Nagendra Nath Mukerjee v. Probal Chandra Mukerjee — 1912 DIGILAW 537 (CAL)

JUDGMENT 1. This Appeal is directed against the order of the Subordinate Judge, 2nd Court, Hughly, dated the 16th August 1911, granting an application made to him by the Respondents, Prabal Chandra Mukerjee and Jahar Lal Mukerjee (Plaintiffs in Suit No. 94 of 1911, instituted in the Court of the same Subordinate Judge against the Appellants who were the Defendant in that suit), praying for the issue of a temporary injunction to stay the execution of a decree of the Privy Council previously obtained by the Defendants Nos. 1 to 12 against Raja Peary Mohan Mukerjee, Defendant No. 14, in a suit brought by them against him. It seems that Jago Mohan Mukerjee, the ancestor of the family of which both parties are members, executed a Will on the 11th September 1840, and died on the 18th September 1840. By that Will he endowed property yielding an income of about Rs. 12,000 to an idol and directed that the senior living member of his family should be shebait. Joy Kishen Mukerjee, his eldest son, accordingly was the first to become shebait. He died on 19th July 1888 and was succeeded as shebait by Naba Kishen, the third son of Jago Mohan, who was then the eldest living member of the family. Naba Kishen died on nth September 1890 and Bijoy Kishen Mukerjee, the fourth son of Jago Mohan, succeeded to the shebaitship as being the eldest living member of the family. He was however opposed by Peary Mohan Mukerjee, the eldest surviving son of Joy Kishen, and in consequence he was compelled to institute on 10th June 1892 a suit to establish his title to the shebaitship and to recover possession of the endowed property. Bejoy Kishen obtained a decree in the Court of first instance on the 29th January 1894, but died the same day. Peary Mohan appealed against that judgment and decree and the decree was affirmed on the 29th August 1898. 2. While the suit was under trial Bejoy Kishen had continued to carry on the worship of the idol and had to incur heavy expenses in the course of the litigation. Peary Mohan appealed against that judgment and decree and the decree was affirmed on the 29th August 1898. 2. While the suit was under trial Bejoy Kishen had continued to carry on the worship of the idol and had to incur heavy expenses in the course of the litigation. These expenses were incurred from his own funds and therefore after his death his sons (Defendants 1 and 2 in the suit referred to above) instituted a suit on the 25th June 1897 against all the members of the family of Jago Mohan including Peary Mohan. Peary Mohan had succeeded to the shebaitship on the death of Bejoy Kishen. On 7th February 1899, the suit was decreed in favour of the Plaintiffs, the sons of Bejoy Kishen. The Defendants appealed to the High Court and, on the 28th November 1900, the High Court remanded the suit to the Court of first instance to determine which of the Defendants was the proper person to represent the endowment in the suit. On 14th September 1901, the Court of first instance decided that Peary Mohan as shebait was the proper person, to represent the debutter estate and on the 30th January 1903 a decree was granted in favour of the Plaintiffs for the recovery of Rs. 45,960 against Peary Mohan as representing the debutter estate. Peary Mohan appealed to the High Court and the appeal was dismissed on the 24th February 1905, this Court holding that Bejoy Kishen having been obliged to pay money of his own for the benefit of the debutler estate was entitled to have the same made good out of the estate, Peary Mohan v. Narendra Nath I. L. R. 32 Cal. 582 (1905). 3. Peary Mohan then appealed to the Privy Council but his appeal was dismissed on the 10th January 1910. Their Lordships of the Privy Council held that the Respondents were entitled to recover all money properly expended by their father, the deceased shebait, in performing the obligations imposed upon him by the original testator's Will. The right of indemnity was incident to the position of a trustee and the liability in respect of that indemnity was the first charge on the trust estate, Peaty Mohan v. Narendra Nath I. L. R. 37 Cal. 229 (1910). 4. The right of indemnity was incident to the position of a trustee and the liability in respect of that indemnity was the first charge on the trust estate, Peaty Mohan v. Narendra Nath I. L. R. 37 Cal. 229 (1910). 4. On the 12th March 1910, the decree-holders applied for execution of their decree, the sum due under it having then amounted to Rs. 83,948. Peary Mohan opposed the application but his objection was disallowed on the 3rd December 1910 by the same Subordinate Judge whose order of the 16th August 1911 is the subject of the present appeal, in disposing of the objection the learned Subordinate Judge in his judgment says: "The judgment of the Privy Council shows that the debutter property is liable for the amount of this decree" and further on, " the best way to realise the decretal money will be to sell as much of the debutter property as will be sufficient to pay off decree-holders' dues" and he concludes by saying " I cannot accede to the Rajah's suggestion that the decree-holders should get only Rs. 1,500 per year out of the rents and profits of the debutter estate. The decree-holders are already kept out of their money by the Rajah (i.e., Peary Mohan) for 16 years and if we accede to the Rajah's present suggestion it will take more than half a century to satisfy the decree in force." 5. On the 12th August 1911, the Plaintiffs-Respondents filed a suit against Defendants 1 and 2, the sons of Bejoy Kishen and the decree-holders in the previous suit, Defendants 3 to 13, the other members of the family descended from Jago Mohan and Defendant No. 14, Raja Peary Mohan Mukerjee, the judgment-debtor in the previous suit. It must be noticed that the 1st Plaintiff, Prabal Chandra Mukerjee, is the son of Raja Peary Mohan's brother Raj Mohan and that Jaharlal Mukerjee, the 2nd Plaintiff, is the grandson of the same person, also that Suresh, the father of Jahar Lal, is still alive. Both Plaintiffs are descendants of Joy Kishen, the eldest son of Jago Mohan and the father of Peary Mohan. 6. The plaint in the suit is a curious one. Both Plaintiffs are descendants of Joy Kishen, the eldest son of Jago Mohan and the father of Peary Mohan. 6. The plaint in the suit is a curious one. After setting out the facts already noticed in this judgment it proceeds in paragraph 6 to state that after the High Court had remanded the suit brought by the sons of Bejoy Kishen to have it determined who represented the debutter estate the present Defendant 14, Peary Mohan, who was Defendant in that suit, allowed the Plaintiffs to obtain the decree against the debutter property without feeling the apprehensions that the debutter properties would be extinguished and without taking proper steps, and that in the proceeding in execution of the decree obtained in that suit the Defendant 14, Raja Peary Mohan, put in " merely a formal objection " with regard to the debutter properties, that he had done this in collusion with the decree-holders and that in collusion with them he is now trying to purchase the properties by having them put to sale. The Plaintiffs claimed to be entitled to sue as persons who might expect to succeed to the shebaitship and in paragraph 8 they attacked the decree of the Privy Council as illegal and unjust and allege that the decretal amount due to the decree-holders cannot be realised by them from the debutter estate. In a petition of amendment to the plaint, filed on the 16th August 1911, it was further alleged that was the persons who may become future heirs in succession to Raja Peary Mohan, the present shebait of the said debutter estate, and before these Plaintiffs have taken any steps to preserve the said debutter estate, some in collusion with the decree-holders and some probably out of a desire to purchase the debutter estate, and others probably owing to indifference, these Plaintiffs have been obliged to institute this suit." They sought for a declaration of their future rights to the debutter property as also for a declaration that those properties were not liable to sale in execution of the decree passed in favour of Defendants 1 to 12. It is remarkable that Suresh, the father of the Plaintiff Jahar Lal, should be said to be indifferent and leave it to his son to institute the suit. It is remarkable that Suresh, the father of the Plaintiff Jahar Lal, should be said to be indifferent and leave it to his son to institute the suit. An application was put in on the same day to have the execution of the Privy Council decree stayed, but it was refused. 7. On the 14th August 1911, two days after the plaint bad been filed, the Plaintiff put in an application under Or. 39, r. 1, C. P. C, praying for the issue of a temporary injunction to stay the sale in execution of the decree granted by the Privy Council in favour of Defendants 1 to 12. This application after setting out (see para. 3) " that the decree-holders were trying to fraudulently cause the properties to be sold in execution of the decree," goes on in para. 5 to say that " in the judgment of the Hon'ble Privy Council there is no order for the decree-holders realising the money due to them under the decree by sale of the debutter estate," and suggests that a scheme ought to be made by the Subordinate Judge's Court in order that the amount due to the decree-holders may be realised by preserving the debutter estate. It concludes by saying that the Petitioners are future shebaits of the estate and will sustain serious loss if the property be sold at auction. 8. On this application the Subordinate Judge has passed the order, dated 16th August 1911, which is now under appeal. 9. The Subordinate Judge gives the following reasons for granting the temporary injunction staying the sale of the properties in execution of the decree of the Privy Council. He does not decide whether the Plaintiffs, holding a remote contingent interest in the debutter property, have any locus standi to maintain the suit but he assumes that they have a prima facie title to maintain their application. He says that out of the profits of the debutter estate amounting to Rs. 10,000 per annum a sufficient sum may, he thinks, be paid to satisfy the decree and he assumes that Rs. 9,000 will be available yearly, and he thinks that it is worth while trying whether this can be done and if he finds it impossible the debutter properties must be sold. We are informed that the decretal debt has now swelled to over a lac of rupees. 9,000 will be available yearly, and he thinks that it is worth while trying whether this can be done and if he finds it impossible the debutter properties must be sold. We are informed that the decretal debt has now swelled to over a lac of rupees. Even under the scheme suggested it would take eleven years to pay it off and the Subordinate Judge does not say how long the experiment is to be tried. In the first instance what strikes us as most remarkable about the order is that in December 1910 Raja Peary Mohan had put before the Court his suggestion to pay off the debt by yearly instalments of Rs. 1,500. It is to be assumed that the suggestion was based on some data more reliable than the mere guess-work on which the Subordinate Judge has based his order. The application of Raja Peary Mohan was rejected with the remark that as the decree-holders had already been kept out of their money by the Raja for 16 years the Subordinate Judge was not prepared to accept the Raja's suggestions of payment by instalments. A similar objection to the sale put in by the Petitioners on the 12th August 1911 had also been rejected. It is difficult to understand what influenced the Subordinate Judge to take, on the 16th August 1911, a view directly contrary to that at which he had arrived on the 3rd December 1910. With reference to the Rule of the Court under which the temporary injunction has been granted it is pointed out for the Appellants that the application was not supported by affidavit, that no property was in dispute and no property was about to be sold wrongfully in execution of the decree. This is not denied by the Respondents, but it has been argued on their behalf that the real question is whether the order is a good order or not, and to determine this point it is suggested that it is necessary to consider whether if it be not granted the object of the suit will be defeated. 10. After hearing the learned pleaders on both sides we hold that the order is not a good order and that it cannot be maintained. In the first place, the Subordinate Judge was bound before granting the order to consider how far there was any possibility of Plaintiffs' succeeding in the suit. 10. After hearing the learned pleaders on both sides we hold that the order is not a good order and that it cannot be maintained. In the first place, the Subordinate Judge was bound before granting the order to consider how far there was any possibility of Plaintiffs' succeeding in the suit. In the case of Preston v. Luck L. R. 27 Ch. D. 497 at p. 505 (1884), Cotton, L. J., lays down : " Of course in order to entitle the Plaintiff to an interlocutory injunction though the Court is not called upon to decide finally on the rights of the parties it is necessary that the Court should be satisfied that there is a serious question to be tried at the hearing and that on the facts before it there is a probability that the Plaintiff is entitled to relief," and in the case of Challendar v. Royle L. R. 36 Ch. D. 425 (1887) the same learned Judge laid down that " it is true that in all cases of interlocutory injunction the Court does consider and ought to consider the balance of convenience and inconvenience in granting or refusing the injunction. But there is a very material question to be considered-has the Plaintiff made out a prima facie case? That is to say, if the evidence remains as it is it is probable that at the hearing of the action he will get a decree in his favour." 11. Now in their suit the Plaintiffs are practically putting forward the same case which Raja Peary Mohan advanced in his defence in the previous suit and which was held by their Lordships of the Privy Council not to be sustainable. It is impossible to attach any weight to the allegations of collusion between Raja Peary Mohan and the other Defendants. The Plaintiffs are in fact members of Peary Mohan's branch of the family and would appear to be simply fighting his case for him over again. If this be not so, it is difficult to understand why Jahar Lal has appeared as Plaintiff No. 2, while his father Suresh has declined to prosecute the suit ? In fact it is difficult to understand what possible locus standi Jahar Lal has to contest the suit during the lifetime of his father whose contingent interest is less remote than that of Johar Lal. 12. In fact it is difficult to understand what possible locus standi Jahar Lal has to contest the suit during the lifetime of his father whose contingent interest is less remote than that of Johar Lal. 12. Furthermore the previous suit was contested by Raja Peary Mohan as shebait of the debutter estate and the decision in that suit is binding on all successive shebaits. For this principle ample authority is to be found in the decision of the Privy Council in Prosunno Kumari v. Golab Chand 23 W. R. 253: s. c. L. R. 2 I. A. 145(1875), which has been followed by this Court in the cases of Gota Chand v. Makhun Lal 11 C.W. N. 489 (1907) and Ranjit Sinha v. Basunta Kumar 12 C. W. N. 739 (1908). 13. There is also in the way of the Plaintiffs the difficulty that the contingent interest which they claim in the shebaitship is very remote and it has been laid down by a Full Bench of this Court in the case of Samarendra Chandra v. Birendra Kishore I. L. R. 35 Cal. 777 : s. c. 12 C. W. 777 (1908) that " a person cannot sue for a declaration of his right unless he has an existing right and a mere contingent right which may never ripen into an actual existing right, is not sufficient to ground an action for such a declaration." 14. The order passed by the same Subordinate Judge in the execution case on the 3rd December 1910 was clearly one under the provisions of sec. 244 of the old CPC corresponding to sec. 47 of the new Code and would be binding on all persons succeeding Raja Peary Mohan to the shebaitship. 15. The effect of the order under appeal would be to indefinitely postpone the execution of the decree granted by their Lordships of the Privy Council, and in fact to cause the very evils which the Subordinate Judge recognised in his order in the execution proceedings, dated the 3rd December 1910, and desired to avoid. It would also have the effect of altering the nature of the decree of the Privy Council and converting it into an instalment decree which was not within the power of the Subordinate Judge. 16. It would also have the effect of altering the nature of the decree of the Privy Council and converting it into an instalment decree which was not within the power of the Subordinate Judge. 16. For the above reasons we hold that the order of the Subordinate Judge, dated the 16th August 1911, was wrong and improper and ought not to have been passed. It has delayed the execution proceedings for over a year and has caused a useless waste of time and money in the prosecution of this Appeal. We accordingly decree the Appeal and set aside the order of the Subordinate Judge of the 16th August 1911. The Appellant will recover his costs for the Respondents in this Court and in the Court of the Subordinate Judge. We fix the hearing-fee in this Court at ten gold mohurs. Let the record be sent down without delay.