John Stanley, J.

1. A number of preliminary objections to the maintenance ofthis suit have been raised by the defendant Nundo Lall Bose. The first and mostserious of them is that this Court has no jurisdiction to set aside the decreeof the Alipore Court. The plaintiff in her statement of claim alleges that thejoint property of her late husband Mohendra Nath Bose, and of the first andsecond defendants, which was undivided joint family property, was partitionedby arbitrators under an agreement to which her consent was fraudulentlyobtained, and that by the fraud of the same defendants, a decree upon the awardwas subsequently passed by the Subordinate Judge of the 24-Pergunnahs. In herclaim, which is for the administration of the estate of the late Mohendra NathBose, the plaintiff seeks among other things a declaration that the award andthe decree made thereon are fraudulent and void, as against her, and in no waybinding upon her, and so far as they purport in any way to deal with theresiduary estate of Mohendra Nath Bose that the same may be set aside andcancelled. For the purpose of the objection the defendant Nundo Lall Boseadmits that the award and decree were fraudulently obtained, but his Counselcontends that, even admitting this, inasmuch as the plaintiff was a party tothe decree-proceedings in the Court at Alipore, she is estopped by that decree,and cannot in this Court set it aside; that whatever relief she may be entitledto in respect of the decree, proceedings must be taken in the Court whichpronounced the decree, and the relief which she claims cannot be granted inthis Court; and that a bill to set aside a decree for fraud is in the nature ofa bill of review, and must be filed in the Court in which the decree wasobtained.

2. A number of text books and authorities have been cited,and as is not unusual opinions and decisions somewhat conflicting are to befound as to whether or not an innocent party would be allowed to prove in oneCourt that a judgment against him in another Court was obtained by fraud. It isclear that a guilty party would not be permitted to defeat a judgment byshowing that in obtaining it he had practised an imposition on the Court; but canan innocent party, who may apply directly to the Court which pronounced thejudgment to vacate it, apply to another Court to set it aside The author ofTaylor on Evidence suggests a doubt as to this, p. 1133, 9th edition, as doesalso the author of Kerr on Frauds. In the case of Aushutosh Chandra v. TaraPrassanna Roy I.L.R (1884) 10 Cal., 612 [LQ/CalHC/1884/61] , the Court held that for the purpose ofsetting aside a decree passed in pursuance of a compromise come to out of Courtthere were two available modes of procedure-(1) by suit; (2) by a review of thejudgment sought to be set aside, the latter being the more regular mode ofprocedure. In that case Wilson, J., abstained from saying whether, if a suitwere brought, it ought to be brought in the Mofussil where the decree wasobtained, or on the Original Side of this Court. The principle upon whichjudgments are set aside for fraud is tersely and forcibly stated by Lord ChiefJustice De Grey in Meadows v. Kingston (1775) 2 Amb., 756, thus: "Fraud isan extrinsic collateral act which vitiates the most solemn proceedings ofCourts of Justice." In the Queen v. Saddlers Company (1863) 10 H.L.C, 404Wllles, J., says: "A judgment or decree obtained by fraud upon a Courtsbinds not such Court nor any other, and its nullity upon this ground, though ithas not been set aside or reversed, may be alleged in a collateralproceeding." In applying this rule it matters not whether the impeachedjudgment has been pronounced by an inferior tribunal or by the highest Court ofJudicature in the realm; in all cases alike it is competent for every Court,whether superior or inferior, to treat as a nullity any judgment which can beclearly shown to have been obtained by manifest fraud, Shedden v. Patrick(1854) 1 Macq. H.L.C607, Fabula, non judicium hoc est, in scena non in foro resaqituri In the case of Bandon v. Becher (1835) 3 C1. & Fin 479, where salesof estates had fraudulently taken place under decrees of the Court of Exchequerin Ireland obtained by collusion between the tenant-for-life, the mortgagor,the person in whose favour a charge had been created, and the purchaser, andwhere the interests of the tenant in remainder had not been protected, theCourt of Chancery in Ireland on the tenant in remainder coming into possessiongranted him relief on a bill filed to redeem. The House of Lords affirmed thatdecree, and held that though the Court of Chancery cannot review or correct adecree of the Court of Exchequer, yet where such decree has been obtainedcollusively and fraudulently a party whose interests are affected by it mayraise in the Court of Chancery either as actor or defender a question as to itsvalidity. In this case the remainder man was not a party to the collusiveproceeding; the tenant-for-life represented the estate of the mortgagor.

3. In the case of Flower v. Lloyd IL.R.(1877) 6 , Ch. D.,297, which is relied on by the defendant, where final judgment had beenpronounced by the Court of Appeal dismissing an action with costs, it was heldthat the plaintiff was not entitled by motion in that action to apply to theCourt of Appeal for leave for the rehearing of the appeal on the ground of thesubsequent discovery of facts showing or tending to show that the order of theCourt of Appeal was obtained by fraud practised on the Court below. Thatapplication was, however, refused on the ground that the Court of Appeal havingonce determined an appeal was functus officio and had no further jurisdictionin the matter. The Court, however, intimated that the plaintiffs had anotherproceeding open to them, namely, to bring an independent action to set asidethe decree for fraud. Such action was subsequently brought before ViceChancellor Bacon, who gave judgment for the plaintiffs. On appeal the Court ofAppeal was of opinion that fraud was not proved, and dismissed the action;Flower v. Lloyd IL.R(1878) 10 Ch. D., 327. On this appeal a doubt was expressedby James, L.J., as to whether or not an action was maintainable to impeach ajudgment on the ground alleged by the plaintiffs, namely, falsehood and fraudpractised upon an expert named by the plaintiffs and not objected to by thedefendants for the purpose of inspecting the defendants process for printingon metal plates.

4."Where" said he (James, L.J.) "islitigation to end if a judgment obtained in an action fought out adverselybetween two litigants sui juris and at arms length could be set aside by freshaction on the ground that perjury had been committed in the first action, orthat false answers had been given to interrogatories."

5. Baggallay, L.J., declined to express an opinion on thisquestion, and stated that he should much regret to feel himself "compelledto hold that the Court had no power to deprive the successful but fraudulentparty of the advantages to be derived from what he had so obtained byfraud." Brett, L.J., in a later case commenting on the doubts expressed byJames, L.J., in Flower v. Lloyd IL.R(1878) 10 Ch. D., 327, says: "It seemsto me the fraud alleged in that action was probably fraud on the part of certainservants of the party and not fraud brought home to the party himself; Abouloffv. Oppenheimer & Co.IL.R (1882) 10 Q.B.D.295 (307)." It is to beobserved in passing that in the case of Flower v. Lloyd IL.R(1878) 10 Ch. D.,327, the plaintiff and the defendant were at arms length fighting out a realsuit,

6. In the present case the fraud alleged is the fraud of thefirst defendant in procuring the plaintiffs consent to the agreement to referto arbitration and her consent to a decree upon the award, the true fact beingthat she was a mere puppet in the hands of the defendants and knew not what shewas doing; that in fact the defendants deceived the Court by their fraudulentconduct. I have been referred by Counsel for the first defendant to thestatement of Phipson in his useful book on Evidence, where he says: "Proofof fraud however can in general only be taken advantage of by a stranger to thejudgment who is in no way privy to the fraud, and not by a party, since if thelatter were innocent he might have applied to vitiate the judgment and ifguilty he cannot escape the consequence of his own wrong." This no doubt,as a general proposition, is true. The judgment of a Court of competentjurisdiction is in general undoubtedly conclusive proof in subsequent proceedingsbetween the same parties or their privies of the matter actually decided.Likewise foreign judgments in personam are, subject to certain-grounds ofimpeachment, conclusive between parties and privies, yet it has been held thata foreign judgment obtained by the fraud of a party to the suit in the foreignCourt cannot be enforced by him in an action brought in an English Court. Inthe case of Abouloff v. Oppenheimer & Co.IL.R (1882) 10 Q.B.D., 295 towhich I have referred, it was held that even although the question whether thefraud had been perpetrated was investigated in the foreign Court, and it wasthen decided that the fraud had not been committed, the judgment would not beenforced in England. In that case to an action claiming the value of goods andbrought upon a foreign judgment whereby the defendants were ordered to returnto the plaintiff the goods or to pay to her their value, the defence was thatthe judgment was obtained by the false representation to the foreign Court bythe plaintiff that the goods were not then in her possession and by fraudulentconcealment by the plaintiff from the Court that the goods then were in herpossession. Lord Coleridge, C.J., commenting on the argument, that upon thepleadings in that case it must be taken that the allegations of fraud werebrought before the foreign Court and that the foreign Court came to aconclusion against the defendants, and that whether this conclusion was rightor wrong on the matters of fact the question of the plaintiffs alleged fraudcould not be tried in the Courts of this country, says: "I may state thearguments for the plaintiff also in somewhat different words, namely, thatalthough the Russian Courts at Tiflis were led to decide against the defendantsthrough believing a false state of facts to exist owing to the fraud of theplaintiff, nevertheless the defendants are not now at liberty to say that thejudgments against them were procured by that fraud. Certainly this contentionseems unreasonable. Many authorities from Meadows v. Kingston (1775) 2 Amb.,756, down to our own time have been cited during the argument, but not one ofthem throws a doubt on the broad proposition that where a judgment has beenobtained by the fraud of a party to a suit in a foreign country, he cannot preventthe question of fraud from being litigated in the Courts of this country, whenhe seeks to enforce the judgment so obtained." Brett, L.J., in that casesays: "I cannot help thinking that the same doctrine which is now assertedwith regard to a foreign judgment would be applicable to an action brought on ajudgment obtained in an English Court other than the Court in which the actionis brought. There may be a difference where it is sought to enforce by theprocess of a Court, a judgment of that very Court, because if that judgment hasbeen obtained by improper means the objection does not arise in a new actionbrought on that judgment, but it arises with regard to the process of the Courtto enforce a judgment of its own. In a case of that kind it was perhapsformerly necessary to proceed in a Court of Equity in order to get rid of thejudgment, but I doubt whether it was necessary, because, at least in myopinion, a Court of Common Law would have in the exercise of its ownjurisdiction set aside a judgment procured from it by deception." Andagain: "With one exception none of the authorities cited before us in theleast militate against our decision; they all seem to show that the fraud of aparty to a suit is an extrinsic and collateral act which will vitiate thejudgment. That exception is to be found in the doubts expressed by James, L.J.,with the assent of Thesiger, L.J., in Flower v. Lloyd IL.R(1878) 10 Ch. D.,327. It seems to me that the fraud alleged in that action was probably fraud onthe part of certain servants of the party, and not fraud brought home to theparty himself. Moreover it was, as I understand, fraud committed, not beforethe Court itself at the trial of the action, but previously to the case beingbrought to a hearing before the Court. If it is to be taken that the doubts ofJames and Thesiger, L. JJ., related to a fraud of a party to the action,committed before the Court itself for the purpose of deceiving the Court, Icannot, after having heard the present argument, agree with the doubtsexpressed by them. These doubts are not binding, and no decision as to theeffect of fraud was pronounced by these Lords Justices in Flower v. LloydIL.E(1878)10 Ch. D., 327."

7. Again in the case of Vadala v. Lawes (1890) L.R., 25Q.B.D., 310, in which an action was brought by the plaintiff in the EnglishCourts upon a judgment obtained in the Court of Palermo, the Italian action wasbrought upon certain bills of exchange, and the defence raised in the Italianaction was that the bills were given in respect of gambling transactions by anagent of the defendant without his authority. It was held that the defendantmight raise the defence that the judgment was obtained by the fraud of theplaintiff, even though the fraud alleged was such that it could not be provedwithout retrying the question adjudicated upon by the foreign Court. Lindley,L.J., in the course of his judgment says: "But we now come to another anda more difficult question, and that is whether this defence can be gone into atall. There are two rules relating to these matters which have to be borne inmind, and the joint operation of which gives rise to the difficulty. First ofall there is the rule which is perfectly well established and well known that aparty to an action can impeach the judgment in it for fraud. Whether it is thejudgment of an English Court or of a foreign Court does not matter; usinggeneral language, that is a general proposition unconditional and undisputed.Another general proposition which, speaking in equally general language, isperfectly well settled, is that when you bring an action on a foreign judgmentyou cannot go into the merits which have been tried in the foreign Court. Butyou have to combine those two rules and apply them in the case where you cannotgo into the alleged fraud without going into the merits."

8. The case of Carew v. Johnston (1805) 2 Schedule and Lef.,280, is an instructive illustration of the power which a Court of concurrentjurisdiction will assume in a matter of this kind. In that case a decree forforeclosure on sequestration in 1777 against an absent mortgagor known by theplaintiff to be of weak and feeble understanding and incompetent to conduct hisaffairs, where advantage had been taken in the account of the estate of thedefendant and of his absence and of his having no one to manage his defence,and a sale had in 1780 in pursuance of such decree to the person under whosedirections the proceedings were taken, were set aside as fraudulent on anoriginal bill filed for that purpose by the heir of the mortgagor in 1785 LordRedesdale, in the course of his judgment says: "On the whole I think it isimpossible for me to hold the decree, which has been pronounced, conclusive onthe party. If I should be of opinion that the party has brought himselfcompletely within the saving of the Act I cannot pay any attention to thedecree, I must treat it as a nullity; but if I should think that he has notbrought himself precisely within the saving of the Act by the allegation in hisbill, then I must decide on the ground of unconscientious advantage being (bymeans of a Court of Justice) taken of the imbecility and of the absence of thisman, by which gross injustice has been done, and in fact a fraud practised onthe Court. That would not be a ground for relieving against trifling errors orlittle inaccuracies, but it will be a ground for relieving against palpableinjustice, such as could not have existed, if anybody had appeared for this manto state his rights, and the Court or the Master had entered intoconsiderations of the subject, and acted upon the instruments which were thefoundations of the proceedings."

9. The statement of Lindley, L.J., in Vadala v. Lawes I L.R(1890) 25 Q.B.D., 310, is consistent with the view of Vice-Chancellor Shadwellexpressed in the case of Price v. Dewhurst (1837) 8 Sim., 279, namely:"The Court by means of the injunction set aside the judgment of a foreignCourt, and the ground on which the Court proceeded was that the foreignjudgment had been obtained by fraud." "Now I take that to be quiteconsistent," says the Vice-Chancellor, "with the principles on whichthis Court acts; and it is of no consequence where the judgment is given if itappear to have been obtained by fraud; in every such case the Court willconsider it as a nullity." In Cole v. Langford (1898) 2 Q.B., 36, ajudgment which had been obtained by fraud was set aside in an action broughtfor that purpose. In Priestman v. Thomas IL.R.(1884) 9 P.D., 70, 210, which wasan action in the Probate Division, in which C. Thomas and E. Gunnell propoundedan earlier and H.W. Priestman propounded a later will, the action wascompromised and by consent a verdict and judgment were taken for establishingthe earlier will. Priestman discovered that the earlier will was a forgery, andin an action in the Chancery Division, to which Thomas and Gunnell wereparties, obtained the verdict of a jury to that effect, and judgment that thecompromise should be set aside on the ground that the compromise was obtainedby the fraud of Thomas and that the will was a forgery. In another action inthe Probate Division for revocation of the probate of the earlier will, it washeld affirming the decision of the President of the Probate Division thatThomas and Gunnell were estopped from denying the forgery.

10. In the case of Eshan Chunder Safooi v. Nundamoni DasseeI.L.R (1884) 10 Cal., 357 [LQ/CalHC/1884/17] , it was held that where a person acting for a minorhas fraudulently withdrawn the minors suit under Section 97 of Act VIII of1859 without obtaining leave to bring a fresh suit, and by such withdrawal anabsolute statutory prohibition is imposed on the minor from bringing a freshsuit, it was open to the minor to relieve himself from the consequences of thefraud in one of three ways: (1) by an application to the Court in the suit inwhich the withdrawal took place; (2) by a regular suit to set aside thejudgment founded upon the withdrawal; or (3) by bringing a fresh suit for thesame purpose and setting up the fraud as an answer to the statutory bar.

11. The latest English case on the subject is that of Wyattv. Palmer W.N. (20 May 1899) p. 74., where Lindley, L.J., says: "Theproposition that an action would not lie to set aside a judgment by default onthe ground that it had been obtained by fraud-could not be sustained. There wasno reason for saying that because, the Rules (that is the English Judicaturerules) provided a summary method of setting aside such a judgment, it was nolonger possible to have recourse to the older method of setting it aside byaction. This procedure did not interfere with the old jurisdiction of the Courtof Chancery, under which a decree or judgment might be impeached on the groundof fraud by filing a bill."

12. Nowhere, however, is there to be found a clearerexposition of the law on this subject than in the judgment of Lord Brougham inBandon v. Becher (1835) 3 Cl. & F., 479. "The first ground," sayshe, "of objection assigned appears to be one of form, but in fact it isone of substance, for it goes to the jurisdiction. It is said that the whole ofthese proceedings spring from a decree of the Court of Exchequer in Ireland,and that decree being pronounced by a Court of competent jurisdiction, uponparties legally before it, cannot now be questioned in another Court ofco-ordinate jurisdiction; but if brought into dispute at all, should be broughtinto dispute in the Court where it was originally pronounced. 1 agree generallyto the proposition, but I must add to it this one qualification, that you mayat all times in a Court of competent jurisdiction,--competent as to the subjectmatter of the suit itself--where you appear as an actor, object to a decreemade in another Court, upon which decree your adversary relies; and you may,either as actor or defender, object to the validity of that decree, provided itwas pronounced through fraud, contrivance or covin of any description, or notin a real suit; or if pronounced in a real and substantial suit, betweenparties who were really not in contest with each other. That it is undeniablytrue that the Court of Chancery has no right to review a decree of the Court ofExchequer; that nothing but a Court of Appeal can give redress if such decreeis erroneous, is clear, and indeed nothing can be more true than such aproposition; but it is equally true, that if the decree has been obtained byfraud it shall avail nothing for or against the parties affected by it, to theprosecution of a claim, or to the defence of a right. These two propositionsare undeniably true; they are recognised in practice; they are independent ofeach other, and they stand well together." And then he quotes the languageof Mr. Solicitor-General Wedderburn summing up all the authorities, viz.:"A sentence is a judicial determination of a cause agitated between realparties upon which a real interest has been settled; in order to make asentence there must be a real interest, a real argument, a real defence, a realdecision. Of all these requisites not one takes place in the case of a fraudulentand collusive suit; there is no Judge, but a person invested with the ensignsof a judicial office is misemployed in listening to a fictitious cause proposedto him; there is no party litigating, there is no party defendant, no realinterest brought into question."

13. I should refer to the case of Allen v. Macpherson (1841)5 Beav., 469; (1847) 1 H.L.C. 191, which has been strongly relied upon by thedefendants Counsel, That was the case of a will in which the EcclesiasticalCourt had exclusive jurisdiction. The Courts of Equity were bound to receive astestamentary a will in all its parts which had been proved in the properspiritual Court, though in certain cases they might affect with a trust aparticular legacy or residuary bequest which had been obtained by fraud. Alsowhere probate has been obtained by fraud on the next-of-kin, Equity interferesand either converts the wrong-doer into a trustee in respect of such probate orobliges him to consent to a revocation of the grant of probate in the Court inwhich it was obtained (Mitford s Pleas of the Crown, 257, 4th edition). InAllen v. McPherson (1841) 5 Beav., 469; (1847) 1 H.L.C., 191, the plaintiffunsuccessfully resisted the admission to probate of a codicil, which revoked abequest to him on the ground that the codicil had been obtained by fraud. Hethereupon filed a bill in Chancery to set aside the probate. A majority of theHouse of Lords held that this was in effect an attempt to review the decisionof a Court of Probate by the Court of Chancery, and that the proper coursewould have been to appeal to the Judicial Committee of the Privy Council. Ifthere had been an appeal to the Privy Council the Judicial Committee of thePrivy Council might have been put in conflict with the House of Lords, theyboth being Courts of the last resort.

14. Now, the fraud charged in this action being admitted forthe purposes of this preliminary objection, let us see how the facts allegedwhich constitute the fraud stand. The plaintiff is a purdanashin lady, wife ofthe deceased Mohendra Nath Bose and sister-in-law of the first and seconddefendants. She lived with the defendants and Nundo Lall Bose had and exercisedconsiderable influence over her. While she was living under his care andguardianship he both personally and through his son induced her to put her nameto documents, the purport and effect of which were not explained to her, andnone of which she understood. Nundo Lall Bose was a man who professed to lead astrictly religious life, and the plaintiff was under the belief that he wasincapable of doing anything to hurt her interest. She had entire confidence inhim, and relied upon his assurances that he would properly safeguard herrights, and that the documents and papers did not in any way injuriously affecther interests. Her signature to the agreement to refer to arbitration and tothe petition upon which the decree was granted was thus obtained, and she hadno independent advice or assistance. The matters dealt with in the award wereof an involved and intricate nature and required a knowledge of thecircumstances of a large family estate.

15. In consequence of their helpless and dependent positionthe Courts of this country have found it necessary to extend special protectionto purdanashin women. In the case of Kanai Lal Jowari v. Kamini Debi (1867)B.L.R., O.C. 31 note, Mr. Justice Phear says at p. 32: "I may remark thatI have more than once felt myself obliged to hold that a Hindu purda-womana isentitled to receive in this Court that protection which the Court of Chanceryin England always extends to the weak, ignorant, and infirm, and to those who,for any other reason, are specially likely to be imposed upon by the exertionof undue influence over them. The undue influence is presumed to have beenexerted unless the contrary be shown. It is, therefore, in all dealings withthose persons who are so situated, always incumbent on the person who isinterested in upholding the transactions to show that its terms are fair andequitable. The most usual mode of discharging this onus is to show that thelady had good independent advice in the matter, and acted therein altogether atarms length from the other contracting party."

16. The position of the plaintiff, if her case be true--andI must assume for the purposes of this argument that her case is true--is muchthe same as that of the party of weak intellect referred to in the case ofCarew v. Johnston (1805) 2 Schedule and Lef., 280, whose helplessness was takenadvantage of by the mortgagee and his estate foreclosed. No intelligent consentwas given by her to the institution or carrying out of the award or to itsembodiment in the decree of the Alipore Court.

17. If the plaintiffs case be true, I am of opinion that adecree so obtained cannot stand, and that this Court has jurisdiction if not toset it aside at least to treat it as a nullity and render its effect nugatory.

18. There is another aspect of the question. Can it be saidthat there was, so far as the plaintiff is concerned, any real suit between herand the defendants The matters in difference were between Nundo Lall Bose andPasupathi Nath Bose. This is so recited in the agreement to refer toarbitration. The plaintiff took no active part in the arbitration proceedings.She was not represented at them by any adviser. She lent her name to theproceedings by signing documents at the instance of the defendant Nundo LallBose, and without understanding their import. Was this a real proceedingbetween her and the defendants, or was it a sham An interesting case having abearing on this question is the case of Girdlestone v. Brighton Aquarium Co.IL.R.(1878) 3ch. D., 137. In that case the defendants kept open the BrightonAquarium on a Sunday, and so incurred a penalty under the Statute, 21 Geo. 3,chap. 49. One Rolfe, at the request of the defendants, their object being toprotect themselves from all actions in respect of penalties, brought an actionagainst the Company, at the same time verbally agreeing that the defendantCompany should be at liberty to make any use they pleased of the action, andthat he would not issue execution or claim penalties. Judgment was obtained inRolfes action. In a subsequent action by Girdlestone against the Company forpenalties, the Company pleaded in bar the previous judgment, and the plaintiffreplied that the judgment was obtained by fraud and collusion. It was held thatthe first judgment was obtained by covin and collusion, and that such afictitious judgment is no judgment at all to affect the rights of thirdparties. In the Court of appeal [Girdlestone v. Brighton Aquarium Co. (1879)L.R., 4 ch, D., 107, it was held that the judgment recovered was no bar to anaction for the same offence by a different plaintiff, by Thesiger, L.J., on theground that it was procured by covin and collusion, by Brett, L.J., on theground that the judgment had been recovered in an action in which thedefendants were in truth both plaintiffs and defendants, and by Cotton, L.J.,on both grounds.

19. In the course of his judgment Brett, L.J., says:"The defect in the judgment which was obtained seems to me to have arisenfrom the over-caution of the defendants solicitor. If he had asked the personRolfe to bring the action, and if Rolfe had instructed a solicitor to bring theaction, and he had brought it, although he had bound himself, as it is said, inhonor not to insist upon the payment of the penalty, in the absence of afinding of any fraud by the jury, I should have thought that judgment wasvalid, and that it could not have been set aside under a plea of covin andcollusion, because the plea of covin and collusion is not proved in its legaleffect, unless the jury find there was something wrong in the mind of theparties who had agreed to the judgment. I should think the jury would have tofind that there was something wrong in the minds of both the parties. Thedefendants solicitor asked Rolfe to allow him, the defendants solicitor, tobring an action against the defendants using Rolfes name, and the supposed plaintiffdid not exercise any judgment upon the action. He exercised no control. He didnot instruct anybody, he did not become liable to anybody for what was done; hedid not know of the course of the action, he did not, in fact, so far as I see,know whether the action was brought or not. The only thing that happened wasthat he was asked whether he would lend the defendants solicitor his name inorder that the defendants solicitor might bring an action against thedefendants. It shows to my mind that Rolfe never was a plaintiff, and that theonly plaintiff in that suit was the defendants Company. Therefore thedefendants Company were the plaintiffs in that suit, and they were also thedefendants; therefore the judgment recovered in form was no judgment--nojudgment which can be said to have been recovered by a third party."

20. It appears to me that there is some analogy between thatand the present case, The plaintiff was in truth no party to the proceedings.So far as she was concerned there was no matter of difference; there was"no real argument, no real prosecution, no real defence, no real decision.Fabula non judicium hocest, in scena non inforo, res agitur." I am ofopinion, for the foregoing reasons, that the defendants contention is whollyunsustainable.

21. I now come to the other preliminary objections whichhave been raised.

22. It is objected that no leave under Section 12 of theCharter can be obtained to set aside leases of property situate outside thejurisdiction of this Court, the suit being one for land outside thejurisdiction. This has reference to the allegation in the plaint that thedefendants Nundo Lall Bose and Pasupathi Nath Bose made leases to themselves ofportion of the estate of Mohendra Nath Bose, and to the claim that these leaseswere irregular, and as against the estate of Mohendra Nath Bose should be setaside. Mr. Hill contends that the relief so sought converts this suit into onepartly for Immovable property, or at any rate for a declaration of title toImmovable property outside the jurisdiction. This is not so in my opinion. Thesuit is one for the administration of the real and personal estate of MohendraNath Bose, a portion of whose Immovable property is without the jurisdiction,while other portions are within the jurisdiction of this Court. The suit ismerely to have this property administered under the direction of the Court, andfor this purpose, if it be found that the trustees or executors have beenguilty of misappropriation of assets or mal-administration of the estate, tocompel them personally to make amends. This does not turn the suit into one forthe recovery of Immovable property. If the trustees had assigned some of theproperties to a stranger, and recovery of the property from such stranger had beensought in the action, a question of jurisdiction might arise; but here it isthe executors, in whom the property was vested by the will of the deceased, whoare alone sought to be made responsible for an alleged act ofmal-administration, namely, the granting of leases of part of the trust estateto themselves. Counsel for Nundo Lall Bose points out that the plaintiff was aparty to the leases, and that this alters the complexion of the matter. It istrue that she was a party to the leases, but she says that her concurrence wasobtained by fraud of the defendants, and, if this be so, the defendants cannotrely upon her concurrence. The Court assumes jurisdiction in regard toImmovable properties situate outside the jurisdiction in cases where it can actin personam, either to compel the owner to give effect to legal obligationsinto which he has entered or to a trust reposed in him. All that is sought hereis that the Court in administering this estate shall act in personam and compelthe trustees and executors to fulfil their obligations. This objection,therefore, in my opinion is unsustainable.

23. The next objection is that the plaintiffs claim to setaside the trust deed of 1877 is bad on the ground of non-joinder of the partiesbeneficially entitled under the deed. The surviving trustee is a party to theaction, as are also two beneficiaries, namely, the defendants. This deedpurports to deal with the estate of Mohendra Nath Bose, but is very obscure inits language. It may be necessary for the Court to determine whether or not theestate is affected by it, and possibly it may be necessary hereafter to directan independent action to be brought to have it set aside. I fail to see,however, that there is any substance in the objection as to non-joinder nowraised.

24. The next question is that leave under Section 44 of theCode has not been obtained to join the several causes of action. Such leave, inmy opinion, is entirely unnecessary. There are not several causes of action;the suit is one to administer the assets of a deceased person, and the factthat in the claim acts of mal-administration are complained of, and sought tobe redressed, does not render it multifarious.

25. In the case of Pointon v. Pointon (1871) L.R., 12 Eq.,547, where three out of four testators children, residuary legatees (thefourth being out of the jurisdiction) filed a bill against their mother, thetenant-for-life, and their uncle (who had carried on business in partnershipwith their father) and who were executrix and executrix and trustees of thewill, alleging that the uncle had possessed himself of and employed the estateof the testator and had occasioned great loss to it; that he had mismanaged thepartnership business; that he intended to get in and to apply the outstandingdebts to his own use; and that he had bought at a valuation a portion of theestate, but had not paid the purchase-money; and praying for accounts of theestate of the testator, and of what the uncle had or but for his wilful defaultand neglect might have received; and that he might be charged with what was nowdue from him in all respects, and with all losses occasioned by hismismanagement, and for a receiver and for an injunction, a demurrer by theuncle for multifariousness and for want of parties was overruled.

26. The frame of that suit is not unlike that of the presentsuit.

27. In the course of his judgment the Vice-Chancellor says:"Next, as to the question of multifariousness, I think that there is nomore in the objection on that ground than there is in that for want of parties.There are three analogous vices to which bills in equity aresubject--misjoinder of plaintiffs, misjoinder of defendants, andmultifariousness or misjoinder of subjects of suit. It is the last which isimputed to this bill. Multifariousness, properly so called, exists when one ofthe defendants is not interested in the whole of the relief sought, as the oldform of the demurrer for multifariousness shows. Misjoinder of subjects of suitis where two subjects distinct in their nature are united in one bill, and forconvenience sake the Court requires them to be put in two separate records. Thecase of Salvidge v. Hyde (1821) Jacob, 151; 5 Mad., 138, in which the bill wasfor the administration of a testators estate, and to set aside a sale made ofpart of it by the executor, was an instance of this. There the Court refused toallow the two subjects to be united, although the plaintiff was interested ineach, and the defendants were liable in respect of each. In the present casethe misjoinder is of this nature; the suit is first an ordinary suit againstthe devisees in trust and executors for the administration of the real andpersonal estates of the testator; and, secondly, the plaintiffs claim to havethe partnership accounts taken as between the testators; estate and thedefendant William Pointon the testators partner and one of the executors andtrustees; and then the suit is further complicated in this way: It is allegedthat William Pointon has sold to himself or taken possession of the partnershipassets at a valuation under a power in the will, and that he has not paid forthem. It is suggested that not only is the price of such assets in his hands,but that he having sold to himself without payment, what was purported to besold remains assets of the testator till the price is paid. If a trustee, whois entitled to take property at a valuation has a valuation made, but does notpay the money, nothing passes; until the money has been paid he has no interestin the property. It is not necessary to consider whether the plaintiffs are orare not entitled to all the relief which they ask; but the question is whetherthe various subjects as to which relief is sought are such as if fit fordiscussion can be properly dealt with in one suit. This is, of course, a matterof discretion. The Court will not allow distinct subjects to be mixed up in onesuit when it would be inconvenient to the Court or unfair to some one or moreof the parties to it; but not one of these considerations or of those mentionedin the case of Campbell v. Mackay (1837) 1 My and Cr., 603, applies to thepresent case."

28. Again in Coates v. Legard (1874) L.R., 19 Eq., 56, thesame principle is laid down.

29. I have now dealt with all the preliminary objections.,As to the costs of the arguments it seems to me that it would be wrong to makethe estate bear these costs, and I, therefore, order the first defendant to paythe plaintiff the costs of this argument and to abide his own costs. The costsof the second defendant I reserve.

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Nistarini Dassi vs. Nundo Lall Bose and Ors. (14.06.1899 -CALHC)