(1) This appeal arises from the decree passed in Original Suit No. 118 of 1950 in the Court of the Subordinate Judge, Bellary. The defendant in that suit is the appellant in this appeal and the plaintiff is the respondent.
(1a) The plaintiff sued in a representative capacity and prayed that an account be taken of the moveable and immovable properties of late Moola Venkata Rangiah and the same may be administered under the decree of the court. A preliminary decree in terms prayed for has been granted. Aggrieved by this decision, the defendant has to come up in appeal.
(2) The plaintiff claims to be a creditor of the deceased Moola Venkata Rangian, the husband of the defendant. Late Moola Venkata Rangiah died intestate on 16-6-1948. According to the plaintiff he had executed Exhibit A-19 promissory note for a sum of Rs. 44,000/- in his favour for valid consideration. During his lifetime he had made some payments towards the amount due under Exhibit A-19 and endorsed the same thereon. It is further alleged that after the death of Moola Venkata Rangiah the defendant had made some payments towards the amount due and that the balance amount is due. The amount due is said to be Rs. 36,720-14-0 with future, interest.
The plaintiff alleges that subsequent to the death of Moola Venkata Rangiah, though the defendant had agreed to discharge the debt in question from out of the Insurance amounts due to her husband's estate, she had failed to do so. It is complained that the defendant had misapplied monies collected and mismanaged the estate. It is further alleged that she had not only failed to discharge the plaintiff's debts but has also not discharged the debts due to others. In particular it is alleged that she defaulted in paying the income-tax due from the deceased to the Government and consequently the Revenue Authorities had attached and sold some of the house properties of the deceased for a sum of Rs. 14,000/-.
(3) The defendant denied the truth and the validity of Exhibit A-19. She contended that it was a got up document and at any rate it was not supported by considerations. She further contended that the grounds set out in the plaint are insufficient to grant a decree for administration of the estate of the deceased. She also contended that the plaintiff who claims to be a simple money creditor cannot get a decree for administration. The trial court has rejected the contentions put forward by the defendant and has passed a preliminary decree.
(4) Three questions that arise for our decision are:
(1) Whether the plaintiff is a creditor of the deceased Moola Venkata Rangiah.
(2) If so, is he entitled to a decree for administration of the estate of the deceased? And
(3) From the facts and circumstances of the case, was the trial court justified in granting an administration decree?
(5) The first question that arises for consideration is the truth and the validity of Exhibit A-19. Its execution is spoken to by the plaintiff as P. W. 1. He is a respectable businessman and his evidence is worthy of credit. In addition to his evidence, we have the evidence of P. W. 2 (M. Rangappa) who is the paternal uncle of the deceased (Moola Venkata Rangiah). It is further corroborated by the evidence of P. W. 4 (P. N. Gowd) who is the Principal of the Veerasaiva College, Bellary, and a former Principal of the Government Arts College at Ananthapur. He is a relation of the parties to the suit. P. Ws. 2 and 4 are the attestors of Exhibit A-19. There is considerable other circumstantial evidence in the case to which we shall refer later and which supports the plaintiff's case as regards the genuiness of Exhibit A-19.
(6) The next question for consideration is whether the promissory note Ex. A-19 is supported by consideration. The plaintiff's case is that he was one of the Arbitrators who partitioned the family properties of the deceased Moola Venkata Rangiah as per Ex. B-1; at the request of the members of the family he agreed to act as the guardian of minor Deva Das and look after the interest of Raghu Ramulu who is said to be not intelligent. These two are the younger brothers of the deceased (Moola Venkata Rangiah).
According to the plaintiff, on taking accounts for the purpose of partition it was found that the deceased Moola Venkata Rangiah the senior most member in the family, was found to be liable to pay the family a sum of Rs. 88,000/- ; this was divided between the 4 brothers each one of the brothers being entitled to Rs. 22,000/- ; Moola Lakshminarayanaswamy's (one of the brothers) share was adjusted towards the amount due from him to the family; but the share of the other two brothers had to be paid; the deceased pleaded that he was not in a position to pay the same in case at that time; it was agreed that the should execute a promissory note in favour of the plaintiff for the amounts due to Raghu Ramulu and Deva Das and in pursuance thereof the executed Ex. A-19.
The plaintiff admits, that Raghu Ramulu and Deva Das are the beneficial owners of the amount due under Ex. A-19. The plaintiffs evidence is fully supported by the evidence of P. W. 2 and P. W. 4. it is also probabilised by a large number of circumstances appearing in the case. It will be seen that during the lifetime of Moola Venakata Rangiah, he made two payments towards the amount due under Ex. A-19 and those payments are endorsed on A-19 as per Exhibits A-20 and A-21. The first payment was made on the date of the execution of Exhibit B-1 itself and the second payment was made on 22-5-1948, the amount paid being Rs. 6,888/- as per Ex. A-21.
Out of this a sum of Rs. 5888/- was received by the plaintiff as per the cheque issued by the India Sugras and Refineries Ltd. Hospet, for a sum of Rs. 5,888/- as instructed by the deceased Moola Venkata Rangiah. A further sum of Rs. 1,000/- was said to have been paid in cash. These facts have been spoken to by the plaintiff and corroborated of the Sugar Factory to the extent of the payment of Rs. 5,888/-. It is alleged that the deceased failed to keep up his promise to credit the amounts due to him from the India Sugars, and Refineries Ltd. Hospet towards the amount due under Ex. A-19.
Hence the plaintiff wrote to him Ex. B-2 on 29-3-1948 asking him not to withdraw any amount from the India Sugar and Refineries Ltd., but to see that the amount in question is paid over to Sri D. Venugopalachari. It is seen from Ex.. B-2 that the plaintiff asked Moola Venkata Rangiah to pay amount due to the 'Boys' as early as possible evidently referring to the amount due under Ex. A-19. Exhibits A-6 and A-7 are letters written by Moola Venkata Rangiah to the plaintiff. In Ex. A-6 he requested the plaintiff to come to Hospet to talk to the Factory people and settle matters.
The plaintiff sent a reply to that letter as per Ex. B-3. In that letter he warned the deceased not to be fickle minded and to see that the amounts due to the 'Boys' are paid immediately. Exhibits A-25 to A-29 further corroborate the evidence of the plaintiff on this aspect of the case. Exhibit A-30 is the notice got issued by the defendant to the India Sugars and Refineries Ltd., not to pay any amount to Shri D. Venugopalachari. Ex. A-31 is the reply sent by the India Sugars.
Later the defendant cancelled the notice given in Ex. A-30 by means of Exhibit A-33. Then we come to Exhibit A-22 an agreement entered into between the defendant and the plaintiff. It is dated 24-12-1948. In Exhibit A-22 she admitted the liability under Ex. A-19 and proposed to discharge the same in the manner set out therein. The stock explanation of the defendant is that all these documents are taken by fraud. We see no reason to reject the evidence documentary and oral adduced by the plaintiff. Suffice it to say that the evidence on record overwhelmingly establishes the fact that the amount claimed in the suit is due.
(7) It is not contended on behalf of the appellant that even according to the evidence adduced by the plaintiff no consideration passed from him and as such he is not entitled to any relief. There is no merit in this contention. The plaintiff is entitled to sue on Ex. A-19 even though he is only a benamidar for Raghu Ramulu and Deva Das.
(8) The next point urged is that the plaintiff being only a creditor cannot ask for a decree for the administration of the estate of the deceased. This contention had been rejected by the Madras High Court in C. R. P. NO. 825 of 1951 on its file. But the appellant has canvassed that position over again before us. We propose to examine that contention de novo. The relevant provisions in our Civil Procedure Code can be usefully elaborated and improved. The corresponding English provisions appear to be precise. They clearly specify the persons who can sue for an administration decree. As per Order 55 rule 3 of the Rules of the Supreme Court:
'The executors or administrators of a deceased person or any of them, and the trustees under any deed or instrument or any of them, and any person claiming to be interested in the relief sought as creditor, devisee, legatee, next-of-kin, or heir-at-law or customary heir of a deceased person or as cestuique trust under the trust of any deed or instrument, or as claiming by assignment or otherwise under any such creditor or other person as aforesaid, may take out, as of course, an originating summons returnable in the Chamber's of a Judge of the Chancery Division for such relief of the nature or kind following, as may be the summons be specified and as the circumstances of the case may require, (that is to say), the determination, without an administration of the estate or trust of any of the following questions or matters...............'
Under rule 4 of the said Order:
'Any of the persons named in the last preceding rule may in like manner apply for and obtain an order for-
(a) the administration of the personal estate of the deceased:
(b) the administration of the real estate of the deceased:
(c) the administration of the trust:
(d) any act to be done or step to be taken which the court could have ordered to be done or taken if any such administration order as aforesaid had previously been made.'
In our Code the only relevant rule is sub-rule(1) of rule 13 of Order XX. This rule reads as follows:
'Where a suit is for an account of any property and for its due administration under the decree of the court, the court shall, before passing the final decree pass a preliminary decree, ordering such accounts and inquiries, to be taken and made, and giving such other directions as it thinks fit.'
It is necessary to note that Order XX relates to 'Judgments and decrees'. This rule lays down that in matters enumerated therein there should be a preliminary decree etc., before a final decree is passed. This rule does not help us to find out the person or persons who could institute an administration suit. For this purpose one has to fall back on section 9 of the Civil Procedure Code which says that the Civil Court has jurisdiction to try all civil suits excepting suits the cognizance of which is either expressly or impliedly barred.
Undoubtedly an administration suit is a civil suit. But neither section 9 nor Order XX rule 13 is of any assistance in finding out the person or persons who could sue for the relief in question. On this point some assistance is available from Form No. 14 in Appendix 'A' and Form No. 17 in Appendix 'D' of the civil Procedure Code. The relevant portion of Form 41 in Appendix 'A' is as follows:
'A. B...........States as follows:
1. E. F. Late of.......... was at the time of his death, and his estate still is, indebted in the sum of........'
* * *
'Para 7. The plaintiff claims that an account may be taken of the moveable (and immovable) property of E. F., deceased and that the same may be administered under the decree of the Court.'
From this it is seen that a creditor is one of the persons who can sue for an administration decree. We shall next go to form No. 17 in Appendix 'D'. The relevant portion is as follows:
'It is ordered that the following accountants and inquiries be taken and made that is to say:-
In creditor's suit-
1. That an account be taken of what is due to the plaintiff and all the other creditors of the deceased.'
On a combined reading of Form No. 14 in Appendix 'A' and Form No. 17 in Appendix 'D' it is reasonable to infer that a creditor is one of the persons who is entitled to get a decree for the administration of the estate of his deceased debtor.
(9) Our law on this subject is patterned on the basis of the English Law. The Law in England as summarised in Halsbury's Laws of England, Third Edition, Volume 16, edited by Lord Simonds at para 853 (p. 436) is follows:
'Administration proceedings may be instituted either by the personal representatives, creditors, or beneficiaries.'
(10) The Indian Courts have taken more or less the same view as the Courts in England have done. In the judgment of Justice Srinivasa Ayyangar, in the case reported in : AIR1928Mad713 , Thimmanayanim v. Venkatappa Nayanim, it is laid down as follows:
'Whether the deceased is represented by an executor or administrator or a mere heir at law, there are two kinds of actions available to a creditor. A suit on the debt against the defendant in his character as legal representative when the decree is made limited to the assets of the deceased; in such a case the expression 'assets of the deceased' must be guarded as being only such assets as have not been validly disposed of already and as have not ceased to form part of the estate. This is the smaller remedy and if he elects the smaller remedy he would have to be content with it, at any rate in those proceedings. He has also a larger remedy by an administration action. 'If his cause of action should be that in the administration of the estate by the legal representative, whoever he may be, there has been committed by him any breach of trust or breach of obligation imposed by the law then he may file an administration action, whereupon the Court will consider the whole of the administration of the estate by the representative and further proceed to administer it itself, incidentally setting aside such acts of maladministration as might have been committed by the representative..........'
This view was reiterated by a Bench of the Madras High Court in the case of Foulkes v. Suppen Chettiar, reported in : AIR1951Mad296 , which held that generally speaking, an unsatisfied or dissatisfied creditor who has not been paid or paid less than what would be due to him ratably is entitled to have recourse to an administration suit. No decision has been brought to our notice where it had been held that a simple money creditor cannot have recourse to an administration suit. On an examination of the relevant provisions and the decided cases, we think it is open to a creditor to sue for an administration decree.
(11) The next question that arises for consideration is whether on the facts and circumstances of the present case, the plaintiff should be granted the relief prayed for. It is urged on behalf of the appellant that irrespective of the fact that the plaintiff may or may not have a right to institute the present suit, the Court below erred in granting an administration decree when the plaintiff could have more conveniently sued on his promissory note; obtained decree thereon and proceeded to execute the same.
(12) It is urged that an administration decree is a discretionary relief and no one is entitled to that relief as of right. We do not think that this proposition is open to challenge. That is the law in England as seen from the statement of the law found in para 864 of Halsbury's Laws of England (edited by Lord Simonds). The same is the law in this Country. In the case of Venugopala Naidu v. Valambal Ammal reported in AIR 1942 Mad 588. Somayya, J. held that:
'It is not obligatory upon the Court to order administration of the estate where the question between the parties can be properly determined without an administration order.....................'
The same view was expressed in AIR 1936 Bom 423, Kissondas Premchand v. Jivatlal Pratapshi and Co.
(13) At this stage we may notice the decision in Oriental bank Corporation v. Gobindloll Seal reported in ILR 10 Cal 713. In that decision a Bench of the Calcutta High Court held that:
'Persons interested in the estate of a testator, not being the legal personal representatives of the testator, will not be allowed to 'sue persons possessed of assets belonging to the testator, unless it is satisfactorily made our that there exist assets which might be recovered and which, but for such suit, would probably be lost to the estate.'
The cases decided subsequent to this decision do not appear to have observed the limits laid down by this decision.
(14) Are there any circumstances in this case justifying an administration decree? The beneficial owners of the amount due under Ex. A-19 are the brothers of the deceased Moola Venkata Rangiah and hence are naturally interested in seeing that the estate is not put to unnecessary loss by getting a decree and executing the same. Moreover it is seen that the defendant had agreed to pay the amount in question as per Exhibit A-22, from out of the monies due to the deceased. On that promise she had taken a loan from the plaintiff to meet the expenditure for getting the Succession Certificate. But subsequently she resiled from the agreement. From the material on record it appears that she is a fickle minded lady. In spite of the fact that considerable were due to the estate, she failed to pay the income-tax arrears and consequently a portion of the estate of the deceased was sold by the Revenue Authorities. It was only after the institution of the present suit, she took steps to get the sale in question set aside. From the evidence on record, there is reason to believe that there are other debts due from the estate of the deceased. Moreover the defendant is said to have become the full owner of the property inherited by her as per the provisions contained in the Hindu Succession Act of 1956.
Hence it will be in her interest to see that the debts due from the estate are discharged at an early date. We are informed that the estate is now managed by a Receiver appointed by the Court below. This should facilitate the discharge of the debts due from the estate. If we interefere with the relief granted by the court below it might give rise to considerable complications. If the defendant is anxious to get back the possession of the properties she can do so by paying the debts due from the estate. We see no reason to interfere with the discretion exercised by the Court below.
(15) In the result, the appeal fails and the same is dismissed with costs. It is seen that the decree drawn up is not in conformity with Form No. 17 is Appendix 'D'. Hence the office is directed to draw up in proper decree.
Nittoor Srinivasa Rau, J.
(16) I agree.
(17) Appeal dismissed.