S. A. MASUD, J. ( 1 ) THIS application has been filed by Gour Chandra Paul for setting aside or varying the report of the learned Special Referee dated September 23, 1970. Similar prayers have also been sought on a separate notice of motion initiated by Arati Rani Paul on the basis of the said application of Gour. The respondents who are contesting the two applications are Balai Chandra Paul and Kanai Chandra Paul, other two brothers of the petitioners. As the same points have been argued by the Counsel for Gour and Arati, they are dealt with in this judgment. The material facts of the case may be stated as follows: one Shrish Chandra Paul died leaving his widow Pramila and four sons Balai, Kanai, Netai and Gour and four daughters, one of whom is the petitioner Arati. Pramila was appointed by this Hon'ble Court as the guardian of her minor sons in the goods of Motilal Paul, grandfather of the said Shrish Chandra Paul, and also in the gods of Shrish Chandra Paul. In 1946, Netai died unmarried. The estate of Shrish Chandra Paul comprises valuable properties including house properties in Calcutta. On September 27, 1946, Pramila executed a deed of gift in respect of Premises Nos. 60/11 and 60/12, Gouri Bari Lane, in favour of Balai, Kanai and Gour. On March 30, 1957, a deed of family arrangement was also executed recording an amicable partition among Pramila, Balai, Kanai and Gour. On June 13, 1957, Pramila instituted the present suit against Balai, Kanai, Gour and Arati in which she prayed for a declaration that the said deed of gift and the deed of family arrangement was void and for enquiry as to what the joint family properties consisted of at the death of Shrish Chandra Paul and for declaration of shares of the parties and other reliefs. On August 26, 1957, Pramila executed a Will bequeathing her entire estate to Arati and Gour in equal shares. On January 1, 1958, Pramila died without filing any inventory or accounts and also without obtaining any discharge from this Court both in the goods of Motilal Paul, deceased, and Shrish Chandra Paul, deceased. On December 12, 1958, Arati was transported as the plaintiff in place of Pramila. Arati applied for grant of Letters of Administration with the copy of the Will of Pramila annexed on February 3, 1960. On December 12, 1958, Arati was transported as the plaintiff in place of Pramila. Arati applied for grant of Letters of Administration with the copy of the Will of Pramila annexed on February 3, 1960. Balai and Kanai contested the said application and the matter was marked as Testamentary Suit No. 12 of 1962. On December 17, 1962, both the testamentary suit and the partition suit appeared in the peremptory list of Mullick, J. and the testamentary suit was partly heard. Similarly, on January 2, 1963, and January 3, 1963, both the suits appeared in the list and the testamentary suit ws partly heard. While the oral evidence was being taken on January 4, 1963, parties agreed to refer all their disputes in both the suits to Mullick, J. acting extra cursum curae. On April 1, 1963, in pursuance of the said order dated January 4, 1963, a preliminary decree in the present suit was passed and under the said decree Mr. T. K. Dastidar was appointed as a Special Referee. On the same date, by a separate order, Letters of Administration were granted to Arati in the testamentary suit. Under the preliminary decree Mr. Dastidar was to act under the supervision of Mullick, J. Thereafter Mullick, J. retired and on July 15, 1969, a consent order was passed by me whereby Mr. A. N. Banerjee, Attorney for Arati and Mr. Ajit Kumar Ghosh, Attorney of Balai and Kanai, were appointed Special Joint Referees in place and stead of Mr. Dastidar. The said Joint Referees also were appointed the Commissioner of partition. On January 28, 1970, on the petition of Balai and Kanai, the new Special Referee Mr. R. N. Das, Barrister-in-law, was appointed as a Special Reference to make enquiries in terms of the preliminary decree in place of the said Mr. A. N. Banerjee and Mr. Ajit Kumar Ghosh. Mr. Das was also appointed the Commissioner of partition in their place. On September 23, 1970, the said Mr. Das filed his report, and on December 11, 1970, the present notice of motion was taken out on behalf of Gour and Arati separately. ( 2 ) MR. I. P. Mukherji, on behalf of Gour Chandra Paul, has made elaborate arguments for several days in support of his client's case that the report of the Special Referee should be set aside. Mr. ( 2 ) MR. I. P. Mukherji, on behalf of Gour Chandra Paul, has made elaborate arguments for several days in support of his client's case that the report of the Special Referee should be set aside. Mr. Mukherji has cited large number of challenged the said report may now be discussed. His first and main contention is that the preliminary decree passed by Mullick, J. and the various orders passed by him and, after his retirement, by this Court are nullities and, as such, the appointment of Mr. R. N. Das and the report filed by him are void and illegal. According to him, Mullick, J. had initial lack of jurisdiction in passing the said preliminary decree. The said testamentary suit was partly heard for about three days and evidence was not completed. No evidence has been taken in respect of the present partition and administration suit. Letters of Administration were granted by him to Arati in the testamentary suit without hearing the parties. Similarly, the preliminary decree passed by him on the basis of request by the parties to decide all matters in dispute in exercise of the so-called jurisdiction in extra cursum curiae is unwarranted in law. Mr. Mukerji concedes that Mullick, J. exercised the said jurisdiction by consent of all the parties, but he has strenuously argued that the consent of the parties cannot give jurisdiction to a Judge which is unknown in law. He has challenged the preliminary decree also on the grounds that the preliminary decree on the face of it is a nullity inasmuch as the contents of the same are contradictory to the principles of natural justice and also various statutes like the Indian Evidence Act, Indian Succession Act, Code of Civil Procedure and also Clause 17 of the Letters Patent and also the Rules of the High Court, Original Side. Relying upon the decision of (1) Kiran Singh and Ors. v. Chaman Paswan and Ors. , AIR 1954 SC 340 (342) he has argued that a decree or an order which is void ab initio can be challenged by a party even in collateral proceedings where such illegal order is sought to be enforced. ( 3 ) MR. Hazra, Counsel on behalf of the respondents has rightly referred me to the fact that all these contentions of Mr. Mukerji have not been specifically stated anywhere as grounds of the present petition. ( 3 ) MR. Hazra, Counsel on behalf of the respondents has rightly referred me to the fact that all these contentions of Mr. Mukerji have not been specifically stated anywhere as grounds of the present petition. I could have disallowed Mr. Mukerji and Mr. Goho to argue on the same point. But inasmuch as they have contended that the order of Mullick, J. is a nullity and, as such, can be challenged at any stage of the proceeding, and as the point was extensively argued by them, I have thought it necessary to deal with the same. In this connection Mr. Mukerji has relied upon in (2) Gulab Sao v. Chaudhury Madho, 9 Calwn 956; (3) Bhowmickv. Bhagwandin, (1911) 14 CLJ 648; (4) Kalipada v. Hari Mohan, (1916) ILR 44 Cal 627 (632, 638) ; (5) Kunja Mohan Chakraborty v. Manindra Chandra Roy Chowdhury, AIR 1923 Cal 619; (6) Pearylal Ray Chaudhuri v. Secretary of State, AIR 1924 Cal 913 (915); (7) Gorachand Halder v. Prafulla Kumar Roy, (1925) 29 CWN 948 (F. B.); (8) Hiralal Patni v. Sri Kalinath, AIR 1262 SC 199 (200 ). ( 4 ) THERE is force in the argument of Mr. Mukerji, but it cannot be denied that Mullick, J. was induced to act by all the parties in an extraordinary manner. Before I reply to the criticism made by Mr. Mukerji it is necessary for me to set out the minutes of his Court dated January 4, 1963, which read as follows: - it is recorded that all the parties consent to this testamentary suit as well as the partition suit, being Suit No. 1045 of 1957 and all the disputes involved in these two matters be settled and referred to the sole arbitration of the Hon'ble Mr. Justice P. C. Mullick and the parties agreed to abide by any decision that will be given and no evidence need be taken except as to what his Lordship might desire and the evidence need not be recorded in any formal manner. Parties agree that this Lordship would have all the summary power including the power to divide the partition the properties and to make such decrees as his Lordship thinks fit and proper and for the purpose of partition, if necessary, to engage or appoint Surveyors and Commissioners as his Lordship thinks best. Parties agree that this Lordship would have all the summary power including the power to divide the partition the properties and to make such decrees as his Lordship thinks fit and proper and for the purpose of partition, if necessary, to engage or appoint Surveyors and Commissioners as his Lordship thinks best. It is recorded that all the parties have referred this mater to the learned Judge in what is known as extra cursum curiae jurisdiction of this Court. It is further recorded that all parties agree that they will not prefer an appeal from or against the decree or order that may be passed by his Lordship the Hon'ble Justice Mullick. ( 5 ) IT is obvious that unqualified powers have been given to the learned Judge to decide all the points of disputes between the parties both in the testamentary suit and in the present partition and administration suit. It is unfortunate that the learned Judge gave his consent to the request of the parties and to have agreed to take up a very onerous responsibility. The learned Judge himself has stated reasons for his acceptance of the terms proposed by the parties in his judgment dated April 1, 1963. He has stated: i have accepted it in terms of the prayer of the parties protracted litigation amongst such near relations is extremely undesirable. It is not merely ruinous to the estate but also leaves in its trial such bitterness and bad blood between brothers and sisters that snaps all that is good and beautiful in their relationship. The method suggested by the parties, I hope, will leave behind the least evil and I will try to do justice to the parties and effect and equitable partition of the estate. The parties should remember that I cannot give decision which would be to the liking of all the parties. Indeed it is more probable that none of the parties would be fully satisfied. Nevertheless the parties and their legal advisers have appreciated that, however unsatisfactory it may appear to each individually, it is in their best interest to accept it without any mental reservation and give full stop to the family disputes. Indeed it is more probable that none of the parties would be fully satisfied. Nevertheless the parties and their legal advisers have appreciated that, however unsatisfactory it may appear to each individually, it is in their best interest to accept it without any mental reservation and give full stop to the family disputes. Thereafter, in that said judgment the learned Judge proceeded to state the reasons why he granted Letters of Administration with a copy of Pramila's Will to Arati and also to pass a preliminary decree on the basis of the family arrangement or the amicable partition that took place between the parties before the institution of the present proceedings. Before I express my views on the merits of the preliminary decree it is necessary to express my views on the question of the learned Judge's jurisdiction in passing such preliminary decree. ( 6 ) ADMITTEDLY, Mullick, J. had the jurisdiction assigned to him by the learned Chief Justice in deciding testamentary matters and also partition and administration suits. It is nobody's case that the learned Judge himself suggested the parties to refer their disputes to him in the alleged extra cursum curiae jurisdiction. The parties themselves could have agreed to certain terms in respect of the present proceeding and asked the learned Judge to pass a preliminary decree by consent. Nobody could have raised any objection to such procedure being adopted. But as the parties were not in a mood to settle the matters among themselves and to propose an agree term of settlement they expressed their confidence in the learned Judge in dissolving their disputes. This unlimited charter given to the learned Judge by the parties themselves shows that the parties had agreed to abide by any decision that would be made by the learned Judge. In fact, the learned Judge anticipated that his report would not satisfy all the parties. It is a matter of great regret that the parties having expressed full confidence in the learned Judge in 1963 should now challenge his jurisdiction to decide the disputes in 1970; far from expressing gratitude to the learned Judge for discharging such responsibility they would now choose to challenge the mandate which the parties themselves have given to him. But Mr. Mukerji thought it reasonable to challenge the jurisdiction of the learned Judge on technical grounds in accordance with some well established principles of law. But Mr. Mukerji thought it reasonable to challenge the jurisdiction of the learned Judge on technical grounds in accordance with some well established principles of law. Reliance has been placed by him on Gulab Saov. Chaudhury Madho (supra), Kunja Mohan Chakraborty and Anr. v. Manindra Chandra Roy Chowdhury and Anr. , 27 CWN 542 (546), Pearylal Roy Chaudhuri and Ors. v. Secretary of State (supra), Gorachand Halder and Anr. v. Prafulla Kumar Roy and Ors. (supra) and Kiran Singh and Ors. v. Chaman Paswan and Ors. (supra ). The principles laid down in those cases to the effect that a decree or an order which is a nullity can be challenged by the parties affected at any stage insofar as they are applicable to the facts of those cases cannot be questioned. The substantial point to be decided is whether Mullick, J. had initial lack of jurisdiction or whether the learned Judge has wrongly or illegally exercised the jurisdiction assigned to him. If the learned Judge had no inherent or initial jurisdiction to pass the said preliminary decree the petitioner must succeed and the report should be set aside in toto. If, on the contrary, the learned Judge had no initial lack of jurisdiction to hear the disputes of the parties, the illegal and improper mode and manner in which he is alleged to have exercised his jurisdiction could only be redressed by an appeal against such preliminary decree. As stated earlier the learned Judge was the only Judge in this Hon'ble Court in 1963 who could dispose of the testamentary matter and also the disputes relating to the partition and administration suit. I am satisfied that the learned Judge had no initial lack of jurisdiction in this matter and the preliminary decree passed by him on April 1, 1963, cannot be held to be a nullity. ( 7 ) MR. Mukerji has strongly relied upon a (9) Official Trustee, West Bengal and Ors. v. Sachindra Nath Chatterjee and Anr. , AIR 1969 SC 823 in support of his contention that the preliminary decree was a nullity. The said decision is certainly relevant but distinguishable from the facts of the present case. ( 7 ) MR. Mukerji has strongly relied upon a (9) Official Trustee, West Bengal and Ors. v. Sachindra Nath Chatterjee and Anr. , AIR 1969 SC 823 in support of his contention that the preliminary decree was a nullity. The said decision is certainly relevant but distinguishable from the facts of the present case. In that case, although Remfry, J. admittedly had the jurisdiction to decide an application under section 34 of the Trust Act, the order passed by him was held by the Supreme Court to have been made outside the jurisdiction of that Court. In that case, the settler of a trust reserved to himself the power to vary the terms and conditions of trust 'by Will alone'. The settler administered the trust property for some time and thereafter applied to the Court for effecting by deed inter vires certain changes in the trust. In the petition the settler prayed for permission to have the Official Trustee appointed as the trustee in his place and to alter the clause relating to variation of quantum of interest of the beneficiaries by deed inter vivos and in its place authorizing him to make the said alteration by deed inter vivos and in its place authorizing him to make the said alteration by deed inter vivos. The learned Judge by his order permitted the settler to alter the said quantum of interest by deed inter vivos and to have the Official Trustee appointed by him. In fact, under the said authority the settler executed a second trust deed whereby in place of the trustees nominated under the original deed the Official Trustee was constituted as the sole trustee and one of the sons of the settler was deprived of all his interest as a beneficiary in the corpus of the trust property except a sum of Rs. 20 per month during the life-time. Thereafter the said son filed a suit for a declaration that the order passed by Refinery, J. was null and void as having made without jurisdiction. The trial court decreed the suit as prayed for, but the Appellate Court reversed the decree of the trial court and dismissed the suit. In the second appeal the High Court reversed the defence of the trial court and dismissed the suit. The trial court decreed the suit as prayed for, but the Appellate Court reversed the decree of the trial court and dismissed the suit. In the second appeal the High Court reversed the defence of the trial court and dismissed the suit. In the second appeal the High Court reversed the decree of the Appellate Court and restored the decree of the trial court. Before the Supreme Court it was argued on behalf of the settler that what could be complained of was not the lack of jurisdiction on the part of Remfry. J. to make the order in question but an illegal exercise of that jurisdiction. The Supreme Court relying upon the principles of law laid down by Mukherjee, Acting C. J. in (10) Hriday Nath Roy v. Ramchand, ILR 48 Cal 138 has made the following observations: from the above discussion it is clear that before a Court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for. It is not sufficient that it has some jurisdiction in relation to the subject-matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue, the authority to hear and decide the particular controversy that has arisen between the parties. Therefore, the fact that Remfry, J. had jurisdiction to pass certain orders either under the Indian Trusts Act, 1882, or under the Official Trustees Act, 1913, or under the Trustees and Mortgagees Powers Act, 1866, or under his inherent power is not conclusive of the matter. What is relevant is whether he had the power to grant the relief asked for in the application made by the settler. That we think is the essence of the matter. It cannot be disputed that if it is held that the learned Judge had competence to pronounce on the issue presented for his decision then the fact that he decided that issue illegally or incorrectly is wholly besides the point. See in (11) Ittyavira Mathai v. Varkey Varkey, (1964) 1 SCR 495 : learned Judge had jurisdiction to decide the issue presented for his determination. See in (11) Ittyavira Mathai v. Varkey Varkey, (1964) 1 SCR 495 : learned Judge had jurisdiction to decide the issue presented for his determination. The relief prayed for, as seen earlier, was to permit the settler to revoke particular clauses in the trust deed and to authorize him to alter the quantum of interest given to each of the beneficiaries by a deed inter vivos. Had the learned Judge jurisdiction to entertain those pleas? reliance was placed on section 34 of the Indian Trusts Act, 1882, as conferring power on the Judge to make the order in question. That section reads: any trustee may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for its opinion, advice or direction on any presented question respecting the management or administration of the trust property other than questions of detail, difficulty or importance, not proper in the opinion of the Court for summary disposal. Under this provision the Court could have only given opinion, advice or direction on any presented question respecting the management or administration of the trust property" and not on any other matters. The relief prayed for by the settler did not relate to the management or administration of the trust property but on the other hand it asked for authority to alter the quantum of interest given to each of the beneficiaries by a deed inter vivos. The jurisdiction conferred on the Court under section 34 is a limited jurisdiction. Under that provision, the Court has not been conferred with over-all jurisdiction in matters arising under a trust deed. The statute has prescribed what the Court can do and inferentially what it cannot do. From the fact that the Court has been conferred power to grant only certain reliefs it follows as a matter of law that the Court has been prohibited from granting any other relief. The jurisdiction of the Court is circumscribed by the provisions of section 34 of the Trusts Act. The Court had no jurisdiction to pronounce on the pleas put forward by the settler. From the facts stated in the petition and from the relief asked for, it was obvious that the case did not come within the scope of section 34 of the Trusts Act. The Court had no jurisdiction to pronounce on the pleas put forward by the settler. From the facts stated in the petition and from the relief asked for, it was obvious that the case did not come within the scope of section 34 of the Trusts Act. Therefore, when the learned Judge granted the relief asked for, he did something which he was not competent to do under section 34 of the Trusts Act. Page 828. Thus, according to the Supreme Court, the learned Judge should not only have a jurisdiction with reference to the place, value and nature of the matter, but the Court should also have the authority to pass the order sought for. In the instant case, Mullick, J. admittedly had territorial and pecuniary jurisdiction and also had jurisdiction over the subject-matter. But unlike the matter before Remfry, J. the jurisdiction of Mullick, J. has not been limited or restricted by any statutory enactment. Apart from the question that the parties induced the learned Judge to pass the preliminary decree there was no bar for him to Act according to the desire of the parties. ( 8 ) MR. Mukerji has, however argued that Mullick, J. is purported to have exercise a jurisdiction which is unknown in law. In fact, reference has been made to the minutes of the Court dated January 4, 1963, whereby the learned Judge has used the words 'extra cursum curiae jurisdiction. ' In my view the said expression has been used loosely and, in fact, the learned Judge only repeated the observations of the Counsel in describing extra cursum curiae as a kind of jurisdiction. The words 'exrtra cursum curiae' literary mean 'outside the course of Court'. These words cannot refer to a new jurisdiction which the law of the land does not contemplate. I agree with Mr. Mukerji that there is no such thing as 'extra cursum curiae jurisdiction'. The jurisdiction of the Calcutta High Court is provided under the Code of Civil Procedure, the Letters Patent or some special statutes. The meaning of the word 'jurisdiction' has been elaborately discussed by Mukherji, J. in Hriday Nath Roy v. Ramchand, (supra) and it is not necessary for me to reiterate the same in details. It is stated there that the jurisdiction of a Court may be classified under the territorial jurisdiction, pecuniary jurisdiction and jurisdiction of the subject-matter. The meaning of the word 'jurisdiction' has been elaborately discussed by Mukherji, J. in Hriday Nath Roy v. Ramchand, (supra) and it is not necessary for me to reiterate the same in details. It is stated there that the jurisdiction of a Court may be classified under the territorial jurisdiction, pecuniary jurisdiction and jurisdiction of the subject-matter. But, even if a Court has got territorial and pecuniary jurisdiction, it is quite possible that the Court might not have any jurisdiction with respect to a particular subject-matter. A Court may be debarred from dealing with a particular subject-matter under any statute or law, and in such a case the Court is not competent to pass any order under the provisions of and act where obviously the court's power has been taken away for such special statute. In fact, in the Supreme Court decision in the Official Trustee, West Bengal v. Sachindra Nath Chatterjee and Anr. (supra) the Supreme Court has made it clear by stating that in order that a Court has jurisdiction to decide a particular matter, it must not only have territorial and pecuniary jurisdiction, but it must also have the authority to pass the order sought for. The Court may be vested with a particular jurisdiction, but even then it is quite possible that the Court is incompetent to make any order under any section of any enactment; extra cursum curiae can never imply the jurisdiction of a Court. In the premises, Mr. Mukerji's contention that Mullick, J. has exercised extra cursum curiae jurisdiction unknown to law cannot be accepted. There is no such thing as extra cursum curiae jurisdiction. In special circumstances it is quit possible for the Court to follow a course or procedure which is different from the prevailing substantive or adjective law. Reliance can also be made in Gorachand Halder v. Prafulla Kumar Roy (supra) where also different classes of jurisdiction have been mentioned. The Judge can act extra cursum curiae in special circumstances. But that does not mean that the Judge is exercising a new jurisdiction in hearing and determining the dispute. In fact, Mullick J. himself has stated in his judgment dismissing Arati's application under Art. 226 of the Constitution of India in (12) Arati Paul v. Registrar, High Court, Original Side, AIR 1965 Cal 8. But that does not mean that the Judge is exercising a new jurisdiction in hearing and determining the dispute. In fact, Mullick J. himself has stated in his judgment dismissing Arati's application under Art. 226 of the Constitution of India in (12) Arati Paul v. Registrar, High Court, Original Side, AIR 1965 Cal 8. When the parties expressly ask a Judge to pass a decree in the pending proceeding and the Judge is expressly asked to abridge the procedure and to act extra cursum curiae, there cannot be in my judgment any room for controversy that the Judge is required by the parties to act as a Judge and not as an Arbitrator. Thus, even the learned Judge himself although has used the word extra cursum curiae jurisdiction of this Court in the minutes dated January 4, 1963, he actually meant that in exercise of his jurisdiction as a partition and administration Judge he can act extra cursum curiae. In fact, a similar situation also arose in (13) Bengal Silk Mills Co. Ltd. v. Aisha Ariff, AIR 1947 Cal 106 (109) where Gentle, J. sitting with Ormond, J. has made the following observation. It is well-settled that the parties to a suit, which is properly before the Court, can agree that the Judge should decide all matters in issue in the way he considers proper and after, for instance, an inspection of the locus in quo and without calling evidence, or at any rate without fully hearing the evidence. When this course is adopted a Judge acts extra cursum curiae and his decision is final and conclusive between the parties. The power of a Judge in acting extra cursum curiae has also been recognized in (14) Ropber Murry Burgess v. Andrew Morton, (1896) AC 136 and (5) Arati Paul v. Registrar, Original Side, High Court, AIR 1969 SC 1133 . Reference may also be made to Halsbury (3rd ed. , vol. II, Article (15 ). This, in my opinion, Mullick, J. in acting extra cursum curiae has not exercised a jurisdiction unwarranted by law. As extra cursum curiae cannot be described as a new class of jurisdiction, Mr. Mukerji's argument that Mullick, J. had initial lack or inherent lack of jurisdiction cannot be maintained. ( 9 ) THE learned Judge had adopted a procedure which is not common. As extra cursum curiae cannot be described as a new class of jurisdiction, Mr. Mukerji's argument that Mullick, J. had initial lack or inherent lack of jurisdiction cannot be maintained. ( 9 ) THE learned Judge had adopted a procedure which is not common. A wrong procedure adopted by a Judge can at best be described as an erroneous exercise of jurisdiction and, as such, a party can therefore agitate before the Court of Appeal against such an act on the part of the learned Judge. It may be added that even if a judge who has initial or pecuniary jurisdiction exceeds such jurisdiction such excess can be waived by the parties to that extent. The principles laid down in Gorachand's case (supra) appear to have been modified in the decision in Hiralal Patni v. Srikalinath (supra) (16) Anil K. Das and Anr. v. Arun Kumar Banerjee and Ors. , 66 CWN 476 and (17) Bahrein Petroleum Co. Ltd. v. P. J. Pappa and Anr. , AIR 1966 S C 634. ( 10 ) THERE is another aspect of the case which also should be remembered. The learned Judge in acting extra cursum curiae has really exercised his jurisdiction in dealing with the testamentary suit and partition and administration cases. He has been induced to adjudicate the disputes between the parties to abridge the procedure and to expedite the determination of the disputes between the parties. The procedural law of the Court should ordinarily be followed inasmuch as the procedural law helps the Court and the parties in deciding the issues in accordance with the principles of justice. If the learned Judge would have acted on his own and decided in a summary way without requested by the parties, the parties could legitimately complain that justice had not been done to them. But in the present case the parties themselves requested the Judge to decide the case contrary to the ordinary procedural law of the Court and, as such, the parties now cannot be allowed to complain against the procedure adopted by the Judge. All that happened in this case was the abridgment of procedure by consent and thus it cannot be said that the Judge by not following the ordinary procedure or not complying with Order XXVI, Rules, 12, 16 and 17 of the Code of Civil Procedure lacked inherent jurisdiction to decide the matter. All that happened in this case was the abridgment of procedure by consent and thus it cannot be said that the Judge by not following the ordinary procedure or not complying with Order XXVI, Rules, 12, 16 and 17 of the Code of Civil Procedure lacked inherent jurisdiction to decide the matter. The preliminary decree was passed by the learned Judge in pursuance of the agreed minutes dated January 4, 1963. The petitioner having agreed to refer all their disputes to the learned Judge cannot now challenge the procedure adopted by the learned Judge. The learned Judge not only had initial jurisdiction but also was given a charter by the parties to follow an agreed procedure. If by following such procedure the learned Judge has caused injustice to the parties the Appellate Court would have set aside or varied the preliminary decree. But, unfortunately no appeal was preferred against the preliminary decree and, as such, the preliminary decree is now binding on the parties. ( 11 ) IT may be stated here that after the preliminary decree was passed on April 1, 1963, Arati filed a petition under Article 226 of the Constitution challenging the preliminary decree on the ground that the said decree was in substance an award of the learned Judge acting as an Arbitrator. It was contended that the Registrar should be directed not to have the said preliminary decree filed. On September 4, 1963 the application was summarily dismissed by Banerjee, J. Appeal was filed against this order of dismissal and the Appellate Court allowing the appeal directed a Rule to be issued which was subsequently heard and dismissed by Mullick, J. on August 26, 1964 : vide Arati Paul v. Registrar, O. S. High Court, (supra ). On November 19, 1963, an affidavit was affirmed by Bikramjit Dey, one of the constituted Attorneys of Gour, in the matter of petition for special leave to the Appeal (Civil) No. 956 of 1963 before the Hon'ble Supreme Court stating that the said Bikramjita as a constituted Attorney was empowered to prosecute and defend suits and legal proceedings that might arise (para. 4 of affidavit-in-opposition ). On September 1, 1964, the preliminary decree was drawn up, completed and signed by Mullick, J. On September 3, 1964, the preliminary decree was filed. 4 of affidavit-in-opposition ). On September 1, 1964, the preliminary decree was drawn up, completed and signed by Mullick, J. On September 3, 1964, the preliminary decree was filed. On October 7, 1964, Gour acted upon the preliminary decree by executing and registering a deed of lease in respect of premises No. 37, Badridas Temple Street which Gour got as his exclusive property under the preliminary decree (para.) 34 of the affidavit-in-opposition ). Agaisnt the judgment of Mullick J. dated August 26, 1964, Arati filed an appeal, but the said appeal was dismissed of February 18, 1965. On March 22, 1965, a petition was filed by Gour for recalling or setting aside the preliminary decree on the grounds that the estate of Pramila was not represented and the preliminary decree was a nullity (petition dated March 22, 1965 ). On April 5, 1965, Mullick, J. delivered a judgment on the said petition and dismissed the same. On April 8, 1965, an appeal (Appeal No. , 78 of 1965) was filed by Gour against the said order of Mullick, J. but the appeal was subsequently dismissed for non-prosecution. On March 10, 1969, Arati's appeal being Appeal No. 745 of 1965 before the Hon'ble Supreme Court in respect of Arati's application under Article 226 of the Constitution of India against the judgment of Mullick, J. was dismissed holding that the said preliminary decree was not an award but a decree of the Court and that in passing the same Mullick, J. acted as a Judge. The said decision has been reported in Arati Rani Paul v. Calcutta High Court (supra ). The Supreme Court has made the following observation. We are not concerned in this appeal with the question whether it was appropriate for Mullick, J. to have dealt with the suit in this manner, nor whether the actual order made by him passing the preliminary decree was correct or was liable to set aside on the ground of the incorrect procedure adopted by him. As we have mentioned earlier, the sole relief claimed before the High Court was the issue of a writ of mandamus directing the Registrar of the Original Side to recall, cancel and withdraw this order and to take it of the record on the ground that it was an award and not a judgment of the Court. As we have mentioned earlier, the sole relief claimed before the High Court was the issue of a writ of mandamus directing the Registrar of the Original Side to recall, cancel and withdraw this order and to take it of the record on the ground that it was an award and not a judgment of the Court. Since we have that it was a judgment of the Court, the Registrar of the Original Side, under the Rules of the Calcutta High Court, was bound to file it on the record and retain it there. The appellant could have sought appropriate remedy for having that judgment vacated and, if such a remedy had been sought against that judgment directly, the question whether it was a good judgment and should be retained on the record or not could have been appropriately decided. The remedy sought by the appellant of seeking a writ to restrain the Registrar of the Original Side from keeping the judgment on the record of the suit could not possibly be allowed while the judgment stood and was not vacated. The Supreme Court finally clarified the nature of the preliminary decree and held that it was a judgment of the Court. The said judgment was delivered on March 10, 1969. Thereafter on May 15, 1969, Balai and Kanai filed an application for extension of time to file the report of Mr. Dastidar as Special Referee. On June 10, 1969, a point was taken by Gour in his affidavit-in-opposition that the retirement of Mullick, J. in 1964 had rendered the preliminary decree unworkable and also that the said decree was at variance with the judgment delivered by the Judge. Arati also filed an application before the Appellate Court for condonation of delay in filing the appeal against the preliminary decree on June 10, 1969. But on July 15, 1969, by consent of all the parties Arati withdrew her petition. On July 15, 1969, by consent of the parties an order was passed by me on the said application of Balai and Kanai whereby Mr. A. N. Banerjee, Attorney of Arati, and Mr. Ajit Kumar Ghosh, Attorney of Balai and Kanai, were appointed Special Joint Referees in place of Mr. T. K. Dastidar to complete the enquiries provided under the preliminary decree. A. N. Banerjee, Attorney of Arati, and Mr. Ajit Kumar Ghosh, Attorney of Balai and Kanai, were appointed Special Joint Referees in place of Mr. T. K. Dastidar to complete the enquiries provided under the preliminary decree. In fact, between August 2, 1969, and August 23, 1969, all the parties including the petitioners participated and signed the minutes of the proceedings before the Joint Special Referees. Again on January 8, 1970, Balai and Kanai made another petition for appointment of a new Special Referee and Commissioner of Partition in place of Mr. A. N. Banerjee and Mr. Ajit Kumar Ghosh. On January 28, 1970, an order was passed by me appointing Mr. R. N. Das as a Special Referee to make the enquiries in terms of the preliminary decree and to file his report within six months. Thereafter Mr. Das held meetings on February 16, 1970, on February 7, 1970, on February 28, 1970, and on April 18, 1970. On April 20, 1970, Gour moved an application for restraining Mr. Das, the Special Referee, from proceeding with the enquiries and an ad interim order was passed by me on April 21, 1970, restraining the Special Referee from holding the meeting. On July 6, 1970, the said application of Gour was dismissed with costs by me. Against my said order Gour moved an application before the Appeal Court, Gour's appeal being Appeal No. 226 of 1970. But on September 14, 1970, the said application was dismissed by the Appeal Court. On September 15, 1970, time to submit the Special Referee's report was extended to May 31, 1971, by me. On September 23, 1970, the report of the Special Referee was filed. On September 28, 1970, extension of time to make an application to the Court for setting aside the said report was asked from this Court for setting aside the said report was asked from this Court and I granted leave to make the necessary application by December 12, 1970. On December 11, 1970, the present notice of motion was taken out by Gour. On December 11, 1970, to separate applications were filed by Gour and Arati challenging the said report of the Special Referee. All these facts show that the petitioners did not choose to file an appeal against the preliminary decree. On December 11, 1970, the present notice of motion was taken out by Gour. On December 11, 1970, to separate applications were filed by Gour and Arati challenging the said report of the Special Referee. All these facts show that the petitioners did not choose to file an appeal against the preliminary decree. On the contrary, at all stages they acted under the preliminary decree, took part in the proceedings of the Special Referee and now for the first time challenged the jurisdiction of the learned Judge in passing the said preliminary decree by acting extra cursum curiae. As stated earlier on March 22, 1965, Gour made an application for recalling or setting aside the preliminary decree on the ground that the estate of Pramila was not represented after her death and the preliminary decree was therefore a nullity. The question as to the jurisdiction of the learned Judge in acting extra cursum curiae was not raised and, as such, the petitioner's present applications were also barred by principles of constructive res judicata. The petitioners should have filed an appeal against the preliminary decree in 1964 when the said decree was filed, but they again failed to do so in 1969 when the Supreme Court held that the preliminary decree was passed by the learned Judge as a Court and not as an Arbitrator. After having submitted to the jurisdiction of the Special Referee for all these years and taking part in the proceedings before him in the petitioner should be estopped from challenging the jurisdictional facts relating to the said preliminary decree. It may be stated here that it is now well-settled that a learned Judge of the High Court should not decide the validity of a judgment or a decree passed by another learned Judge of this Court. The appropriate forum is the Appellate Court where the grievances of the petitioners could have been redressed. ( 12 ) MR. Mukherjee has strongly relied upon the following observation of the Supreme Court in Kiran Singh and Ors. v. Chaman Paswan and Ors. , (supra): it is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings. v. Chaman Paswan and Ors. , (supra): it is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. In my view, those principles have no application in the facts of this case. Apart from the fact that Mullick, J. had the jurisdiction and the authority to decide the dispute between the parties the Supreme Court in the case filed, Arati Paul v. The Registrar, High Court, Calcutta (supra) has specifically made the following observation: the appellant could have sought appropriate remedy for having that judgment vacated and, if such a remedy had been sought against that judgment directly, the question whether it was a good judgment and should be retained in the record or not could have been appropriately decided. Relying upon the said observations the petitioner could have preferred an appeal against the preliminary decree even at the belated stage. On the contrary, they are now making another attempt to stultify the long protracted legal proceedings at this stage by raising the plea of nullity collaterally and indirectly in the present petition without even mentioning these grounds in the petition itself. ( 13 ) THERE is another reason why Mr. Mukerji's contention cannot be accepted. The present application has been made to discharge, very or set aside the report of the Special Referee: vide para. A of the petition. The report has been filed by the Special Referee in pursuance of the preliminary decree. The existence or the validity of the decree has obviously been accepted by the petitioner. Similarly, in prayer B of the petition the petitioner has asked for the amendment of the decree. Thus the petition has been made out on the basis that the decree should be amended and not set aside as a nullity. In the premises, Mr. Mukerji's arguments is not in consonance with the petition of his client. ( 14 ) MR. Similarly, in prayer B of the petition the petitioner has asked for the amendment of the decree. Thus the petition has been made out on the basis that the decree should be amended and not set aside as a nullity. In the premises, Mr. Mukerji's arguments is not in consonance with the petition of his client. ( 14 ) MR. Mukerji has also contended that the preliminary decree is a nullity inasmuch as the said decree was passed against a dead peson, i. e. Pramila. This aspect of the case and the relevant facts in support of the said contention have not been set out in the petition. But Mr. Hazra, the Counsel on behalf of the respondents, has placed before me a list of dates which are based on admitted records. On June 13, 1957, Pramila instituted the present suit against Balai, Kanai, Gour and Arati. On August 26, 1957, Pramila executed a Will bequeathing her share to Arati and Gour in equal shares. While the suit was pending Pramila died on January 13, 1958. On April 2, 1958, Arati made an application to this Court for substitution and/or transposition of her name as plaintiff in place and stead of Pramila. Gour in his affidavit on May 23, 1958, did not raise any objection to mother's name being deleted. He, of course, stated in the said affidavit that he was also entitled to be transposed or substituted as the plaintiff. On December 12, 1958, by the order of Mitter, J. , Arati was not only transposed as the plaintiff in the suit, but also an order was passed by the learned Judge amending the cause title and the body of the plaint according to a draft amended to Arati's application. In the said draft amendment I find that Arati was described as 'transposed or substituted plaintiff'. Mr. Mukerji has, however, argued that the estate of Pramila was not properly represented in the suit and that Arati as the defendant in the suit was only directed to be transposed as a plaintiff. But considering all the prayers that have been granted by the learned Judge on Arati's application I am satisfied that Arati has been duly substituted in place of her mother on December 12, 1958. In my view, a form cannot override the substance. I agree with Mr. But considering all the prayers that have been granted by the learned Judge on Arati's application I am satisfied that Arati has been duly substituted in place of her mother on December 12, 1958. In my view, a form cannot override the substance. I agree with Mr. Mukerji that under the prayer 'a' Arati was only transposed as the plaintiff. But, under other prayers it is obvious that the order was made transposing and also substituting Arati as the plaintiff. It may be added here that Arati, a legatee under the Will of Pramila, made necessary application subsequently for grant of the Letters of Administration with the copy of the Will of Pramila which was subsequently granted to her by the learned Judge on April 1, 1963. Neither the order dated December 1,2 1958, nor the judgment dated April 1, 1963, have been challenged by the petitioner before the Appellate Court. Thus, Mr. Mukerji's contention that the preliminary decree passed on April 1, 1963, was passed against a dead person cannot be accepted. Pramila's name was not in the records at the time when judgment was delivered. Further, it should be remembered that all the persons who are interested in partition suit were already there on record and no injustice or prejudice has been done to the petitioners. It is well-settled that in a partition suit all the parties are in a sense the plaintiffs and the defendants. The preliminary decree as stated earlier was passed in pursuance of the consent order dated January 4, 1963. In the premises, Mr. Mukerji's contention must be rejected. ( 15 ) THE merits of the Special Referee's report may now be discussed in this connection. As stated earlier, in pursuance of the consent order dated January 4, 1963 Mullick, J. passed a preliminary decree on April 1, 1963, where, inter alia, Mr. T. K. Dastidar was directed to make certain enquiries regarding the extent and particulars of joint estate and to submit his report to his Hon'ble Court. On September 4, 1963, Arati filed a petition under Article 226 of the Constitution of India challenging the validity of the preliminary decree in its entirety. The said application was dismissed by Binayak Banerjee, J. The preliminary decree was duly drawn up and was filed on September 3, 1964. On September 4, 1963, Arati filed a petition under Article 226 of the Constitution of India challenging the validity of the preliminary decree in its entirety. The said application was dismissed by Binayak Banerjee, J. The preliminary decree was duly drawn up and was filed on September 3, 1964. The Supreme Court on March 10, 1969, finally disposed of the said application under Article 226 of the Constitution and held that the preliminary decree passed by Mullick, J. was in the nature of a judgment and not an award. Although there was no stay of the preliminary decree the conduct of the petitioners was extra ordinary. The records show that both Arati and Gour never intended to participate in the proceedings before Mr. Dastidar. On March 8, 1965, the Solicitors of Arati and Gour wrote to the letter with a threat to hold him liable for the contempt of Court if he proceeded with the enquiries. On March 22, 1965, Gour made an application for recalling or setting aside the preliminary decree on the grounds that the estate of Pramila was not represented and as such the preliminary decree was a nullity. On March 25, 1965, Mr. Dastidar issued notices to the parties conveying a meeting to be held on March, 1965. On March 29, 1965, at the meeting of the Special Referee Mr. Dastidar directed filing of the statement of facts by Balai an Kanai by April 2, 1965, and filing of the counter statement of facts by April 3, 1965. On April 2, 1965, Balai and Kanai filed their joint statement of facts with Mr. Dastidar copies whereof were supplied to the Attorneys of Grou and Arati. On April 5, 1965, Mullick. J. dismissed Gour's said application filed on March 22, 1965. From the appeal filed by Gour on April 8, 1965, against the said order of Mullick, J. (Appeal No. 78 of 1965) it appears that Gour and Arati had knowledge of the said direction of Mr. Dastidar to file the counter-statement of facts. The appeal was subsequently dismissed for non-prosecution. On May 15, 1969, Balai and Kanai made an application before him for resumption of the enquiries by Special Referee and for extension of time for his submission of the report. Dastidar to file the counter-statement of facts. The appeal was subsequently dismissed for non-prosecution. On May 15, 1969, Balai and Kanai made an application before him for resumption of the enquiries by Special Referee and for extension of time for his submission of the report. In the meantime Mullick, J. retired and on June 10, 1969, Gour filed an affidavit-in-opposition stating that the preliminary decree had become infructuous and unenforceable inasmuch as Mullick, J. had retired and as the said decree was in variance of the judgment Arati also filed an application before the Appellate Court for condonation of delay in filing the appeal from the preliminary decree. On July 16, 1969, Arati withdrew her said petition. On July 15, 1969, a consent order was passed by me whereby Mr. A. N. Banerjee, Attorney for Arati and Gour, and Mr. Ajit Kumar Ghosh, Attorney for Balai and Kanai, were appointed Special Joint Referees in place of Mr. Dastidar. Between August 2 and August 23 all parties including Gour and Arati participated and singed the minutes of the proceedings before the Special Joint Referees. On January 8, 1970, Balai and Kanai made another application for appointment of a new Special Referee in place of Mr. Banerjee and Mr. Ghosh. Arati and Gour did not file any affidavit-in-opposition to the said petition and on January 28, 1970, an order was passed by me whereby Mr. R. N. Das the present Special Referee, was appointed to make enquiries in terms of the preliminary decree. On February 16, 1970, Arati herself with her Attorney and also the Attorney for Gour attended the first meeting convened by the new Special Referee, Mr. Das. On February 21, 1970, at a meeting of the Special Referee, the Special Referee gave a specific direction that he would hold meetings in future even if some of the parties would fail to attend such meetings. On February 24, 1970, the Special Referee issued a notice for holding a meeting on February 28, 1970. The meeting was held on February 28, 1970, and the Special Referee had to pass directions again to Gour and Arati to submit their counter-statement of facts within March 14, 1970. On March 14, 1970, Arati's Attorney requested the Special Referee for extension of time to the counter-statement of facts on behalf of Arati. Mr. Das granted the extension of time. On April 13, 1970, Mr. On March 14, 1970, Arati's Attorney requested the Special Referee for extension of time to the counter-statement of facts on behalf of Arati. Mr. Das granted the extension of time. On April 13, 1970, Mr. Das issued notice to the parties for holding meeting on April 18, 1970. On April 18, 1970, neither Gour and Arati nor their Solicitors attended the meeting nor any counter-statement of facts was filed on behalf of Arati and Gour. Various documents were filed before the Special Referee by Balai and Kanai in support of there statement of facts. On April 20, 1970, Gour made an application before me for restraining Mr. Das the Special Referee, from proceeding with the enquiries. On April 21, 1970, I passed an interim order restraining the Special Referee from proceeding with the reference. The Special Referee on June 2, 1970 gave notice of a meeting on June 27, 1970. But the meeting could not be held on account of the said interim order for stay of reference. On July 6, 1970, Gour's said application was dismissed with cost by me. On July 10, 1970, a fresh notice was issued by the Special Referee to hold meeting on July 11, 1970. On July 11, 1970, M/s. T. C. Dutt and Co. , Attorneys for Gour, by their letter dated July 11, 1970, informed the Special Referee that they could not contact the client Gour and, as such, prayed for adjournment. The said letter was delivered at 12 noon on July 11, 1970, stating that the notice dated July 10, 1970, issued by the Special Referee, was received by the Attorney for Gour on July 11 at 2 p. m. This obviously an incorrect statement and, as such, the Special Referee rejected the prayer for adjournment. The Special Referee held the meeting ex parte and the documentary evidence on behalf of Balai and Kanai was tendered. Gour on August 3, 1970, filed an appeal (Appeal No. 226 of 1970) against my order dated July 6, 1970. An application was also made before the Appellate Court for restraining Mr. Das from proceeding with the enquiries. On September 14, 1970, Gour's petition was dismissed by the Appellate Court. By an order dated September 15, 1970, the time to submit the Special Referee's report was extended to May 31, 1971. On September 23, 1970, the Special Referee filed his report. Das from proceeding with the enquiries. On September 14, 1970, Gour's petition was dismissed by the Appellate Court. By an order dated September 15, 1970, the time to submit the Special Referee's report was extended to May 31, 1971. On September 23, 1970, the Special Referee filed his report. All these facts show that Gour and Arati were not anxious to have the reference completed. They even choose to prefer and appeal to the Supreme Court on the ground that the preliminary decree passed by Mullick, J. was in the nature of an Arbitrator's award and not as a judgment passed by a Court. The Supreme Court decided that the preliminary decree was passed by Mullick, J. in his jurisdiction as a Judge and not as an Arbitrator. Even after the judgment of the Supreme Court was passed on March 10, 1969 Arati and Gour were taking recourse to various dilatory tactics to avoid participation in the proceeding before the Special Referee. The Special Referee had no other alternative but to proceed with the reference under Chapter XXVI, Rule 27 of the Original Side Rues which reads as follows: when a party has made default in filing any statement of account, objection, surcharge, or in doing or performing any act which he has been directed to do or perform, the officer shall be at liberty to proceed ex-parte as regards such party as though he had not appeared, or he may adjourn the meeting or direct any of the parties to file a statement of account or proceed to determine the reference on the evidence before him of strike the same out of his list of reference or make such other order including direction as to costs, as under the circumstances he thinks fit. Thus, the cases relied on by Mr. Mukerji, (17) Rogers v. Wood (1831) 2 B and Ad, : 109 E. R. 1134 and (18) Archbishop of Dublin v Lord Trimleston, (1849) 12 1ex Rep 251 (267) have no application to the facts of the case inasmuch as we have a specific Rule under which the Special Referee can proceed ex-parte. The conduct of the petitioners also does not justify that the Special Referee should adjourn the meetings indefinitely and wait till the petitioners choose to oblige the Special Referee by their presence. The conduct of the petitioners also does not justify that the Special Referee should adjourn the meetings indefinitely and wait till the petitioners choose to oblige the Special Referee by their presence. It may be added here that on February 21, 1970, the Special Referee made it very clear at the second joint meeting that if a party did not attend any meeting he would be at liberty to proceed with the reference in his absence. The suit was filed in 1957. The preliminary decree was passed on April 1, 1963, statement of facts were filed on April 2, 1965, but Arati and Gour would neither file appeal against the preliminary decree nor would reference on some pretext of the other. Gour and Arati having failed to file their counter statement of facts and also having chosen not to appear before the Special Referee cannot complain now of denial of natural justice. Mr. Mukerji has also argued that the report should have been settled on notice to the parties before filing the same under Chapter XXVI, Rule 87 of the Original Side Rules. There is force in Mr. Mukerji's argument that as the date to file the reference of the Special Referee was extended till May 31, 1971, the Special Referee could have waited and adjourned the meeting to enable Arati and Gour to reconsider the matter. There is no doubt that the Special Referee could have adjourned the meeting but the conduct of Arati and Gour from 1963 till 1970 compelled the learned Special Referee to come to the conclusion that Arati and Gour would not co-operate with him. I also agree that before the report was filed the Special Referee should have called a meeting of the parties for settling the report in accordance with Chapter XXVI, Rule 87. But, in the facts and circumstances of the present case I do not think that any substantial injustice has been done to Arati and Gour for not calling the meeting for settling of the report. They or their Attorney not only did not care to file counter-statement of facts but absented themselves from attending the meetings before the Special Referee. They even did not ask for an adjournment of the subsequent meetings by letter. They or their Attorney not only did not care to file counter-statement of facts but absented themselves from attending the meetings before the Special Referee. They even did not ask for an adjournment of the subsequent meetings by letter. Further, if the report is prejudicial to Arati and Gour there is a legal procedure for taking exception to the report by making an application before this Court. There is no finality of the report of the Special Referee and the report, if illegal or improper, can always be set aside or varied by this Court. Thus, the failure to comply with Chapter XXVI, Rule 87 on the part of the Special Referee has not caused irreparable loss to Arati and Gour. ( 16 ) IT is now necessary for me to examine the validity of the report of the Special Referee. The relevant portion of the preliminary decree dated April 1, 1963, passed by Mullick, J. reads as follows: and it is ordered and decreed that it be referred to Mr. T. K. Dastidar who is hereby appointed Special Referee at a remuneration to be decided by the Court later, and to make the following enquiries and to report to this Court by 1st date of July one thousand nine hundred and sixty three. While making the enquiries the said Special Referee shall act under the personal supervision and direction of the Hon'ble Mr. Justice Prakash Chandra Mullick. I. An enquiry as to what other immoveable properties were left out in the amicable partition and which continued to be joint even now in making the enquiry aforesaid Special Referee will find out (a) the lands in the Zemindary not acquired, (b) lands leased out to tenants at Calcutta and (c) any other immoveable property. II. An enquiry as to what joint properties, in particular Zemindary lands were conveyed to the companies made in schedule F to the plaint herein. III. An enquiry as to what furniture and fittings at the dwelling house and at native village, enquiring as to the money realized by Balai Chandra Paul on the Life Insurance Policy of Rs. 15,000 on the life of Balai Chandra Paul with the New Insurance Co. Ltd. . . . . The findings of the Special Referee could be divided into two parts. Firstly, the learned Special Referee has come to certain conclusions on the documents available to him. 15,000 on the life of Balai Chandra Paul with the New Insurance Co. Ltd. . . . . The findings of the Special Referee could be divided into two parts. Firstly, the learned Special Referee has come to certain conclusions on the documents available to him. Secondly, he has also come to the conclusion that large sums of money were received by Pramila as a guardian of her minor children and also as the holder of Letters of Administration and Succession Certificate in the goods of Motilal Paul (deceased) and Shrish Chandra Paul (deceased) and, as such, the estate of Pramila Debi is liable to pay to the parties according to the shares under the preliminary decree. ( 17 ) I have carefully examined the findings of Mr. Das and I am satisfied that the said findings of facts in respect of the enquiries under clauses I (a), (b) and (c), II and III are not erroneous either in fact or in law. It is true, as Mr. Mukerji contended, that the documents were not formally tendered. But, unfortunately that fact cannot vitiate his findings inasmuch as at no stage the petitioners or their Solicitors protested before the Special Referee the admissibility or the probative value of those documents. It may be added here that the disputes between the parties are mainly partition allotment and distribution of the joint estate among the co-sharers. In fact, the defendant Nos. 1 and 2 produced and handed over large number of documents before Mullick, J. when he was hearing the matter as a Judge in the Partition and Administration Court. The documents were to be examined by Mr. T. K. Dastidar. In fact, there was no challenge to any particular document by the petitioners at that stage. In fact, because the documents were substantially matter of records the parties left the matter to Mullick, J. for deciding the dispute as he thought best. Even before Mr. Das the petitioners or their Solicitors did not choose to submit that the documents relied upon by the defendants Nos. 1 and 2 were to be strictly proved. It may be remembered that the petitioners did not even file their counter-statement of facts before the Special Referee. Even before Mr. Das the petitioners or their Solicitors did not choose to submit that the documents relied upon by the defendants Nos. 1 and 2 were to be strictly proved. It may be remembered that the petitioners did not even file their counter-statement of facts before the Special Referee. The petitioners had sufficient opportunity to challenge the validity of those documents, but they having missed the bus cannot be allowed to say that injustice has been done to them for not complying with the rules relating to proof of documents. In fact, Mr. Mukerji and Mr. Goho did not point out any single documents to me which would obviously be a false or incorrect document. In the premises, the findings of fact as required under clauses I (a), (b) and (c), II and III must be confirmed. ( 18 ) BUT, Mr. Mukerji's contention with respect to the Special Referee's observation in his report relating to the liability of the estate of Pramila Sundari Paul, the original plaintiff must be accepted. According to para. 31 of the report of the Special Referee, out of the estate of Smt. Pramila Sundari, deceased, the parties are entitled to receive their respective shares of a total sum of Rs. 4,19,369-70 (Rs. 50,000 under para. 20; Rs. 1,16,258-06 under para. 25; Rs. 36,000 under para. 26; Rs. 18,375-24 under para. 27; and Rs. 1,53,736-50 under para. 28 ). There is no specific direction in the judgment delivered by Mullick, J. on April 1, 1963, and the decree passed by him to the effect that the estate of Pramila Debi is accountable for the sums received by her as guardian of her minor children and as holder of the Succession Certificate in the goods of Motilal Paul (deceased) as stated above. No issue has been framed either before Mullick, J. or before Mr. Dastidar or Mr. Das that the money received by Pramila Debi has been misappropriated. Nor was there any statement in the preliminary decree that the parties were entitled to get their respective shares in the money received by their mother. It is quite possible that Pramila Debi might have legitimately incurred expenses for administration of the estate of Motilal Paul and Shrish Chandra Paul. Nor was there any statement in the preliminary decree that the parties were entitled to get their respective shares in the money received by their mother. It is quite possible that Pramila Debi might have legitimately incurred expenses for administration of the estate of Motilal Paul and Shrish Chandra Paul. There is also a likelihood that she might have spent large sums of money for the maintenance and education of her children in India and U. K. Thus, the estate of Pramila Debi cannot be made liable without a specific finding in the judgment of Mullick, J. to the said effect. Under the circumstances, the following statements and the conclusions in paras. 20, 22, 25, 26, 27, 28 and 31 must be set aside. Further, it is impossible to justify the conclusion of the Special Referee that the estate of Parmila is liable to pay Rs. 4,19,369 although, according to the affidavit of assets, the said estate has been valued at Rs. 2,38,435. ( 19 ) I, therefore, hold that the report of the learned Special Reference date September 23, 1970, is confirmed subject to the following deletions in the said report: a. From para. 20;"therefore, in the above circumstances I find that in the said value of Rs. 50,000 the plaintiff is entitled to three equal 24th parts or share. The defendant Nos. 1, 2 and 3 are each entitled to 7 equal 24th parts or share as provided in the said preliminary decree". B. From para. 22: "and have no liability whatsoever in this behalf". C. From para. 25: "the parties are entitled to Rs. 1,61,258. 06 P. , the plaintiff in three equal 24th parts or shares and the defendants Nos. 1, 2 and 3 each in 7 equal 24th parts of shares as provided in the said preliminary decree". D. From para. 26:"the parties hereto are entitled to the said consideration money of Rs. 36,000 in the shares provided in the said preliminary decree, namely, the plaintiff in three equal 24th parts or shares and the defendant Nos. 1, 2 and 3 each in 7 equal 24 parts or shares. "e. From para. 27:"therefore, I find that the parties are entitled to the said sum of Rs. 18,375-2-4 in accordance with their shares as provided in the said preliminary decree, namely, the plaintiff in 3 equal 24th parts or shares and the defendants Nos. 1, 2 and 3 each in 7 equal 24 parts or shares. "e. From para. 27:"therefore, I find that the parties are entitled to the said sum of Rs. 18,375-2-4 in accordance with their shares as provided in the said preliminary decree, namely, the plaintiff in 3 equal 24th parts or shares and the defendants Nos. 1, 2 and 3 each in 7 equal 24th parts or shares. "f. From para. 28: "therefore, I find that the plaintiff is entitled to 3 equal 24th parts or shares and each of the defendant Nos. 1, 2 and 3 is entitled to 7 equal 24th parts or shares in the said amount of interest of Rs. 1,53,736-50p. G. The entire para. . 31. The costs of the proceedings before the Special Referee and the costs of the two applications will be as in a partition suit. Certified for two Counsel. Report of the Learned Special Referee is confirmed.