Kumar Rupendra Deb Raikut v. Ashrumati Debi — 1949 DIGILAW 194 (CAL)

JUDGMENT Banerjee, J. - This is an application under cl. 13 of the Letters Patent for transfer of a suit pending in the Subordinate Judge's Court at Jalpaiguri to this Court to be tried and determined in its Extraordinary Original Civil Jurisdiction. The suit has been filed to recover a large estate, called Baikunthpur, situated in the District of Jalpaiguri, being one of the largest estates in that district and concerns a family which is of importance not only in that district but also in the province of Bengal. 2. This family, originally Koch, apostatised to Hinduism, and although affected to be Hindus, it has retained and is governed by family customs which, as regards some matters, are at variance with Hindu Law. It appears that the law of primogeniture governs succession to the estate; females are excluded from inheritance. The successive holders of the estate are called Raikuts. [Mokrund Deb Raikut v. Bissessuree (1852) 9 S.D. A.R. 159 and Fanindra Deb Raikut v. Rajeswar Dass (1885) 12 I.A. 72]. 3. The last holder of the title and of the estate was Prasanna Deb Raikut (hereinafter called "the Raikut"), who died in December, 1946, leaving a widow, Rani Ashrumati (Defendant No. 1), and a daughter by her Srimati Prativa, who has been married to a gentleman of the name of Dr. S.K. Bose, who, as the name suggests, is a caste Hindu. The Raikut had no son by the Rani. 4. The Plaintiff in this suit claims to be the eldest son of the Raikut by a lady of the name of Srimati Renchi Debi, a Lepcha by birth, coming not from a very well-to-do family in the district of Darjeeling. It is alleged that she was married to the Raikut according to the Gandharva form of marriage. This form of marriage rests upon agreement and springs from mutual love. 5. There is no doubt that the Raikut for many years lived with this lady Sm. Renchi Debi as man and wife, and had three sons by her, the Plaintiff and Defendants Nos. 5 and 6. 6. This form of marriage rests upon agreement and springs from mutual love. 5. There is no doubt that the Raikut for many years lived with this lady Sm. Renchi Debi as man and wife, and had three sons by her, the Plaintiff and Defendants Nos. 5 and 6. 6. Immediately on the death of the Raikut, Rani Ashrumati purported to perform what is called the accession ceremony (formal installation to the guddi); that is to say, she purported to become the holder of the estate and possibly of the title, though it is said that females in the family do not inherit the estate. This ceremony was approved by the leading men of the district, who in token of their approval signed a document. Among them were some of the leading lawyers of the district and two gentlemen who sometimes served in the Ministry of the Province of Bengal. 7. Following the accession ceremony, Defendant No. 1 took and has been in possession of the major part of the estate, if not of the whole of it. Naturally, therefore, the officers of the estate, both old and new, are under the control of Rani Ashrumati. 8. The Plaintiff, who is a minor, has filed the suit by his next friend, his mother, inter alia for a declaration that he is entitled to the title of Raikut and recover the estate. 9. The Defendants in the suit are Rani Ashrumati (Defendant No. 1), three distant relations of the Raikut (Defendants Nos. 2 to 4) and the other two minor sons of Sm. Renchi Debi (Defendants Nos. 5 and 6). 10. The Plaintiff alleges that his mother was lawfully married to the Raikut and he is his eldest legitimate son of the Raikut, and as such is entitled to the title and to the estate. 11. Defendant No. 1 filed her written statement on January 19, 1948, wherein she denied that there was any marriage between the Raikut and Sm. Renchi Debi. According to her, Sm. Renchi Debi was only a mistress of the Raikut, and, therefore, the Plaintiff is not the legitimate son of the Raikut, and as such he is not entitled to succeed to the estate or to the title. 12. Defendants Nos. 2 to 4 have also filed their written statements. They deny the marriage of the Plaintiff's mother with the Raikut and the legitimacy of the Plaintiff. 12. Defendants Nos. 2 to 4 have also filed their written statements. They deny the marriage of the Plaintiff's mother with the Raikut and the legitimacy of the Plaintiff. They assert their own respective claims to the title and to the estate. 13. Defendants Nos. 5 and 6, brothers of the Plaintiff, have not yet filed their written statement, but their case appears from the petition and the affidavit, which they filed in the application for the appointment of a Receiver, which the Plaintiff made soon after the filing of the suit. 14. This application for transfer was made on April 30, 1948. But I do not know the reasons why it was not heard so long. 15. Mr. S.C. Bose on behalf of the applicant has taken three grounds in support of the application: (1) that the case involves difficult questions of law and fact and should be tried by the High Court; (2) that the balance of convenience is in favour of the trial of the suit in this Court; (3) that the Plaintiff will not get a fair trial in the Court at Jalpaiguri. 16. As to ground No. (1), there is no doubt that there are difficult questions of law and fact. Without specifying the issues, I may indicate that the following questions will have to be tried: (a) To what extent has this family assimilated Hindu customs and habit; (b) whether marriage according to Gandharva form is valid in this family; (c) whether there could be a marriage between a Lepcha female and a Koch male; (d) whether in fact there was a marriage between the Raikut and Sm. Renchi Debi; and (e) how far, if at all, has the family discontinued any custom it once adopted? 17. These are no doubt difficult questions of law and fact. But on this ground I am not disposed to make any order. I have not come across in the reported cases any decision granting a transfer merely on this ground. Many important cases decided by learned Subordinate Judges had gone up to the Privy Council, where their judgments were upheld and have become leading cases. 18. If I may say so with respect, Subordinate Judges have tried with great ability and fairness cases of the type under consideration. Many important cases decided by learned Subordinate Judges had gone up to the Privy Council, where their judgments were upheld and have become leading cases. 18. If I may say so with respect, Subordinate Judges have tried with great ability and fairness cases of the type under consideration. Indeed Fanindra Deb Raikut's case (2) was decided by a District Judge, whose judgment, though reversed by the High Court, was held to be right by the Privy Council. 19. Ground No. (2) : This ground has been sub-divided by Mr. Bose under the following heads: (i) Convenience of parties; (ii) Convenience of witnesses; (iii) Convenience of Counsel; (iv) Convenience as to production of documents; (v) Length of the hearing; and (vi) Costs. 20. I now proceed to consider the different heads. (i) Convenience of parties: None of the parties, except Defendant No. 1, has any house or establishment in Calcutta or in its suburbs. If the trial takes place in Calcutta they would have to live here for a long time. On the other hand, they have houses to live in Jaipaiguri or in neighbouring places; they have got their establishments there. In these days of difficult accommodation and food rationing, I think the balance of convenience on this head is in favour of trial in the Jaipaiguri Court. (ii) Convenience of witnesses: On the same grounds, I hold this point in favour of the Jaipaiguri Court Commission to examine witnesses does not make any difference. There are some witnesses who live in or near about Jaipaiguri; there are others who live in or near about Calcutta. (iii) Convenience of Counsel: This is perhaps a matter which the Court need not take into consideration. If the parties desire to have the luxury of taking Counsel from outside Jaipaiguri, they would have to find suitable accommodation for Counsel. (iv) Convenience as to production of documents: Mr. Bose said that it would facilitate the production of documents if the trial takes place in this Court. 1 have not sufficient materials before me to enable me to say anything definitely on this point. If the documents are fairly large in number and are in Government offices or in Courts near about Calcutta, probably there would be some convenience as regards their production in this Court. But the balance of convenience on this head is so trivial as not to deserve any consideration. If the documents are fairly large in number and are in Government offices or in Courts near about Calcutta, probably there would be some convenience as regards their production in this Court. But the balance of convenience on this head is so trivial as not to deserve any consideration. (v) Length of hearing: On this head I think the balance is in favour of the High Court. The trial in this Court would be more speedy. I do not mean any disrespect to the learned Judges who preside over the Mofussil Courts. But in the Original Side of our Court there is a better machinery for speedy trial, e.g., one set of lawyers devote themselves entirely to the preparation of the papers and evidence for the trial; another set devote themselves entirely to the preparation of the case and the argument to be placed before the Court in a concise manner; stenographers are employed to take down the deposition of witnesses; Counsel in important cases often agree to documents that are exhibited; and there are various other things which help to shorten the duration of the trial in this Court. So on this head the balance of convenience is in favour of the High Court. (vi) Costs: I quote an observation made by Ameer Ali, J., in 1885 in Harendra v. Sarbamangala ILR 24 Cal. 183 (189) (1901) : "I am surprised at the statement that the expenses here will be greater than in the Mofussil. This is obviously contrary to the ordinary experience." This observation was made by that learned and experienced Judge in connection with an application for transfer of a suit under clause 13 of the Letters Patent. In my judgment in a similar application Sudhindra v. Arunendra 53 C.W.N. 261 (265) (1949), I said, referring to this observation of Ameer Ali, J., "Whether that observation applies in all cases is a matter of opinion. But I have no doubt that the observation does apply to a case of the type under consideration." I adhere to the observation I then made. In an important case like this I do not think that the costs in the Jaipaiguri Court will be less than in the High Court. Many eminent Counsel have already been freely consulted in this case by the principal parties. The plaint in this case was drawn by an eminent and expensive Counsel of this Court. In an important case like this I do not think that the costs in the Jaipaiguri Court will be less than in the High Court. Many eminent Counsel have already been freely consulted in this case by the principal parties. The plaint in this case was drawn by an eminent and expensive Counsel of this Court. The main written statement was drawn and/or settled in joint consultation by equally eminent Counsel of this Court and of the Patna High Court. If this case is heard at Jalpaiguri I have no doubt (I say from my own experience) that some of the expensive Counsel of this Court or of other High Courts would be taken to Jalpaiguri to argue the case, or would be freely consulted now and then in the course of the hearing of the case. On this ground, therefore, I think there is nothing much to choose between the two Courts. 21. On the whole, however, I think that the balance of convenience is in favour of the trial at Jalpaiguri. 22. But even if I had thought that the balance of convenience was in favour of the trial in this Court, I would not be disposed to transfer the suit. The Plaintiff had the choice of forum. In this case he chose the forum at Jalpaiguri, though he could institute the suit in any of the Courts within the jurisdiction of which the estate,--which is a big one--is situate. I presume that the Plaintiff chose the Jalpaiguri Court as he thought it was a convenient forum. The Defendants have taken part in the proceedings already instituted in the Jalpaiguri Court. 23. This ground of Mr. Bose, therefore, has not commended to me and I am not disposed to transfer the suit on this ground. 24. Ground No. 3: Mr. Bose contended that the learned Judge at Jalpaiguri betrayed a very great want of discretion and unusual sharpness of procedure and harshness towards the Plaintiff which made it impossible that he would be able to deal with the case on the merits with impartiality or freedom from prejudice. Counsel based his contention on three orders made by the learned Judge; one made on February 27, and two on April 17, 1948. He refers me to the case of Thakoor Kapilnauth Sahai Deo v. The Government (5). 25. Counsel based his contention on three orders made by the learned Judge; one made on February 27, and two on April 17, 1948. He refers me to the case of Thakoor Kapilnauth Sahai Deo v. The Government (5). 25. In that case A filed a suit in forma pauperis through his mother and guardian for the recovery of an estate. On September 2, the suit was postponed to September 23, and the Plaintiff knew perfectly well that that date had been fixed either for settlement of issues or for the final disposal of the suit. On that date the Defendant's pleader appeared in Court and filed the written statement. The case, however, was called on for hearing and was dismissed for default, as no one appeared for the Plaintiff, and the Plaintiff was ordered to pay the Defendant's costs and Rs. 1,650 for the stamp fee to Government (which he would in the first instance have had to pay if he had not been allowed to sue as a pauper.) On the next day the Plaintiff's agent presented a petition praying that the suit might be restored and heard, explaining the circumstances under which he had been unable to appear in Court on the 23rd. This petition was presented in open Court, and the Government pleader was present at that time; but the Judge declined to go into the matter on that occasion, and adjourned the consideration of it until November 5. Notwithstanding this, the Judge on September 25, of his own motion and not on any application made to him by the Government, sent a rubakari to the Collector informing him that Rs. 1,650 were due to the Government by the Plaintiff for stamps, under the decree of the 23rd September and were to be realised from him. 26. On September 30, the Plaintiff presented a petition to the Court asking that execution in respect of these Rs. 1,650 might be stayed pending the application for rehearing, which had been adjourned to November 5. That application was refused on the ground that the Court had no jurisdiction to grant a stay although as a matter of fact and law, he had the jurisdiction. (5) 10 B.L.R. 168 (1872) 27. 1,650 might be stayed pending the application for rehearing, which had been adjourned to November 5. That application was refused on the ground that the Court had no jurisdiction to grant a stay although as a matter of fact and law, he had the jurisdiction. (5) 10 B.L.R. 168 (1872) 27. On November 5, the Plaintiff's application for a re-hearing was heard and it was ordered that, on the Plaintiff's paying the Defendant's costs, the judgment by default passed on September 23, should be set aside and December 5 was fixed for determining the issues. On these facts, Macpherson, J., observed:-- Although, I think that there was no absolute illegality in passing judgment by default against the plaintiff on that day, it does seem to me that there was a very great want of discretion and most unusual sharpness of procedure and harshness towards the plaintiff in the course adopted. * * ** * If there had been no other reason for a little forbearance, the knowledge that up to within a day or two previously, the plaintiff was actively prosecuting his suit, ought to have made the Court hesitate before dismissing it outright in such a fashion. It was wholly unnecessary, moreover, to punish the plaintiff's default with such condign punishment, inasmuch as, if the plaintiff had been present, nothing could properly have been done on that day beyond fixing a future date for the settlement of issues The defendant's written statement was not filed until the 28rd, and it was absolutely impossible for the plaintiff's pleaders, if they had been the most skilled lawyers in India, to have proceeded either with the hearing of the case, or with the settlement of issues without having had an opportunity of reading and carefully considering the written statement and the various questions raised by it. The utmost that could have been done on the 23rd, had all parties been present, would have been to adjourn the case for settlement of issues, and the Court seeing the position of things, would only have acted reasonably and properly, and I may add, would only have acted, as Courts under such circumstances usually do act, In the absence of special or repeated negligence on the plaintiff's part, if it had simply adjourned the case, fixing a future day for the settlement of issues. 28. 28. Referring to the rubakari the learned Judge said: It was an order for execution, and intended as such: that cannot be doubted....Now I must say that, when a Plaintiff whose suit has been dismissed, comes in and applies for a re-hearing, and when the Court fixes a future day for hearing the application, instead of disposing of it at once, it does seem to me a most extraordinary and improper proceeding that the Court should, of its own motion and without ever being called upon by any of the parties, take action and proceed to execute the decree against the Plaintiff. And it is the more remarkable that such a step should have been taken in this particular case when it is considered that the Plaintiff was suing in forma pauper is and that he was a minor suing through his mother and guardian. 29. There was a variety of other matters, to which it is not necessary to allude more particularly. The learned Judge concluded by saying: looking at the whole course of this case from the beginning up to the present time I think the Plaintiff and his advisers may well feel considerably aggrieved, and think that the Judge is in a state of mind, with reference to this case, which makes it impossible that he should be able to deal with it on the merits with impartiality or freedom from prejudice. 30. On these considerations, the learned Judge directed the suit to be transferred to this Court for trial in the exercise of its extraordinary original civil jurisdiction. 31. Is the principle laid down in Thakoor Kapilnauth Sahai Deo v. The Government 10 B.L.R. 168 (1872) applicable to this case? 32. In order to appreciate Mr. Bose's contention, it is necessary to state the facts and circumstances under which the learned Judge made the three orders above referred to. 33. As I have said, there was an application for the appointment of a Receiver. All the Defendants, except Defendant No. 1, supported the application; the Defendant No. 1 filed her objection on February 2, 1948. The Plaintiff was to file his reply on February 23, but he filed the reply on February 24, explaining one day's delay. 33. As I have said, there was an application for the appointment of a Receiver. All the Defendants, except Defendant No. 1, supported the application; the Defendant No. 1 filed her objection on February 2, 1948. The Plaintiff was to file his reply on February 23, but he filed the reply on February 24, explaining one day's delay. To the affidavit in reply the Plaintiff annexed certain documents to show waste and misappropriation by Defendant No. 1 to satisfy the Court that it was just and convenient that a Receiver should be appointed. 34. Immediately thereafter Defendant No. 1 made an application praying that "the new matters put in the reply should be expunged and the documents filed with it should be rejected; alternatively, Defendant No. 1 should be given a month's time to deal with the new matters. 35. On February 27, the learned Judge made an order to the effect that "the Plaintiff would not be allowed to canvass or rely on new charges, allegations or matters, if any, made in the reply filed by the Plaintiff on February 24, 1948, unless they came within the meaning or ambit of reply to the averments made in the affidavits filed previously on the defence side." 36. On March 3, 1948, by consent the hearing of the application for Receiver was adjourned till April 26. 37. On March 6, 1948, a Mr. Sourendra Kumar Bose, a pleader of the Jalpaiguri Court, was appointed guardian ad litem of Defendants Nos. 5 and 6, who up to that time had not been represented. 38. On March 9, 1948, Defendant No. 1 applied that the date of the hearing of the application for Receiver may be adjourned by a week. The Subordinate Judge ordered the petition to be put up on March 16, 1948, for orders. 39. On March 16, 1948, on the joint petition of the parties, the date of hearing of the application for Receiver was fixed on May 10, 1948. 40. On March 17, 1948, the Plaintiff made a petition praying for grant of a month's time to Defendant No. 1 to file, if she was so advised, an affidavit in answer to the Plaintiff's affidavit filed on February 24, 1948. 40. On March 17, 1948, the Plaintiff made a petition praying for grant of a month's time to Defendant No. 1 to file, if she was so advised, an affidavit in answer to the Plaintiff's affidavit filed on February 24, 1948. Obviously the Plaintiff wanted that the "new matters" which he had put in his reply should be taken into consideration by the Court, giving to the Defendant an opportunity to answer them. This application was rejected by the Subordinate Judge on the ground that the matter was concluded by the order of February 27, 1948. 41. On April 6, 1948, the Plaintiff made another petition filing copies of certain letters and documents, which, according to the Plaintiff and/or his legal advisers, prove that the Plaintiff is the eldest legitimate son of the Raikut and that his mother had been treated by the friends of the Raikut and the members of the family and by High Government Officials, as the wife of the Raikut. 42. On April 17, 1948, the learned Judge observed: In my considered opinion the belated prayer richly deserves rejection for more than one ground.......... Further,... there should be a dead line to filing documents and affidavits in such a matter. In view of the above grounds and also considering the fact that if the Plaintiff is allowed to produce the documents in question at any time he likes, the other side is likely to be prejudiced, reject the petition of the Plaintiff. 43. I have underlined the important words. 44. The guardian-ad-litem appointed as aforesaid had filed on behalf of the minor Defendants three petitions on April 8, 1948, and an affidavit on April 9, 1948. The learned Judge by one of the said orders made on April 17, removed him and in his place appointed Mr. 43. I have underlined the important words. 44. The guardian-ad-litem appointed as aforesaid had filed on behalf of the minor Defendants three petitions on April 8, 1948, and an affidavit on April 9, 1948. The learned Judge by one of the said orders made on April 17, removed him and in his place appointed Mr. Rukmini Kanta Bhowmic, a senior pleader of the Jalpaiguri Court as the guardian-ad-litem for the minors, observing, "the above step (removal of the guardian ad litem) necessarily leads to the conclusion that all the petitions filed by Sri Sourendra K. Bose should be rejected and accordingly these have been rejected." In this connection, the learned Judge made a long order, the relevant portion of which is as follows:-- Heard the guardian-ad-litem, In the petitions filed on April 8, 1948, the guardian-ad-litem stated that he had received instructions from the natural guardian of the minors to take steps in the receiver matter and to file written statement, and so he required two days' time to take steps in the receiver matter and two months' time to file written statement............ On 9th April last before any orders on the petitions dated 8.4.48 were passed the guardian-ad-litem filed the petition and the affidavit in the matter of the application for appointment of receiver, unconditionally admitting the custom regarding succession as alleged by the plaintiff in the plaint and supporting the plaintiff's application for appointment of receiver.......... The affidavit of the guardien-ad-litem shows that in it the plaintiff's claim has been unconditionally admitted by the guardian-ad-litem. It does not appear to me to be any part of the duty of a guardian to come with a petition merely admitting the plaintiff's claim against the minors......... In the circumstances the guardian-ad-litem should not have approached the natural guardian for instructions and acted under her advice. It was the clear duty of the guardian-ad-litem to make an independent enquiry about the matter involved and decide upon the line of action to be taken by him independently of any instructions of such natural guardian for the protection of the interests of the minors......................... For reasons already recorded, the guardian-ad-litem has shown his inability to safeguard the interests of the minor defendants in the present suit. 45. For reasons already recorded, the guardian-ad-litem has shown his inability to safeguard the interests of the minor defendants in the present suit. 45. On the same day the learned Judge made another order which, though not referred to by any of the parties before me in the course of the hearing of this application, seems to be important. That order is: "Plaintiff to put in talabana and other requisites for service of summons upon the newly appointed guardian-ad-litem by 22, April 1948". I shall show later in my judgment how this order is important in this application. 46. These are the facts relating to the orders. 47. I now proceed to discuss how far, if at all, the orders deserve the comments made by Mr. Bose on them. 48. Order dated February, the 24th: I shall assume that the Plaintiff sought to introduce new matters in the reply. The law on this point is stated thus in Phipson's Law of Evidence, 8th Ed., pp. 37-38: "Evidence in reply, whether oral or by affidavit, must, as a general rule, be strictly confined to rebutting the Defendant's case, and must not merely confirm that of the Plaintiff. The Judge, however, has a discretion to admit further evidence, either for his own satisfaction or where the interests of justice require it." One of the cases relied on by the learned author for this statement of law is Gilbert v. Comedy Opera Co. (6). In that case there was an application by the Defendant to take off the file affidavits filed by the Plaintiff in reply, on the ground that they were not confined to matters strictly in reply. Bacon. V.C. said:--"Not that the Plaintiff shall not file affidavits which are not confined to matters strictly in reply................ (but) the Court shall give leave to the Defendant to answer them.... I am bound not to exclude proper evidence, and the Court has power, as I hope, it always will have power, to give liberty to the Defendant to file new affidavits, having full control in the matter." The reason why I have set out the observations of that experienced Vice-Chancellor is that, though the affidavit in reply should be strictly confined to matters strictly in reply, the Court has a discretion in the matter and is bound not to exclude proper evidence. Discretion means " liberty of suiting one's action to circumstances." The Court suits, and must always suit, its action to the circumstances, acting within the proper limits of law. In this case, strictly speaking, the Judge was right. But did he exercise his discretion properly? 49. On February 2, the application for the appointment of Receiver was fixed for hearing on March 15, 1948. No guardian had been assigned to the minor Defendants till March 6, 1948. This was presumably known to the learned Judge and all persons (6) 16 Ch.D. 594 (1880) concerned. Before a guardian was appointed for the minors and an opportunity given to him to present their case, the application could not be heard. It might be fairly taken, therefore, that on February 24, it was well-known that the application for Receiver could not possibly be heard some time. 50. The Defendant No. 1 herself did not object to the new matters going in, provided a month's time was given to her for dealing with the new matters. In these circumstances, I cannot conceive what prejudice any party would have suffered if the learned Judge had allowed the new matters to go in and given leave to Defendant No. 1 to file an additional affidavit dealing with the new matters. 51. After all the procedure of the Court is to aid the administration of justice and not to hamper it. The law of procedure must be followed as it represents experience of ages and helps the administration of justice. But I apprehend where in the peculiar circumstances of a case, there is a conflict between the law of procedure and the substantial rights of the parties, the Court or a Judge is justified in ignoring--I should say it is the duty of the Judge or the Court to ignore--the procedure. In this case though the Judge was strictly right in the view he took, I think he should have shown a little more forbearance, [to use the words of Macpherson, J., in Kapilnauth's case (5)] and allowed the new matters to go in. 52. Order dated April, the 17th, 1948: It is difficult to understand why the learned Judge removed the guardian ad litem. For what fault of his? It is as clear as daylight that the Plaintiff and Defendants Nos. 5 and 6 are bound to go a long way together in the suit. 52. Order dated April, the 17th, 1948: It is difficult to understand why the learned Judge removed the guardian ad litem. For what fault of his? It is as clear as daylight that the Plaintiff and Defendants Nos. 5 and 6 are bound to go a long way together in the suit. They must prove, and it is to their interest to prove, that their mother was legally married to the Raikut. The mother manifestly is the (5) 10 B.L.R. 168 (1872) principal witness to prove marriage. She is the principal witness to say how, when, in what form and in whose presence the marriage was performed. 53. Necessarily, therefore, the guardian ad litem would and must take instructions from the mother on this part of the case. If the marriage is not proved, the Plaintiff fails and Defendants Nos. 5 and 6 lose their status. Once the marriage is proved and held to be valid, it is prim facie clear on the authority of the two cases I have cited, that the estate goes by the law of primogeniture to the Plaintiff. Therefore, in my judgment the guardian ad litem was not wrong in stating in the petition that the succession to the estate was governed by that law. Once that is conceded, what defence could the guardian ad litem possibly take other than the one he took? The defence of the minors must necessarily be limited to a claim as to the accumulations and acquisitions made by the Raikut. 54. On this point the guardian ad litem made the claim in this way: "If the Court holds that a different rule of succession obtains in respect of the accumulations and acquisitions. Defendants Nos. 5 and 6 would be entitled to vast properties valued at several lakhs of rupees." 55. I do not think in the circumstances of the case the guardian ad litem acted wrongly in taking instructions up to this point from the natural guardian of the Defendants Nos. 5 and 6 and making the admissions, which he did, as to the law of succession. The contest between the Plaintiff and Defendants Nos. 5 and 6 will arise after the marriage is proved when the issue would be: what acquisitions and accumulations did the deceased Raikut make? What is the law that governs succession to these acquisitions and accumulations? 5 and 6 and making the admissions, which he did, as to the law of succession. The contest between the Plaintiff and Defendants Nos. 5 and 6 will arise after the marriage is proved when the issue would be: what acquisitions and accumulations did the deceased Raikut make? What is the law that governs succession to these acquisitions and accumulations? The conflict is after and not before the marriage is proved. 56. I should think the guardian ad litem was rather hastily removed. Even so, I cannot say that the order removing the guardian was illegal. 57. An application under sec. 115 of the CPC was made against the order of removal of the guardian and heard by a Division Bench sitting on the Appellate Side (R.C. Mitter and Clough, JJ.), who dismissed it, the learned Judges not saying anything further than simply that the application was refused. But we know that sec. 115 of the CPC applies to jurisdiction alone--the irregular exercise or non-exercise of it or the illegal assumption of it. An order of the lower Court is not set aside because it is erroneous on facts or even on law. 58. It may be that their Lordships took the view that the learned Judge had jurisdiction to make the order, and if he had jurisdiction to make the order, he had jurisdiction to decide the matter rightly or wrongly. Therefore the order of removal should stand. 59. I am not at all concerned with the illegality or the irregularity or otherwise of the order. I am considering the order from a different point of view altogether, namely, whether the order betrays any want of discretion of the Court towards the Plaintiff. It should be observed, however, that the order had not been made "towards the Plaintiff." It might have had an indirect reaction on the Plaintiff and/or his legal advisers. But if 1 am asked to decide as to whether the learned Judge properly exercised his discretion or not in removing the guardian ad litem. I should say he did not. 60. Second Order of the same day:--The observations I have made in connection with the first order of February 27, 1948, apply with full force to this order also. There is another thing to be observed in connection with this order. I should say he did not. 60. Second Order of the same day:--The observations I have made in connection with the first order of February 27, 1948, apply with full force to this order also. There is another thing to be observed in connection with this order. On this day the learned Judge directed, as I have said before, the Plaintiff to put in talabana and other requisites for service of the summons upon the newly appointed guardian ad litem by 22nd April, 1948. 61. On 17th April. 1948, the learned Judge knew that it would take some time for the newly appointed guardian ad litem to get himself ready with any petition and/or affidavit that he might file on behalf of the minors in support of or in opposition to the application for Receiver. According to the learned Judge's own directions, the guardian ad litem was not to take instructions from the natural guardian of the minors and was "to make an independent enquiry about the matter involved and decide upon the line of action to be taken by him independently of instructions from the natural guardian." In a case of this magnitude it is not possible for any lawyer (whatever may be his skill and ability) to make an independent enquiry and get ready within a short time. I may fairly presume, therefore, that on April 17, everybody knew that the application for the appointment of Receiver would not be heard at least before a month. In these altered circumstances, why was not the Plaintiff given an opportunity to put in the new matters and the documents which, according to him, proved two things: (1) his prim facie title to the estate; and (2) waste and misappropriation by Defendant No. 1--matters which Court takes into consideration in an application for the appointment of Receiver. 62. As I said before, the Defendant No. 1 herself had no serious objection to the new matters and documents going in, if a month's time were given to her to file an affidavit in answer. 63. The learned Judge said. "there should be a dead line to filing of documents and affidavits in such a matter." But I should think that this dead line is not as strong as death. It is here that the Court is called upon to use its discretion. As a general rule, evidence should never be shut out. 63. The learned Judge said. "there should be a dead line to filing of documents and affidavits in such a matter." But I should think that this dead line is not as strong as death. It is here that the Court is called upon to use its discretion. As a general rule, evidence should never be shut out. Opportunity should always be given to the parties to give evidence, if the justice of the case requires it. It does not matter if the original omission to give evidence arose from negligence or carelessness. However negligent or careless may have been the first omission and however late the proposed evidence, it should be allowed if that can be done without injustice to the other side. There is no injustice if the other side can be compensated by costs. But if the other side by the production of such evidence is seriously prejudiced, which cannot be remedied, the Court shall not exercise the discretion. 64. In this case Defendant No. 1 herself did not and could not put forward any objection to the new matters going in, save that she wanted some time to file an answer dealing with the new matters. If necessary, the learned Judge might have granted costs against the Plaintiff or put the Plaintiff on terms. But to refuse the "new matters" on the ground that there should be a dead line to filing of documents and affidavits, in a case of this kind and under the circumstances I have stated above, amounts to refusal on the part of the Court to use its discretion where it should use it. 65. For the above reasons I think that the learned Judge in making the orders aforesaid did not exercise his discretion properly. I am not suggesting that any of the orders was illegal. All that I am saying is that the learned Judge should have shown a little more forbearance and treated the case more sympathetically. 66. 65. For the above reasons I think that the learned Judge in making the orders aforesaid did not exercise his discretion properly. I am not suggesting that any of the orders was illegal. All that I am saying is that the learned Judge should have shown a little more forbearance and treated the case more sympathetically. 66. But even though I regard the orders as wanting in discretion and unsympathetic (and in that sense harsh), I am not prepared in this case to go to the length of saying that "looking at the whole course of this case from beginning up to the end, the Plaintiff and his advisers might well feel considerably aggrieved and think that the Judge was in a state of mind in relation to this case which made it impossible that he should be able to deal with it on the merits with impartiality or freedom from prejudice." If, therefore, Mr. Bose's third ground of transfer is equivalent to the rule enunciated in Kapilnauth's case (5), it must fail. 67. Clause 13 of the Letters Patent confers a very wide discretion on the Court in the matter of removal of suits. As the discretion given is so large, it is necessary that it should be carefully and judiciously used. 68. Clause 13, so far as it is material to this case, is: "The High Court shall have power to remove, and to try and to determine,....... when the said High Court shall think proper to do so,......... for purposes of justice, the reasons for so doing being recorded on the proceedings of the said High Court." 69. The reported cases show that the Court has removed suits on the following grounds: (1) Balance of convenience in favour of trial in the High Court, when it is proved to the satisfaction of the Court that justice requires it. (2) When the Plaintiff commences an action in a Court not on account of any legitimate advantage which a trial in that Court will give him, but for purposes entirely foreign to the legitimate purpose. (3) When the Judge of the Court from which a transfer is sought is in a state of mind which makes it impossible that he should be able to deal with the case on the merits with impartiality or freedom from prejudice. 70. (3) When the Judge of the Court from which a transfer is sought is in a state of mind which makes it impossible that he should be able to deal with the case on the merits with impartiality or freedom from prejudice. 70. Are these grounds exhaustive, or is there any other ground on which the Court acts? 71. Clause 13 empowers the High Court to remove a suit whenever it thinks proper so to do in the interests of justice. 72. What, then, is the meaning of the expression "in the interests of justice"? It must mean, I think, to promote or advance the cause of justice. Justice is a principle which regulates the distribution of things, valued by men--awarding them to some, denying them to others. It is, at the same time, a principle whereby each man's worth is appraised. Justice gives to "every one that which is his." It is not a free gift from the Court. The subject of a civilised country is entitled as a matter of right to get it "freely without sale, fully without any denial, and speedily without delay." The Court only appraises it. In doing so the Court must act and appear to act without partiality and without prejudice, or, as it is often expressed, "justice should not only be done but should manifestly and undoubtedly seem to be done." 73. If a litigant feels that he will not get justice in a particular tribunal, he can demand a transfer of the case to some other Court. In this view I am fortified by a judgment of the Judicial Committee, Mohur Singh v. Ghureeba 15 W.R. (P.C.) 8 at p. 9 (1870). That was a case in which, before the Privy Council, the Appellant sought to set aside a finding of fact made by the lower Court. Mr. Leith on behalf of the Appellant contended inter alia that the testimony of the witnesses who deposed against the Appellant should not have been accepted as they were prompted by a general feeling against the Appellant in the district. Their Lordships observed (pp. 9-10) : "Certainly, the general feeling of the district seems to be strongly against him............... But can we thence infer that the Respondent's case is a false story?.... Their Lordships observed (pp. 9-10) : "Certainly, the general feeling of the district seems to be strongly against him............... But can we thence infer that the Respondent's case is a false story?.... If he (the Appellant) felt that he was not likely to have a fair trial before the local Judge with that feeling in the district against him, his proper course was to petition the European Judge to remove the case into his Court and to try it in the first instance." The words I have underlined are very important. The observations are full of meaning and furnish a ground on which a Court may act in a matter like the one under consideration. 74. The question is for the Court to determine whether the applicant who applies for the transfer feels, that he is not likely to have a far trial in the other Court. 75. In coming to a conclusion on this point, the question for consideration is what is the effect likely to be produced in the mind of the party and not in the mind of the Judge. It is the feeling of the party that has to be ascertained, and it necessarily depends on the indvidual concerned, his temperament and failing, his interest and circumstances. 76. If the Court on a consideration of all the facts come to the conclusion that the applicant feels that he is not likely to have a fair trial in the Court from which he seeks the transfer, it is the duty of the Court to make the order. 77. In this case I ask myself, why has the applicant made this application? The Plaintiff filed the suit at Jalpaiguri. He made an application for a Receiver. He took all steps necessary for his application. Why all on a sudden the Plaintiff and/or his legal advisers changed their mind and sought to change the venue of the trial? 78. I asked the Advocate-General, who appeared on behalf of Defendant No. 1, the reason. He said it was a mala fide application made with a view to delay the hearing of the application for Receiver. He referred me to paragraph 15 of the affidavit used on behalf of Defendant No. 1 in answer to this application for transfer, affirmed by one Suresh Chandra Moitra on June 13, 1948. That paragraph runs thus: "The application is not bone fide. He referred me to paragraph 15 of the affidavit used on behalf of Defendant No. 1 in answer to this application for transfer, affirmed by one Suresh Chandra Moitra on June 13, 1948. That paragraph runs thus: "The application is not bone fide. It was moved simply as a piece of delaying tactics. The learned Subordinate Judge informed the parties' that the matter would be taken up on May 10, 1948, and this date was fixed with the consent of the parties." 79. Either this application is a mala fide one made for the purpose suggested by the Advocate-General, or the applicant feels that he would not get a fair trial in the Jalpaiguri Court. It is manifest that both these contentions cannot co-exist. They are opposed and mutually destructive. If the Advocate-General's contention is correct, the application must be dismissed. 80. But is the contention of the Advocate-General correct? What is there either in the materials before me or in the facts of the case to suggest that this application has been made for the purpose of delaying the hearing of the application for the appointment of Receiver? What benefit is the Plaintiff to get by delaying the hearing? It is not said or suggested that there were negotiations for settlement between the parties. It is not said or suggested that the Plaintiff and/or his legal advisers kept the application for Receiver pending as a sword hanging on the head of the Defendant No. 1 to get better terms. It is clear that up to April 6, 1948, the Plaintiff was very anxious to have the Receiver application heard by the Jalpaiguri Court. From the volume of papers before me in this application I can easily guess that it took at least a week's time to prepare the papers. Therefore, it is obvious that the Plaintiff and/or his legal advisers changed their mind between April 6, 1948, and April 23, 1948. Why did they do so? I do not find anything to explain this change of attitude except the orders of April 17, 1949. 81. There is another thing to be noticed. The Plaintiff need not have made this application for delaying the hearing of the application for Receiver if that was his object. The learned Judge on April the 17th directed the talabana and other requisites to be put in by April 22, 1948. 81. There is another thing to be noticed. The Plaintiff need not have made this application for delaying the hearing of the application for Receiver if that was his object. The learned Judge on April the 17th directed the talabana and other requisites to be put in by April 22, 1948. Until those things were put in, the newly appointed guardian ad litem could not act on behalf of the minors, and having regard to the observations made by the learned Judge, this new guardian ad litem was not to take any instructions from the mother but to make independent enquiries and choose his own line of action. That would evidently take some time. It would automatically delay the hearing of the Receiver application. Then why all on a sudden move the High Court for the transfer of the suit? 82. If I were allowed to write down the thoughts that seem to me to have inspired the Plaintiff to make this application, they would be these: "My mother comes from a comparatively poor Lepcha family in the District of Darjeeling. She became united with a man of wealth, position and importance. As a result of such union we were born, it is natural, therefore, that in the District we would be regarded as pretenders. The Defendant Rani Ashrumati is a powerful lady. Though females are excluded from inheritance in this family, she got the accession ceremony performed. The leading men of the District have espoused her cause. She has taken possession of the bulk of the estate. The officers are under her control. This case is one of great importance in the District. The public are interested in the case. I ignored this feeling thinking that so long as the mind of the Court was not affected it did not matter. Rut what do I find now? Why has my application for putting in new materials been rejected? These new materials would have shown waste by Rani Ashrumati. Why has my petition for putting in documents to show my prima facie title been rejected? The two main grounds on which I could have satisfied the Court that it was just and convenient that a Receiver should be appointed have been thrown aside. Why did the learned Judge mention in this order "the other side is likely to be prejudiced"? Who is the other side? The two main grounds on which I could have satisfied the Court that it was just and convenient that a Receiver should be appointed have been thrown aside. Why did the learned Judge mention in this order "the other side is likely to be prejudiced"? Who is the other side? All the parties in the suit except Rani Ashrumati have supported the application for Receiver. Therefore, the other side must mean Rani Ashrumati. Has she been able through the leading men of the District to prejudice the mind of the Court? Perhaps --yes." 83. Having regard to the importance of the case and the facts and circumstances, I cannot say that that is an unreasonable way of thinking. 84. I have given this case my most anxious attention as it is a case of very great importance and as there is no appeal from my order. I have weighed every fact, considered every aspect of the case. I have considered the convenience and inconvenience of parties and of the witnesses. Weighing the conflicting considerations arising in this case, I have made up my mind. 85. To me it seems that far more than the convenience of parties and witnesses, more than anything that may happen at the trial, is the importance of securing the confidence of parties in the fairness and impartiality of the tribunal, which is next only to the importance of securing a fair and impartial tribunal. 86. Therefore, I direct that the suit be transferred to this Court to be tried and determined in its extraordinary civil jurisdiction. 87. Costs in the cause. I desire only to add that whatever I have said in this judgment is on the materials before me and is confined only to this application. It will not in any way prejudice the parties in any subsequent proceeding in this suit or at the trial.