Pulin Behary Ghosh v. M. A. Davar, Defendant 2 — 1945 DIGILAW 153 (CAL)

JUDGMENT Das, J. - This is an appeal by the plaintiff in a contractor's suit against the decision of the Subordinate Judge of 24 parganas dated 16th September 1941. It appears that in 1872 Prince Golam Mahomed, one of the sons of late Tipu Sultan of Mysore, purported to create a wakif of most of his properties. By the wakifnama, extracts from which have been printed in the paper-book, the prince declared that the income of his properties would be spent, amongst various other things, for certain religious and charitable purposes and for meeting the expenses of two mosques, one at Dhurrumtola and the other at Tollygunge. The wakifnama further provided that after meeting all the expenses for charities, etc., the surplus would remain with the trustee as deposit and out of the same should be met the expenses for repairs of the mosques, imambaras, etc., and the upkeep of the wakif properties and also the expenses of repairs of the residential house of the wakif which were, however, not included in the wakif. The residential house, commonly known as Mysore House, was by the wakifnama given to his son Shahzadah Ahmed Halimoozzoo-man subject to the right of residence of certain ladies. In 1876 Shahzadah Ahmed Halimoozzooman instituted a suit being Suit No. 746 of 1876, on the original side of this Court for the construction of the wakifnama, for ascertainment of the rights of the parties and for accounts and partition of the estate of Prince Golam Mahomed deceased. Eventually on 6th January 1881 a decree was passed in that suit by White J. whereby it was, amongst other things, declared that the wakifnama could only operate as a testamentary document to the extent of one-third of the properties therein mentioned and that only the bequests to charities and to persons other than the heirs were valid. A commissioner of partition was appointed to set apart one-third part of the estate for the purposes of the charges for charitable and other valid objects and to partition the rest of the properties amongst the heirs of the prince according to shares declared by the decree. 2. A commissioner of partition was appointed to set apart one-third part of the estate for the purposes of the charges for charitable and other valid objects and to partition the rest of the properties amongst the heirs of the prince according to shares declared by the decree. 2. It appears that in 1933 a suit, being Suit No. 1013 of 1933, was instituted on the original side of this Court by two Mahomedan gentlemen against Sahebzada Golam Hossain Shah, the great grandson of Prince Golam Mahomed deceased who was the mutwalli of the wakif estate at that time. The nature of the suit does not appear from the papers printed in the paper-book but presumably it was for accounts and administration of the wakif estate. In June 1933 Sahebzada Golam Hossain Shah, the then mutwalli, had the Tollygunge Mosque and the Mysore House, which had fallen into disrepair, surveyed by an Engineer Akshoy Bose who submitted a report estimating that Rs. 20,417 would be required for the necessary repairs of the Mosque, Imambara, etc., and Rs. 18,740 for the repairs of Mysore House. The plaintiff who is a contractor was engaged to effect certain minor-repair works to the Tollygunge Mosque and the Mysore House. He submitted two separate estimates and started the work. These two estimates, however, have not been filed in the present suit. On 12th July 1934 Sahebzada Golam Hossain Shah filed a petition before the District Judge, on the strength of the above mentioned report of Akshoy Bose, for leave to raise funds for effecting the necessary repairs. From the records of the present case it does not appear that any order was made by the District Judge on this petition. 3. We find, however, that on nth August 1934, Mr. J. K. Sarkar acting as attorney for Sahebzada Golam Hosaain Shah wrote a letter to the plaintiff asking him to expedite the general repairs to the Mosque, Imambara, etc., and to submit a revised estimate on the lines of repairs suggested by the consulting Engineer Mr. Bose in his previous scheme which had been shown to the plaintiff and covering all extra works which were then found necessary on account of recent damage from earthquake. Accordingly on 21st December 1934, the plaintiff submitted two revised estimates which have been proved in this case and are marked as Exs. 1 (b) and 1 (c). Bose in his previous scheme which had been shown to the plaintiff and covering all extra works which were then found necessary on account of recent damage from earthquake. Accordingly on 21st December 1934, the plaintiff submitted two revised estimates which have been proved in this case and are marked as Exs. 1 (b) and 1 (c). The estimate for repairs to the Tollygunge Mosque (EX. 1 (b)) was for Rs. 9354 and the estimate for repairs to the Mysore House (EX. 1 (c) ) was for Rs. 6844. At the foot of each of these estimates appears what the plaintiff alleges to be the signature of Sahebzada Golam Hossain Shah under the endorsement "accepted by me." 4. The plaintiff alleges that he took up the works on the basis of these accepted estimates and completed the same in the beginning of 1935. On 12th July 1935, the plaintiff submitted two separate bills, one for the Mosque (EX. 3) for RS. 9203 and the other for the Mysore House (EX. 3 (a) ) for rupees 6698. At the foot of each of these bills is also to be found what is alleged to be the signature of Sahebzada Golam Hossain Shah under the endorsement "accepted by me." The plaintiff acknowledges receipt of rupees 3000 towards the bill (Ex. 3) for the Mosque leaving Rs. 6203 due thereon. The total amount due to the plaintiff was, therefore, Rs. 6203 on bill (Ex. 3) for the Mosque and Rs. 6698 on bill (EX. 3a) for the Mysore House. Sahebzada Golam Hossain Shah died in August 1936. His heirs were substituted in his place and stead in Suit NO. 1013 of 1933 which was pending. His eldest son who would be the nest mutwalli being still minor the Court m that suit appointed certain persons as a committee of management and one Mr. A. R. Davar as the Receiver of the wakif estate. On the application of the Receiver for directions, Ameer Ali J. on 26th May 1937, made an order in that suit declaring, inter alia, that subject to any scheme which might be framed the wakif estate was not liable to spend any amount for repair or for payment of municipal rates and taxes in respect of the Mysore House. In a later judgment delivered on 22nd February 1938, in that suit his Lordship re-iterated the above view. 5. In a later judgment delivered on 22nd February 1938, in that suit his Lordship re-iterated the above view. 5. No payment having been made by the Receiver, the plaintiff instituted the present suit on 28th April 1938, for the recovery out of the wakif estate of Rs. 15,066 being the balance due to him on the two bills Exs. 3 and 3a with interest thereon. The defendants are the heirs of Sahebzada Golam Hossain Shah, the Receiver Mr. A. R. Davar and the members of the committee of management. Notice under S. 80, Civil P. C., has been duly served. The suit has been contested by the Receiver alone. After hearing the evidence adduced before him the learned Subordinate Judge disallowed only a few items of work as not having been done and in several instances reduced the rates from those mentioned in the revised estimates to lower rates. In the result he held that Rs. 6961-4-9 was the cost of repairs to the Mosque, etc., and that Rs. 5673 was the cost of repairs to the Mysore House. After giving the defendants credit for Rs. 3000 paid against rupees 6961-4-9 he found that RS. 3961-4-9 and rupees 5673 aggregating to RS. 9634-4-9 were due and on 16th September 1941, passed a decree for Rs. 9634-4-9 with Rs. 1653-0-3 for costs totalling Rs. 11,287-5-0 on contest against defendant 2, i. e., the Receiver and ex parte against the absent principal defendants 1 and 3 to 6 with this direction that out of the decretal amount of RS. 9634-4-9, a sum of Rs. 3961-4-9 with proportionate costs of Rs. 679-10-0, i. e., in all Rs. 4640-14-9 would be paid out of the wakif estate and the balance of Rs. 6646-6-3 would be paid by the heirs of Golam Hossain Shah out of the latter's estate. The present appeal is by the plaintiff from this decree. There is no cross appeal by the defendants. 6. The main grievances of the plaintiff are two-fold. In the first place it is submitted that the rates having been agreed upon between the parties as per estimates Exs. 1 (b) and 1 (c) submitted by the plaintiff and accepted by Sahebzada Golam Hossain Shah the learned Judge should not have reduced but should have allowed those rates. Dr. 6. The main grievances of the plaintiff are two-fold. In the first place it is submitted that the rates having been agreed upon between the parties as per estimates Exs. 1 (b) and 1 (c) submitted by the plaintiff and accepted by Sahebzada Golam Hossain Shah the learned Judge should not have reduced but should have allowed those rates. Dr. Sen Gupta appearing for the Receiver on this appeal contended that as the suit was not framed on the basis of agreed rates, and no specific issue was framed but that as the suit was based on quantum meruit the learned Judge was right in allowing only market rates where the rates specified in the estimates were higher than the market rates. He pointed out that his client was taken by surprise when P. W. 1 Akshoy Bose for the first time stated in his evidence given on 25th July 1941 that the estimates had been accepted by Sahebzada Golam Hossain Shah and when P. W. 2 Dasarathi Mukherjee produced and proved the original estimates Exs. 1 (b) and 1 (c). Accordingly on 28th July 1941 the Receiver made an application for citing a handwriting expert as witness on his behalf to prove that the alleged signatures of Sahebzada Golam Hossain Shah appearing on those documents had been forged but the learned Judge gave him no opportunity to do. Dr. Sen Gupta then took us through the evidence of the plaintiff, P. W. 1 Akshoy Bose and P. W. 2 Dasarathi Mukherjee and pointed out certain superficial discrepancies therein and submitted that the alleged signatures had not really been proved. We do not consider that there is any substance in this part of the argument of Dr. Sen Gupta. In para. 4 of the plaint it was clearly pleaded that the mutwalli had placed the work of repairs to the mosque, etc., under contract with the plaintiff to be carried out by him at an estimated cost of Rs. 9354 and also the work of repairs to the Mysore House at an estimated cost of Rs. 6844. Along with the plaint filed on 28th April 1938 the plaintiff filed in Court two copies of estimates, one for the repairs of the mosque, etc., and the other for the repairs of the Mysore House. These two copies are Exs. 1 and 1 (a) and are copies of Exs. 6844. Along with the plaint filed on 28th April 1938 the plaintiff filed in Court two copies of estimates, one for the repairs of the mosque, etc., and the other for the repairs of the Mysore House. These two copies are Exs. 1 and 1 (a) and are copies of Exs. 1 (b) and 1 (c) which are the originals produced by P. W. 2 Dasarathi Mukherjee the Solicitor's clerk from his master's office where they had been kept all along. On one of the copies namely on Ex. 1 (a) appears the signature of Sahebzada Golam Hossain Shah. Therefore, the defendants had ample notice that the plaintiff was relying on the estimates signed by the mutwalli. The defendants did not raise the issue of forgery when issues were framed. The contract was made in December 1934. The witnesses gave their evidence in 1941 and in the circumstances it is not at all surprising if there be some confusion as to the original estimates and the revised estimates. No respectable witness who could speak to the mutwalli's signature was called by the defendants. The only witness called to prove the forgery was a petty employee called Ramavatar. Even this defence witness admitted the signature on Ex. 1 (a) as genuine. On the whole the signatures on Exs. 1 (a), 1 (b) and 1 (c) have, in our judgment, been clearly proved and the learned Judge was right in holding that they were genuine documents. The learned Subordinate Judge, in our opinion, was also right in holding, on the evidence before him, that the final bills Exs. 3 and 3 (a) had also been signed by the mutwalli. We do not, however, appreciate why, after finding that the original estimates (Exs. 1 (b) and 1 (c)) and the original bills, that the mutwalli meant by the words "accepted by me" that he had received the bills and not agreed to pay the amount mentioned therein. In the absence of any allegation and proof of fraud or misrepresentation, a person is prima facie bound by the acceptance signed by him. In view of the earlier finding that Exs. 1 (b), 1 (c), 3 and 3 (a) are genuine documents, the later finding that the mutwalli did not mean what he said appears to be unwarranted and illogical. In view of the earlier finding that Exs. 1 (b), 1 (c), 3 and 3 (a) are genuine documents, the later finding that the mutwalli did not mean what he said appears to be unwarranted and illogical. Be that as it may, the learned Judge's later remarks only relate to the bills and he says that payment would be made after due scrutiny. We do not appreciate why in scrutinising the bills the rates covered by the estimates Exs. 1 (b) and 1 (c) should not be accepted and applied. There is no finding and indeed no evidence that by the words "accepted by me" appearing over the mutwalli's signature at the foot of the estimates Exs. 1 (b) and 1 (c) he meant only that he received the bills. In our judgment, the rates mentioned and agreed upon in the estimates should have been accepted and allowed. After hearing learned advocates for the parties appearing we find that the basis of the rates specified in the estimates the balance due upon bill Ex. 3 will amount to Rs. 5323-0-9 and upon bill Ex. 3 (a) to rupees 6664 aggregating to RS. 11,987-0-9. The questions of disallowance of a few items of work and of interest have not been pressed by the learned advocate for the appellant. 7. The second grievance of the appellant is that not only the balance due upon bill Ex. 3 relating to the Mosque but the whole amount due upon bill Ex. 3 (a) relating to the Mysore House should also have been directed to be paid out of the wakif estate. It is pointed out that the Mysore House is the place of residence of the wakif and his heirs and the mutwalliship of the wakif estate is confined to the descendants of the wakif and therefore the Mysore House may be regarded as the official place of residence of the mutwalli. It is suggested that this is the reason why the wakifnama expressly provided that the cost of repairs of this property should be met out of the surplus income of the wakif estate. There are several answers to this contention. 8. It is suggested that this is the reason why the wakifnama expressly provided that the cost of repairs of this property should be met out of the surplus income of the wakif estate. There are several answers to this contention. 8. In the first place by the wakifnama the wakif clearly kept the Mysore House separate from the wakif and for the sake of his remembrances and for perpetuating his name made a gift of that property to his youngest son Prince Ahmed Halimoozzooman subject to certain conditions. This property, therefore, was secular property, would devolve as such and would be liable to be transferred to strangers if the owner for the time being thought fit to transfer the same. It is therefore not possible to regard this property in the same light as the official and special residence of the mutwalli as such. Further the wakifnama was construed by White J. as a testamentary disposition, and as such valid only as to one-third of the wakif's estate and only the bequests to charities and to persons other than the heirs were declared to be valid. It is difficult to regard the direction for repairing this house as a bequest at all and in any event if it is a bequest it must be deemed to be one to the person to whom the property had been given, namely, the wakif's youngest son. That main bequest was expressly declared to be void and in the circumstances the subsidiary provision in his favour for repair of the property out of the income of the wakif estate must fall with the main bequest. This we conceive must be the logical effect of the decision of White J. It cannot be argued that the plaintiff is not bound by that decision because the plaintiff's claim is principally against the mutwalli and may in certain circumstances through him he against the wakif estate. The mutwalli through whom he claims was certainly bound by that decision. Our attention was drawn to the order and judgment of Ameer Ali J. made and passed in Suit No. 1013 of 1933 on 26th May 1937 and 22nd February 1988. The mutwalli through whom he claims was certainly bound by that decision. Our attention was drawn to the order and judgment of Ameer Ali J. made and passed in Suit No. 1013 of 1933 on 26th May 1937 and 22nd February 1988. It is true that order was made and that judgment was delivered when the present dispute was pending; but even if they be not directly binding on the plaintiff as a matter of res judicata, we cannot but regard them as the necessary corollary to and interpretation of the decision of White J. We find ourselves in agreement with the views of Ameer Ali J. 9. In the second place the provisions of the wakifnama, as pointed out by Dr. Sen Gupta, for the repairs to the wakif's secular property will be invalid according to the Shiah School of Mahomedan Law. It is true that there is nothing on record to show that the prince who created the wakif was a Shiah Mahomedan. It is, however, well known that this Mysore family belongs to the Shiah sect and Mr. Das very fairly conceded this. That being so this provision, even if it be taken to be unaffected by the decision of White J. cannot be supported as a valid provision under Shiah law. 10. Finally this claim for payment out of the wakif estate cannot be sustained on general principles of law, having regard to the pleadings and the evidence on record. It is well established that the primary claim of an unsecured creditor of an executor or trustee is personally against the executor or the trustee. Such a creditor has no direct rights against the estate. The executor or the trustee is personally liable on his contract to unsecured creditors even if he contracts as executor or trustee. He, however, has a right of indemnity out of the estate if the liability had been properly incurred. Whether this indemnity exists will depend on the result of general accounts between the executor or the trustee and the estate. He, however, has a right of indemnity out of the estate if the liability had been properly incurred. Whether this indemnity exists will depend on the result of general accounts between the executor or the trustee and the estate. A particular debt or liability may have been incurred by the executor or the trustee for the benefit of the estate but it does not follow that the executor or trustee will necessarily be entitled to be indemnified out of the estate in respect of that debt or liability, for he may already have withdrawn moneys out of the estate and spent it for purposes of his own and unconnected with the estate. In other words, a defaulting executor or trustee who is already indebted to the estate for his previous withdrawals and defalcations will have no right of indemnity for a subsequent liability even if it were incurred for the benefit of the estate. To take an example, suppose the executor or trustee took moneys out of the estate for meeting some legitimate expense of the estate but misappropriated the money. He obviously cannot take out money again for meeting the same expense. The estate cannot properly be called upon to pay twice over for the same expense. The principle is the same if the executor or trustee previously misappropriated or misapplied estate funds, for it is to be regarded that he has so much money of the estate in his own pocket out of which he can recoup himself for the liability incurred subsequently for a legitimate purpose. Therefore, whether for a particular liability to an outsider the executor or trustee will be entitled to recoup himself out of the estate will depend on whether he has or has not money of the estate in his own pocket already. This can be ascertained only on taking the general accounts as between him and the estate. If on general accounts he is a debtor to the estate he has no further right of indemnity and if he is not a defaulter to the estate he will be entitled to indemnity to the extent to which he is a creditor to the estate. This is the only right of the executor or trustee. The unsecured creditor of the executor or trustee as such has no higher right. This is the only right of the executor or trustee. The unsecured creditor of the executor or trustee as such has no higher right. The only right of such a creditor vis a vis the estate is that of subrogation, i. e., the right to stand in the shoes of the executor or the trustee. Therefore, if such a creditor claims to get at the estate he must establish the right of the executor or the trustee to an indemnity out of the estate. The onus is on the creditor and in many cases it may be an impossible onus to discharge. But such, we apprehend, is the law. The unsecured creditor of an executor or trustee cannot have any direct claim against the estate. His only remedy against the estate is by the circuitous process of subrogation into the right of indemnity of the executor or the trustee. These principles have been dealt with and established, so far as this High Court is concerned, in 59 cal. 216-35 C. W. N. 850 Sris Chandra Nandi v. Sudhir Kumar ('32) 19 A.I. R. 1932 Cal. 182 : 59 Cal. 216 : 136 I. C. 893 : 35 C. W. N. 850, 60 Cal. 801 Mackintosh Burn v. Shivakali Kumar ('33) 20 A. I. R. 1933 Cal. 668 : 60 Cal. 801 : 149 I. C. 282 and 62 Cal. 552 Suneel Kumar Kar v. Shishir Kumar Kar. ('35) 62 Cal. 552. The same principles have been applied to the unsecured creditors of a mutwalli of an wakif estate in ILR (1937) 1 cal. 99 Zubaida Sultan Begum Vs. Dawood Ismail Makra and Others, AIR 1937 Cal 407 Kalipada Roy Vs. Satish Chandra Hui and Others, AIR 1942 Cal 66 . The position of a shebait of a Hindu deity is, however, different, for the deity is a juridical person and when the shebait as such enters into a simple contract a direct privity of contract is brought about with the deity. A shebait is not a trustee: see 59 cal. 586 Sailendra Nath Palit Vs. Syed Hade Kaza, AIR 1932 Cal 356 . A shebait is not a trustee: see 59 cal. 586 Sailendra Nath Palit Vs. Syed Hade Kaza, AIR 1932 Cal 356 . The principles enunciated above have been adopted by one of us in 49 C.W.N. 263 Ashutosh Seal v. Umesh Chandra Seal ('45) 49 C. W. N. 263 and by the other of us in 49 C.W.N. 264 Iswar Jagannath Deo Jeu v. Prosad Das Mondal ('45) 49 C.W.N. 264. If these principles are correct, as we apprehend them to be, then in the present case the plaintiff has no right or claim against the wakif estate even for the repairs to the mosque. We do not regard the provision in the wakifnama as creating a charge for cost of repairs. At best it only indicates that the repairs are proper and legitimate duties of the mutwalli. It does not create any charge at all and far less in favour of any creditor of the mutwalli. Besides, the suit is not framed on the basis of subrogation and no evidence was led to establish the late mutwalli's right of indemnity. Strictly speaking, therefore, the Subordinate Judge was wrong in allowing the balance of moneys due on the bill (Ex. 3) for the repairs to the mosque, etc., out of the wakif estate. The defendant Receiver, however, proceeded on the assumption that the wakif estate was liable for the balance. The issue as to the liability of the wakif estate was expressly limited to the claim for payment of the cost of repairs to the Mysore house and the learned Judge has allowed it, even though wrongly. The Receiver has not filed any cross appeal against this part of the decree but has paid up that amount. In these circumstances we do not propose to disturb the decree in this behalf but shall content ourselves with holding that the present claim for repairs to the Mysore house is not payable out of the wakif estate and that the same is payable by the heirs of the late mutwalli out of the latter's personal estate. 11. We have found that Rs. 5323-0-9 is due for balance due upon the bill (Ex. 3) for repairs to the mosque and Rs. 6664 is due upon the bill (Ex. 3a) for repairs to the Mysore house. 11. We have found that Rs. 5323-0-9 is due for balance due upon the bill (Ex. 3) for repairs to the mosque and Rs. 6664 is due upon the bill (Ex. 3a) for repairs to the Mysore house. The decree will be modified only by inserting these figures and proportionately increasing the costs, the amount due for the mosque and proportionate costs being made payable out of the wakif estate and the rest being payable by the heirs of the late mutwalli out of his estate. The appellant has succeeded in raising the amount of the claim on both bills but he has failed to establish his right against the wakif estate for repairs to the Mysore house. In the circumstances we direct that the plaintiff will get the costs of the appeal only against the heirs of the late mutwalli payable out of the latter's estate but not against the Receiver or the wakif estate. Let the decree be drawn up accordingly. Sen, J. 12. I agree.