Smt. Hemangini Devi vs Anil Krishna Banerjee and Another

Manohar Lall, J.—This is an appeal by the defendant against the judgment and decree of the learned Subordinate Judge of Patna dated 26th November 1934, by which he decreed the plaintiff''s suit which, was instituted to recover certain arrears of annuity under the provisions of a will executed by one Kedarnath Banerji on 3rd March 1914, by which the plaintiff''s father was given an annuity of Rs. 300 per annunm descendible in the male line generation after generation.

The case of the plaintiff is that on the death of the testator on 25th July 1914 the probate of his will was granted on 6th February 1915 to one Haridas Banerji who was another annuitant and executor named in the will, that the father of the plaintiff received only one instalment of his annuity in or about the year 1916 but subsequently the annuity was altogether stopped. The appellant Hemangini Devi disputed the genuineness of this will and applied for the revocation of the probata thereof but the matter was ultimately decided by the High Court in this manner that the lady was added as a co-executrix on 16th March 1920. The plaintiff''s father died on 3rd May 1921, and the annuity having been in arrears for a considerable period the plaintiff has instituted this suit for realization of the annuity from 24th. July 1915 up to 24th July 1933, the date of the action; there is also a claim for interest on the arrears at 6 per cent, the total claim being fixed at Rs. 5004. The substantial defence to the action was that the will did not create any charge for the payment of annuity to the plaintiff or to his father and that the defendant acquired a complete Hindu widow''s estate on the death of the husband and any restriction or limitation over the enjoyment of that right was invalid in law. It was denied that any annuity was ever paid to the father of the plaintiff but on the other hand it was asserted that Annada Charan Banerji waived, disclaimed and relinquish, ed all benefits arising out of the will and the plaintiff himself acquiesced in the same. Limitation was also pleaded as a bar to the claim of the plaintiff.

The learned Subordinate Judge has held that Annada Babu never gave up his right to the legacy under the will of Kedarnath Banerji and the plaintiff''s right is not barred by the principles of waiver, estoppel or acquiescence. He also held that Annada Babu received his legacy in 1916 and overruled the defence of limitation holding that the suit was governed by the provisions of Article 123, Limitation Act, and in the result granted a decree to the plaintiffs for such of the sums which were recoverable within 12 years of the date of the action; that is to say he gave a decree for 12 years'' annuity making a total of Rs. 3600 together with interest at 6 per cent, thereon and corresponding costs. He did not allow any future interest in this case and directed that the decretal amount should be realized from the income of the properties described in Schedule 2 of the plaint. Hence the appeal by the defendant before us.

It is argued by Mr. Mahabir Prasad that upon a true construction of the will it should be held that the appellant was declared by the will to be the full owner of the property during her life-time and that the annuities which were mentioned in the will were dependable upon the sweet will and the pleasure of the lady. He also argued that the right to realize any arrears of annuity was barred by reason of Article 123, Limitation Act, and not merely the right to receive the arrears beyond 12 years from the date of the action.

Upon a careful consideration of the terms of the will, it is clear to my mind that the annuity is payable under the express terms pf the will. Para. 6 makes the position quite explicit in these words:

That it is incumbent and obligatory upon my wife, Srimati Hemangint Debi...to carry out the stipulations contained in this will. Nobody shall have the right to resile from and evade the performance of the stipulations of this will.

I also do not agree with the argument of the appellant that the claim is barred by limitation. The express words of Article 123, Limitation Act, apply to this case and the plaintiff has a right to the payment of those arrears of annuity which were not paid within 12 years of the date of action. Mr. S.N. Bose for the respondent on the other hand argued that by the provisions of Section 10, Limitation Act, no claim for any arrears can ever be barred against the executor because the executor must be held to be an express trustee for the purpose of carrying out the provisions of the will and that it was not open to the appellant who admittedly was an executrix in possession of the estate to urge that any claim for any arrears was barred.

He relied upon the cases in Nistarini Dassi v. Nundo Lal Bose (1903) 30 Cal. 369, Benode Behari Bose v. Nistarini Dassi (1906) 33 Cal. 180 and S.K. Venkatasubramnia Ayyar v. S. Suvagurunatha Chettiar A.I.R.1938. Mad 60. Reliance is placed upon the decision in Nistarini Dassi v. Nundo Lal Bose (1903) 30 Cal. 369 which dealt with the question of limitation u/s 10 in these words:

The property was vested in the exeoutors in trust for a specific purpose, that purpose being to pay the legacies, the allowances and the debts, and to pay the residue of the income of the one-third share of the testator''s estate to the plaintiff for life. There can be no doubt that the estate did vest in the executors, and it is difficult to say that the purpose for which it was so vested is not specific. Then it is said that the object of this suit is not for the purpose of following in the hands of the executors such property. I think it is: it is clear that the purpose of the suit 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 of that account what may be found due to her. The case in Saroda Pershad Chattopadhaya v. Brojonath Bhuttacharjee (1880) 5 Cal. 910 cited for the appellant is for the foregoing reason distinguishable from cases like the present as has been pointed out by Wilson, J. in Hurro Coomaree Dossee v. Tarini Churn Bysack (1882) 8 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 Lal, and virtually the whole suit is based upon that ground, the defendant''s objection is met by Article 95 of Schedule 2, Limitation Act.

In my opinion this case is no authority for the proposition as contended for by Mr. Bose. It will be noticed that the suit was instituted by the plaintiff, a childless Hindu widow, against the executors of her lata husband''s will in which she sought to have certain documents, viz. a deed of trust, and award and a decree, declared fraudulent and void as against her, to have the will of her husband construed, for an account on the basis of wilful default, for the appointment of a receiver and other consequential reliefs.

The present suit is of an entirely different character. In my opinion the true rule is laid down in Saroda Pershad Chattopadhaya v. Brojonath Bhuttacharjee (1880) 5 Cal. 910 where the learned Judges held:

To claim the benefit of Section 10 a suit against a (trustee must be for the purpose of following the trust property in his hands. If the object of the suit is not to recover any property in specie, but to have an account of the defendant''s stewardship, which means an account of the moneys received and disbursed by the defendant on plaintiff''s behalf, and to be paid any balance which may be found due to him upon taking the account, it must be brought within six years (the period fixed by the Act of 1877) from the time when the plaintiff had first a right to demand it.

In other words Section 10, Limitation Act, has no application to cases of the character which are the subject of consideration by us. The next case relied upon is the case in Benode Behari Bose v. Nistarini Dassi (1906) 33 Cal. 180 which is a decision of their Lordships of the Judicial Committee affirming the decision of the Calcutta High Court, but the question of limitation was neither argued before nor decided by the Privy Council. In S.K. Venkatasubramania Ayyar and Others Vs. S. Sivagurunatha Chettiar and Others, the suit was instituted on behalf of the trustees to recover the properties which belonged to the trust but which were in the unlawful possession of the various defendants under alienations made by one Suri Ayyer and in deciding the question of limitation Stone, J. (with whom Mr. Ramesam agreed) distinctly held that upon the facts of that case

the executors were in all but name trustees. This is really enough to dispose of the matter, for it brings in Article 134. But assuming that I am wrong as to this.... I accordingly reject the conclusion arrived at in (v) and conclude that the alienation was void ab initio, the possession was adverse in 1898 and the suit is barred.

In my opinion this case again does not bear out the contention of the appellant. On the other hand it seems to recognize that executors as such are not express trustees. In truth the matter is no longer open to discussion after the decision of the Judicial Committee reported in Khaw Sim Tek v. Chuah Hooi Gnoh Neoh AIR 1922 PC 212 where Lord Buckmaster in delivering the judgment stated:

A specific purpose within the meaning of Section 10 must be a purpose that is either actually or specifically defined in the terms of the will or settlement, or a purpose which, from the specified terms can be certainly affirmed. The statement that was made on the authority in Balwant Rao v. Puran Mal (1884) 6 All. 1, that the purpose of following the property in the hands of the trustees referred to at the end of the Section must be the purpose of restoring it to the trust which is specified in the earlier part of the Section, provides a sound and critical test by which to consider whether or not any particular trust is within the provisions of the Section.

In AIR 1931 196 (Privy Council) Sir George Lowndes when delivering the judgment of the Privy Council pointed out that:

Indian law does not reoognize legal and equitable estates.... By that law therefore there can be but one "owner", and where the property is vested in a trustee, the "owner" must, their Lordships think, be the trustee. This is the view embodied in the Indian. Trusts Act, 1882.... It is dear that such a trust as is relied upon in the present case would not fall within Section 10, Limitation Act, as it would be impossible to hold that the properties which vested in the appellant under the terms of the wills which have been proved were so vested for the specific purpose of making them over to the respondent: see per Lord Buckmaster in Khaw Sim Tek v. Chuah Hooi Gnoh Neoh AIR 1922 PC 212

I therefore overrule the contention of Mr. Bose and hold that the provision of Section 10, Limitation Act, has no application to the facts of the present case. The suit therefore is rightly governed by the provisions of Article 123, Limitation Act. The plaintiff has sued for the recovery of the annuities which belonged to him in his own right on the death of his father on 3rd May 1921 and for the arrears of annuities which were due to his father up to the date of his death. The annuities in this case were payable to the father on 24th July each year starting from 24th July 1915 which was the anniversary of the death of the testator. The plaintiff''s right to receive the annuities accrued to him on 4th May 1921 in his own right and the first annuity would be payable to him on 4th May 1922 and therefore this claim is well within the period of limitation applicable to such a case. Begarding the annuities which remained unpaid to Annada Babu on the date of his death, the plaintiff would be entitled to recover only such annuities as were not paid within 12 years of the date of the action. Now the only annuity which was payable to Annada Babu within this period would be the annuity which was running in 1921 and which was payable to him on 24th July 1921. I usefully call attention here to the express provision of Section 340(2), Succession Act, which provides that

if the annuitant dies in the interval between the times of payment, an apportioned share of the annuity shall be paid to his representative.

Therefore the annuity payable to Annada Babu must be apportioned up to 3rd May 1921 and this portion should be paid to the plaintiff as the representative of Annada Babu. The due date of payment of this portion would be 24th July 1921. The result is that no part of the claim of the plaintiff as decreed is barred by limitation. It was next argued that the learned Subordinate Judge should not have allowed interest at the rate of 6 per cent, because the plaintiff himself waited for all these years before he came to Court. But this is no ground for refusing interest as the; plaintiff has a statutory right to recover interest at the rate of 6 per cent, u/s 353, Succession Act, if his claim is within time. No mistake has been pointed out in calculation on this basis.

The respondent in dealing with the question of interest in the cross, objection pointed out that the Subordinate Court did not give any reason whatever for disallowing pendente lite and future interest and submitted that the same should have been allowed to him.

It is true that no reasons are assigned in the judgment but the learned Subordinate Judge has expressly stated that "I allow no future interest in this case". The question of interest pendente lite and future interest is entirely in the discretion of the Court, and although the Court has not given any reason whatsoever in the judgment, the circumstances in this case do not justify our interference with the discretion of the learned Subordinate Judge.

It appears that it is difficult to make full realizations from this estate, and the learned Subordinate Judge himself has directed the money to be realized from the income of the properties which are in the possession of the lady.

I therefore do not think that we would be justified in interfering with the discretion of the learned Subordinate Judge when we are going to direct that a receiver should be immediately placed in possession of the estate to pay over the various legacies as well as the arrears due to the plaintiff.

The result is that the appeal and the cross-objection must both be dismissed without costs.