1. In this Testamentary suit the parties have agreed on certain terms, and, as frequently happens in testamentary suits, some of the terms are such as possibly do not fall strictly within the Testamentary jurisdiction. Some undoubtedly do; but it is possible that as regards some of the others they could more strictly be carried out in the exercise of the Original jurisdiction of this Court. The difference between these two jurisdictions corresponds very much to what would be the difference in England between the Probate jurisdiction awl the Chancery jurisdiction.
2. Quite recently in this Court in the case of In re Samuel Testamentary Suit No, 3 of 1920 (Unrep.), a similar point arose; but there the terms counsel agreed on were even more of what I may call a Chancery nature. In effect the parties there wanted certain directions given to the administrator as to how the estate should be dealt with and how it was to be divided between certain beneficiaries. When the order in that latter case came before the Registrar, he very properly drew my attention to the standing direction of Sir Lawrence Jenkins given on the 22nd August 1901. It is contained in a letter written by the then Registrar to the attorneys in a particular case; and it says as follows:-
With reference to your precise to draw up the consent decree in the above suit passed on the 14th instant, I beg to inform you that I cannot draw up the decree as specified in the terms save and except as mentioned in clauses 6 and 7 thereof. The Honourable the Chief Justice is of opinion that the Court exercising Testamentary and Intestate jurisdiction can deal with the questions of grant of Probate and Letters of Administration only and nothing more; and I have been directed to see that the consent decrees providing for more than that should not be drawn up.
3. Now, I think I have been taking testamentary matters now for a considerable time, I suppose some two years, and this particular direction was not previously brought to my attention, although of course from practice in England 1 was quite familiar with the distinction drawn between the jurisdiction of the Probate Court and the jurisdiction of the Chancery Court. The note I have made in dealing with this standing direction is as follows;-
The Testamentary Registrar is quite right in drawing attention to this direction of Sir Lawrence Jenkins, but it must not be pushed too far. The English Probate Court's jurisdiction is also confined to Probate and Administration and it has not even got the Indian jurisdiction given by Section 90 of the Probate and Administration Act. Yet it is a matter of common occurrence for Probate suits in England to be settled on terms that embody distribution or administration of the estate in a particular way and which are by no means confined to the more question whether Probate or Letters of Administration shall issue and if so to whom. If such terms are arrived at they must be all shown in the decree either expressly or by reference. Otherwise the decree is misleading. It may be that the English Probate Court cannot itself curry out all the terms, e.g., an application to the Chancery Division under the Settled Land Acts or in Lunacy may be necessary to effectuate the terms. But that does not prevent the terms being set out. In the present case I think I have jurisdiction to order the sale asked for in para 4 and to direct the payment to the Accountant General asked for by para 7. The issue was as to the person to be appointed administrator and these terms are really safeguards attached to her appointment. I was not compelled to appoint the widow (See Succession Act, Section 202 and Sections 225 and 224).
Paras 5, 6 and 7 are, however, more appropriate to an administration suit, and a decree could not be made here for administration simpliciter. That would be for the ordinary jurisdiction on the Original Side.
I think the best plan is to put the terms in a Schedule and For the body of the order to carry them out so far as we have jurisdiction. The doubtful paras 5 to 7 can rest on agreement and if necessary they can be enforced in a suit on the Original Side. The liberty to apply to the Probate Court is added as possibly it may be useful. I have accordingly settled the minutes on these lines.
4. Accordingly, in that case I settled the minutes as there stated and eventually passed a decree accordingly.
5. I propose to follow that direction in the present case. The consent terms will be embodied in a Schedule, and the body of the order will give directions so far as I properly can, sitting as a Judge of the Probate Court. I think those directions which I may properly give will be that the bonds when purchased in the name of the Accountant General are to beheld by the Accountant General subject to the direction given in the consent terms; and that he is to remit the interest as directed in para 3, and may vary the investment as directed in para 4. I think para 5 may be carried out by a formal admission in the body of the decree. As to para 6, I do not see any objection to giving directions as to what is to be done with these securities on the death of the defendant nor to the consent contained in para 7.
6. I accordingly direct the decree to be on the lines I have indicated.
7. The minutes to be shown to me, and I will certify the consent terms to be for the benefit of the minors.
8. I have stated all this because counsel agree with me in thinking that it is convenient for the members of the Bar practising in this Court, and also for the attorneys, to know definitely what I consider the practice of this Court ought to be on the points I have mentioned.