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Wadilal Chunilal Vs. Murlidhar Girdharlal Shah - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberT. and I.J. Petition No. 417 of 1932
Judge
Reported in(1970)72BOMLR723
AppellantWadilal Chunilal
RespondentMurlidhar Girdharlal Shah
Excerpt:
.....succession act, 1925, in order to find out whether the same answer the description of 'a full and true inventory' and/or 'a true account', and it can exercise that power in a proper case.;morarji v. bai panbai (1926) 29 bom. l.r. 683 explained.;sarat sundari barmani v. uma prosad roy chowdhry (1904) i.l.r. 31 cal. 628, agreed with. nanjappa asari, in re [1958] 2 m.l.j. 230 and gulati v. reeves-brown [1939] a.i.r. lah. 403, referred to.;where the court has referred the inventory and account filed by the executor or administrator to the commissioner for taking accounts, no party other than the executor or administrator has a right to appear before the commissioner, even though he may he a party interested in the estate of the deceased. the proper procedure is that the commissioner should..........817 of the indian succession act, the only obligation cast upon an executor is to exhibit a true inventory containing a full and true estimate of all the property and an account of the estate. it is further submitted in the said paragraph that there is no obligation in law cast upon an executor under the said section to pass the said inventory and accounts before the commissioner for taking accounts and this court, in the exercise of its probate jurisdiction, has no power to order a reference to the commissioner for that purpose. reliance is placed in support of that proposition on the decision of a single judge of this court in the case of morarji v. bai panbai (1926) 29 bom. l.r. 683 in which that practice has received judicial recognition, and it is stated in para. 8 of the.....
Judgment:

Vimadalal, J.

1. This is a petition filed by the sole surviving executor of the will of one Girdharlal Nahalehand for review of the Order passed by me in Chambers on March 20,1969 whereby I had ordered that the inventory and accounts filed by the said executor and tendered in Court on that day be taken on file and had given further directions in the following terms:-

And I do further order that in the event of accounts being disputed the same be referred to the Commissioner of this Honourable Court for taking accounts and I do further order that the Commissioner do examine the same and certify to this Court whether the said Inventory and accounts represent a true, complete and just account of the administration of the estate of the abovenamed deceased.

2. In the proceedings that ensued before the Commissioner of Accounts, on August 12,1969, the applicant, who is a legatee under the Will of the deceased and at whose instance the said Order was made, brought in objections and surcharges to the inventory and accounts filed by the petitioner-executor and several meetings thereafter took place before the Commissioner. In para. 7 of the present petition, it is submitted that, under Section 817 of the Indian Succession Act, the only obligation cast upon an executor is to exhibit a true inventory containing a full and true estimate of all the property and an account of the estate. It is further submitted in the said paragraph that there is no obligation in law cast upon an executor under the said section to pass the said inventory and accounts before the Commissioner for taking accounts and this Court, in the exercise of its Probate jurisdiction, has no power to order a Reference to the Commissioner for that purpose. Reliance is placed in support of that proposition on the decision of a single Judge of this Court in the case of Morarji v. Bai Panbai (1926) 29 Bom. L.R. 683 in which that practice has received judicial recognition, and it is stated in para. 8 of the present petition for review that that practice not having been pointed out to me at the time when I made my said Order dated March 20, 1969, there has been a resultant error of law that goes to the jurisdiction of this Court. On those grounds, the petitioner has prayed that my said Order dated March 20, 1969, be reviewed, and the portion thereof which requires the inventory and accounts to be referred to the Commissioner for taking accounts, if accounts are disputed, be deleted. When the petition came up for admission before me, I had directed notice before admission to be given of the same to the original applicant. The original applicant has appeared through counsel in response to that notice, and it has been agreed between the parties that the hearing before me is to be regarded not merely as being for the purpose of admission, but is to be treated as the final hearing of the review petition. I may state that there has been a very full argument of this matter before me on both sides.

3. Two preliminary objections have been taken by Mr. Bhabha to the maintainability of the present review petition. The first of those objections is that this petition is barred under Article 124 of the Limitation Act, 1968, which requires that it should be filed within 30 days of the date of the order sought to be reviewed. It may be mentioned that the present petition having been filed on December 12, 1969, over eight months after my Order dated March 20, 1969 which is sought to be reviewed is clearly out of time and the petitioner has, therefore, prayed for condonation of the delay in filing the same under Article 5 of the Limitation Act. The second preliminary objection of Mr. Bhabha is that no ground for review has been made out in the present petition, as the fact that an authority which is relevant on the point was not cited is no ground for review as held in Dilip Nath v. Certificate Officer : AIR1962Cal346 . I do not think it. necessary to decide either of the two preliminary objections raised by Mr. Bhabha to the maintainability of this review petition nor do I propose to consider the question as to whether, as far as his first objection is concerned, the delay in filing this review petition should be condoned under Section 5 of the Limitation Act, because what I propose to do is to exercise the inherent powers of the Court. I have an inherent right to clarify my own Order made in Chambers, once the matter comes to my notice and I take the view that, in the light of the legal position now pointed out to me, and in view of what has happened before the Commissioner, the said Order needs clarification. In the case of Yusuf v. Adullabhoy No. 1 (1929) 32 Bom. L.R. 665 Rangnekar J., sitting as a single Judge, has on an application for review held (at p. 666) that an interlocutory order made in Chambers can be reviewed by the Court and ought to be reviewed if the ends of justice require it, even though the application for such a purpose does not expressly fall within the terms of Order XLVII of the Code of Civil Procedure. He, therefore, treated the application for review before him as an application under the inherent jurisdiction of the Court and proceeded to dispose it of on merits. It is true that my Order dated March 20, 1969 is not exactly an interlocutory order, but it is an Order made in Chambers which is not in the nature of a final judgment, and following the decision of Rangnekar J. in Yusufs case, I treat the application for review in the present case as an application under the inherent jurisdiction of the Court and will proceed to deal with it on merits.

4. Before I do so, however, I would prefer to refer to the statutory provisions which have a bearing on the point which I am now considering . Section 817 of the Indian Succession Act lays down that an executor or administrator must, within six months from the grant by the court,. exhibit in that Court an inventory containing a full and true estimate of all the property in possession, ... and shall in like manner, within one year from the grant... exhibit an account of the estate, showing the assets which have come to his hands and the manner in which they have been applied or disposed of.

Sub-section (3) of that section proceeds to lay down that if an executor or administrator, on being required by the Court to exhibit an inventory or account under the said section, intentionally omits to comply with the requisition, he is deemed to have committed an offence under Section 176 of the Indian Penal Code; and Sub-section (4) enacts that the exhibition of an intentionally false inventory or account under that section is to be deemed to be an offence under Section 198 of that Code. Rule 663 of the Rules of this Court (on the Original Side), 1957, lays down, inter alia, that the executor's oath which is to accompany a petition for probate and is to be endorsed on the will, when possible, is to be in Form No. 92 prescribed under those Rules. Under the said Form No. 92 the executor's oath is that he would exhibit 'a full and true inventory' of the property and credits of the deceased, and also render 'a true account' of his administration to the Court. It may be mentioned that the executor's oath in the present case is actually in terms of the said Form No. 92 and the petitioner who is the sole executor now surviving is, therefore, bound to carry out the undertaking given by him in those terms.

5. I will now refer to certain other provisions of the Succession Act which are also relevant. Explanation (e) to Section 263, read with the substantive portion thereof, empowers the Court to revoke any grant of probate or letters of administration where the grantee has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the Act or has exhibited an inventory or account which is untrue in a material respect. Section 301 of the Act empowers the Court to suspend, remove or discharge any executor or administrator and provides for the succession of another person to that office and the vesting in any such successor of any property belonging to the estate of the deceased. Section 302 of the Act lays down that where probate or letters of administration has been granted under the Act the High Court may, on application made to it, give to the executor or administrator 'any general or special directions in regard to the estate or in regard to the administration thereof'. Section 321 provides for a certain priority for payment of the costs of any suit that may be necessary for administering the estate of a deceased. These are all the relevant provisions to which it is necessary to refer in this judgment.

6. Strong reliance was placed by Mr. Nariman on the decision of Mirza J. in Morarji v. Bai Panbai (1929) 32 Bom. L.R. 665 and, in fact, this petition is almost entirely based on the observations of the learned Judge in that case and his interpretation of Section 317 of the Succession Act therein. The facts of that case were that one Morarji was the executor of the will of his brother Amarsey and was also the residuary legatee under that will, and the applicant Bai Panbai was the widow of the deceased Amarsey. The will provided for payment of Rs. 100 per month to Panbai for her maintenance and for the use by her of certain ornaments of the value of Rs. 5,000 during her life-time. On December 20, 1920, Panbai executed an agreement by which she admitted that the particulars given in the schedule to the petition for the probate of the will of her husband Amarsey were correct, and that the monthly allowance of Rs. 100 given to her under the will of her deceased husband was adequate and proper, and she had no right to get more than what was given to her under that will. In consideration of that agreement, the petitioner agreed to pay to the applicant during her life-time a sum of Rs. 400 per month for maintenance, and to allow her the use of certain residential quarters and certain silver utensils, in addition to the ornaments. Morarji neglected to file accounts in compliance with the provisions of the Succession Act and on an application made by Panbai in that behalf, Mirza J. had ordered him by an Order dated December 11, 1925, to file accounts. In compliance with that order, Morarji filed accounts, but Panbai contended that those accounts were incomplete and incorrect in several respects, and claimed that the matter should be referred to the Commissioner before whom Morarji should be required to pass his inventory and accounts. Rejecting that application, Mirza J. referred to the English practice as well as to the practice of Courts in India under Section 317 of the Indian Succession Act, and laid down (at p. 685) that the practice of Courts in this country has been to require an inventory and accounts to be filed with the Testamentary Registrar, but the executor or administrator was not required to pass his inventory and accounts before the Commissioner for taking Accounts, and that the intention of the Legislature under Section 817 of the Indian Succession Act 'appears to be' that the inventory and accounts filed under that section should, as far as the proceedings on the Testamentary Side were concerned, be regarded as final. The learned Judge, however, proceeded to state that the protection afforded to parties interested in the will was that if the inventory and the accounts were intentionally false in any particular, the executor or administrator would make himself liable to punishment under the Indian Penal Code, and that the other remedy open to the party interested would be to file an action against the executor or administrator questioning the correctness of the accounts. The learned Judge then referred with approval to a decision of a Division Bench of the Calcutta High Court in the case of Sarat Sundari Barmani v. Uma Prosad Roy Chowdhry I.L.R.(1904) Cal. 628 in which it was laid down (at p. 636) that what the District Judge had to do was to see that the inventory and accounts 'prima facie' satisfied the requirements of the section, i.e., that the inventory appeared on inspection to be a full and true estimate of the property, and that the account appeared on inspection really to be a true one showing the assets and their disposal. It was further observed by the learned Judges in the Calcutta case that, to ascertain that, it would be necessary 'that the inventory and account should be passed under some examinations by the Judge's staff so as to detect manifest mistakes or omission,' and if any such were discovered, 'the papers would not satisfy the section' and the Court would have the power to require the executor or administrator to amend the account in order to comply with the section. In Sarat Svndari's case, the learned Judges held (at p. 639) that the English practice was 'hardly a guide' in India because the provisions of Indian law differed very materially from the law in England. After referring with approval to 1 he view taken by the Calcutta High Court in the said case, Mirza J. proceeded to dismiss the application before him. It is true that, as Mr. Bhabha has pointed out, the decision of Mirza J. in Morarji's case is based (at p. 686) on the fact that whatever rights the applicant had, as the legatee under that will, were merged in the agreement of December 20, 1923, but there can be no doubt that, disregarding the English practice and relying on the practice of this Court and the intention of the Legislature under Section 317 of the Indian Succession Act, Mirza J. held (at p. 685) that an executor or administrator ' is not required' to pass his inventory and account before the Commissioner for taking Accounts. I am, however, unable to read the judgment of Mirza J. in the said case as laying down that the Court has no power or jurisdiction to order the Commissioner for taking Accounts to examine the inventory and account with a view to finding out whether they are in conformity with Section 317, and with the undertaking given by the executor or administrator in terms of Form No. 92 of the rules of this Court, already referred to above. The very fact that Mirza J. has referred with tacit approval to the observations made in the judgment of the Calcutta High Court in Sarat Sundar vs case shows that his view was that the Court has the power to have the inventory and account brought in by the executor or administrator examined, either by the Court itself or by any of its officers. In my opinion, a proper reading of the decision of Mirza J. in Morarji's case shows that it only lays down the normal practice followed by this Court in accordance with what appeared to be the intention of the Legislature. The view contended for by Mr. Nariman that the Court has no power or jurisdiction to require the account to be examined by the Commissioner for taking Accounts, pushed to its logical conclusion, would lead to the absurd result that the Court must, in all solemnity, accept just any scrap of paper with any figures scribbled on it as being a discharge of the obligation undertaken by the executor in terms of his oath as well as of the statutory obligation laid upon him by Section 317 of the Indian Succession Act, and regard the same as final as far as the proceedings on the Testamentary Side are concerned. I am not prepared to take a view which would lead to such an absurd result. Unless the Court has the power to examine the inventory and account, it would be in no position to exercise its powers under Sub-section (3) or (4) of Section 317, or under Explanation (e) to Section 263, or under Section 301 of the Indian Succession Act, which have been referred to above. The view which I am taking is in consonance with the view taken by the Division Bench of the Calcutta High Court in Sarat Sundari's case already cited above, and I am in full agreement with the same. In the case of Nanjappa Asari, In re : (1958)2MLJ230 a single Judge of the Madras High Court, after referring to the threefold protection afforded to parties interested in the will as against an executor or administrator under Section 317(4), Section 263 Explanation (301 and 302 of the Indian Succession Act, a person interested in the estate can move the Court to scrutinise the accounts filed under Section 317 in order to show whether the executor has so misconducted himself as to make it necessary for him to be removed, and the Court can also scrutinise the accounts suo motu for that purpose. To the same effect are the observations made in the judgment of a Division Bench of the Lahore High Court in the case of Gulati v. Reeves-Brown A.I.R.[1939] Lah. 463. In the result, I reject the contention of Mr. Nariman on behalf of the applicant which is to be found in para. 8 of the Review Petition in the present case that this Court has no jurisdiction or power to order the inventory and account filed by the petitioner to be examined by the Commissioner, as: I have done by my Order dated March 20, 1969. I hold that the Court has the power to examine, or to order the Commissioner for taking Accounts or any other officer of the Court to examine the inventory and account filed by an executor or administrator in order to find out whether the same answer the description of 'a full and true inventory' and/or' a true account,' and it can exercise that power in a proper case.

7. The next question is, what is the extent of that power. Mr. Bhabha has sought to contend that, once the Court has made the Order which I have made on March 20, 1969, his client, as a party interested, has the right to appear and be heard by the Commissioner for taking Accounts, and has also the right to challenge the inventory and account brought in by the petitioner by filing objections and surcharges, and the Commissioner must make a Report in regard to the same. Such a position, is, in my opinion, clearly untenable for three reasons. First and foremost, it would be contrary to the terms of Section 817 of the Succession Act, and the practice of this Court based upon it which is recognised by Mirza J. in Morarji's case (at p. 085) cited above. Secondly, it would lead to the anomalous result that a party to whose interests the Report of the Commissioner may be adverse would have no remedy open to it and no opportunity to challenge the findings in the Report, as the procedure for riling Exceptions to the Commissioner's Report would be inapplicable. The very terms of Rule 468 of the Rules of this Court (on the Original Side), 1957 show that the same would apply only in the case of a suit. There would, therefore, be no procedure which could follow on the filing of such a Report by the Commissioner and the findings of the Commissioner would stand without any opportunity to either side to challenge the same or prove them to be wrong in so far as the same arc adverse to such party. Thirdly, if an administration suit is subsequently filed, the question would arise whether the whole gamut of the filing of accounts as well as objections and surcharges, the hearing before the Commissioner and the making of a Report is to be gone through once again. If it is not to be gone through again, since an administration suit is essentially a suit for accounts, it would be impossible for the Court to administer the estate in such a suit without the taking of accounts. On the other hand, if the view taken were that in the administration suit, accounts could be taken once again, that would be an equally inconvenient position for the Court to be driven to. There is no reason, why I should take a view which would lead to such inconvenient results. It may, in this connection, also be pointed out that the very question of the extent of the power of the Court to scrutinise the inventory and account brought in by an executor or administrator was considered by the Calcutta. High Court in Sarat Simdari's case cited above. The judgment in the said case refers (at p. 636) to the two extreme contentions which were urged before that Court, one being that the Court has no power to examine any inventory or account that may be put in and that its duty practically ends with receiving them when they are put in; the other being that the Court has full power to check and scrutinise them in order to see whether they are full and true and to institute an inquiry for that purpose. The learned Judges held that the duty of the Court in that respect lay 'in the mean between these two contentions.' It was further observed that the statute did not mean that an executor or administrator could tender any papers he pleased, and that by simply styling them a full and true inventory or an account of the estate, he complied with the requirements of the statute. They also observed that the statute, on the other hand, nowhere imposes on the Court the duty of scrutinising and auditing the papers and of undertaking for that purpose elaborate and expensive proceedings, as such a scrutiny would be an onerous charge, which they could not hold to have been laid on the Court, unless the statute clearly said so, and no such words were to be found therein. In the result, I hold that no party, other than the executor or administrator who brings in the inventory and account has a right to appear before the Commissioner for taking Accounts, even though he may be a party interested in the estate of the deceased and there is, therefore, no question of any objection or surcharges being filed before the Commissioner, or of any Report, being made by the Commissioner on the inventory and account and the objections and surcharges filed before him. The proper procedure, according to me, is that the Commissioner should examine the inventory and account, and if he is satisfied that a full and true inventory and a true account have been filed, he should certify accordingly. In the event, however, of the Commissioner being unable to grant such a certificate, the Court has the power under Section 302 of the Succession Act to direct the executor or administrator to amend the inventory and/or account filed by him, or the parties may move the Court to take action against such executor or administrator under Section 317 (3) or (4) or under Explanation (e) to Section 263, or by means of an administration suit for the costs of which provision is made by Section 321 of the Succession Act. Nothing in this judgment should, however, be construed to mean that the Court should, in every case refer the inventory and account filed by executors or administrators to the Commissioner for taking Accounts to examine and certify the same, or as laying down that the Court should ordinarily do so.

8. Turning to my Order dated March 20, 1969 in the light of the legal position laid down by me above, the reference in that Order to the eventuality of the accounts being disputed is, in the context in which it occurs, clearly a reference to their being disputed as soon as they are filed and before the same are referred to the Commissioner. It is not a reference to any dispute being raised before the Commissioner, as Mr. Bhabha at one time sought to contend before me. I have, by my said Order, directed the Commissioner to examine the inventory and account and certify to this Court whether the same are true and complete. There is no reason for me to modify any part of that Order, except that the matter having been brought to my notice, I must clarify the said Order and direct the Commissioner to return the objections and surcharges filed before him to the applicant who has filed the same, and not to hear any parties other than the petitioner-executor, and to examine and certify the inventory and account in the light of what has been laid down in this judgment.

I order accordingly.


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