1. This appeal, which has been preferred by some of thedefendants in the Court below, is directed against the preliminary decree in asuit for construction of the Will of one Raj Mohan Nag Chowdhury, foradministration of the estate left by him, for settlement of the accounts of theexecutor, for partition of such properties as may be left after payment of thedebts and for other incidental reliefs. The position of the parties will beclear from the annexed genealogy:

2. Raj Mohan died on the 5th July 1880. On the day previousto his death, he had made a testamentary disposition of his properties andappointed his second son Chandra Nath and his eldest grandson Upendra Nathsuccessive executors. Chandra Nath took out Probate of the Will of his fatherand administered the estate till his death, which took place on the 28th July1907. On the 18th May 1908, Upendra Nath obtained Probate and continued todischarge his duties as executor till his removal on the 20th April 1910. Onthe 30th August 1909, Bhupendra, Purendra and Khagendra, three of the sons ofChandra Nath, instituted the present suit for the purposes already specified.They joined as defendants their three brothers, their mother and also the othermembers of the family who were interested in the estate left by theirgrandfather as legatees or annuitants. The suit was based on allegations ofmismanagement which were repudiated by the executor. Various questions alsoarose in respect of the title to some of the properties claimed by theplaintiffs as part of the estate of the testator and alleged by some of thedefendants to be the exclusive property of the widow of Chandra Nath. TheSubordinate Judge after a protracted trial, made a preliminary decree, whichdirected the executor to render accounts for the period subsequent to the deathof Chandra Nath, that is, from the 29th July 1907 to the 20th April 1910. Thelatter date was fixed in view of the circumstance that from that date, by anorder of the Court, Upendra Nath ceased to be executor and was appointedReceiver in charge of the estate during the pendency of the litigation. Thepreliminary decree also decided the disputed question of title and gavedirections for the administration of the estate. Both parties were dissatisfiedwith this decree, three of the defendants, inclusive of the executor Receiverhaving preferred this appeal, while the plaintiffs-respondents have preferred across-appeal. After a careful scrutiny of the grounds selected by theappellants and the respondents for presentation to the Court, the followingpoints emerge for consideration. First, did the Panchannagram properties formpart of the estate of Raj Mohan or have they passed into the hands of Nishadinias beneficial owner; secondly did the Calcutta house form part of the estate ofRaj Mohan at the time of the sale on the 9th November 1908, when it admittedlypassed into the hands of a stranger; thirdly, did the gauti tenures, some ofwhich have been found by the Subordinate Judge to belong to Nishadini, thewidow of Chandra Nath, and the others to the estate of Raj Mohan, still formpart of that estate; fourthly are the debutter properties capable of partitionand is the executor liable to submit an account of their income; fifthly, isthe executor liable for the sale of the Calcutta house in execution of thedecree of the mortgagee; if so, what is the extent of Ms liability; sixthly,was there a real sale, by Sailendra Nath, of his interest in the estate of hisgrandfather to his mother Nishadini, on the 16th December 1896; seventhly, whatdirection, if any, should be given with regard to the provisions in theeleventh paragraph of the Will of Raj Mohan for the marriage expenses of hisgreat-grandsons and great-grand-daughters; eighthly, what direction should begiven for the costs of the suit in the Court below and of the appeal in thisCourt.

3. It is necessary to explain, before we deal with thesequestions in the order stated, that all the parties are now agreed that theexecutor should be called upon to render accounts, only from the 29th July 1907to the 20th April 1910. They have intimated to us that they abandon the claimfor accounts for the period of the executorship of Chandra Nath. The reason forthis attitude is obvious. As ruled by this Court in the case of Baroda PrasadBanerji v. Gajendra Nath 1 Ind. Cas. 289 [LQ/CalHC/1909/51] ; 9 C.L.J. 383; 13 C.W.H. 557 thesecond executor as such is not liable for the accounts of his predecessor orfor his wrongful acts, but it is incumbent upon him to call upon therepresentatives of his predecessor to render an account and respond in damagesfor devastavit, mismanagement or breach of duty whereby any property of thedeceased testator was diverted from a due course of administration.Consequently, it would be the duty of Upendra Nath to realise from himself aridhis five brothers whatever might be found due to the estate of theirgrandfather on an examination of the accounts of their father as executor. Suchan investigation is obviously not beneficial to the parties and although theyare by no means friendly to each other, they are united upon one point, namely,that the accounts of their father as executor should not be taken. A differentattitude, we may add, was adopted in the Court below and some of the sons ofChandra Nath sought to fasten a special liability upon the others on theallegation that they were the trusted advisers of their father during theperiod of his executorship, and shared his responsibility for dueadministration of the estate. This endeavour was not successful, and as we havesaid, in this Court all the parties by common consent have agreed that theaccounts are not to be investigated for the period antecedent to the 28th July1907 when Chandra Nath died.

4. The first ground raises the question of title to thelands known as Panchannagram properties. They originally formed part of theestate of Raj Mohan and are still included therein, if it is not establishedthat they have passed into the hands of a stranger. On the 25th June 1885,Chandra Nath, for an alleged consideration of Rs. 1,000, executed a conveyancein respect of these properties, which comprise 25 bighas of land and aresituated in the neighbourhood of Calcutta, in favour of one Srinath Bose whowas his intimate friend subsequently, on the 13th June 1895, the purchaserexecuted a conveyance in favour of Nishadini, the wife of Chandra Nath, for aconsideration of Rs. 500 only. The plaintiffs contend that these transactionswere fictitious and that the properties never ceased to form part of the estateof Raj Mohan. The Subordinate Judge has found that Srinath did not get himselfregistered in the Collectorate and did not take possession of the properties,though he continued to be the ostensible owner for a period of eight years.During this interval he never paid rent to the Collector, and although tenantsare said to have attorned to him, no documentary evidence has been produced inthat behalf. There is also no reliable evidence to prove that Nishadini wasever in possession of these properties. No account papers have been produced toshow that the profits of these properties were realized and spent by her.Against all this, it is urged by the appellants that the Court is bound to giveeffect to the ostensible title and should not base its decision on mere suspicion.But the obvious answer is that, except the recital in the conveyance, there isno trustworthy evidence that any consideration was paid by Srinath. Ifconsideration had been paid, the money would have been credited to the estate,and an entry to that effect would have found a place in the account bookspresumably kept by Chandra Nath. No account books, however, have been produced,nor is it alleged that Chandra Nath did not keep regular accounts of the estatewhereof he was the executor. The inference is that the account books have notbeen produced because they do not favour the contention of the appellants. Wefeel no doubt whatever that the Subordinate Judge is correct in his conclusionthat the conveyances by Chandra Nath in favour of Srinath and by Srinath infavour of Nishadini were both fictitious transactions.

5. The second ground raises the question of title to theCalcutta house. It is the common case of all the parties that the housebelonged to Raj Mohan, and on the 12th May 1874: was mortgaged by him to MaryRatter. After the death of Raj Mohan Mary Ratter sued to enforce her securityand obtained a decree on the 1st September 1884. The house was sold inexecution of this decree on the 20th June 1885 and was purchased for Rs. 8,700by one Shama Charan Ballabh, a friend of Raj Mohan. The family of Raj Mohan,notwithstanding this sale, continued in occupation of the house as they tookleases from the purchaser on the 5th August 1885 and 5th December 1886. On the30th April 1887, Shama Charan conveyed the house to Nishadini, the wife ofChandra Nath, for a consideration of Rs. 11,000. The question in controversy iswhether this transfer to Nishadini was for the benefit of the estate of RajMohan or whether by this transaction the house became her private propertyAccording to Nishadini she had Rs. 3,000 with her at the time of the purchaseof the house, and she borrowed Rs. 8,000 from her daughter to make up therequisite amount of purchase-money. There is no documentary evidence to supportthe alleged advance by her daughter, and the statements made by Upendra Nath onthis point Are, as the Subordinate Judge has pointed out, not self-consistent.It is quite improbable that Nishadini could borrow this money without Securityand without even a written instrument. We may also refer to the subsequentconduct of the parties which, as the Judicial Committee have said, affordsvaluable evidence as to whether the person in whose name the conveyance istaken is intended to be the beneficial owner or a mere name-lender [Ram Narainv. Muhammad Hadi 26 I.A. 38: 26 C. 227 (P.C.); 3 C.W.N. 113 Thakor v. GangaPrasad 15 I.A. 29; C A. 197 (P.C.); 5 Sar. P.C.J. 133 Dalip Singh v. NawadKunwar 35 I A. 104; 30. A. 258; 12 C.W.N. 609 (P.C.); 4 M.L.T. 141; 10 Bom.L.R. 600; 14 Bur. L.R. 151]. Thus there is the significant circumstance thatwhen the house was mortgaged to Harendra Lal Roy on the 20th September 1887,the document was executed not by Nishadini alone, but also by Chandra Nath andUpendra Nath This is consistent with the view that the house at the time wasdeemed to form part of the estate of Raj Mohan in the hands of Chandra Nath asexecutor. This mortgage also militates against the theory put forward byNishadini that she re-paid the advance from her daughter out of the sumreceived from the mortgagee. The mortgage-bond clearly shows that the securitywas given on account of advances made to Upendra Nath to enable him to carry ona banianship business. We have also the significant fact that when the propertywas subsequently mortgaged to Twidale to raise money to pay off Harendra LalRoy, the document was executed not by Nishadini alone but by Nishadni andChandra Nath. Here again the property was treated as if it still formed part ofthe estate of Raj Mohan. The same inference is deducible from the fact that onthe 27th February 1904, the property was mortgaged to Sib Charan Laha byNishadini and Chandra Nath (the ostensible owner and the executor to the estateof Raj Mohan) jointly to satisfy the dues of Twidale. It is consequently plainthat there is no trustworthy evidence to prove that the purchase-money for thehouse was paid by Nishadini from her own funds or from sums borrowed by her.This by itself is sufficient to justify the inference that the purchase in hername was not for her benefit, This conclusion does not rest on mere suspicionwhich, as their Lord-ships of the Judicial Committee have repeatedly held [Sreemanchunder Dey v. Gopaulchunder Chuckerbutty 11 M.I.A. 28; 7 W.R. 10(P.C.); 1 Suth. P.C.J. 651; 2 Sar. P.C.J. 275; 20 E.R. 11 Nawab Azimut Ali Khanv. Hurdwaree Mull 13 M.I.A. 395; 14 W.R. 4 (P.C. ); 5 B.L.R. 578; 2 Suth.P.C.J. 343; 2 Sar. P.C.J. 571; 20 E.R. 599 Faez Buksh v. Fukeer-ood-deenMahomed Ahassun Chowdry 14 M I.A. 234; 9 B.L.R. 456; 2 Suth P.C.J. 490; 2 Sar.P.C.J. 733; 20 E.R. 775 Uman Parshad v. Gandharp Singh 14 I.A. 27; 15 C. 20; 1Ind.Jur. 474; 5 Sar P.C.J. 71; Rafique and Jacksons P.C. No. 98, Suleiman KadrBahadur v. Nawab Mehndi Begum 25 C. 473 (P.C.); 23 I.A. 15; 2 C.W.N. 186 NirmalChunder Banerjee v. Mahomed Siddik 25 I.A. 225; 26 C. 11] cannot be made thefoundation for a judgment in cases of this description But the plaintiffs havebeen able to carry the matter further. They have established that on the 31stMarch 1886, Chandra Nath obtained the sanction of the District Judge with aview to raise a loan of Rs. 16,000 for the purpose of re-purchasing theCalcutta house. This purpose, indeed, was said to have been abandoned insubsequent applications to the District. Judge for his sanction to raise loans.But it has been suggested, not with out good grounds, that this was a mereblind, as subsequent events show. On the 29th March 1887, Chandra Nath enteredinto an agreement with Shama Charan Ballabh for the purchase of the Calcuttahouse. On that very day, he borrowed Rs. 20,000 by execution of two mortgagesin favour of Shama Sundaree and Dakshyani, two relatives of Shama CharanBallabh. This money was taken from the firm of Shaw and Company whereof ShamaCharan himself was a partner. It is proved that on the day following, that is,the 30th March 1887, Chandra Nath received from the firm Rs. 12,800; this issignificant when we remember that the price for the house had been fixedapproximately in the agreement at Rs. 12,451. Much stress has been laid onbehalf of Nishadini upon the circumstance that the serial numbers of thecurrency notes as entered in the conveyance are not identical with the serialnumbers of the currency notes received by Chandra Nath from Shaw and Company.But as has been pointed, out by the Subordinate Judge, the notes could easilybe changed so as to render difficult a future investigation into the truenature of the transaction. We have also the important circumstance that theallegations of necessity made in the applications of Chandra Nath to theDistrict Judge for sanction of the loan are demonstrably untrue in materialparticulars. One of the purposes mentioned was the satisfaction of a debt dueto Bharat Chandra Ray, who, it has been conclusively established, was at thetime not a creditor of the "estate We have, consequently, on the one handincontestable proof that Chandra Nath intended to re-purchase the house, thathe raised money ostensibly for other purposes which had no real existence, andthat no explanation is available as to the mode in which the sum borrowed wasactually applied. We have, on the other hand, the fact that Nishadini is notproved to have funds requisite for the purchase of the house nor was she everin possession of the property. When, therefore, we apply the two principaltests of benami, namely, source of the purchase money [Dhurm Das Pandey v.Shama Sondri Debiah 3 M I.A. 229; 6 W.R. 43 (P.C. ); 1 Suth. P.C.J. 147; 1 Sar.1. C.J. 271; 18 E.R. 484 Gopeekrist Gosain v. Gungupersaud Gasain 6 M.I.A. 53:4 W.R. 46 (P. C); 1 Sar. P.C.J. 493; 19 E.R. 20] and possession of the property[Imambandi Begam v. Kamleswari Pershad 13 I.A. 160; 14 C. 109; 10 Ind. Jur.468; 4 Sar. P.C.J. 732] we find that the inference may legitimately be drawnthat the house was purchased by Chandra Nath for the benefit of the estate inthe name of his wife Nishadini. We must also remember that there were strongmotives for a step of this description as Sir Arthur Wilson said in Dalip Singhv. Nawal Kunwar 35 I A. 104;30. A. 258; 12 C.W.N. 609 (P.C.); 4 M.L.T. 141; 10Bom. L.R. 600; 14 Bur. L.R. 151 reliance must be largely placed, not only uponthe surrounding circumstances and the position of the parties and theirrelations to one another, but also upon the motives which could govern theiractions and their subsequent conduct. Kalinath, the brother of Chandra Nath,had under the Will of his father a right of residence in this house, a rightwhich he subsequently sought to enforce by litigation. It is not improbablethat Chandra Nath would allow the house to be sold in execution of the decreeof Mary Ratter with a view to defeat the claim of his brother. It is also notimprobable that he would entertain a wish to purchase the ancestral familydwelling house, and if he accomplished his project, it would be obviouslydesirable to place the property in the name of his wife, not only to defeat theclaim of Kali Nath but also to save the property from the creditors to whom theestate was heavily indebted Against all this reliance has been placed uponstatements made on the 10th November 1905 by five of the sons of Chandra Nathin the plaint in a suit instituted by them against the executrix to the estateof Kali Nath Reference has also been made to the deposition of Purendra in thatsuit given on the 24th April 1907, to a letter from Bhupendra to Upendrawritten on the 27th November 1908, and to the terms of settlement dated the 5thDecember 1894 in the suit instituted by Kalinath against Chandra Nath for theestablishment of his right of residence. The last document is of no realassistance in the solution of the question raised before us, and does notjustify the inference that the house was the private property of Nishadini; onthe other hand, it tends the show that Kali Nath, though he admitted that thehouse belonged to Nishadini, practical released his right of residence toChandra Nath for a sum of Rs. 3,800 to be paid out of the estate of Raj Mohan.The other statements are admissions by parties to the present suit and mighthave been used to contradict their testimony in this case under Section 145 ofthe Indian Evidence Act. They were, however, not so used. The specificstatements were not put to the parties sought to be contradicted. Consequentlyas pointed out by the Judicial Committee in the case of Bal Gangadhar Tilak v.Shri Shriniwas Pandit 29 Ind. Cas. 639; 22 C.L.J. 1; 13 A.L.J. 670; 19 C.W.N.729; 17 Bom. L.E. 527; 29 M.L.J. 34; 18 M.L.T. 1; (1915) M.W.N. 484 2 L.W. 61139 B. 441 they cannot be used in evidence. Previous statements, unless used tocontradict or discount the evidence of a witness given in the suit cannot belegitimately used, and even then the particular matter or point must be placedbefore the witness as one for explanation in view of its discrepancy with theevidence tendered. Apart from this circumstance it is plain that no reliancecan be placed upon the previous statements mentioned. It is no seriousdisparagement to the parties to this litigation to state that they have notbeen particularly scrupulous in their dealings, and assertions appear to havebeen made from time to time just as the needs of the moment required. We feelno doubt, on the whole, that the Subordinate judge has Correctly held that thetransfer of the Calcutta house by Shama Charan Ballabh to Nishadini on the 29thApril 1887 was for the benefit of the estate of Raj Mohan and that theostensible transferee did not acquire any beneficial interest thereunder.

6. The third ground raises the question of title to the gautitenures which stand in the name of Nisbadini, either because they were createdby Chandra Nath in her favour or were acquired in her name. According to theplaintiffs, all these tenures are fictitious and have no real existence.According to Nishadini and such of her sons as have taken her side, the tenuresare real and are binding on the estate of Raj Mohan. The Subordinate Judge hasdecided partly in favour of the plaintiffs and partly in favour of thedefendants. His decision is consequently assailed by both sides. After somediscussion at the Bar, it was agreed that these gauti tenures should be deemedto hold good during the life-time of Nishadini and should terminate on herdeaths so that the lands will then revert unencumbered to the estate of RajMohan. This arrangement is, in our opinion, eminently satisfactory, and wesanction it; our approval is necessary, as one of the plaintiffs, Bhupendra,has died during the pendency of the litigation and has been succeeded by hisinfant son. The decree of the Subordinate Judge will be varied in this respectand a declaration as stated will be inserted therein by consent of parties. Onbehalf of Nishadini, an undertaking has been given that no encumbrances havebeen created by her or with her assent on these gauti tenures, nor have anypermanent under-tenures been created by her. A description of the gauti tenuresis appended to this judgment and will be annexed to the decree.1

7. The fourth ground raises the question of the nature ofthe parcels of land described as debutter properties (schedule ka Nos. 26 and27). The controversy between the parties is whether these lands constitutedebutter or shebatar. The determination of this question is immaterial for thepurposes of the present suit. Whatever the nature of the dedication, they areendowed properties and cannot consequently be partitioned. But if Upendra hasenjoyed their income, he must account therefor.

8. The fifth ground raises the question of the liability ofUpendra for sale of the Calcutta house. The Subordinate Judge has imposed aliability on Upendra on the ground that the sale was held in satisfaction of adebt originally incurred by Chandra Nath for the benefit of Upendra. This viewhas been attacked by the appellants and has not met with unqualified supportfrom the respondents. In this connection, four alternative points of view havebeen placed before us for acceptance by one or other of the contesting parties,and each of them requires careful examination.

9. In the first place, it has been contended that Upendra asexecutor should have saved the property from sale and that his failure to do soamounts to a grave dereliction of duty. In our opinion, this position has notbeen established. The suit was instituted by the mortgagee, Shib Charan Laha,against Chandra Nath who mortgaged the property to him. Upon the death ofChandra Nath during the pendency of the litigation the mortgagee brought on therecord all his six sons. The sons other than Upendra apparently took noobjection to this course. They did not contend that the mortgage had beenexecuted by Chandra Nath in his capacity as executor and that consequently hissuccessor in that office alone was liable to be placed on the record. Theresult was that a decree was obtained against the six sons, and in executionthereof the property was put up to sale. There is nothing to show that theprice obtained at the sale was inadequate, consequently it cannot be contendedthat the sale of the house and its conversion into money have been prejudicialto the estate, nor is there any evidence to show that, at the time, Upendra hadfunds of the estate in his hands which might have been applied to avert thesale. The estate which had come into his hands only a few months before, wasadmittedly in a condition of considerable embarrassment, and failure to raisemoney on interest with a view to save the property from sale was notnecessarily a dereliction of duty, unless it is proved that damage has actuallyresulted to the estate from the sale. Consequently Upendra cannot be heldliable merely on the ground that he did not prevent the sale of the house atthe instance of the mortgagee.

10. In the second place, the view has been put forward thatUpendra is liable as the sale was occasioned by a debt ultimately traceable toloans incurred by Chandra Nath for the benefit of Upendra himself. The positionis clearly unsustainable. The parties have agreed that accounts are not to betaken in respect of the period of executorship of Chandra Nath, the reason forthis attitude has already been explained. Now let us assume that the mortgagein favour of Shib Charan Laha was created to pay the mortgage of Twidale,which, in its turn, had been effected to satisfy the security given toHarendralal Rai in respect of money received by Chandra Nath for payment toUpendra Nath. It is plain that Chandra Nath may be liable to the estate of RajMohan for all sums raised by him in his capacity as executor and not appliedfor the benefit of the estate. Consequently, the present representatives ofChandra Nath, that is, his six sons, are responsible to the extent of theassets, if any, of their father in their hands, to indemnify the estate of RajMohan for losses sustained by unwarrantable acts of their father. This matter,in all its bearings, they have declined, by common consent, to submit forinvestigation by the Court. Five of the brothers cannot clearly be permitted tosingle out one transaction of Chandra Nath and to hold Upendra liable inrespect thereof. There is considerable force in the contention that if all theaccounts of the period of executorship of Chandra Nath were taken, it mighttranspire that he had made advances to his other sons in respect whereof eachof them on the same principle might be held responsible to the estate. We areof opinion that as the parties have agreed not to investigate the accounts ofthe period of executorship of Chandra Nath, they cannot impose a liability onUpendra Nath on the ground that the money raised by this particular transactionwas applied by the then executor for the benefit of one of his sons.

11. In the third place, the contention has been put forwardthat as the money raised by Chandra Nath from Harendralal Rai was Applied forthe benefit of Upendra, the transaction was in essence a loan to Upendra andthat inasmuch as Upendra subsequently succeeded Chandra Nath as executor, he isliable to recoup the estate to the extent of the benefit received by himtherefrom. In support of this view, reference has been made to the well-establishedprinciple that the effect of the appointment of a debtor to the office ofexecutor is that the debt due from the debtor executor is considered to havebeen paid to him by himself and that the executor is accountable for the amountof his debt as assets: Freakley v. Fox 9 B. & C. 130; 4 Man. & Ry. 18:7 L.J.K.B. (o.s.) 148; 109 E.R. 49; 32 R.R. 605; Ingle v. Richards 28 Bea. 366;6 Jur. (N.S.) 1178; 8 W.R. 697; 54 E.R. 406; 3 L.T. (n.s.) 116; 126 R.R. 170;Carey v. Goodinge (1790) 3 Bro. C.C. 110; 29 E.R. 439; Berry V. Usher 11 Ves.87; 32 E.R. 1021; Tomlin v. Tomlin (1841) 1 Hare 236; 66 E.R. 1019 andAdministrator-General of Bengal v. Kristo Kamini Dassee 31 C. 519; 8 C.W.N.500. This doctrine is of no assistance to the respondents. On this theory, themoney must be deemed to have been advanced by Chandra Nath to Upendra on orbefore the 20th September 1887, at any rate, not later than the 1st April 1888,if we accept the statement by Harendralal Rai in his plaint in mortgage suitdated the 27th January 1889. But Upendra did not succeed as executor till the28th July 1907. There are no materials on the record to show that as betweenUpendra and the estate of Raj Mohan, the debt was kept alive during all theseyears Prima facie, there was no enforceable claim against Upendra when hesucceeded to the office of executor, and consequently, the principle that adebtor executor is accountable for the amount of his debt as assets cannot beapplied. We are not unmindful that when an executor obtains probate, the grantoperates retrospectively from the date of the death of the testator. But thatprinciple is of no avail here, because there was an intermediate executor whocreated the debt, it is on his act that Upendra is sought to be made liable,and Upendra cannot by a fiction be deemed to have been an executor at a timewhen there was another executor lawfully in possession of the estate. Thedecision in Ingle v. Richards 28 Beav. 366; 6 Jur. (n.s.) 1178; 8 W.R. 697; 54E.R. 406; 3 L.T. (n.s.) 116; 126 R.R. 170 is consequently distinguishable anddoes not assist the respondents.

12. In the fourth place, it has been contended on behalf ofthe appellants that the true view of all the facts is that the money wasadvanced by Chandra Nath to Upendra Nath, not in his personal capacity but as amember of a joint Hindu family composed of himself and his sons. From thispoint of view, all the six sons of Chandra Nath would be responsible for there-payment of the loan to the estate of Raj Mohan. The Subordinate Judge hasheld that the money was paid by Chandra Nath to Upendra to enable him to carryon a baninanship business; from the surrounding circumstances, there is no roomfor reasonable doubt that the loan was to Upendra as a member of a joint Hindufamily, and that if he had been successful in his business, a share of theprofits could have been rightly claimed by his brothers. From this point ofview, Upendra would not be liable for the whole debt. After an anxiousconsideration of the possible aspects of the case, we are of opinion that thesums advanced to Upendra and secured by the mortgage of Harendralal Rai must bedeemed to have been advanced to him in his character as a member of a jointHindu family and that in this suit he cannot be held responsible for the wholeof that sum at the instance of his brothers. The question of the liability ofUpendra for the sale of the Calcutta house in execution of the mortgage decreeof Shib Charan Laha must consequently be decided in his favour. The surplussale-proceeds, however, shall be deemed part of the estate, as we have heldthat the house itself formed part of the estate of Raj Mohan, though it hadbeen transferred by Shama Charan Ballabh ostensibly to Nishadini.

13. The sixth ground raises the question of genuineness ofthe transfer made by Sailendra of his interest in the estate of his grandfatherto his mother Nishadini. The question was raised in the Court below by theplaintiffs, and they obtained an adjudication that the conveyance represented abenami transaction. In the present appeal that conclusion has been assailed byNishadini. But the plaintiffs have taken up the position that they are notinterested in the decision of this matter. Consequently the dispute reduces toa controversy between the two co-defendants, In this view the parties haveagreed, and in, our opinion, very properly, that the decision of theSubordinate Judge on this point should be set aside and that the matter shouldbe left open for determination in a subsequent suit but that in the meanwhilethe decree in this suit should be made on the assumption that the appellantrepresents the real estate of things. We, therefore, allow the appeal on thispoint, set aside the decree of the Subordinate Judge, and direct thatallotments be made on the footing that the conveyance of the 16th December 1896was intended to be a genuine and operative transaction. But liberty is reservedto Sailendra to institute a separate suit for declaration against his motherthat the transaction was benami and that he himself is beneficially interestedin the allotments made to her.

14. The seventh ground raises the question of the marriageexpenses of the great-grandsons and great-granddaughters of the testator. TheSubordinate Judge has held, on the authority of the decisions in Nafar ChandraKundu v. Ratnamala Debt 7 Ind. Cas. 921 [LQ/CalHC/1910/483] ; 13 C.L.J. 85; 15 C.W.N. 66 and DineshChandra Roy Chawdhury v. Biraj Kamani Dasi 11 Ind. Cas. 67 [LQ/CalHC/1911/244] ; 39 C. 87; 14 C.L.J.20; : 15 C.W.N. 945 that the directions given by the testatorin respect of this matter are valid in law. This view has been accepted by bothsides. Consequently the Subordinate Judge will give directions, so that sumsmay be set apart from the annual income from time to time to be applied to meetthe marriage expenses as occasion might arise. It has been suggested that themost satisfactory arrangement would be to set apart a portion of the patnirent, but we cannot give at this stage definite instructions on the subject.

15. The eighth ground raises the question of costs. TheSubordinate Judge has directed that costs already incurred be borne by theparties and that costs subsequent be borne by the estate. The respondentscontend that costs should be paid out of the estate and they rely upon thedecision in Fenton v. Wills 7 Ch. D. 33; 47 L.J. Ch. 191; 37 L.T. 373; 26 W.B.139. We are if opinion that no grounds have been established in favour of adeparture from the ordinary rule and that costs in the Court below as also thecosts of this Court must be paid out of the estate [in re Love, Hill v.Spurgeon 29 Ch. D. 348; 54 L.J. Ch. 816; 52 L.T. 398; 33 W.R. 449].

16. There is one other matter which requires a brief notice.The Subordinate Judge directed that Immovable properties of the estate shouldbe sold to satisfy the debts due therefrom. We have already held in ourjudgment, dated the 28th August 1914, that it would be more beneficial to theestate to grant permanent leases rather than to effect a sale of valuableproperties. This order has been carried out and a patni has been granted. Wedirected at the same time that the decree of the Subordinate Judge should bemodified so as to authorise the Receiver not merely to sell but also to disposeof by lease or ether mode of alienation a part of the estate as might be foundmost advantageous. The decree of the Subordinate Judge will consequently bemodified in this respect.

17. The result is that this appeal is allowed in part andthe decree of the Subordinate Judge modified in respect of the matters mentioned.A self-contained decree will be drawn up in this Court so as to avoid futuredispute.

1This is omitted from the judgement, as it is not materialfor the report.--Ed.

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Upendra Nath Nag Chowdhury and Ors. vs. Bhupendra Nath Nag Chowdhury andOrs. (27.07.1915 - CALHC)