Authored By : Mookerjee, Rai Surendra Nath Guha

Mookerjee and Rai Surendra Nath Guha, JJ.

1. The properties concerned in the suit, out of which theseappeals have arisen, are seven in all, the, first six of which are described inschedule No. 1 to the plaint, being certain taluks or shares therein, and theseventh one, which is described in schedule No. 2, being a quantity of khdmdrlands lying within the sixth item of property of schedule No. 1. They belongedat one time to one Lala Ramchandra. Lala Ramchandra died on the 19th Poush,1276 (= 2nd January, 1870) having executed a will on the 15th Poush, 1276 ( =29th December, 1869), and leaving him surviving his widow, Harakumari Dasya, adaughter Shyamkumari Dasya, and the husband of the latter, one SeetalchandraLala. After his death, his widow Harakumari, on the 16th Srdban, 1283 (= 30thJuly, 1876), on the strength of the authority conferred on her by the will,adopted the Plaintiff Lala Ramshankar, as her son.

2. By the will (Ex. 27) spoken of above, Lala Ramchandra Raygave authority to Harakumari to adopt five sons in succession, unless a son soadopted would be living, and bequeathed his moveable and immovable propertiesto Harakumari, with the exception of a half of property No. 2, which he gave tohis daughter, Shyamkumari, for maintenance. The will provided that, during thelife-time of Harakumari, the adopted son, if any, should get an allowance ofRs. 20 a month and that, on Harakumaris death, he would get all theproperties. The other terms of the will need not be set out here. Shyamkumaridied in Ashwin, 1320 and her husband, Seetalchandra, is also dead. Harakumaridied on the 12th Falgun, 1326 (=24th February, 1920).

3. On the 26th February, 1921, the Plaintiff, LalaRamshankar Ray, commenced the present action, on the allegation that, on thedeath of Harakumari, there being no other preferential heir, he becameabsolutely entitled under the provisions of the aforesaid will to theproperties left by Lala Ramchandra Ray. He alleged that, on Harakumaris death,he attempted to take possession of the properties, but found that MaharajaShashikanta was in possession, as heir of his father, the late MaharajaSurjyakanta, who had got himself registered as having purchased or having gotijdrd settlement of the properties from Harakumari and Shyamkumari. He averredthat he had not been able to ascertain the real title of the Maharaja, as therewas a fire in the Registry Office, in consequence of which the papers thereinhad been destroyed. The suit was originally instituted against two persons,namely, Maharaja Shashikanta, as the Defendant No. 1, and another person inwhose favour Maharaja Surjyakanta had made a nishkar brahmdttar grant inrespect of some khdmdr lands lying within property No. 6. The prayers were forrecovery of Mas possession and mesne profits on declaration of the Plaintiffstitle.

4. The Defendant No. 1 filed a written statement on the 9thJuly, 1921. On an objection taken by him and on his supplying the names of theDefendants Nos. 3, 4 and 5, the latter were made parties to the suit on the12th August, 1921. These Defendants filed a written statement on the 5th June,1922. They raised a similar objection, on which the Defendants Nos. 6, 7 and 8were added as pro forma Defendants on the 29th July, 1922. The Defendant No. 6is the same person as the Defendant No. 1. On the 17th April, 1923, theDefendant No. 8 filed a written statement. Thereafter, the, Defendants Nos. 9and 10 applied to be made parties; and this application was opposed on behalfof the Plaintiff, Lala Ramshankar Ray, but was eventually granted on the 14thAugust, 1923, on condition that they paid some costs. On the 20th September,1923, the Plaintiff, Lala Ramshankar Ray, applied for and obtained an orderthat the Defendants Nos. 9 to 18 be all added as pro forma Defendants. On the31st May, 1924, the Defendant No. 9 filed a written statement, which theDefendant No. 10 subsequently adopted as his own. The Defendant No. 8 havingdied, the Defendants Nos. 8 (ka) and 8 (Ma) were brought on the record asDefendants. The Defendant No. 8 (ka) by a petition filed on the 26th August,1924 accepted as his own the written statement, which had been filed by theDefendant No. 8, and the Defendant No. 8 (Ma) filed a written statement on the6th September, 1924. On the 19th May, 1925, one Pramodechandra Ray Chaudhuriapplied to be, added as a Plaintiff. This application was consented to by thePlaintiff, Lala Ramshankar Ray, and was allowed, the original Plaintiff, LalaRamshankar Ray, now becoming Plaintiff No. 1 and the added Plaintiff,Pramodechandra Ray Chaudhuri, Plaintiff No. 2.

5. The above facts appear upon the order-sheet of the caseand in the petitions filed by the parties, on which the orders concerned weremade, and they would give an idea as regards the constitution of the suit, asit gradually developed from its institution until its termination. But tounderstand the interests of the different parties, it is necessary to state afew facts, which, for all practical purposes, are no longer disputed. Asalready indicated, the plaint was of the simplest possible description, inwhich the Plaintiff No. ls right by virtue of his being the adopted son andunder the, terms of the will of Lala Ramchandra Ray was pleaded, and it wasalleged that the Plaintiff No. 1. had no definite knowledge about the particularsof title, under which the Defendant No. 1 claimed beyond this that his fatherhad made purchase or taken ijdrd settlements from Harakumari and Shyamkumariand that he claimed relief in the shape of recovery of possession with mesneprofits upon declaration of title. From the written statements of theDefendants, however, the following transactions appear to have taken place inthe meantime.

6. On the 11th Srdban, 1291 ( = 25th July, 1884) amimdngsdpatra (or deed of settlement: Ex. J) was executed by the Plaintiff No.1 in favour of Harakumari, by which, on Harakumari paying Rs. 60 in cash andagreeing to increase the monthly allowance of Rs. 20, which the Plaintiff No. 1was receiving under Lala Ramchandras will, to Rs. 24 a month, the Plaintiff No.1 admitted an absolute title in Harakumari with power of gift and sale inrespect of a half of property No. 4 and in the whole of property No. 5 and thatShyamkumari would continue to own and possess during her life the half ofproperty No. 2 given to her by the will, and further agreed that Harakumariwould continue to possess during her life-time the remaining properties,namely, No. 1, the other half of No. 2, No. 3, the other half of No. 4 and No.6 and that, on Harakumaris death, the Plaintiff No. 1 would own and possessthese properties. On the 10th Chaitra, 1293 ( = 23rd March, 1887) Harakumarimade a gift of a half of property No. 4 in favour of Shyamkumari by a deed (Ex.I), in which it was recited that she had previously sold the other half of thatproperty to her. By a kabdld (Ex.G) executed on the 21st Ashar, 1294 (=4thJuly, 1887), Harakumari sold to Maharaja Surjyakanta properties No. 1, a halfof No. 2, No. 3 and No. 6 for a consideration of Rs. 2,000 in cash and anannuity of Rs. 2,075 payable to her during her life. On the same day, anotherkabdld (Ex. G) was executed by Shyamkumari in favour of Maharaja Surjyakanta inrespect of property No. 4 and a half of property No. 2 for a consideration ofRs. 1,000 in cash and an annuity of Rs. 575 for her life. On the 1st Bhddra,1294 ( = 17th August, 1887), the Plaintiff No. 1 executed a ndddbindmd (Ex. H)in favour of Maharaja Surjyakanta, by which he relinquished his rights inproperty No. 6 for a consideration of Rs. 2,240 and on condition that theproperties No. 1, a half of No. 2 and No. 3 would revert to him on Harakumarisdeath. On the 3rd Bhddra, 1295 ( = 18th August, 1888) Harakumari executed akabdld (Ex. G) in favour of Maharaja Surjyakanta in respect of property No. 5for a consideration of Rs. 7,000. Maharaja Surjyakanta thus acquired the entireinterest in the 6 items of properties of schedule No. 1 to the plaint.

7. On the 28th September, 1907, Maharaja Surjyakanta, asdonor, made a gift of the said 6 items of properties, together with 29 others,in all 35 items of properties, to himself and one Shreenath Ray as Trusteesupon trust to pay Rs. 10,000 annually out of the income thereof to the NationalCouncil of Education--an association registered under Act XXI of 1860--thesurplus of the income, if any, to be payable to the donor himself. Theendowment was created by a deed (Ex. M). Maharaja Surjyakanta died in 1909.Under the terms of the deed of endowment (Ex. M), Maharaja Shashikanta becametrustee in his fathers place, and continued as such till by a letter (Ex. K)dated the 14th September, 1920, written to the Honorary Secretary to theNational Council of Education, he resigned his trusteeship from the 1st Kartik,1327 ( = 18th October, 1920). By an indenture dated the 28th February, 1921(Ex. L) Shreenath Ray, as the then sole trustee, conveyed the trust propertiesto the Defendants Nos. 3, 4 and 5, who were constituted a new body of trusteesunder the endowment with the approval of the National Council of Education. TheDefendants Nos. 7 and 8 were trustees on behalf of the National Council ofEducation, and the latter, who was also its President, having died, the nextPresident and the Honorary Secretary of the Council were brought in his placeas Defendants Nos. 8 (ka) and 8 (Ma) respectively. On the 21st June, 1923, theDefendants Nos. 9 and 10 obtained a permanent lease (Ex. E) of all the endowedproperties from the Defendants Nos. 3, 4 and 5 with the sanction of MaharajaShashikanta, agreeing to pay, in addition to the revenue and the rents payableto the superior landlords and all other dues and charges, a rent of Rs. 10,000a year to the Council and a malikana of Rs. 1,000 a year to the Maharaja andthe, stipulation further was that "the lessees shall be bound to carryon-and conduct at their own "cost and to indemnify the lessors and theCouncil "against the costs thereof and the results of such "litigationsshall not in any way affect the terms and "provisions of the lease."The remaining Defendants are members of-the family of the, Defendants Nos. 9and 10. Maharaja Shashikanta confirmed the aforesaid lease by an indenture (Ex.F), dated the, 1st September, 1924. The Plaintiff No. 2 purchased propertiesNo. 1, No. 2, No. 3, No. 4 and a half of No. 6 together with some structures,etc., from the Plaintiff No. 1 for a consideration of Rs. 55,000 by a kabala(Ex. 6) dated 13th Falgun, 1331 ( = 25th February, 1925).

8. The Subordinate. Judge has made a decree declaring thePlaintiffs title to properties Nos. 1 to 5 of schedule No. 1 to the plaint andentitling them to recover possession thereof from the Defendants. He has alsomade a decree for mesne profits, the details of which will be set outhereafter. He has dismissed the Plaintiffs claim as regards property No. 6 ofschedule No. 1 and also as regards the property described in schedule No. 2.

9. From this decree, three appeals have been preferred tothis Court: No. 387 by the Defendants Nos. 3, 4, 5, 7, 8 (ka) and 8 (Ma), 9 and10, the first three, as already stated, being the trustees of the endowment,the next three representing the Council and the last two the lessees; No. 389by the Defendant No. 1, Maharaja Shashikanta; and No. 458 by the Plaintiffs.

10. In order to deal with these appeals, it would beconvenient to set out here the relevant terms of the will, because therendering of it, as it appears in the paperbook, requires a little variation hereand there. It runs thus:

The said moveable and immovable properties shall remain inmy possession so long as I shall be alive. After my death, my widow, HarakumariDasya, being in possession as owner of all the properties, shall administer andenjoy the same, and having repaid all such debts as I have and having performed(my) sradh and other rites as (my) future heiress, (she) shall be competent toadopt up to five sons unless one be alive. Out of affection for my daughter,Sreemati Shyamkumari Dasya, and for her maintenance, I give " TappehHazardi," etc. (here a half of property No. 2 is described) to the saidSreemati. On the death of my widow my adopted son, if adopted, will get all theproperties. If no adopted son can be had, then, on the death of my widow, mydaughter, the said Sreemati, will get all the properties, if she resides in mydwelling house. During the life-time of my widow, my daughter, the saidSreemati, would get a moiety "share of my interest in the aforesaid talukonly, and if a son be adopted, then the said adopted son will, during thelife-time of my widow, get an allowance of Ks. 20 a month from mywidow......(They) shall get only according to the provisions made by me. If noadopted son is secured, then, on the death of my widow and daughter, the saiddaughters husband (literally son-in-law on account of the daughter),Seetalchandra Lala, shall get all the properties, provided he lives in my ownhouse and preserves (my) ancestral institutions by maintaining (my) guru andpriest. May God forbid, if the said Sreemati dies without leaving any issue,then it is the sons adopted by her or by the said Sreeman (meaning son-in-law)who will get all the said properties on the death of Sreemati and Sreeman. Andmy widow will be competent to sell a portion of the said properties for paymentof my debts........ Whoever will get the properties mentioned above shallobserve the above conditions.

11. The first question, which has to be determined, is whatwere the rights, which Harakumari and Shyamkumari acquired under the will. Onbehalf of the Appellants, other than the Maharaja, the competency of Ramchandrato make the will has not been disputed. But on behalf of the Maharaja it hasbeen argued in limini that Ramchandra, having been a Hindu governed by theMitdkshard law, was not competent to dispose of the properties by a will, asthe properties were not his self-acquired but ancestral properties. On behalfof the Plaintiffs it has been said that Ramchandra should be taken to belong tothe, Ddyabhdga school and that the properties have not been proved to have beenacquired by Ramchandras ancestors. The question, whether Ramchandra was aHindu governed by the Mitdkshard or the Ddyabhdga School of Hindu law, does notappear to have been put in issue in the court below, but the materials, whichthe parties brought on the record, would sufficiently indicate that it is theMitdkshard law that should be held to apply to Ramchandra and his family..Ramchandra was a Lala, a Sribastava Kayastha, some ancestors of whom migratedfrom the United Provinces and settled in the district of Mymensingh, in whichthe properties are situate. The presumption that the family carried with it itslaws and customs as to succession and family relations [see Surendra Nath Royv. Hiramani Barmani (1868) 1 B. L. R. P. C. 26; and Sarada Prasanna Roy v.Umakanta Hazari (1922) I. L. R. 50 Calc. 370, far from being rebutted, hasbeen confirmed by such evidence as to rites and observances as there is on therecord. The Plaintiff No. 1 himself belonged, before his adoption, to thedistrict of Rai Bareilly in the United Provinces, and his natural parents werealso Lalas, Sribastava Kayasthas. Sacred thread is taken at the time ofmarriage and is no separate ceremony, impurity on account of death is observedfor twelve days, and when the husband of a woman is alive it is he and not theson, who performs her srddh. It is possible that a family, who had so migrated,may retain its religious rites and observances, and yet acquiesce in adevolution of property in the common course of descent amongst persons of therace in the district, in which they have settled. But of such a thing havinghappened, so far as this family is concerned, there is not the slightestindication. The evidence that the properties were ancestral properties ofRamchandra Ray is practically one-sided. These two premises, therefore, onwhich this contention of the Maharaja rests must be taken as established. Eventhen, however, it would not necessarily follow that the contention shouldprevail. In the first place, the Maharaja in the court below never challengedthe validity of the will, but, 12 M. I. A. 81 on the other hand took his standon it. In paragraph 3 of his written statement it was said,

This Defendant begs to submit that, although HarakumariDasya had life interest in the said properties under the will of her husband,she as the executrix to the said will had full rights to sell absolutely thesaid properties.

And in paragraph 5 it was said,

Shyamkuroari Dasya obtained an absolute right to a moiety ofproperty No. 2 of the plaint under the will of Lala Ramchandra Ray.

12. The Subordinate Judge has remarked in his judgment,"The Maharaja does not challenge the "will, but, on the contrary,derived his title from "Harakumari and Shyamkumari, whose title was"founded upon the will." It cannot be contended that Lala Ramchandra,who had no male descendants at the date of the will and when the propertieswere not coparcenary properties but separate though ancestral, was incompetentto make a will in respect of them simply for the reason that he was governed bythe Mitdkshard law [see Nagalulchmee Ummal v. Gopoo Nadaraja Chetty (1856) 6 M.I. A. 309, 344. and Beer Pertab Sahee v. Rajender Pertab Sahee (1867) 12 M. I.A. 1, 37, 38. L. R. 2 I. A. 7.. It may be pointed out that such a will wasupheld by the Judicial Committee in the case of Mahomed Shumsool Hooder v.Shewukram (1874) 14 B. L. R. 226 Nor can it be said that, because an adoptionby the widow after the testators death was in contemplation, the dispositionby the will was in any way affected; "for," as pointed out by theJudicial Committee in the case of Krishnamurthi Ayyar v. Krishnamurthi Ayyar(1927) I. L. R. 50 Mad. 508 (525) : L. R. 54 I. A. 248 (262)."the willspeaks as at the death of the testator and-"the property is carried awaybefore the adoption "takes place."

13. Another contention put forward on behalf of the Maharajaalone is that, under the will, Harakumari acquired an absolute title to theproperties bequeathed to her by it. In support of this contention, thefollowing cases have been cited: Toolsi Dass Kurmokar v. Madan Gopol Dey (1901)I. L. R. 28 Calc. 499. Sures Chandra Palit v. Lalit Mohan Dutta Choudhuri.(1915) 20 C. W. N. 463. and Faiz Muhammad Khan v. Muhammad Said Khan, (1898) I.L. R. 25 Calc. 816 : L. R. 25 I. A. 77. In the first of these cases it was saidthat, when by the will an authority to adopt is given to a Hindu widow, it doesnot necessarily follow that the widow takes only a life estate in the propertyleft to her under the will, especially when the power of disposition over theproperty is given to her, but that the intention of the testator is to begathered from the terms of the will. In the second case it was said that theuse of the word "mdlik" may not by itself create an absolute interestbut, where a power of absolute disposition was conferred on the donee, theprovision indicates that it was intended to create an absolute interest in hisfavour, and where such interest has been given, the court will not cut it downon the strength of subsequent words unless they clearly have an effect torestrict it. The third case is an authority for the proposition that, in theabsence from the context or the circumstances affecting the properties of allevidence of a different intention, an ultimate gift of the profits isequivalent to an absolute gift of the corpus of the estate. Bearing these andother well-settled principles in mind we have to read the provisions of the will.As regards Harakumari, the word "mdlik dakhalikdr" (owner inpossession) is used and the word "uttarddhikdrini" is also used, butno power of absolute disposition is given, and, on the other hand, only a powerto sell a portion of the properties for payment of the testators debts isprovided for; and it is further provided that, on her death, the adopted son,if any, or if there be no adoption, then the daughter, would take theproperties. Harakumari was thus made not an absolute but a limited owner, and awidows estate was all that was created in her favour.

14. As regards Shyamkumari the contention of the Appellantsis that she too had an absolute estate. Reference in this contention has beenmade on their behalf to certain decisions, viz., Jogeswar Narain Deo v. RamChandra Butt (1896) I. L. R. 23 Calc. 670 where, in the case of a bequest to awidow and a son with the words "for "your maintenance coupled witha power to alienate by sale or gift the property bequeathed, it was held thatthe words "for your maintenance" did not reduce the interest ofeither legatee to one for life only; Bipradas Goswami v. Sadhan Chandra Banerji(1927) I. L. R. 56 Calc. 790. (5) (1930) I. L. R. 11 Lah. 645 in which, relyingupon the cases of Surajmani v. Rabi Nath Ojha (1907) I. L. R. 30 All. 84 : L.R. 57 I. A. 282. and Sasiman Chowdhury v. Shib Narayan Chowdhury (1921) I. L.R. 1 Pat. 305 it has been said that it is now a well-established principlesthat, if an estate, were given to a man simply without words of inheritance, itwould, in the absence of conflicting context, carry by Hindu law, an estate ofinheritance, and this principle would also apply if the donee was a woman;Shalig Ram v. Charanjit Lai (5), in which a will of a Hindu testator, afterproviding for certain bequests, proceeded to lay down that the two wives of thetestator and his daughter-in-law "are the heirs to "whatever is leftfrom the property" and there was no provision for dealing with theresiduary property after the deaths of the three devisees, it was held thatunder the words used and in the circumstances the will conferred upon the threedevisees full rights of ownership in an one-third share of the residue of theestate; and a unreported decision in A bhilashchandra Haldar v. DulalchandraDatta) (1930) A. O. C. 31 of 1930 decided by Rankin C. J. and C. C. Ghose J. on16th July in which the gift having been "for maintenance" and itbeing provided that the devisees would receive all the rents and profits which"they would enjoy as long as they lived," it was observed that nopower of disposition having been granted, no absolute estate was conveyed. Onecardinal principle in the construction of wills is that clear and unambiguousdispositive words are not to be controlled or qualified by any generalexpression of intention Lalit Mohun Singh Roy v. Chukkun Lai Roy (1897) I. L.R. 24 Calc. 834 But, in the case of Rameshar Baksh Singh v. Arjun Singh (2),their Lordships of the Judicial Committee held that "there seems also tobe "no doubt that in the case of a gift for maintenance "the wordsproprietor and for ever will not per se "create an inheritableestate," and their Lordships also observed that "in the case inMuhammad Abdul "Majid v. Fatima Bibi (1885) I. L. R. 8 All. 39 : L. R. 24I. A. 76; L. R. 12 I. A. 159, where this was held, the "gift by a will wasof the management of property, "but it is also applicable, in theconstruction of the "gift in this case." In the decision of theJudicial Committee in the case of Sarajubala Debt v. Jyotirmayee Debi (1931) I.L. R. 59 Calc. 142 : L. R. 58 I. A. 270., the grant was for the maintenance ofthe, grantee, the grantors daughter, and there were the words "you andyour sons born "of your womb and the sons born of their loins in "succession,and the daughters born of your womb "shall continue to enjoy" etc.,and it was held that full ownership was conferred. Proceeding to consider theterms of the will in the present case we find that the gift to Shyamkumari was"for her "maintenance." The purpose of the grant being thus themaintenance of the grantee, that is a prima facie indication that the grant wasintended to be only for her life. Rameshar Baksh Singh v. Arjun Singh (1900)I.L.R. 23 All. 194 (205): L. R. 28 I. A. 1 (10) In our opinion, the, trueconstruction of this grant could not be extended even by the use of the word"mdlik," which in fact was not used in respect of her as it was inrespect of Harakumari. No words of inheritance were used and no dispositivepower was given, while, on the other hand, provision was expressly made to whomthe property would go on her death. In our opinion, there can be no questionthat the interest created in favour of Shyamkumari was not intended to extendbeyond her life.

15. The next question to be considered is what is thecharacter of the right that was created in favour of the Plaintiff No. 1. On aplain reading of the will, it appears to have, been intended that so long asHarakumari was alive the Plaintiff No. 1 would be entitled to get from her onlyan allowance of Rs. 20 per month and it was only on the death of Harakumarithat he would get all the properties. The question as to what would happen incase Shyamkumari was alive after Harakumaris death, or, in other words,whether the devise in favour of Shyamkumari, which was for her life, wouldprevail over the devise in favour of the Plaintiff No. 1, under which he wouldget all the properties on Harakumaris death, has not arisen and need not cloudthe issue. It has been contended on behalf of the Appellants that the PlaintiffNo. 1 was not an heir expectant, but, as an adopted son, had a vested rightfrom the moment of his adoption. Reference has been made in this connection tothe cases next noticed: Bamundoss Maokerjea v. Tarinee (1858) 7 M. I. A. 169.in which it was held that where a childless Hindu in Bengal gives authority tohis widow to adopt a son at his decease, but the widow does not exercise thatpower but claims succession, the mere fact of there having been authority givento her by her husband to adopt did not, before, the adoption took place,supersede or destroy her rights as widow; Bhoobun Moy.ee Debia v. Ram Kishore Achar j Chowdhry (1865) 10 M. I. A. 279., in which it was held that an adoptedson, taking by inheritance and not by devise, succeeds to the last full owner,namely, the father, and when the adopted son dies leaving a widow, who takespossession of the properties of the father for her widows estate, she acquiresa vested interest of which she cannot be divested by a subsequent adoptionPadmakumari Debi Chowdhrani v. Court of Wards (1881) I. L. R. 8Calc. 302 : L.R. 8 T. A. 229. and Kali Komul Mozumdar v. Uma Sunker Moitra (1883) I. L. R. 10Calc. 232: L. R. 10 I. A. 138 were also cited in this connection and Bepin BehariBundopadhya v. Brojo Nath Mookhopadhya (1882) I. L. R. 8 Calc. 357. in whichcase a Hindu gave a power of adoption to his wife directing that so long as thewife should live she should remain in possession of all his properties,moveable and immovable, ancestral as well as self-acquired, and it was heldfollowing Bhagbutti Dfyi v. Bholanath Thakoor (1875) I. L. R. 1 Calc. 104 : L.R. 2 I. A. 256 that the widow took a life interest in her deceased husbandsproperties with remainder to the adopted son. Other cases have, also beenreferred to, in which it has been held that where a Hindu widow alienatedproperties for a purpose not binding on the inheritance and thereafter adopteda son, the alienation was not binding on the adopted son and he could sue duringthe life-time of the widow to set aside the alienation and recover theproperties so alienated, his cause of action having arisen at the date of hisadoption Vaidyanatha Sastri v. Savithri Ammal (1917) I. L. R. 4 Mad. 75.Bonomali Roy v. Jagat Chandra Bhowmick (1905) I. L. R. 32 Calc. 669 : L. R. 32I. A. 80. and Bachoo Hurkisondas v. Mankorebai . (1907) I. L. R. 31 Bom. 373:L. R. 34 I. A. 107.were also cited in this connection]. Pratapsingh Shivsinghv. Thakor Shri A gar sing ji Rajasangji (1918) I. L. R. 43 Bom. 778 : L. R. 46I. A. 97. has been referred to, in which it was held that a Hindu widow canexercise a power to adopt, which is vested in her as long as the power is notextinguished and although her husbands estate is not vested in her and thatthe rights of an adopted son, except so far as they are curtailed by expresstexts, are in every respect the same as those of a natural born son. The, caseof Bhagabati Barmanya v. Kalicharan Singh (1911) I. L. R. 38 Calc. 468 (472) :L. R. 38 I. A. 54 (63).was referred to as showing that the rights of thePlaintiff No. 1 were those of an "after taker" or of one with avested remainder.

16. In dealing with this question, the distinction betweenvested interest, contingent interest and spes successions has to be carefullynoted. An estate or interest is vested, as distinguished from contingent,either when enjoyment of it is presently conferred or when its enjoyment ispostponed but the time of enjoyment will certainly come to pass; in otherwords, an estate or interest is vested when there is an immediate right ofpresent enjoyment or a present right of future enjoyment. An estate or interestis! contingent if the right of enjoyment is made to depend; upon some event orcondition which may or: may not happen or be performed, or if in the case of agift to take effect in future, it cannot be ascertained in the meantime whetherthere will be any one to take the gift; in other words, an estate or interestis contingent when the right of enjoyment is to accrue, on an event which isdubious or uncertain. And as regards certainty, the law does not regard asuncertain the event of a person attaining a given age or of the death ofsomebody beyond which his enjoyment is postponed; because if he lives longenough the event is sure to happen. A spes successionis is merely anexpectation or hope of succeeding to the property, a chance or possibilitywhich may be defeated by an act of somebody else. In the case of a will, suchas the present, which was executed before the Hindu Wills Act (XXI of 1870)came into force, the mere appointment of an executor did not cause any propertyto vest in him and, if as an executor he was entitled to hold the property, heheld it only as manager. But the will having constituted Harakumari not merelyan executrix for administering the property with power to sell a portionthereof in order to pay off the testators debts, but also the owner for herlife-time and having postponed the succession of the Plaintiff No. 1 till afterher death, the property since the testators death and so long as she was alivevested in her. That, however, does not mean that the Plaintiff No. 1, when hecame to be adopted, had only a spes successionis and nothing more. In the caseof Bhwpendra Krishna Ghose v. Amarendra Nath Dey (1915) I. L. R. 41 Calc. 432(439) : L. R. 43 I. A. 12 (17).in a will of 1898, the testator appointed hiswife as his sole executrix and, after giving her authority to adopt a son,provided:

In case of death of an adopted son my wife shall adopt oneafter another five sons in succession. If my said wife dies without adopting ason, or if such adopted son predeceases her without leaving any male issue, insuch case my estate after the death of my said wife shall pass to the sons ofmy sister Sreemati Binodini Dasi who may be living at the time of my death

17. The testator was survived by his wife; she adopted ason, who died without issue,, and the wife died without making a furtheradoption. Their Lordships pointed out that "under the Ddyabhdga, thetestator "had not only the power of authorising his widow to "adopt ason to him, and in case of the death of "such adopted son, to make otheradoptions in order to "ensure the performance of those religious rites on "whichdepend his salvation in after life, but he can "attach to such authority adirection that her estate "should not be interfered with or divestedduring her "life, just as he can postpone the succession of his"natural born son by interposing a life estate,." Their Lordshipsfurther observed, "the estate was in "the widow during her life; thegift over is expressly "declared to take effect after her decease in caseof the "failure of the adoptions without securing the object "thetestator had in view." These observations sufficiently show that, if thecase before us was a Ddyabhdga case, the estate would have remained vested inHarakumari till her death. From the decision in the case of Krishnamurthi Ayyarv. Krishnamurthi Ayyar (1927) I. L. R. 50 Mad. 508 : L. R. 54 I. A. 248 it isalso clear that, in respect of other schools of Hindu law also, when thedisposition is by will and the adoption is subsequently made by a widow who hasbeen given power to adopt, no right of a son who is subsequently adopted canaffect that portion which is already carried away under the will. The resultmust be that, under the Mitdkshard law also, the adoption of the Plaintiff No.1 in the present case would not divest Harakumari of the estate which she hadobtained. The question still remains whether, notwithstanding this position,the Plaintiff No. ls interest during the life-time of Harakumari was"the, chance of an heir apparent "succeeding to an estate, the chanceof a relation "obtaining a legacy on the death of a "kinsman or anyother possibilities of "a like nature" within the meaning of Section6, Clause (b) of the Transfer of Property Act. Reversioners under the Hindu laware expectant heirs with a spes successionis Ponnambala Tambiran v. SivagnanaDesika Gnana Sambandha Pandara Sannadhi (1894) I. L. K. 17 Mad. 343 : L. R. 21I. A. 71; Bahadur Singh v. Mohar Singh (1901) I. L. R. 24 All. 94 : L. R. 29IndAp 1. Narayan Ganesh Ghatate v. Baliram (1918) I. L. R. 46 Calc. 76 ;. L. R.45 I. A. 179. Mata Prasad v. Nageshar Sahai (1925) I. L. R. 47 All. 883 (894) :L. R. 52 I. A. 398 (411).In the last mentioned case their Lordships observed"Reversioners possess "individually what has been called a spessuccessionis, "the bare possibility of succeeding to the estate of the"last owner in case the widow dies leaving any one of "them survivingentitled to take immediate possession "after her, unless, of course, thehusband has left the "power to her to adopt a son." The estateremained vested in Harakumari till her death and the adoption of the PlaintiffNo. 1 under the terms of the will did not divest her of the estate. Theinterest of the Plaintiff No. 1 nevertheless was a vested interest in theremainder capable of being transferred under the law. The estate, or suchportion of it, of course, would fall on the Plaintiff No. 1 on the demise ofHarakumari, only on a contingency being fulfilled, namely, that it was leftafter sale of such portion as Harakumari might make for paying off herhusbands; de,bts as the will authorised her to make. But the interest, whichthe Plaintiff No. 1 had was a vested interest: and in any event, whether vestedor contingent, it was quite different from what is known in law as a spessuccessionis. A contingent interest or ownership is not always a mere chance orpossibility of becoming the owner, that is to say, it is often more, than amere spes acquisitions. In the case of Ma Yaitv. The Official Assignee (1929)I. L. R. 8 Ran. 8 : L. R. 57 I. A. 10.their Lordships of the Judicial Committeeheld that a person, entitled under a deed of settlement made in his life-timeto a vested interest in the income of the trust fund and to an interest in thecorpus, contingent upon his surviving at the period of distribution, canvalidly assign his interest upon the settlement, and his interest, whethervested or contingent, is something quite different from a mere possibility ofthe nature of the chance of an heir apparent succeeding and something quitedifferent from a mere right to sue, which are untransferable by the Transfer ofProperty Act, Section 6 (a) and (e). In the present case, it is perhaps notpossible to read the will as creating in favour of the adopted son a charge onthe income of the properties which remained vested in the widow. But even thenthe will created a fixed right of future ownership in the properties in hisfavour.

18. The third question that falls for determination is howfar were the rights of Harakumari and of the Plaintiff No. 1 affected by themimdngsdpatra. As already stated, the mimdngsdpatra was executed by thePlaintiff No. 1 in favour of Harakumari on the 11th Srdban, 1291 ( = 25th July,1884). It states:

According to the terms of my fathers will, I have not norcan I have any title to or possession of any property, moveable or immovable,except to a monthly allowance of Rs. 20 as stated before, so long as you arealive.

19. It states that there were various sorts of quarrelsbetween the mother and the son, because the latter was demanding more moneythan what he was entitled to.

20. It states further that the mother, by efficientmanagement, had cleared the heavy debts left by the testator and had succeededin augmenting the income of the estate. It then states:

As I cannot manage unless I get a little more monthlyallowance than what is directed in my fathers will and some cash money, youhave, according to my prayer and proposal, agreed to grant me from the estateduring your life-time an allowance of Rs. 4 more than what has been allowed tome under the will and to pay me Rs. 60 cash for the present in case you getabsolute title with power of gift and sale to the property (here is describedproperty No. 5 and a half of property No. 4), etc.

21. There is a further provision which runs in these words:

You have selected the site (lying within the Ichandbdri ordwelling house certain boundaries described) for my residence, in respect ofwhich I shall have no power to make a gift or sale. I shall reside thereregularly but I shall not be competent to transfer it by sale, gift orotherwise, neither shall it be liable to auction sale, etc., on account of thedebts incurred by me; you are debarred from claiming that share in any way

22. By the document, the Plaintiff No. 1 purported to createabsolute title in favour of Harakumari in the said two properties and it wasfurther provided that Harakumari would, according to the terms of the will,continue to possess and enjoy during her lifetime properties No. 1, a half ofNo. 2 (excluding the other half of it given to Shyamkumari), No. 3, No. 6 and ahalf of No. 4, and that, on her death, the Plaintiff No. 1 would own andpossess all these last mentioned properties. The Subordinate Judge has heldthat this document is inoperative,, because, regarded as a document by whichHarakumaris rights as a limited owner were enlarged to an absolute title, itwas hit by Section 6 (a) of the, Transfer of Property Act, and, regarded as adeed of family settlement, it was not valid, as there was really no disputebetween the parties at the time and there was no honest settlement of any bonafide claim on either side. As already stated, the Plaintiff No. 1 did notmention this document in his plaint. In his evidence before the court he deniedthat he executed it and further said that, as he, was a minor at the time, he wasincompetent to do so. The Subordinate Judge has held that this denial on thepart of the Plaintiff No. 1 was untrue, and that the evidence as to itsexecution, such as has been given by the only attesting witness to it nowsurviving, should be believed. We are of the same opinion. He has found thatthe Plaintiff No. 1 attained majority before its execution and with thisconclusion also we agree. As regards his view that the rights of the, PlaintiffNo. 1 was of the nature contemplated by Section 6 (a) of the Transfer ofProperty Act, we have already held otherwise. If a reversioner proposes torelinquish his interest in favour of the widow, the widows interest is notthereby enlarged, since the reversioner had nothing to relinquish. And acontract by a Hindu to sell immovable property, to which he is the nearestreversionary heir, expectant upon the death of the widow in possession, and totransfer it upon possession accruing to him is void; the Transfer of PropertyAct, 1882, Section 6 (a), which forbids the transfer of expectancies, would befutile if a contract of the above character were enforceable Annada Mohan Royv. Gour Mohan Mulliek (1923) T. L. R. 50 Calc. 929 : L. B. 50 I. A. 239.. Butthe interest of the Plaintiff No. 1, not having been an interest contemplatedby Section 6, Clause (a) of the Act, the deed, both as a relinquishment and ascreating an estoppel, would, in our opinion, be operative. On the questionwhether the document was valid, regarded as a deed of family settlement, wehave been referred to such cases as Williams v. Williams (1867) L. R. 2 Ch.294. Helan Dasi v. Durga Das Mundal (1906) 4 C. L. J. 323. Satya Kumar Banerjeev. Satya Kripal Banerjee (1909) 10 C. L. J. 503 Upendra Nath Bose v. BindesriProsad (1915) 20 C. W. N. 210. for-the proposition that a family arrangementmight be upheld, although there were no rights actually in dispute at the timewhen it was made, that it is a mistake to suppose that the principle isapplicable only to arrangements for the settlement of doubtful or disputedrights, but it also extends to arrangements made amongst members of a familyfor the; preservation of its peace, and that where no fraud, mistake,inequality of position, undue influence or coercion or ground of a similarnature has been established, courts would not be bound to scan with much nicetythe quantum of consideration. Reference has also been made to such cases asMata Prasad v. Nageshar Sahai (1925) I. L. R. 47 All. 883 : L. R. 52 I. A. 398in which it has been held that, where a Hindu widow, in possession of herhusbands estate, has entered into a compromise of a claim by a reversioner andthe compromise is, in the circumstances, of the nature of a family settlementwhich is prudent and reasonable, it is binding upon the estate; *Kanhqi Lai v.Brij Lai (1918) I. L. R. 40 All. 48 7 : L. R. 45 I. A. 118., in which anAppellant, who had entered into and taken the benefit of a compromise, intowhich he had entered at a time when he had no right of any kind to any share inthe property but had the mere expectancy of a reversioner, was held precludedfrom claiming as a reversioner subsequently; and Ramgowda Annagowda v.Bhausaheb (1927) I. L. R. 52 Bom. 1 : L. R. 54 T. A. 396. in which alienationsmade by a Hindu widow under a transaction, which was regarded as a familyarrangement, were held binding on the reversioner, who had attested the deeds,by which the alienations had been made and had himself acquired a part of theestate by one of such alienations, all such alienations being regarded as partsof one and the same transaction. On behalf of the Respondents, reference hasbeen made to such cases as Krishna Chandra Dutta Roy v. Hemaja Sankar NandiMazumdar (1917) 22 C. W. N. 463. Shyam Lai Ghosh v. Rameswari Bosu (1915) 23 C.L. J. 82. and Satis Chandra Ghosh v. Kalidasi Dasi (1921) 34 C. I-. J. 529, forthe proposition that a deed of family settlement presupposes a bona fide claimon either side and an honest settlement thereof. On reading these decisionswith care, it seems to us that, if there is one principle that follows from allof them unmistakably,

23. it is this that the arrangement must be one concludedwith the object of settling bona fide a dispute arising out of conflictingclaims to property, which was either existing at the time or was likely toarise in future. Bona fides is the essence of its validity, and from this itfollows that there must be either a dispute or at least an apprehension of adispute, a situation of contest, which is avoided by a policy of giving andtaking; or else, all transfers or surrenders will pass under the, cloak of afamily arrangement. Three cases of the Judicial Committee may be cited in thisconnection. In the case of Sureshar Misser v. Maheshrani Mfarain (1920) I. L.E. 48 Ca)c. 100 (108) : L.R. 47 I. A. 233 (238). a surrender, partial asdistinguished from a total relinquishment of the widows interest in theproperty, which would be otherwise invalid, was upheld on the ground that itwas an arrangement made in performance of a family compromise following upon adispute between the widow and the next reversioner. In that case theirLordships observed: "An arrangement, by which the "reversioner as aconsideration for the surrender "promised to convey a portion of the propertyto a "nominee or nominees of the lady surrendering, might "well fallunder the description of a device to divide "the estate. It is here thatthe fact of the arrangement "being of the nature of a compromise becomesof "importance. Once the bona fides is admitted, we "have thesituation of a contest under which, if "decision were one way, the estatewas carried to the "daughters away from the family, and a litigation in"the course of which the estate would probably be much "diminished.This situation made it a perfectly good "consideration for the lady inorder to avoid these "results to consent to give up her own rights by"surrender. On the other hand it was a good "consideration for thereversioner to get rid of the "will and in a question with the daughters,who "would take all by the will, to agree to give them a "half of theproperty." Man Singh v. Nowlakhbati (1925) I. L. R. 5 Pat. 290 : L. R. 53I. A. 11 was a case in which there was nothing to show that there was anydispute, and a partial surrender by the widow was not upheld on the ground ofits being a family arrangement. In the case of Ramgowda Annagowda v. Bhausaheb(1927) I. L. R. 52 Bom. 1 (7) : L. R. 54 T. A. 396 (402). their Lordshipsobserved: "It was argued that "Annagowdas contingent interest as aremote "reversioner could not be validly sold by him, as it "was amere spes successions, and an agreement to "sell such interest would alsobe void in law. It is "not necessary to consider that question because he"did not in fact either sell or agree to sell his "reversionaryinterest. It is settled law that an "alienation by a widow in excess ofher powers is not "altogether void but only voidable by the reversioners," who may either singly or as a body be precluded "from exercisingtheir right to avoid it either by "express ratification or by acts whichtreat it as "valid or binding." Their Lordships further observed:"Their Lordships conclude that the circumstances "strongly point tothe three documents being part and "parcel of one transaction by which adisposition was "made of Akkagowdas estate, such as was likely to"prevent disputes in the future and therefore in the "best interestsof all the parties." So far as the case before us is concerned, if thewords used in the deed are taken at the foot of the letter it is difficult toconstrue it as suggesting that there was a dispute or a claim on either side,and lesser still that any settlement of a dispute or claim was intended. Thedeed recites the motive for it in these words "Whereas bad feelings betweenmother and son may "cause injury in future to the fathers estate and"cause various inconvenience to both of us." The document purports toacknowledge that Harakumari had excellently administered the properties, thatthe Plaintiff No. 1 had no title, that the quarrel which he made was confinedto demands of some extra moneys for his allowance and that the deed wasexecuted, because Harakumari was in need of having from the Plaintiff No. 1something that she had not and which was in the power of the Plaintiff No. 1 toconfer on her, namely, an absolute title to two of the properties. The evidenceas regards a supposed dispute which was adduced on behalf of the Plaintiff hasbeen, and, in our opinion, rightly, disbelieved by the Subordinate Judge. It istrue that, notwithstanding the words of the deed, we may, if materials beavailable, find in excess of or contrary to its terms that other circumstancesexisted. But we can find none such upon the record before us. As a familyarrangement binding upon the estate or upon persons who were not parties to it,the deed, in our opinion, was inoperative. But we do not see why the deed wouldnot bind the Plaintiff No. 1 to the extent that he,, for consideration which hereceived and presumably continued to receive, under it, created an absoluteright in favour of Harakumari. We can find nothing on the materials on therecord, which would go to vitiate the deed or do away with its operativecharacter. No inadequacy of consideration, no unfairness of the bargain, no vitiatingcause, no question as to the good faith of a transaction as between parties,one of whom stood in relation to the other in a position of active confidence,was pleaded; and the Defendants were never called upon to meet any such case.Stray circumstances that the Plaintiff No. 1 had come of age only a year beforeor that the deed was executed in the house of Jaynarayan, who, upon theevidence appears to have been a dominating factor in all that used to be doneby Harakumari or in her name, would hardly raise such presumption as wouldjustify us in holding that the transaction should not be upheld. Moreover,during the long series of years that Harakumari lived since the date of thedeed, the Plaintiff No. 1 never repudiated it, never raised a finger by way ofprotest, and on the contrary, in 1294 B. S. (=1887), when he executed thendddbindmd and when, therefore, an opportunity arose to have the rights of theparties further adjusted, or when at any rate, he could have asserted his rightto question the mimdngsdpatra, he did not consider it worth his while to do so.

24. In our opinion, therefore, the effect of themimdngsdpatra was to create in favour of Harakumari an absolute title inproperty No. 5 and a half of property No. 4, and that the Plaintiff No. 1, and,for the matter of that, the Plaintiff No. 2, who derives his title from him,are not competent to challenge that title.

25. The fourth question is, what rights did MaharajaSurjyakanta acquire by his purchases from Harakumari and Shyamkumari and underthe ndddbindmd executed by the Plaintiff No. 1. The ndddbindmd was executed bythe Plaintiff No. 1 on the 1st Bhadra, 1294 B. S. (17th August, 1887) at a timewhen the Maharaja had already by a kabdld (Ex. G2,) purchased from Harakumariproperties Nos. 1, a half of No. 2, No. 3 and No. 6. The other half of propertyNo. 2 had been bequeathed to Shyamkumari by the will. In all the properties, sopurchased by Maharaja Surjyakanta, Harakumari under the mimdngsdpatra had noabsolute, but only a limited right. Under the ndddbindmd, the Plaintiff No. 1,for a consideration of Rs. 2,240, admitted that the sale by Harakumari infavour of the Maharaja was for justifying necessity and it was agreed betweenthe parties, that is to say, the Plaintiff No. 1, who executed the document,and the Maharaja, who accepted the document, paid the consideration for it andacted under it, that property No. 6 would belong permanently to the Maharaja,the Plaintiff No. 1 having no right to it thereafter, and that the other properties,namely, No. 1, a half of No. 2 and No. 3, would revert to the Plaintiff No. 1on Harakumaris death. The Subordinate Judge has held that, so far as propertyNo. 6 is concerned, the document embodies a consent on the part of thePlaintiff No. 1, for consideration, to the alienation which Harakumari had madein respect of this property and we. agree in this view. The Maharajas title toproperty No. 6, therefore, thus became an indefeasible, one. As regardsproperties No. 1, a half of No. 2 and No. 3, the document embodies an admissionon the part of the Plaintiff No. 1 that the sale by Harakumari was for legalnecessity, but this admission was coupled with a stipulation that the salewould stand good only during the life-time of Harakumari and that theproperties would revert to the Plaintiff No. 1 on Harakumaris death.

26. It has already been stated that Harakumari obtained anabsolute title to a half of property No. 4 under the mimdngsdpatra. She,however conveyed to Shyamkumari a half of property No. 4 by a deed (Ex. I) onthe 10th Chaitra, 1293 ( = 23rd March, 1887), in which it was recited that theother half of that property had already been acquired by Shyamkumari bypurchase. Shyamkumari had obtained a half of property No. 2 under the will. Onthe 21st Ashar, 1294 ( = 4th July, 1887), by a kaMld (Ex. Gl) she sold toMaharaja Shashikanta the half of property No. 2 and the whole of property No.4. Out of these properties she had absolute title in only a half of propertyNo. 4 on the strength of Harakumaris title under the mimdngsdpatra. By akabdld (Ex. G), dated the 3rd Bhadra, 1295 (-18th August, 1888), MaharajaSurjyakanta purchased property No. 5 from Harakumari, in which she had absolutetitle under the mimdngsdpatra. The result of these transactions was thatMaharaja Surjyakanta acquired an absolute title to a half of No. 4 and to No.5, but in the other half of No. 4 he acquired Harakumaris widows interestonly and in the half of No. 2 only Shyamkumaris life interest.

27. The purchase which Maharaja Surjyakanta made in respectof a half of property No. 2, in which Shyamkumari had a life interest only,cannot be justified on any ground whatever. As regards his purchase in respectof properties in which Harakumari had a widows estate, for the purchase tohave conferred on him an absolute title, it must be established either thatthere was, in fact, legal necessity or at least that he had made proper andbona fide enquiry as to the existence of such necessity. The Subordinate Judgehas dealt with this part of the, lease in great detail and with commendablecare. We entirely agree in the conclusion, at which he has arrived result of avery careful and sifting investigation. On the question whether in fact therewas justifying necessity, the evidence is practically nil, while the collectionpapers of the period, the existence of which is established, have not beenproduced on excuses which are puerile. The responsibility for such non-production must, upon the materials on the record, rest with the Maharaja andthe Defendant No. 10, and the presumption is legitimate that, if produced, theywould have shown the contrary. The recital in the mimdngsdpatra as regards thecondition of the estate at the, time strengthens and supports this presumption.There is nothing to suggest that the legitimate expenses of the ladies and thepurposes, for which the moneys were required as recited in the deeds, could notbe met out of the income of the properties; at least there is no evidence toshow that they could not. It is not disputed that there is absolutely noevidence that Maharaja Surjyakanta made any enquiry as regards the necessities,for which the sales were made, but what is relied on on behalf of theAppellants is the principle enunciated by the Judicial Committee in the case ofBanff a Chandra Dhur Biswas v. Jagat Kishore Acharjya Chowihuri (1916) I. L. R.44 Calc. 186 : L. R. 43 I. A. 249. For three reasons, the principle, in ouropinion, should not apply: firstly, because, although the witnesses to thetransactions are not available, documentary evidence in the shape of collectionpapers are still available, but have been withheld; secondly, because all theprobabilities and circumstances that appear in the case are utterlyinconsistent with the recitals in the documents; and thirdly, because therecitals themselves appear to have been made, with an ulterior purpose and notas representing the truth. A perusal of the oral evidence in the case cannotfail to impress one with the idea that the Plaintiff No. 1, so far asHarakumari was concerned, was a sort of a cast away son, with vices which madehim obnoxious and that he was not in the good graces of Harakumari or of herguiding spirit, Jaynath Ray. The Plaintiff No. ls statements in the naddbindmd,upon which stress has been laid on behalf of the Appellants, cannot, therefore,be implicitly relied on.

28. The result of our conclusions on the four questions,that we have dealt with so far, is that the Maharaja should be held to haveacquired an absolute, title, which it is not open to the Plaintiffs tochallenge, so far as a half of property No. 4, and properties Nos. 5 and 6 areconcerned, but not as regards the other properties.

29. The other objections urged on behalf of the Appellantswill now have to be considered. But before dealing with them we think itnecessary to state that, in the court below, there were two issues raisedchallenging the legitimacy and adoption of the Plaintiff No. 1. Under these twoissues, a mass of evidence was adduced and there was an elaborate trial. Theywere found in favour of the Plaintiff No. 1 and against the Defendants, whoraised it. Before this Court the Maharaja has expressly disavowed allconnection with those issues and his learned advocate has told us that it wasmainly because such defences were taken that he has dissociated himself fromthe other Defendants and has preferred a separate appeal. We congratulate himon the honourable course that he has adopted. It should also be mentioned herethat not one word has been said before us on behalf of the other Defendants asagainst the findings of the court below upon those issues. Those findings havenot been challenged before us in any manner whatsoever.

30. An objection has been raised on behalf of the Councilthat the, suit, in so far as it was against the Council, was not properlyconstituted. It appears that, on the objection of the Defendants Nos. 3 to 5,the Plaintiff No. 1, on the 29th July, 1922, applied for amendment of theplaint by adding the persons named in the petition as pro forma Defendants, andthis application was granted, so that Maharaja Shashikanta, Mr.Brajendrakishore Ray Chaudhuri and Sir Ashutosh Chaudhuri, trustees on behalfof the National Council of Education, were added as pro forma Defendants Nos.6, 7 and 8. On the 17th April, 1923, Sir Ashutosh filed a written statement.Sir Ashutosh died thereafter and, on that, on the 20th June, 1924, on theapplication of the Plaintiff No. 1, Sir Praphullachandra Bay and Mr.Hirendranath Datta were substituted or rather brought on the record, the formeras the President and the latter as the Honorary Secretary of the Council. Mr.Datta, in his written statement filed on the 6th September, 1924, pleaded that" the National Council of Education "being a society registered underthe provisions of Act "XXI of 1860, the present unjust suit, instituted"without giving notice to the society under the "provisions ofSection 6 of the Act, is fit to be "dismissed," and this objectionwas urged before the court. Thereupon the Plaintiffs sent notice to thePresident and the Honorary Secretary of the Council to appoint a person whocould be sued on their behalf.

31. The Council thereupon nominated a gentleman for the,purpose and communicated the fact of such nomination to the Plaintiff No. 1.That gentleman, being unwilling to act, communicated his refusal to the Counciland also spoke about it to the Plaintiff No. ls pleader and it is admittedthat no other person has since been appointed in his place. The Plaintiff No.1, thereupon, put in a petition on the 19th December, 1924, informing the courtof the fact that the gentleman nominated had communicated his refusal to theCouncil, and praying that the suit might be allowed to proceed against theCouncil with the President and the Honorary Secretary representing them. It isnot said that there are any rules and regulations of the Council determining inwhose name the Council is to be sued. But what is argued is that, though thegentleman nominated communicated his refusal to act as such to the Council, hehad not done so to the court, and that, therefore, the, Plaintiff No. 1 shouldhave brought him on the record, and if he said before the court that he was notwilling to act, then the Plaintiff No. 1 should have again asked the Council tonominate another person and so on. We cannot agree in this view of the law. Wethink that no effective nomination having been made by the Council, the suit,constituted as it then was with the President and the Honorary Secretary asDefendants, was validly constituted so far as the representation of the Councilwas concerned.

32. A contention has been urged on behalf of the otherAppellants that the suit in respect of properties No. 1, a half of No. 2 andNo. 3 was not maintainable in its present form, but the Plaintiffs properremedy was by a suit for specific performance and that the Plaintiffs have beendeprived of that remedy. The principle enunciated in the decision of theJudicial Committee in the case of Srish Chandra Roy v. Banomali Roy (1904) I.L. R. 31 Calc. 584 : L. R. 31 I. A. 107. has been relied on. A passage in thenddabindmd is referred to in this connection. It runs in these words:

After mothers death, you will relinquish your title andpossession of properties of schedule 2 in my favour. If after mothers death,you fail to give up the properties of schedule 2, in spite of my asking for itin a proper way, then I shall be competent to take possession of the propertiesof schedule 2 by taking proper steps.

33. The properties in the second schedule to the deed are,the properties named above. In the case, on which reliance has been placed asabove, what happened was this. Two parties had made a compromise comprising anagreement, the chief consideration for which was the execution of an ekrdr byone party acknowledging the title ( as adopted son) of the other party to theagreement, and the former had subsequently by his conduct (in bringing a suitto set aside the adoption and alleging that the ekrdr had been obtained fromhim by fraud) attempted and in a great measure succeeded in depriving the,latter of the benefit of the agreement ; and it was held in a subsequent suitby the heirs of the party, who had tried to rescind the agreement, that therehad been a failure of consideration and the conduct referred to was at variancewith and amounted to a subversion of the relations intended to be establishedby the compromise, and that specific performance of the agreement could not beenforced. In the present case, an application which the Plaintiff made foramendment of the plaint by inserting therein an allegation of undue influenceand minority in connection with the mimdngsdpatra was disallowed by the courton the 13th August, 1925 on the ground that the amendment was asked for afteran inordinate delay since the institution of the suit and the framing of theissues, and that the amendment prayed for would change the character of theplaint and put the Defendants to inconvenience. The consideration for the nddabindmd,in so far as it was a consideration receivable by the Maharaja, has not failedso far. It is difficult to see what bearing the decision in the case, cited canhave upon the present case, on the facts just stated. It would be enough, wethink, for us to say that, even if the Plaintiff No. 1 may have, had a remedyin the shape of specific performance open to him, the present suit fordeclaration of title and recovery of possession was also open to him as analternative remedy.

34. Another ground urged, though somewhat faintly, was thatthe suit was barred by limitation. Instituted as it was within 12 years of thedeaths of Harakumari and of Shyamkumari, we cannot see how it may be held to bebarred. Articles 140 and 141 of Schedule I to the Limitation Act both prescribethat period for a suit of this nature. It has also been suggested that the suitwas not maintainable without a prayer for setting aside the mimdngsapdtra andthe ndddbindmd, and as a suit for that purpose would be governed by Article 91of the Limitation Act, the present suit is barred. The question, in ouropinion, does not arise, inasmuch as the Plaintiffs, under our judgment, willget only such relief as they are entitled to on the footing of the said deedsbeing binding on them.

35. It has further been contended that the Plaintiff No. 2having purchased, on the 25th February, 1925, some of the properties under atransaction which is of a champertous character, the suit should not have beenallowed to be proceeded with. We have examined the nature of the transaction.It is only some of the properties, namely, No. 1, No. 2, No. 3 and No. 4 and ahalf of No. 6 that were purchased and there was nothing in the bargain, whichmay be regarded as extortionate, unconscionable or inequitable and nothing thatmay be. regarded as gambling in litigation or oppressive to the opponents byhelping in an unrighteous litigation. In any case, the Plaintiff No. 1 havingcontinued as a Plaintiff, there can be no possible objection to a decree beingpassed in the suit in favour of the two Plaintiffs jointly.

36. The result then is that the Plaintiffs, in our judgment,are entitled to a decree declaring their title to properties No. 1, No. 2, No.3 and a half of No. 4 and entitling them to recover possession thereof from theDefendants in respect of those properties. The suit, in so far as it related tothe other half of property No. 4 and properties Nos. 5 and 6, should bedismissed.

37. There remains only the decree for mesne profits to beconsidered. The Subordinate Judge has made a decree for Rupees twenty-threethousand and odd (as due for the period, 13th Fdlgun, 1326 to 5th Ashdr, 1330)jointly and severally against the trustees in their representative character,viz., (the Defendants Nos. 3, 4 and 5 and against the beneficiaries, viz., theMaharaja Defendant No. 1 and the Council as represented by the Defendants Nos.7, 8 (ka) and 8 (kha). He has also made a decree for Rupees twenty-eightthousand and odd (as due for the period 6th Ashar, 1330 to 1334) jointly andseverally against the aforesaid parties and also the lessees, the DefendantsNos. 9 and 10. He has also ordered that the Plaintiffs would be, entitled tomesne profits from all these parties from the date of the decree to the date ofrecovery of possession. This decree, in our judgment, cannot be supported.

38. In the first place, the issue that was framed on thequestion of mesne profits was in these words: "No . 9. Is the Plaintiffentitled to mesne profits" There was nothing in the issue to indicatethat an enquiry into the quantum of mesne profits was at all contemplated. ThePlaintiffs adduced no evidence on the question. The Defendants filed therecord-of-rights to prove, as far as can be, gathered, the values of theproperties. This record-of-rights gave certain particulars as regards rentsrecoverable and revenue payable, and it is only on the basis of these materialsthat the mesne profits have been assessed. As there has been no properinvestigation with proper opportunity to the parties to adduce evidence, theassessment cannot stand. Then again, the foundation of liability for mesneprofits is the fact of dispossession of the Plaintiffs and possession by thetrespassers. This position does not seem to have been borne in mind in makingthe decree. Two periods have been formed: one from the 13th Fdlgun, 1326, i.e.,the date of death of Harakumari, to the 5th Ashdr, 1330, i.e., the date priorto the lease of the Defendants Nos. 9 and 10, and for this period the trusteesand the, beneficiaries have been made liable; and the other, from the 6thAshdr, 1330, i.e., the date of the lease of the Defendants Nos. 9 and 10, up tothe date of the decree and for this period the trustees, the beneficiaries andthe lessees have been made liable. It is not possible to defend the decree inso far as it is against the beneficiaries, because, as beneficiaries, they werenot concerned in the Plaintiffs dispossession and it is not and cannot be.suggested that they were ever in possession. They may have received moneysunder the trust deed out of the collections, but the trust deed included theseas well as other properties. It is quite true that the source of the moneys,which the Council did or would receive, was partly, at any rate, thecollections from these properties, but when they did or would receive themoneys, there would be, nothing to show from which of the properties covered bythe trust deed they came. In no sense can they be regarded as havingintercepted the profits, which should have gone to the real owner. The decree,as against the Council and as against the Maharaja also, in so far as he was abeneficiary, cannot possibly stand. But the Maharaja was in possession as atrespasser, though he subsequently resigned his trusteeship on the 14thSeptember, 1920. By so resigning he could not absolve himself, as against thePlaintiffs, of his liability for mesne profits which arose by reason of thefact that he was a trespasser, though this fact has to be taken into account inapportioning the liabilities of the different trespassers inter se. Thirdly,when the trustees, the Defendants Nos. 3, 4 and 5, were added as Defendants onthe 12th August, 1921, the plaint was amended On a prayer contained in apetition filed on behalf of the Plaintiff No. 1 on that date, and the effect ofthis amendment was to extend the claim for mesne profits as against thoseDefendants as well. But the Council as well as the lessees were brought on therecord as pro forma Defendants only. It is true that there is no such thing inthe Code as pro forma Defendants, but the distinction is obvious and material,because, as against pro forma Defendants, the Plaintiff claims no relief andthey are added only because it may be proper to have the adjudication made intheir presence, The Plaintiffs, therefore, in the present case are not entitledto any relief in the shape of mesne profits as against the lessees, theDefendants Nos. 9 and 10, though it may be that those Defendants are liable forcontribution to other Defendants under the terms of the lease under which theyhold.

39. These complications have, caused us considerableanxiety. In the case of a claim for mesne profits two courses are left open tothe court. A decree for mesne profits may be passed jointly and severally againstall the trespassers, who may have jointly kept the Plaintiffs out of possessionfor any particular period, leaving them to have their respective rightsadjusted in a separate suit for contribution: or the respective liabilities ofsuch trespassers may be ascertained in the Plaintiffs suit against them, and adecree on the basis of such several liabilities may be passed as against therespective trespassers in Plaintiffs favour. It is doubtful if Merryweather v.Nixan (1799) 8 Term 186;101 E. R. 1337, which denied a right of contribution asbetween joint wrong-doers, is still good law in England [See the observationsof Lord Herschell in Palmer v. Wick and Pulteneytown Steam Shipping Co. 1894 A.C. 318, 324.. The rule enunciated in this decision (1) has since beenconsiderably modified See the cases cited in Kamala Prasad Sukul v. KishoriMohan Pramanik (1927) 48 C. L. J. 350, 355. In any case, the, applicability ofthe doctrine to this country has been repeatedly questioned [e.g., Siva Pandav. Jujusti Panda (1901) I. L. R. 25 Mad. 599. Nihal Singh v. The Collector ofBulandshar (1916) I. L. R. 38 All. 237, Kamala Prasad Sukul v. Kishori MohanPramanik (1)]. Mookerjee J. dealt with the question in an elaborate judgment inthe case of Ramratan Kapali v. Aswini Kumar Butt (1910) I. L. R. 37 Calc. 559,568-569.. He observed: "It cannot be laid down as an "inflexiblerule, that in every case of tort, the court "is bound to pass a jointdecree against the wrong-"doers, making each jointly and severally liablefor the "whole amount decreed....... In cases, therefore, in "whichthe controlling general principle, namely, that "where acts of severalpersons by design, or by "conduct, tantamount to conspiracy, contribute tothe "commission of a wrong, they are jointly liable, is not"applicable, the rule of joint liability also ceases to be"applicable." In that case it was held that, in respect of mesneprofits, which accrue during the pendency of a suit for possession, theliability of different tenure-holders of the same degree, and of separateundertenure-holders of different degrees, should be apportioned according tothe shares of the profits intercepted by each. This decision has been dissentedfrom by Page J. in the case of Pramada Nath Roy v. Secretary of State for India(1926) I. L. R. 53 Calc. 992.; L. R. 56 I. A. 290 (294, 297). but thecorrectness of the dissent has been questioned in Kamala Prasad Sukul v.Kishori Mohan Pramanik, (1). It may be mentioned here that the decision inPramada Nath Roys case (1926) I. L. R. 53 Calc. 992 : L. R. 56 I. A. 290 (294,297). has since been reversed by the Judicial Committee [see Gurudas KunduChaudhuri v. Hemendra Kumar Roy (1929) I. L. R. 57 Calc. 1 (5, 8), which willpresently be noticed and which is undoubtedly an authority in support of theview that separate decrees on the footing of several liabilities may andsometimes should be made.

40. On behalf of the Maharaja, it has been broadly contendedthat he can only be liable for the period since, the date of resignation of histrusteeship, for such amount as might have actually come to his hands, andreliance for this purpose has been placed upon the decisions of the JudicialCommittee in the cases of L. P. E. Pugh v. Ashutosh Sen (1928) I. L. R. 8 Pat.516 (519) : L. R. 56 I. A. 93 and Gurudas Kundu Chaudhuri v. Hemendra Kumar Ray(1929) I. L. R. 57 Calc. 1 (58) ;. L. R. 56 I. A. 290 (294, 297). The formercase was an action of trover, the Plaintiffs claiming damages for theconversion by the Defendants of specific moveable property, namely, coal gottenby the Defendants from the Plaintiffs mines. The facts were that theAppellants, having acquired a coal-mining lease of certain property, hadencroached upon the neighbouring lands of the Plaintiffs landlords, under whomthe Plaintiffs held the same; and then the Appellants sub-let the lands of the,coal-mining lease to certain other persons, who, while holding under thesub-lease, did similar encroachments. The Plaintiffs sued the Appellants andtheir sub-lessees and in that suit it was held that the Appellants were notjointly liable with their sublessees for the coal which the latter had taken.It was argued as follows:But in any case this Appellant "was not liable.The suit was not for an account of "profits received by him, but a suitfor damages for "trover. He was not, however, the principal of the"other Defendants, nor a joint tortfeaser with them. "There was noevidence that the Appellant knew of "the encroachments by the other Defendants."Although he received royalties upon all the coal "extracted, therewas nothing to show him that part "of the coal was from the landencroached upon. "The lease given by the Appellant provided for"royalties for the demised land only." In the latter case the factswere these. Land to which three families of zemindars were entitled in certainshares became diluviated. On reformation, the Government took possession andlet it out on a patni lease. One of the three families recovered the land fromthe Government and continued the patniddr in possession. Subsequently, membersof the other two families sued the family who had recovered the land and thepatniddr, claiming possession of their shares and mesne profits. The suit wasdecreed in these words: "It is ordered that the claim of this suit bedecreed "with costs and mesne profits and interest against the"principal Defendants and the Defendants subsequently "added... Theamount of mesne profits to be "ascertained in execution." Twoquestions arose: first, the period for which the mesne profits should beallowed; and second, on what basis the mesne profits should be computed. On thefirst question, it was held that the decree meant that mesne profits were to berecoverable up to the date of the Plaintiffs readmission to the land. On thesecond question, it was held that mesne profits recoverable from the principalDefendants, who had recovered the land, would be on the basis of the rent theyreceived from the patniddr and not upon the produce value of the land. TheirLordships were of opinion that the patniddr could hardly be regarded as atrespasser and in one sense the principal Defendants also were not trespassers,but, whatever it was, the decree was not a proper joint and several decree.Their Lordships observed : They do not view the decree as a proper "jointand several decree. They think it is to be "construed applicando singulasingulis. Let this test "be taken. Suppose any one of the numerous"Defendants had refused to quit possession, could all "the otherDefendants have been put in prison because "that one Defendant was incontumacy to the decree "What authority is there for saying that undersuch "a decree as against any one particular Defendant you "areentitled to say: I will hold you liable not for "the mesne profits whichyou got according to the "terms of the Act, but for the mesne profitswhich "somebody else got and with whom, under the decree you are liableTheir Lordships think it would be "the height of injustice to hold thatand they do not "see that they are bound to hold it." These twodecisions, in our judgment, do not support the broad proposition for which theMaharajas learned advocate has contended. And although it is true that asamongst the Defendants inter se, when their rights are, to be adjusted, nonecan rightly claim from others what the latter could not possibly have received,it is not possible to hold that, because one particular trespasser did notactually receive more than some particular amount, the Plaintiffs claim must,in all circumstances, be limited to that particular amount. The principles onwhich mesne profits have to be calculated have, been further explained by theJudicial Committee in the case of Gray v. Bhagu Mian (1929) I. I.K. 9 Pat. 621: L. R. 57 I. A. 105 in which their Lordships have said that, under thedefinition of mesne profits [Section 2, Sub-section {12) of the Code,] the sumto be awarded is not what the Plaintiff has lost by his exclusion from theland, but what the Defendant has made or might with reasonable diligence havemade by his wrongful possession.

41. It has already been said that the Plaintiffs are notentitled in the present suit to have a decree for mesne profits as against thelessees, Defendants Nos. 9 and 10. This, however, does not mean that the otherDefendants, who will be liable for mesne profits in the present suit will haveno right of contribution as against them, should the lease, under which thesaid lessees, the Defendants Nos. 9 and 10, held, entitle them to suchcontribution,--a question on which we express no opinion, as no arguments have,been addressed to us on the rights of the different Defendants inter se. It isunfortunate that these two Defendants were at all allowed to come in in thesuit. They took the lease on the 6th Ashdr, 1330 ( = 21st June, 1923) when thesuit was pending. On the 19th July, 1923, they applied to be added asDefendants. The Plaintiff No . 1 objected. The Subordinate Judge, by an ordermade on the 14th August, 1923, held that the lessors of the Defendants Nos. 9and 10 having been made parties, the said Defendants too were necessary partiesand that, although the doctrine of lis pendens would apply, yet the courtshould look to the interest of these Defendants and add them as parties. In thesame order the Subordinate Judge, further observed thus:

The Plaintiff is quite justified in urging that the additionof new parties will cause great delay in the disposal of the suit... ThePlaintiff may, therefore, be reasonably apprehensive of further delay, worriesand troubles, if the applicants are now made Defendants... This applicant(meaning Defendant No. 10), it seems, insisted on the taking of the perpetuallease, in the hope of a compromise, finding that the Plaintiff is in pecuniaryembarrassments. It would naturally follow that the applicants would attempt totire out the Plaintiff to submission by dilatory practices.

42. Yet the learned Judge ultimately made an order for theaddition of these two Defendants conditioned upon their paying certain costs.The costs were paid, but they were not allowed to be withdrawn by the PlaintiffNo. 1. Eventually the Plaintiff No. 1 made the Defendants Nos. 9 and 10 andother members of their family, viz., Nos. 11 to 18, all pro forma Defendants.The apprehension as to delay and harassment has been amply justified and yetthe Plaintiffs get no relief in the shape of mesne profits against theseDefendants. A little more of firmness on the part of the court would have atleast avoided the protracted investigation on questions, which were raised atthe instance of these two Defendants only.

43. The result of all these considerations, in our judgment,is that the decree, of the court below would be varied in the following manner:

44. A decree should be passed of the nature contemplated byOrder XX, Rule 12, sub-rule, (l), Code of Civil Procedure Code, declaring thePlaintiffs title to properties No. 1, No. 2, No. 3 and a half of No. 4 of thefirst schedule and entitling them to recover possession of the said propertiesagainst all the Defendants with the exception of the Defendant No. 2.

45. The suit, in so far as it related to the other half ofproperty No. 4 and properties Nos. 5 and 6 and the property in the secondschedule should be dismissed.

46. An enquiry should be directed as regards mesne profitsto be recovered from the Defendant No. 1 and the Defendants Nos. 3, 4 and 5 forthe period commencing from the 13th Fdlgun, 1326 (the date of Harakumarisdeath) and ending with the 5th. Ashdr, 1330 (prior to the date of the lease infavour of the Defendants Nos. 9 and 10), the two sets of Defendants being madeseverally liable to the Plaintiffs for such amounts as they may under the lawbe justly liable for.

47. An enquiry should also be directed as regards mesneprofits to be recovered from the Defendant No. 1 and the Defendants Nos. 3, 4and 5 for the period commencing from the 6th Ashdr, 1330 (the date of the leasein favour of the Defendants Nos. 9 and 10), the two sets of Defendants beingmade severally liable to the Plaintiffs for such amounts as they may under thelaw be justly liable for.

48. The said two sets of Defendants should also be heldliable for mesne profits to the Plaintiffs from the date of the decree till thedate of recovery of possession.

49. The Plaintiffs claim for mesne profits, as against theNational Council of Education, represented by the Defendants Nos. 7, 8 (ka) and8 (kha), should be dismissed.

50. And the question of contribution in respect of mesneprofits recoverable under the decree from the said two sets of the Defendantsfor the period commencing from the 6th Ashdr, 1330 (the date of the lease ofthe Defendants Nos. 9 and 10) and onwards as between them and the DefendantsNos. 9 and 10 should be expressly left open.

51. On the enquiry being completed, a final decree, ascontemplated by Order XX, Rule 12, Sub-rule (2), Code of Civil Procedure Code,will be passed by the court below,

52. As regards the costs of the court below the Plaintiffsand the Defendants, who appeared in that court, will get their costs inproportion to their successes, the proportion being calculated on the basis ofthe values of the properties as given in the schedules to the plaint.

53. As regards the Appeals No. 387 of 1928 and No. 389 of1928, they will be partly allowed and Appeal No. 458 of 1928 will be dismissed.Having regard to the proportion of successes of the, parties in this Court, wethink the proper order to make is that each party should bear his or their owncosts. The costs of paper-books have already been apportioned and we do notvary that order.

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Basantakumar Basu vs.Ramshankar Ray (24.08.1931 - CALHC)