Authored By : Francis Maclean, Banerjee, C.H. Hill

Francis Maclean, Kt, K.C.I.E., C.J.

1. This is a suit by a childless Hindu widow against theexecutors of her late husbands will and her sister-in-law, one KadumbiniDassi, in which she seeks to have certain documents, viz., a deed of trustdated the 24th of May 1877, an award dated the 16th of July 1889, a decreedated the 29th August 1889 and certain leases dated the 1st of March 1891,declared fraudulent and void as against her, to have the will of her husbandconstrued, for an account on the basis of wilful default, for the appointmentof a receiver and other consequential relief.

2. As a bar to that suit, the Defendant Nundo Lal Bose, whois the principal Defendant, sets up a variety of defences. The DefendantPashupati supports the Plaintiff and the Defendant Kadumbini is sued as thesurviving trustee of the deed of trust of the 24th of May 1877. It will beconvenient, before stating the nature of the various defences, to give a shortoutline of the case.

3. The Plaintiff was born in the year 1861 and at the age of11, in January 1872, was married to the testator, Mohendra Nath Bose. He diedon the 16th of August 1874, leaving her a childless widow. By his will dated the9th of August 1874, he gave out of certain zamindaries and other immovableproperties and also moveable properties, all that he possessed, one-third tohis brother, the Defendant Nundo Lal Bose, another third to his brotherPashupati and directed that the remaining third should be managed by hisexecutors (I am only stating the will for the present purpose very succinctly)to pay certain legacies and monthly allowances and debts and subject thereto topay the income of such share to the Plaintiff for life with a gift over, towhich I shall have to refer later on. He appointed one Kali CharanBhuttacharjee, the Defendants Nundo Lal Bose and Pashupati Nath Bose executorsof his will. Kali Charan Bhuttacharjee renounced, arid probate was granted toNundo Lal and Pashupati alone on the 4th of September 1874. At that time thePlaintiff was about 13 years of age and a purdanashin lady. She then lived andfor many years after continued to live, in the family dwelling-house with herbrothers-in-law Nundo Lal Bose and Pashupati and her mother-in-law. As the headof the family Nundo Lal would appear, after his brother, the testators death,to have managed the whole of the property of the joint family. Pashupati as anexecutor of his dead brothers will took little, if any, part in the managementand Nundo Lal managed the property, apparently, without any interference orcheck from any one. On the 24th of May 1877 Nundo Lal and Pashupati settledtheir moveable and immoveable properties by a deed of trust dated the 24th May1877 and it is of that deed Kadumbini Dassi was appointed a trustee and as suchtrustee is a party to the present suit. It is now conceded on all sides thatthis deed does not affect the one-third of the testators estate, in which thePlaintiff is interested. At this time, in May 1877, Pashupati was a young manof about twenty-one years of age, while Nundo Lal was about thirty orthirty-one. After the execution of this deed Nundo Lal still continued tomanage the whole of the joint estate and Pashupati did not interfere.

4. In the year 1881 Pashupati became dissatisfied with thedeed of the 24th of May 1877 and in the result it was agreed between them(Pashupati and Nundo Lal) that with the object of setting this deed aside andof partitioning their property, there should be a friendly reference toarbitration and with this object a salisinamah of the 27th day of July 1888 wasprepared, to which the Plaintiffs signature was obtained. Except so far as shewas made a party to this reference, as interested in the proposed partition, itis difficult to appreciate why she was made a party. The share of her husbandsestate, in which she was interested under his will, was not affected by thetrust deed of the 24th of May 1877.

5. The Plaintiff on the 27th of Jaistha 1296, correspondingwith the 9th of June 1889, was induced to sign a letter in which she expressedconcurrence in having the said trust deed set aside; and on the 12th of June1889, a further salisinamah was executed, to which the Plaintiff was a party,by which she purported to empower the arbitrators to cancel the deed of trust,to partition the estate and to settle the trust accounts. The arbitrationproceedings commenced and on the 16th of July 1889 the arbitrators made theiraward, by which they purported to cancel the deed of the 24th of May 1877 anddecided various other matters in many serious particulars in a manner veryadverse to the interests of the Plaintiff. On the 27th of July 1889, Nundo Lalfiled a petition in the Court of the Twenty-four Pergunnas at Alipore for theconfirmation of the award; and on the 27th of August a petition signed byPashupati, Kadumbini Dassi, Thakurani Dassi and the Plaintiff was filed in the3 same Court, in which they said they had no objection to the award being filedand enforced. On the same date a vakalatnamah was signed by Pashupati,Kadumbini, Thakurani and the Plaintiff, purporting to authorize two pleaders,one of whom was the son-in-law of the Defendant Nundo Lal, to consent to theapplication. On the 29th August 1889, a consent decree was made in terms of theaward. On the 1st of March 1891, two permanent leases were executed by NundoLal and Pashupati as executors of the will of Mohendra Nath Bose-one in favourof Nundo Lal and the other in favour of Pashupati and the signature of thePlaintiff was also obtained to these leases* Thakurani died in 1892.

6. This is the history of the case.

7. The Plaintiff says that her supposed assent to thearbitration proceedings, to the award, to the decree and the vakalatnamah wereeach and all obtained by the fraud of Nundo Lal Bose; that she believed that hewas protecting her interests, whilst, in fact, he was betraying them; that shewas entirely under his influence and did what he told her to do; that she knewnothing about the transactions in question; that the various documents werenever explained to her and that in fact she put her name and gave her assent toany and every document, which Nundo Lal Bose put before her and told her tosign. That is in short her case.

8. Pashupati in substance supports that case. Kadumbini,who, as I pointed out, is interested only as a trustee under the deed of the24th of May 1877, put in a defence very late in the day. So far as she hastaken any part in the litigation she must be regarded as supporting the case ofher brother Nundo Lal.

9. The Defendant Nundo Lal raised a variety of preliminarypoints, which I will deal with in a moment; and as regards the merits, herelies upon the arbitration proceedings, the award and the decree and themocurrari leases and says, in effect, that the Plaintiff thoroughly understoodwhat she was doing; that she was not under his influence in any way; that therewas no fraud on his part; that she was throughout a perfectly voluntary agentin the transaction; that she executed all these documents and was a party toall the proceedings with an accurate knowledge on her part of their meaning,their purport and effect; that everything had been fully explained to her andthat this suit was vexatious and was brought at the instance of Pashupati. Butbefore I deal with the merits, I propose to deal with the various preliminarypoints, which have been raised, for if Nundo Lal be successful on these, itwill be unnecessary to go into the merits.

10. What are these preliminary objections

11. First, he says that this Court has no jurisdiction toset aside the decree; that the only Court that can set it aside is the Courtwhich pronounced it, viz., the Court at Alipore. He says, as regards the settingaside of the mocurrari leases of the 1st of March 1891, that there is nojurisdiction in this Court, as the suit, so far as they are concerned, is asuit for the recovery of immoveable property and so ought to have been broughtin the Court within the local limits of whose jurisdiction the property islocally situated and that it is not locally situated in Calcutta. He also saysthat the suit is barred by limitation and that it is multifarious under Section44 of the Code of Civil Procedure. Other questions were raised upon the trueconstruction of the will and some minor questions as to costs, with which Ipropose to deal later on.

12. Upon the first point, the Court, in my opinion, hadjurisdiction to entertain the suit so far as it seeks to set aside the decreeof the Alipore Court. We have been referred to a variety of cases in the Courtsof England upon the question whether it is open to one Court to set aside, onthe ground of fraud, the decree of another Court. These cases have been dealtwith with great minuteness by the learned Judge, who tried the case in theCourt below and especial reliance has been placed before us upon the case ofAllen v. McPherson (1841) 5 Beav. 469. For the reasons I am about to give, I donot think it will be necessary to go into these cases. The jurisdiction of theHigh Courts in India is the creation of the Letters Patent and the Code ofCivil Procedure and it seems to me that before we discuss the English cases, itwould be at least desirable to ascertain what jurisdiction is conferred uponthis Court by the Letters Patent and Code, inasmuch as upon this head theconstitution of the Courts here may be very different from that of the Courtsin England.

13. In this connection I would first refer to Section 12 ofthe Letters Patent of 1865. Under that this Court, in the exercise of itsOrdinary Original Civil Jurisdiction, which was the jurisdiction invoked in thepresent case, may receive, try and determine suits of every description in allcases "if the cause of action shall have arisen either wholly or, in casethe leave of the Court shall have been first obtained, in part, within thelocal limits of the Ordinary Original Jurisdiction of the said HighCourt." I pause there for a moment. Here the leave of the Court wasobtained to the institution of this suit and here the cause of action, so faras it relates to the setting aside of the decree-I am only dealing at presentwith the objection to that part of the suit-was the fraud of the DefendantNundo Lal Bose, which certainly in part, if not wholly, was committed withinthe local limits of the Ordinary Original Civil Jurisdiction of the Court. Theparties were undoubtedly residing in Calcutta when the alleged fraud waspractised by Nundo Lal; and as regards the suggestion that, if any fraud werepractised, a portion of it, that is, as regards the obtaining of the decree,was practised at Alipore, which is outside the local limits of the OrdinaryOriginal Jurisdiction of this Court, the answer is that any objection on thathead is met by the fact that the leave of the Court to bring the action waspreviously obtained. And from another point of view as regards Section 12, itmay be said that the Court derived jurisdiction to deal with the suit. NundoLal undoubtedly at the time of the commencement of the suit was dwelling inCalcutta. Kadumbini was also residing there; whilst Pashupati was ordinarilydwelling there though at times apparently he lived in a garden-house outsideCalcutta. But at the time of the commencement of the suit, the real Defendantin the suit, the one against whom the real relief was sought, viz., Nundo Lal,was dwelling within the local limits of the Court. In my opinion, then, underthis section, the Court had jurisdiction to entertain the suit. Apart, however,from this, the Plaintiff places reliance upon Section 11 of the Code, whichruns as follows : "The Court shall (subject to the provisions hereincontained) have jurisdiction to try all suits of a civil nature excepting suitsof which their cognizance, is barred by any enactment for the time being inforce." This High Court in its Ordinary Original Civil Side is a Courtwithin the meaning of that section and I am not aware of any enactment whichbars such Court from taking cognizance of a suit of this description. Relianceis also placed by the Plaintiff upon Section 17 of the Code and in my opinionthese two sections of the Code give support, to the Plaintiffs contention. Onthese grounds I consider that this Court had jurisdiction to entertain the suitto set aside the decree of the Alipore Court on the ground of fraud.

13. But it has been urged before us for the Plaintiff that,if this were not so, the Court had jurisdiction to entertain the suit so far asit was one for the administration of the estate of the testator. As to this,there has not been any serious contention and in fact, the present Appellantoffered no opposition to such a decree, if based on the validity of the awardand the subsequent decree of the Alipore Court. This being so, it is urged forthe Plaintiff that, as the Court had jurisdiction to entertain the suit as anadministration suit, if the Defendant Nundo Lal relied upon the decree of theAlipore Court as an answer to that suit, it was open to the Plaintiff to showthat that decree had been obtained by fraud and reliance was placed upon avariety of cases in the Courts of England, which have been very carefullyconsidered by the Court below, of which Bandon v. Becker (1835) 3 Cl. and Fin.79 and Queen v. Saddlers Company (1863) 10 H.L.C. 404 may be regarded asprominent illustrations.

14. As giving effect in the Courts in India to the viewslaid down in the English cases I have mentioned, reliance is placed uponSection 44 of the Indian Evidence Act. To this the Appellant replies that wemust look at the law as it is in India and not as it is in England; thatSection 44 codifies the law and is exhaustive upon this particular point; andthat, inasmuch as the decree in this case, though relied upon, was not provedby Nundo Lal, Section 44 can have no application. It is not very clear upon theevidence whether the Alipore decree was proved by anybody in the suit in theCourt below : it seems to have been treated as admitted by both parties. Itwas,, however, not the Plaintiff, but the Defendant Nundo Lal, who relied uponthat decree as a bar to the suit. In the view I have previously expressed thatthe Court had jurisdiction to ; entertain the suit, it becomes unnecessary todecide this point, though, under the circumstances of this case, I should notbe disposed to hold that the Plaintiff was unable in this suit to show that theAlipore decree was obtained by fraud. I should be disposed rather to think uponthe facts of this case that the Court might regard both the suit and the decreein the Alipore Court as a nullity.

15. In this connection I desire to say, to prevent futuremisapprehension, that some observations of mine in the case of Rajib Panda v.Lakhan Sendh Mahapatra I.L.R. (1899) Cal. 11, 16-I am alluding to what I saidat the top of page 16 as to the English practice-may be regarded as going toofar, bearing in mind the English cases, to which I have already referred. Theobservations were unnecessary for the decision of that particular case.

16. The next objection is that, so far as regards the reliefsought in respect of the two leases of the 1st of March 1891, it was a suit forland and therefore ought to have been brought not in this Court, but in theCourt which exercised jurisdiction within the local limits, where the land wassituated. The answer to this contention seems to me to be twofold. First, thisis not a suit for land. It is a suit for administration and as incidental tothat suit for a declaration that certain leases which the executors of theestate granted to themselves cannot stand as against the Plaintiff, thebeneficiary. The testators estate consisted of lands in Calcutta, Gaya, Patnaand other places; secondly,, the defect, if defect there were, has been curedby the leave given by the Court, for it has been held in the case ofPrasannamayi Dasi v. Kadambini Dasi (1868) 3 B.L.R. (O.C.) 85, which wasdecided many years ago and which has since been consistently followed, that ifthe leave of the Court be given in cases in which part of the land is withinand part is without the local limits of the High Court, the defect is cured.

17. And I may here perhaps conveniently deal with thefurther objection that the suit is not maintainable, having regard to Section44 of the Code of Civil Procedure. I think it is sufficient upon this head tosay that it is not a suit for the recovery of immoveable property or to obtaina declaration of title to immoveable property and even if it were, the leave ofthe Court was obtained to the bringing of the suit.

18. The last point is one of limitation. The Plaintiff saysthe case falls within Section 10 of the Limitation Act : the Defendant NundoLal denies this. I think it does. The property was vested in the executors intrust for a specific purpose, that purpose being to pay the legacies, theallowances and the debts and to pay the residue of the income of the one-thirdshare of the testators estate to the Plaintiff for life. There can be no doubtthat the estate did vest in the executors and it is difficult to say that thepurpose for which it was so vested is not specific. Then it is said that theobject of this suit is not for the purpose of following in the hands of theexecutors such property. I think it is : it is clear that the purpose of thesuit was to follow the property, which came to the hands of the two executors,to make them account for it and to hand over to the Plaintiff as the result ofthat account what may be found due to her. The case of Saroda PershadChattapadhya v. Brojonath Bhuttacharjee I.L.R. (1880) Cal. 910 cited for theAppellant is for the foregoing reason distinguishable from cases like thepresent, as has been pointed out by Mr. Justice Wilson in Hurro Coomaree Dosseev. Tarini Churn Bysack I.L.R. (1882) Cal. 766. But, even if this were not so,so far as it is a suit which is based on the fraud of the Defendant Nundo Laland virtually the whole suit is based upon that ground, the Defendantsobjection is met by Article 95 of the Second Schedule of the Limitation Act,which says that the period of limitation for a suit based on the ground of thepresent suit is three years from the time, when the fraud was known to theparty wronged. Here it has been found by the Court below, a finding in which Iagree, that the fraud did not become known to the Plaintiff, until a short timebefore the institution of the suit.

19. I have now disposed of all the preliminary points. Butperhaps before I deal with the merits of the case, it may be convenient, if Ideal with two or three points which have been raised upon the construction ofthe will. The first question raised was whether the Court below was right insaying that there was an intestacy as to the testators moveable property. Itis practically conceded that the testator had no moveable property other thanthat which was joint. The Court below held that there was an intestacy, but Idoubt if the Court would have arrived at this conclusion if it had known, as isnow conceded by all the Counsel in the case, that the translation of the willat page 12 of the paper book is not accurate.

20. It ought to run in this way. After the words"whatever property there is" ought to come the words "all thatone-third is my own share. Two-thirds out of the said my own share, etc."I think that in the description of the property, the testator Was referring toall the properties, which were joint, immoveable and moveable. I think this isthe true interpretation of the words "Whatever property there is."Then he says "of all that property," that is to say, whatever propertythere is, "one-third is my own share." Two-thirds of that share,i.e., of his one-third share of whatever property there is, he gives to hisbrothers and the remaining third he deals with in the way I have mentioned.Upon the construction of the will, I think, he disposed and intended todispose, of his share in all the joint property, moveable and immoveable andthat he did not die intestate as to the joint moveable property. It has notbeen suggested that he had any moveable property other than what Was joint. Inthis respect then the decree of the Court below must be varied and it must bedeclared that the testators joint moveable property passed by his will.

21. The next point is whether the ultimate gift after thedeath of the Plaintiff is bad on the ground that at the death of the testatorit Would be impossible to predicate who might at the date of the death of thewidow be his heirs and consequently, that at the date of the testators deaththere Was no person, who, either in fact or in contemplation of law, Was inexistence so as to be able to take a gift inter vivos. I think the case isgoverned by the decision of the Tagore case (1872) 9 B.L.R. 377 and the view ofthe Court below on this point is well founded.

22. The next point is that the Court below Was wrong indirecting an enquiry as to what Was a fit and proper sum to be allowed asexpenses for the Pujahs, etc., the contention being that, inasmuch as thelanguage of the will was, "you are" to pay my share of the expenses,whatever that may be," no discretion was vested in the executors andwhatever his share was they were to pay it. It must be borne in mind that thetotal sum to be paid for these Debsheba expenses would in the main be decidedby Nundo Lal and Pashupati in conjunction, though the Mitra families apparentlyhad a say in the matter. But, if the Defendants contention be sound, theresult would be that the executors could expend every portion of thePlaintiffs interest in these expenses and practically leave her nothing. Thatwas pointed out in the case of Mullick v. Muttick (1829) 1 Knapp 245. Althoughthe language of the will in that case is not identical with the language of thewill in the present, the principle upon which the Privy Council proceeded inthat case appears to me to be applicable to the present. I do not think thetestator by the use of the expression "my share of the expenses, whateverthat may be," intended to give them--seeing that they were in a greatmeasure the parties, to decide what the expenses should be--such an absolutediscretion in the matter as might deprive the Plaintiff of any beneficialinterest in the estate.

23. The only other question upon the construction of thewill is as to the footing, upon which the account is to be taken. It is saidthat it ought to be taken as against Nundo Lal as the karta of the family, uponthe footing of a joint-family account. I do not take this view. I think thePlaintiff is entitled to have an account between herself and the Defendant uponthe footing of a beneficiary against the executors of the will.

24. I have now disposed of all the preliminary points andthe points upon the construction of the will and I now propose to deal with themerits of the case. But agreeing, as I entirely do, with the reasoning of theLower Court and the conclusion upon the evidence at which it has arrived, Ipropose to do so as briefly as I can.

25. At the death of her husband the Plaintiff was a child ofthirteen. She was living with her brothers-in-law, Nundo Lal and Pashupati andher mother-in-law as a member of a joint Hindoo family. Nundo Lal, as I havesaid, was the karta of the family and I have no doubt, was managing, itsproperty and affairs-The Plaintiff used to appear before Nundo Lal andnotwithstanding what he and his witnesses say, I have no hesitation in con]eluding that at that time she knew nothing about the will of her husband orwhat her rights and interests were under that document. She was a purdanashinchild and in the position in which she was then situated, I entertain no doubtthat she was entirely under the influence of Nundo Lal, the senior member ofthe family and entirely incompetent to understand the documents or the effectof the documents, which she was signing, or to which, it is said, she gave herassent.

26. It is unnecessary to refer to the many cases in thePrivy Council and in this Court which illustrate the amount of specialprotection which the Court throws round Hindu ladies situate as was thePlaintiff. That was her position at the time of her husbands death. When thetrust deed of the 24th of May 1877 was executed, although some attempt was madeto show that she was aware of it, because there was some conversation in thefamily about it, one may point out that at that time she was only sixteen yearsof age; she had nothing whatever to do with the trust deed and she was not aparty to it; and if she had nothing whatever to do with it, it is not anunreasonable inference that nothing was said to her about it.

27. I have already pointed out what was the position of thePlaintiff at the time she signed the various documents, which are now assailed.I now propose to deal as briefly as I can with each document separately and theevidence upon the question of whether the Plaintiff, when she signed them, hadany independent advice, whether she understood the contents of the documents,whether they were ever explained to her and whether she was acting throughoutunder the influence and at the instance of Nundo Lal.

28. In the first place, it is difficult to see why she wasmade a party to the first salisinamah of the 27th July 1888.

29. She had nothing to do with the quarrels between NundoLal and Pashupati; she had nothing to do with the trust deed. Nando Lal nodoubt thought it advisable to make her a party and she was made a, party tothat salisinamah ostensibly with the view of obtaining her assent to thepartition which is referred to in that document. I have said generally that *Iaccept the and statement of the lady that she did not understand the purportand the effect of these documents; but that, relying upon the integrity ofNundo Lal and believing that he would adequately protect her interest, she ineffect did whatever she was told to do. I am disposed to regard her as a merepuppet in his hands, doing what he suggested an 1 signing all the documents hetold her to sign. And Upon this question of partition I may point out and Ithink the evidence establishes it, that, in order to avoid the expense of apartition deed and from motives of economy, Nundo Lal adopted the device of theso-called arbitration and consequent award and there can, I think, be verylittle real doubt but that the terms of the partition between the two brothershad been in substance and in effect agreed upon before the matter was referredto the arbitrators and the so-called reference to arbitration was merely adevice to save the stamp duty on a deed of partition.

30. Now, although the reference to arbitration is dated the27th July 1888, according to the letter of the arbitrators of the 8th of June1889, no meeting was held until the 7th of June 1889, nearly a year afterwards,when it was apparently discovered that the reference to arbitration of the 27thof July 1888 would not work, unless and until the trust deed of the 24th of May1877 was cancelled. With a view to that cancellation, a somewhat extraordinaryletter dated the 8th of June was sent to the Plaintiff, in which she was askedto send her views with regard to the proposed cancellation and a second agreementfor arbitration is suggested. To this the Plaintiff is induced to reply in theterms of the letter of the 10th of June 1889. What had she to do with thecancellation of the trust deed of 1877 It is conceded that it did not affectthe one-third share of her husbands estate, in which she was interested. Inthis letter she was made to say that "it deserved to be cancelled, as itwas made without her presence." Can any one doubt that both this letterand the reply were prompted by Nundo Lal and that the Plaintiffs reply wasframed by him and signed by the Plaintiff at his instance and under hisinfluence

31. Then the second agreement for reference is executed,dated the 12th of June 1889, It is unnecessary to deal in detail with the termsof the second reference. It is sufficient to say that under it, so far as herinterest under her husbands will went, the Plaintiff would appear to have leftherself unreservedly in the hands of the arbitrators. It was eminently adocument in respect of which the Plaintiff ought to have been separately andindependently advised. Upon the evidence I am satisfied she received no suchadvice and no such explanation as she was entitled to.

32. Then came the so-called arbitration proceedings. Theletter I have referred to from the Plaintiff was dated the 10th of June 1889and the arbitrators made their award on the 16th of July 1889. It is a veryelaborate document and by it, amongst other things, all arrears of rent (andthe arrears were substantial in amount) were, in effect, handed over to the twobrothers and the accounts as between the Plaintiff and the executors weretreated as settled and there were provisions made for the granting of themocurrari leases, which the Plaintiff now seeks to set aside.

33. It seems to me impossible, having regard to theshortness of the time occupied by the so-called arbitration, that thearbitrators could, as arbitrators, have gone into the complicated mattersreferred to them; for instance, the partition, the settling of the executorshipaccounts, which extended over many years and the terms upon which the mocurrarileases were to be granted. I conclude from the evidence that they were notpermitted to do so and I do not think they were ever intended to do so. It isreasonably clear upon the evidence that as regards the partition and as regardsthe executorship accounts, the whole matter was cut and dried by Nundo Lalbefore it was laid before the arbitrators and that the latter were merelypuppets in his hands to make just such an award as Nundo Lal himself required.The time occupied in the arbitration could not have permitted of their going,as independent arbitrators, into the elaborate question, to which I havereferred. I entirely agree with the criticism of the Court below upon the evidencerelating to this part of the case. The story told by the Plaintiff and theother ladies of this joint Hindu family coming and sitting behind a screen andof communications passing from the arbitrators to these ladies and from theladies to the arbitrators and the Plaintiff being asked to consent to thevarious matters to be dealt with by the proposed award, is, to my mind, onewhich it is impossible to credit. On the best consideration I can give to theevidence, I do not think that the Plaintiff can be said to have beenrepresented at the arbitration, or to have understood what was being done or tohave assented to what was being done.

34. And there is this further element in the case. Accordingto the evidence of some of Nundo Lals own witnesses, several of the terms ofthe award were made part of the award with the Plaintiffs consent. They say itwas a consent award. If so, the arbitrators did not act judicially in thematter, but merely recorded a consent award. I do not believe the evidence of NundoLal and his witnesses, who tell us that the Plaintiff, having regard to herposition in the family, could have understood, or did understand, or didactually give any consent, with any real knowledge of what she was consentingto, to this arbitration or to the award, which the arbitrators purported tomake of the three arbitrators, one is dead and Nundo Lal has not ventured tocall either of the two arbitrators, who are olive. They could have told uswhether the arbitration was a real arbitration or whether it was a mere sham,got up by Nundo Lal in order to meet any possible future claim by the Plaintiffin relation to the testators estate.

35. In my opinion the whole of these proceedings, commencingwith the reference to arbitration, the circumstances of the arbitration itselfand the award, were a mere sham and no arbitration in the true and proper senseof the term was ever held.

36. What happened afterwards Nundo Lal no doubt thoughtthat it would be a wise and prudent thing on his part, in order still furtherto bind the Plaintiff in regard to these matters, to have this award embodiedin a decree of some Court and for that purpose he goes to the Second Court ofAlipur--not, it will be observed, to this Court, although all these proceedingstook place in Calcutta and on the 22nd of July 1889 he applies to that Courtfor the confirmation of the award. But it was necessary to obtain the consentof the Plaintiff to this move on his part and accordingly on the 27th of August1889 the Plaintiff is made to present a petition consenting to a decree in theterms of the award and to execute a vakalutnama, appointing a gentleman to actas her vakil, who was a near relative of Nundo Lal Bose, for the purpose ofgiving her consent to such a decree.

37. This, again, to my mind was eminently a matter in whichshe ought to have been carefully and separately advised, but she had noindependent advice, legal or otherwise.

38. I do not believe that the Plaintiff understood what shewas doing when she signed these two documents and here, again, I entirelydisbelieve the evidence of the Defendant Nundo Lal and his witnesses, that sheunderstood what she was doing.

39. There is only one other matter to which I need refer : Iallude to the two permanent leases of the 1st of March 1891, to which thesignature of the Plaintiff was obtained. These are permanent leases of certainportions of the trust estate granted by the two executors to themselves.

40. It is difficult to see how these leases by the executorsto themselves can stand as against the Plaintiff. Nundo Lal and Pashupati, uponwhom the onus rests, have absolutely failed to substantiate that, when thePlaintiffs signature was obtained to these leases, she had any true conceptionof their nature or effect.

41. We should be going far, having regard to the evidence,if we were to hold that these leases, executed under these circumstances, couldbe binding upon the Plaintiff.

42. In my opinion, then, all these documents--thesalisinamahs, the petition of the Plaintiff to the Alipur Court, thevakalutnamah signed by her and the mocurrari leases, each and all of them aredocuments to which, when the Plaintiff put her signature, she was in ignoranceof their true effect and bearing and they were not in any adequate senseexplained to her. Nor do I think that she understood, or was a party to, theso-called arbitration and award.

43. Further, I regard this so-called arbitration and awardand the documents to which the Plaintiffs signature was obtained as part andparcel of a fraudulent scheme on the part of Nundo Lal, with, the object ofbinding the Plaintiff and preventing her afterwards from setting up withsuccess that she had not assent to the partition of the estate, to thesettlement of the accounts to the other matters dealt with by the award. I have(sic) from discussing in detail the evidence : it was read to us at length andcommented upon in great detail during the course of the argument and it hasbeen dealt with very minutely and with great care by Mr. Justice Stanley in hisjudgment and as I have said before, agreeing so fully both in his reasoning andthe conclusion, I think it would now be superfluous for me again to go throughthe evidence in detail. Upon the merits the conclusion of the Court below wasperfectly sound; and even if we could accept as true the evidence of Nundo Laland his witnesses, as to the knowledge and consent of the Plaintiff, which Icertainly do not, I do not think that in the case of a purdanashin lady,situated as the Plaintiff was, such evidence would have been sufficient todischarge the heavy burden which rests upon him in the matter and to satisfy usthat the transactions were binding upon her.

44. I may notice that, even according to his own statement,given in cross-examination, Nundo Lal is a gentleman, who would not shrink fromsigning a false document, if there were a particular reason for doing so. Ihave no doubt that the Plaintiff did not understand what the had done until, asshe says, she was separately advised after consulting her attorney in March1898.

45. I conclude this part of the case by quoting thefollowing passage from (sic) v. Paync (1873) L.R. 8 Ch. App. 881, 887:

It is true that when a case is based on fraud, the fraudmust be proved and no relief could be given in this suit on any differentground. But the obtaining of property, or of any benefit through the undue andunconscientious abuse of influence by a person, in whom trust and confidenceare placed, has always been treated as a fraud of the gravest character.

46. There are one or two minor questions as to costs withwhich I can deal very shortly. It is said that the costs of the application fora further examination of the Plaintiff on commission ought not to have beenmade costs in the suit. I think that was quite right.

47. Then it is said that Nundo Lal, who made an applicationfor the appointment of a receiver, which application failed, ought not to havebeen ordered to pay the costs of that application. I think that order wasright. It was his application, it failed, no reason has been shown, why heshould not pay the costs.

48. Then it is said that Pashupati ought to have beenordered to pay the costs of the suit jointly with the Appellant Nundo Lal. Hisposition was this. His action as an executor is open to grave censure, but hedid not resist the Plaintiffs present claim. The Court below was right in notmaking him pay the costs of the Plaintiff, but in making him pay his owncosts., I have now dealt with the many points which have been raised in thecase. In my opinion the judgment of the Court below was quite right save thatit must be varied by a declaration that the testator did not die intestate asto his joint moveable property and with that slight variation, which does notdeal with a very substantial matter, the appeal must be dismissed with costs.Such slight variation ought not to affect the costs of the appeal.

49. As regards appeal No. 29 of 1900, the appeal byKadumbini Dassi, it is only on the question of costs. It is said that she oughtto have had her costs either from the Plaintiff or out of the testatorsestate.

50. Now what has been her attitude in this litigation Sofar as the suit sought to set aside the trust deed of the 24th of May 1877,she, as surviving trustee of that deed, was a necessary party to the suit. Butshe has supported Nundo Lal Bose not only in her pleadings, but also by herevidence. Nundo Lal Bose has singularly failed in his defence and I do not seehow under such circumstances Kadumbini can properly ask for costs from thePlaintiff or out of the testators estate. The Court below was perhaps rathergenerous in not making her pay some costs. This appeal also must be dismissedwith costs.

Banerjee, J.

51. I am of the same opinion.

C.H. Hill, J.

52. I concur.

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Nistarini Dassi vs.Nundo Lal Bose (22.12.1902 - CALHC)