had to be represented by some person, the proper representation of that party subsequently made has not the effect of adding a new defendant to the suit. In the case of Kham Karan v. Har Dayal(( 1881) I. L. R. 4 Allah. 37.), where a suit was instituted in proper time against a minor, but where the said minor was not represented by a guardian, and the Court subsequently made an order appointing a guardian for the minor, it was held that for the purposes of limitation the suit against the minor should be regarded as having been instituted when the plaint was first presented, and not when the order appointing a guardian was made. Then again in the case of Prasanna Kumar Sen v. Mahabharat Shaha (( 1903) 7 C. W. N. 575.), where a suit was brought against two sons in substitution for, and as heirs of, their deceased father, and it transpired that the deceased had not died intestate, but had left a will appointing one of the sons his executor, and the record was altered by placing him upon it as executor instead of as one of the heirs, it was held by this Court that there was no addition of a new defendant within the meaning of s. 22 of the Indian Limitation Act. The learned Chief Justice observed that the executor was originally placed upon the record as one of the heirs of his father, and all that had been done was to make the record accurate by placing him there as executor instead of as one of the heirs. We entirely agree in the principle which underlies these cases, and we are of opinion that there is no addition in this case of a new defendant within the meaning of s. 22 of the Indian Limitation Act. The learned counsel for the appellant, however, in the course of his argument relied upon the casa of Weldon v. Neal. (( 1887) 19 Q. B. D. 394.) The rule of law Laid down in that case is simply that a plaintiff will not be allowed to amend his plaint by setting up fresh claims in respect of causes of action which since the issue of writ have become barred by the Statute of Limitation. The Master of the Rolls, in delivering judgment, relied upon the settled rule of practice, which was that amendments were not admissible when they prejudiced the rights of the opposite party as existing at the date of such amendments; and he observed as follows |If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of amendment, would be barred by the Statute of Limitation, it would be allowing the plaintiff to take advantage of a former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust. Under very peculiar circum-stances, the Court might perhaps have power to allow such an amendment, but certainly, as a general rule, it will not do so. And Lopes L. J. observed as follows ‘I think the Court ought to give all reasonable indulgence with regard to amending, and I quite agree with the rule that has been Laid down, namely, that however negligent or careless the first omission, and however late the proposed amendment, the amendment should be allowed if it can be allowed without injustice to the other side. But here the amending paragraphs set up causes of action which were not in the original claim and which are now bar red by the Statute of Limitation. In the Law. Rep. 37 Ind. App. 27 ( 1909- 1910) Raja Peary Mohan Mukerji V. Norendra Nath Mukerji 135 case before us the amendment did not introduce a new claim, nor a claim founded upon a new cause of action. The cause of action is the same upon which the claim, as originally Laid, was based, and which is not now barred by limitation. And this Court, in their judgment in November, 1900, viewed it in the same light and allowed the amendment. The case quoted by the learned counsel in our opinion does not support the contention of the appellant; rather the remarks of Lopes L.J. favour the contention of the respondents (plaintiffs) in this case. The learned counsel also relied upon some other cases, of which we need only to refer to one, and that is the case of Imamuddin v. Liladhar. (( 1892) I. L. R. 14 Allah. 524.) What was held in that case was that a Court of its own motion under s, 32, Code of Civil Procedure, could add a party necessary to a suit, but if such addition was made after the period of limitation expired the Court should have to dismiss the suit for limitation after such party bad been so added. This decision, however, does not quite apply to the facts of this case; and we find that the view therein expressed was dissented from by a division bench of this Court in the case of Fakera Pasban v. Bibi Azimunnissa (( 1899) I. L. R. 27 Calc. 540.), following an earlier case, Grishchunder Sannal v. Dwarka Nath Dinda. (( 1897) I. L. R. 24 Calc. 540.), following an earlier case, Grishchunder Sannal v. Dwarka Nath Dinda. (( 1897) I. L. R. 24 Calc. 640.) " We hold that the claim is not barred by limitation." Sir R. Finlay, K.C., De Gruyther, K.C., and A. M. Dunne, for the appellant, contended that at the date of the addition of the appellant as a defendant in his capacity of shebait the suit was barred by limitation. They referred to arts. 57, 120, and 122 of Act XV. of 1877. The amendment of the plaint changed the character of the suit and the appellant was allowed to change the character in which he defended it, and that was tantamount to adding a new defendant. Moreover, the idol was added as a defendant. It was so changed after the applicable period prescribed by art. 120 for suing had elapsed see s. 22 of Act XV. of 1877. The amendment of the plaint was made more than six years after the death of Bijoy, when the cause of action originally arose. They referred to ss. 32, 53, ss. 562—566, and s. 582 of the Civil Procedure Code. They also contended that the debottar estate should not have been held liable for expenditure incurred by the deceased Bijoy as shebait over and above his actual receipts from the property. And further, he should not be allowed to recover the costs of various civil and criminal proceedings instituted by him. All such disbursements should have been regarded as voluntary payments not authorized by the will of the founder and not chargeable against the estate. All such expenditure should be shewn to have been necessarily incurred. For the position and authority of a shebait in such circumstances, see Maharanee Shibessouree Debia v. Mothooranath Acharjo. (( 1869) 13 Moo. Ind. App. 270, 273.) Cohen, K.C., and Ross, for the respondents, were not heard. The judgment of their Lordships was delivered by LORD MACNAGHTEN. This is an appeal from a decree of the High Court of Calcutta affirming a decree of the Subordinate Judge of Hooghly. In the Court of first instance the present respondents were plaintiffs. Ind. App. 270, 273.) Cohen, K.C., and Ross, for the respondents, were not heard. The judgment of their Lordships was delivered by LORD MACNAGHTEN. This is an appeal from a decree of the High Court of Calcutta affirming a decree of the Subordinate Judge of Hooghly. In the Court of first instance the present respondents were plaintiffs. The suit was brought by them as executors of Bijoy Krishna Mukerji, who was shebait of a debottar estate for nearly four years, to recover Rs.77,964.9.6 alleged to be due to him in that capacity, either from the estate or from the principal defen dant, the present appellant, personally. The history of the litigation is shortly as follows — Jaga Mohan Mukerji, who died in 1840, by will dedicated certain properties to the sheba, or worship, of two thakurs, or idols, the annual celebration of durgapuja and other pious acts, and provided for the order 01 succession to the office of shebait among his own descendants. The first shebait was the appellants father. He was succeeded by his Law. Rep. 37 Ind. App. 27 ( 1909- 1910) Raja Peary Mohan Mukerji V. Norendra Nath Mukerji 136 step-brother, who died in September, 1890. On his death the succession opened to Bijoy Krishna Mukerji. Bijoys succession was opposed by the present appellant, who threw every possible difficulty in the way of his obtaining possession of the estate and collecting the rents. Finally Bijoy brought a suit, No. 40 of 1892, in the Court of the Subordinate Judge of Hooghly, to establish his title to the office of shebait under the testators will. On January 29, 1894, the Court decided in Bijoys favour. Bijoy died on the day on which the decree was made. By his will he appointed the present respondents his executors, and on March 2, 1894, they obtained probate. On January 25, 1897, the respondents brought the present suit against the appellant, who had been appointed receiver of the debottar estate, both in his capacity of receiver and in his personal capacity. All the surviving descendants of the original testator were made defendants. On January 25, 1897, the respondents brought the present suit against the appellant, who had been appointed receiver of the debottar estate, both in his capacity of receiver and in his personal capacity. All the surviving descendants of the original testator were made defendants. The respondents as plaintiffs alleged that, owing to the interference of the appellant and his persistent opposition, Bijoy was not able to recover more than Rs.4607 odd during his incumbency, while he was compelled to spend Rs.71,572 odd out of his private funds in protecting the debottar estate and performing his obligations as shebait, and that after Bijoys death they had to pay a further sum on account of the debts of the estate. In the result they claimed the sum of Rs.77,964.9.6 from the estate, or in the alternative from the appellant personally. The appellant defended the suit, alleging, among other things, that the claim was barred by limitation, and that neither he nor the estate was under any liability to Bijoys executors. On February 17, 1899, the Subordinate Judge made a decree determining that the claim was not barred by limitation. He held that the appellant was liable personally so far as he had realized moneys belonging to the estate, and that, as regards the rest of the claim, the debottar estate was liable for such costs and losses as on inquiry by a commission should be found to be reasonable. The appellant appealed to the High Court. On November 28, 1900, the High Court held that the claim against the appellant personally could not be maintained. As regards the rest of the claim the learned judges were of opinion that it was not barred. But, although every possible claimant to the office of shebait was a party to the suit, they thought that the debottar estate was not properly represented, and they remanded the suit in order that the prayer of the plaint might be amended, so as to raise directly the question as to the right to the office of shebait, and the representation of the estate. On remand the Subordinate Judge came to the conclusion that the appellant must be considered to be the shebait, and, as such, the proper person to represent the estate. On remand the Subordinate Judge came to the conclusion that the appellant must be considered to be the shebait, and, as such, the proper person to represent the estate. He directed that two Commissioners should be nominated to inquire into and report upon the expenditure in question, with liberty to state their own opinion in regard to the liability of the appellant as shebait. On March 16, 1903, the Commissioners so appointed submitted their report. After a detailed examination of the several matters referred to them they stated that, in their opinion, the sum of Rs.49,139 odd was due to the plaintiffs. Both parties filed objections. On June 30, 1903, the Subordinate Judge delivered his final judgment to the effect that the amount found due by the Commissioners should be reduced to Rs.45,960.11.10. He held that that sum was recoverable from the debottar estate, then in the hands of the appellant as shebait. Law. Rep. 37 Ind. App. 27 ( 1909- 1910) Raja Peary Mohan Mukerji V. Norendra Nath Mukerji 137 Both parties again appealed. On February 24, 1905, the High Court affirmed the decree of the Subordinate Judge, and dismissed both the appeal and the cross-appeal with costs. From that order the appellant has appealed to His Majesty in Council. On the hearing before this Board the learned counsel for the appellant raised two points. They contended (1.) that the suit was barred by limitation, and (2.) that the estate of Bijoy was not entitled to be reimbursed out of the debottar estate expenditure incurred by Bijoy as shebait in excess of his actual receipts from the proper ty. As regards the first question, their Lordships are of opinion that the appropriate period of limitation is the period of six years from the date of Bijoys death, and that the suit therefore was instituted in time, inasmuch as the amendment directed by the High Court did not alter the character of the suit and no new defendant was brought on the record. The object of the amendment was to determine judicially which of the living descendants of the original testator, all of whom were already parties to the suit, was to be considered shebait. As regards the question of reimbursement, it is quite clear, and indeed it was hardly. The object of the amendment was to determine judicially which of the living descendants of the original testator, all of whom were already parties to the suit, was to be considered shebait. As regards the question of reimbursement, it is quite clear, and indeed it was hardly. disputed, that Bijoys estate was entitled to be reimbursed all sums properly expended by him in the preservation of the trust estate, as for instance all moneys paid in respect of Government revenue and the like. It is equally clear that Bijoys estate is entitled to be reimbursed all moneys properly expended by him in defending his position as shebait, which was challenged unsuccessfully by the appellant. If any authority is wanted for this proposition it will be found in Walters v. Woodbridge. (( 1878) 7 Ch. D. 504.) As regards the other items of expenditure, their Lordships are of opinion that Bijoys estate is entitled to be reimbursed all moneys properly expended in performing the obligations imposed upon him by the original testators will. The right of indemnity, as has of ten been said, is incident to the position of a trustee. The liability in respect of that indemnity is the first charge on the trust estate. The only question is, Was Bijoy, as trustee, justified in incurring the expenditure for which his executors now claim reimbursement ? It was contended by the learned counsel for the appellant that Bijoy was not justified in spending, as shebait, more than he actually received, and that he ought to have managed the trust so economically that at his death, whenever it might happen, there should be no outstanding claim against the trust estate. This objection is somewhat ungracious, if not absurd. There is no foundation for it in the will. The average income of the trust estate on which Bijoy might fairly have calculated was Rs. 10,000 a year. During the whole period of his incumbency he received less than Rs.5,000. The diminution of income was due entirely to the appellants wrongful acts. It was not unreasonable to expect that, on the cessation of those acts or on the interposition of the Court which Bijoy invoked, the income would be sufficient to defray the expenditure incurred in the meantime in maintaining the religious observances prescribed by the founder of the trust. Their Lordships see no reason to differ from the High Court. It was not unreasonable to expect that, on the cessation of those acts or on the interposition of the Court which Bijoy invoked, the income would be sufficient to defray the expenditure incurred in the meantime in maintaining the religious observances prescribed by the founder of the trust. Their Lordships see no reason to differ from the High Court. They will therefore humbly advise His Majesty that the appeal should be dismissed. The appellant will pay the costs of the appeal.