Jagdish Sahai, J.
1. Special Appeal No. 135 of 1954 is directed against the judgment of Sri Brij Mohan Lall, J., dated the 4th November 1962, while Special Appeal No 453 of 1955 is directed against the judgment of the same learned Judge dated 21st November 1952. In both the cases the appellants are (1) Ronald Lloyed Powell, (2) Ewen Cameron Caldwell, (3) Dr. Ian Mackenzie Munro. (4) James Cruickshank and (6) Douglas Alexander Ritchie Youngson, while the respondent is the Administrator-General Connected questions have been raised in these appeals. They were, therefore, heard together and are being disposed of by this common judgment
2. We would first set out the facts relevant for the decision of the two appeals
3. One Dame Annie Elizabeth Marshall (on marriage Annie Watson) was possessed of vasl properties, part of which are situate in India and part in England and Scotland She resided in London, where she died on 26th December 1951 On 10th October 1951 she had already executed a will appointing Dr Ian Mackenzie Munro. James Cruickshank and Douglas Alexander Ritchie Youngson as executors of the Will These gentlemen all of whom reside in England (hereinafter referred to as the executors) took out a probate of the will from the Sheriff of Lothians and Peebles of the Commissariat of Edinburgh--admittedly a Court of competent jurisdiction The executors feeling difficulty in administer ing the estate in India appointed Ronald Lloyed Powell and E C Caldwell who resided in Kanpur (hereinafter referred to as Powell and Caldwell) us their attorneys On 19th August 1952 Powell and Caldwel) made an application under Section 228 and Section 273 of the Indian Succession Act (hereinafter referred to as the Act) in this Court. This was registered as Testamentary Case No. 16 of 1952. Along with this application were filed the following three documents:
(a) A copy of the will dated 10th October 1951 of Dame Annie Elizabeth Marshall or Watson under the seal and signatures of the Sheriff bearing the certificate that the will was registered in the Commissariat of Edinburgh (paper No. A5/1).
(b) A certified copy of the Probate of the will aforesaid issued by the Commissariat of Edinburgh under the seal and signature of the Sheriff (paper No. A6/1). The relevant portions of this document read:
'The Sheriff of the Lothians and Peebles considering that the said deceased died at London on 26th December 1951, and that, by Trust Disposition and Settlement, dated 10th October 1951, the said deceased Nominated and Appointed Doctor Ian Mackenzie Munro, 4 Alien Mansions, Alien Street, London, W 8, James Cruickshank. Westwood, Stonewood, Aberdeenshire, and Douglas Alexander Ritchie Youngson, Advocate, 222 Union Street, Aberdeen, hereinafter referred to as 'the said Executors' ...... Therefore the Sheriff, inHer Majesty's Name and Authority, Ratifies, Approves, and Confirms the Nomination and Appointment of the said Executors, and Gives and Commits to the said Executors full power to uplift, receive, administer, and dispose of the said personal Estate and Effects, grant discharges thereof, if needful to pursue therefor, and generally every other thing concerning the same to do that to the office of an Executor-Nominate is known to belong: Providing always that the said Executors shall render just count and reckoning for intromissions there with, when and where the same shall he legally required.Given under the seal of Office of The Commissariat of Edinburgh, and signed by the Clerk of Court of Edinburgh, the Twenty fifth day of July Nineteen Hundred and Fifty Two'. (c) The power of attorney executed in favour of Powell and Caldwell
4. in the application of the Attorneys Powell and Caldwell it is clearly stated that Dame Annie Elizabeth Marshall or Watson left a will dated 10th of October, 1951 which was registered in the Commissariat of Edinburgh and that a probate of it had been granted in favour of the executors. Paragraphs 5, 6 and 7 of the application read :
'5. That the said last will and Testamentof the deceased was presented for registrationto the Commissariat of Edinburgh on the 24thof July, 1952 and was recorded in the CourtBooks of the Commissariat on the 24th of July,1952.
6. That the Sheriff of the Lothians and Peebles of Commissariat of Edinburgh ratified, approved and confirmed the nomination and appointment of the said Executors and granted Probate of the said will in their favour on the 25th day of July. 1952
7. That the Authenticated copy of the Will so proved, the Extract Confirmation of the Executors by the Commissariat of Edinburgh and the Power ol Attorney executed by the Executors by the Commissariat of Edinburgh have been filed with this petition.'
On 25th October 1962 the respondent, the Administrator General of U. P., intervened and made an application purporting to be under Sections 7 and 8 of the Administrator General's Act (III of 1913) (paper A-17 on the record), a copy of which he had already served on Mr. Chaudhry, the learned counsel for the Attorneys of the Executors on 23-10-1952 (see the endorsement of Mr. Chaudhry on that application). In this application the Administrator General staled that 'under Sections 7 and 8 of the Administrator General's Act he has prior right for the Administration of the estate in India' and prayed as follows:
'Your petitioner, therefore, respectfully submits that your petitioner's claim to the administration of the property in preference to the Attorneys may be considered before the Letters of Administration are granted.'
in his application the Administrator General admitted the knowledge of the Will and the grant of Probate by the Commissariat of Edinburgh to the executors and did not challenge their right to obtain the Letters of Administration from this Court. He only claimed a preferential claim over the Attorneys. On 31-10-1952 an application dated 30-10-1952 was made to Court by Sri V. K. S. Chaudhry, learned counsel for the attorneys, the relevant portions of which read:
'(1) That the applicants aforementioned have applied under Section 228 of the Indian Succession Act for grant of the Letters of Administration to the estate of Dame Annie Elizabeth Marshall or Watson as Attorneys representing the execution and on their behalf.
(2) That the applicants do not have any objection at all if the Letters of Administration to the estate aforementioned are granted in the name of the executors themselves.
It is, therefore, prayed that, for the sake of clarification, the prayer at page 6 of the petition for grant of Letters of Administration be amended in the following manner viz.. the words 'or to the executors through the petitioners, their lawfully constituted attorneys or to the executors themselves or any one of them' be added after the words' to the petitioners:'
There is an endorsement of this application made by Sri J. K. Srivastava, the Administrator General, that he received a copy of it on 31-10-1952. The same day another application dated 30-10-1952 was made by the executors Ian M. Munro, James Cruickshank and D. A. R. Youngson to the Court, the relevant portions of which read as follows:
'(1) That Dame Annie Elizabeth Marshallor Watson.. died at London on the26th of December 1951
(2) That the deceased left her last Will and Testament dated the 10th day of October 1961 and appointed therein the executors named above as her trustees and executors
(3) That the nomination and appointment of the said executors was ratified, approved and confirmed and probate of the said Will was granted to them by the Sheriff of the Lothians and Peebles of the Commissariat of Edinburgh on the 25th day of July 1962.
(5) That Sri Ronald Lloyed Powell and Sri Ewen Cameron Caldwell aforementioned as representing the executors and on their behalf have filed the petition (registered as Testamentary Case No. 16 of 1952) in this Court for grant of Letters of Administration with the English grant annexed thereto under Section 228 of the Indian Succession Act.
(6) That an objection has been filed to the petition by the Administrator-General, U. P., claiming a preferential right to the attorneys to administer the estate.
(7) That the executors aforementioned, not only never renounced the executorship, but have already elected to act as executors and have been granted probate of the said Will in the United Kingdom.
(8) That the executors, by themselves, as well as through their attorneys wish to administer the estate of the deceased in India and they or their attorneys, acting on their behalf, have a preferential right to administer the estate of the deceased to that of the Administrator-General.
It is, therefore, prayed that the Letters of Administration to the estate of Dame Annie Elizabeth Marshall or Watson be granted to and in the name of the attorneys or in the name of the executors through their attorneys or the executors themselves in preference to the Administrator-General.'
There is an endorsement on this application loo by the Administrator-General (Sri J. K. Srivastava) that he had received a copy of it on 31-10-1952.
5. By means of the judgment dated November 4, 1952, Brij Mohan Lall, J. decided Testamentary case No. 16 of 1952 dismissing the application of the attorneys and jecting the claim of the Administrator-General for Letters of Administration. With regard to the application of the executors he observed 'It is, therefore, unnecessary to enter into the further question whether the executors could get probate or letters of administration', He, however, directed that 'the Administrator-General shall get his costs from the attorneys' On 14th November 1952 the Administrator-General made an application containing three paragraphs, which read as follows
'1. That in the above case this Hon'ble Court was pleased to dismiss the Attorney's application for Letters of Administration with costs to your petitioner.
2. That your petitioner's costs are liable to be taxed under Rule 28-A of the Administrator General's (U. P.) Rules 1929 as amended or under High Court Rules 1952, Chapter XVI, Rule 2 read with Rule 22 as the Court deems fit.
(3) It is. therefore, prayed that, in addition to costs actually incurred, fees may be ordered to be taxed accordingly to be paid out of the estate.'
By means of the judgment dated 21-11-1962 this application of the Administrator-General was allowed by Brij Mohan Lall, J. with over Rs. 56,000 as costs to him. This sum of Rs. 56,000 odd included a sum of Rs. 55,958-6-0 as the personal fee of the Administrator-General which was to be paid to him personally and was not to be deposited in the State fund.
6. Against the judgment dated 4th November 1952 special appeal No. 135 of 1954 was filed in this Court by being presented to the Joint Registrar on 20-11-1952. That special appeal was admitted by Malik, C. J. and James, J. on 27-8-1954 and numbered as Special Appeal No. 135 of 1954. Special Appeal No. 453 of 1955 which is directed against the judgment dated 21-11-1952 was filed in this Court by presentation before the Joint Registrar on 5-12-1952. It was admitted by Dayal and Brij Mohan Lall, JJ. on 1-12-1955 and numbered as special appeal No. 468 of 1966. In special appeal No. 135 of 1954 the entire judgment of Brij Mohan Lall, J. dated 4th November 1952 was challenged. The prayer in the memorandum of appeal is in the following words:
'It is therefore prayed that the said order be set aside and letters of administration to the estate of the deceased be granted to the executors or their attorneys or in the name of the executors through their attorneys.'
The appeal was not confined to costs alone and the grounds taken in the memorandum of appeal disclose that the merits of the decision refusing to grant the Letters of Administration to the executors or their attorneys were challenged. By means of special appeal No. 453 of 1955 the entire judgment of Brij Lall. J dated 21-11-1952 was challenged. The prayer in the memorandum of appeal is as follows:
'It is therefore prayed that the said order dated 21st November 1952 be sel aside and the respondent's application be dismissed with costs throughout '
7. Even though from the very beginning of the proceedings in suit No. 16 the Administrator-General had been fully apprised of the fact that the Executors had not only not renounced their cxecutorship but had obtained a probate from a competent Court of law and were doing all that was possible to obtain Letters of Administration from this Court, the Administrator-General without waiting for the Executors to apply for the Letters, rushed to this Court on 7-12-1952 and put in an application for Letters of Administration being granted to himself. In the list of property filed by the Administrator General its value has been shown to be Rs. 27,84,168-14-0. On 18-12-1952 an objection (paper A9/1) was filed by the executors objecting to the grant of Letters of Administration to the Administrator General on the ground that having obtained a probate from a competent Court of law. they alone could receive the Letters of Administration. The prayer in this objection is in the following terms:
'It is therefore prayed that the Administrator General's petition for grant of Lettersof Administration to the estate of the deceased be rejected and the Letters of Administration be granted to the objectors.'
The same day the executors presented their application (paper A/IS/I) for the grant of Letters of Administration in their favour. A copy of this had already been served on the Administration General on 12-12-1952 as is apparent from his endorsement on the application. The proceedings started on the application of the Administrator General dated 7-11-1952 were registered as Testamentary Case No. 22 of 1952
8. During the course of the arguments before Brij Mohan Lall, J. In Testamentary Case No. 22 of 1952 an objection was taken by the Administrator General that even though he could not challenge the right of the Executors to the grant of the Letters of Administration yet inasmuch as appeal No. 135 had been filed against the judgment dated 4th of November 1952, Letters of Administration should not be granted to the Executors. The Administrator General also made a written application (paper A23/1) paragraphs 3 to 6 of which read as follows:
'3. That while your petitioner has no objection to the grant of Letters of Administration to the Executors in case their application is found in order, it had come to the knowledge of your petitioner that the said Executors have filed Letters Patent Appeal against the order of this Hon'ble Court in Testamentary Case No. 16 of 1952
4. That, beyond, other questions, the Executors are not competent to obtain Letters of Administration during the pendency of the appeal in this Hon'ble Court in respect of the same matter and between the same parties or their representatives
5. That, the Executors in their application were bound to give this information to this Hon'ble Court and this omission on their part is not justified in law
6. That under the circumstances the Executors should either withdraw their appeal before the grant is made to them or they should wait till the decision of the appeal, the mere undertaking by them to withdraw the appeal as stated by the learned counsel in this Court, be not deemed sufficient
It is, therefore, respectfully prayed that this Hon'ble Court be pleased to stay the grant in favour of the Executors until the appeal of the Executors has been withdrawn or decided.
And for this act of kindness your petitioner shall ever pray.'
Mr Misra, the learned counsel for the Administrator General, has not been able to assign any reason for this attitude taken by the Administrator-General and has not been able to show to us as to how this attitude could ever be beneficial to the estate. it appears from the judgment of Brij Mohan Lall, J. dated 19-12-1952 that, pressed with the obstructive objection of the Administrator-General to the issuance of the Letters of Administration in favour of the executors on the ground that appeal No. 135 of 1954, (at that time it was numbered as 135 of 1952) had been filed, Mr. Chaudhry, the learned counsel for the executors and attorneys, made a statement that 'he will withdraw the appeal except on the question of costs'. After accepting the undertaking of Mr. Chaudhry, on 19-12-1952 Brij Mohan Lall, J. allowed the application of the Executors, dismissed that of the Administrator General and granted the Letters of Administration to the Executors. However, for reasons not mentioned in his judgment he directed the parties to bear their own costs, notwithstanding the fact that the Executors had to come all the distance from England and had to incur huge costs because the Administrator General though admitting that the Executors alone, could under the circumstances obtain Letters of Administration was putting hurdles in the recognition of their jusi and unanswerable claim by this Court, and the further fact that in the Testamentary Case No. 16 between the same parties he had awarded costs to the Administrator General even though his applica tion for Letters of Administration was also dismissed. Even though no appeal has been filed against the judgment dated 19-12-1952, the facts relating to that appeal had to be stated in order to dispose of the preliminary objection made on behalf of the Administrator General to the maintainability of appeal No. 135 of 1954 on the ground of the alleged undertaking given by Mr. Chaudhry, and also because the main dispute between the parties now is about costs and Mr. Jagdish Swarup who has appeared for the Executors and the Attorneys has contended that parity between the parties demanded that in Testamentary case No. 16 also costs should have been made easy as was done in case No. 22.
9. By virtue of Clause 17 (a) of the United Provinces High Courts (Amalgamation) Order, 1948, the Letters Patent of Court dated 17th March, 1866, Clause 10 of which conferred a right of special appeal have ceased to have force. Now the matter of special appeal is governed by the provisions of Rule 10 of the Ch. IX of the Rules of Court. The said rule, so far as relevant for our purposes, reads:
'A person desiring to prefer a special appeal from the judgment of one Judge passed in exercise of original jurisdiction shall present a duly stamped memorandum of appeal accompanied by a copy of the decree or formal order, if any, within sixty days from the date of the judgment. The time requisite for obtaining these copies shall be excluded in computing the said period of sixty davs.
Both the appeals have been filed under this provision. It cannot be and has not been denied that the orders dated 4-11-1952 and 21-11-1952 are judgments within the meaning of Rule 10 of Chapter IX of the Rules of Court and for that reason appealable. In fact the point is concluded by Standard Glass Beads Factory v. Shri Dhar : AIR1960All692 :
10. Mr. V P. Misra's argument is not that the instant special appeals were not competenton the date they were filed, but special appeal No. 135 of 1954 has become incompetent on account of the undertaking given by Mr. Chaudhry to Brij Mohan Lall, J. on 19-12-1952 in Testamentary Case No. 22 of 1952 that the appeal shall be withdrawn on the merits and shall be confined to costs alone and that inasmuch as that special appeal has become incompetent, the special appeal No. 435 of 1964 cannot be allowed, because if the judgment of Brij Mohan Lall, J., dated 4th November 1952 becomes final, the one dated 21-11-1952 cannot be disturbed. Mr. Misra's submission is that a special appeal cannol be heard only with regard to costs. In other words it is the com petence of special appeal No. 135 of 1954 which is challenged and with regard to special appeal No. 435 the submission is not really one of competence, but of the merits. What exactly the undertaking was would be apparent from the following extract of the judgment of Brij Mohan Lal, J. dated 19-12-1952:
'There remains the question of costs which the Administrator General has been allowed in the previous petition. In order to safeguard the interests of the parties, it is desirable that the Executors may be ordered to deposit a sum equivalent to that awarded to the Administrator General in the former petition (T. C. No. 16 of 52), in Court so that it may be appropriat ed by him in case he is ultimately found entitled to it. Mr. Chaudhry who has preferred an appeal to the Special Bench against the dismissal of the petition presented by Ronald Lloyed Powell and Ewen Cameron Caldwell of Sutherland House. Civil Lines, Kanpur, has made a statement that he will withdraw the appeal except on the question of costs.
In the circumstances, Letters of Administration with a copy of the will annexed shall be granted to the Executors as prayed. The required court fee has been deposited. The Executors shall execute an Administration bond for the amount of assets that are likely to come to the hands of the executors and will deposit in Court the amount of costs awarded to the Administrator General in Testamentary Case No. 16 of 1952 The parties shall bear their own costs of the proceedings in this Court.'
We have reproduced this part of the judgment at length because it would be relevant for the consideration of other questions also. We would, however, like to point out that both the special appeals have been filed by the three executors also in addition to the two attorneys, Powell and Caldwell as mentioned by Brij Mohan Lall, J. In the passage extracted above. To the extent that he has not mentioned the names of the executors, the recital is incomplete.
11. The alleged undertaking of Mr. Chau-dhary was given to the Court on 19-12-1952. We have already mentioned earlier that special appeal No. 135 was filed on 20-11-1952 and special appeal No. 453 on 5-12-1952 it is thus clear that both the special appeals were filed long before the undertaking was given or even proceedings in Testamentary Case No. 22 of 1952 in which that undertaking was givenwere started. In fact special appeal No. 186 was filed even before Brij Mohal Lall, J. gave judgment dated 21-11-1952.
12. Mr. V. P. Misra had to concede that the special appeals as filed were competent. The right of appeal is a vested right and can be extinguished only by an express provision of a statute. See Garikapati Veerava v. N. Subbiah Choudhry : 1SCR488 . It is well settled that if a suit or appeal when filed is competent, the Court does not lose jurisdiction io try it merely because of subsequent events or because there has been a change in law except in cases where the statute expressly provides for the same. (See Venugopala Reddiar v. Krishnaswami Reddiar ; Colonial Sugar Refining Co. v. Irving, 1905 AC 369; Marsh v. Higgins, (1850) 9 CB 551; Vedavalli Narasiah v Mangamma, (1904) ILR 27 Mad 538; in re, Josheph Suche & Co. Ltd., (1876) 1 Ch D 48; Nana v. Sheku, (1908) ILR 32 Bom 337 and Subbaraya Mudaliar v. Rakki, (1909) ILR 32 Mad 140) it is equally well settled that if an appeal was competent when filed it would not become incompetent even if the provision permitting the appeal is subsequently repealed (See Bala Prasad v. Shyam Behari Lal : AIR1928All168 ; Kirpa Singh v. Rasalldar Ajaipal Singh, AIR 1928 Lah 627 (KB) and Sada Shiv Pillai v. Karlappa Mudaliar (1901) ILR 24 Mad 39)
13. We would like to point out that on 20-11-1952 when special appeal No. 135 was filed in this Court, the entire judgment of Brij Mohan Lall. J. dated 4-11-1952, both with regard to the merits and costs, was challenged and made sub judice
14. The undertaking that Mr. Chaudhary gave to Brij Mohan Lall. J. on 19 12-1952 was made under circumstances forced upon him by the Administrator General, whose conduct, to put it at the lowest was extremely unfair, unjust and highly obstructive. He knew as far back as 23rd of October, 1952 when he had served a copy of his application presented to the Court on 25-10-1952 on Mr. Chaudhary (if not earlier) that not only Dame Annie Elizabeth Marshall or Watson had executed a will which was registered in the Commissariat of Edinburgh, in which she had named Dr Ian Mackenzie Munro. James Cruickshank and Douglas Alexander Ritchei Youngson as executors of the will, but also that the said executors had obtained a probate of the said will from a Court of competent jurisdiction, on her death There are clear admissions to this effect in this application He had seen the certified copies of the will and the probate as also the power of attorney which were filed along with the application of the Attorneys dated 19th August 1952 Not only that, he had also received a copy of the application of the executors dated 30-10 1952 on 31 10 1952 in paragraph 7 of which it has been categorically staled by the said executors that not only they had never renounced the executorship but have already elected to act as executors and have been granted probate of the said will in theUnited Kingdom'. Mr. Srivastava had also with him on 31-10-1952 a copy of the application of the Attorneys made on that date in which the Attorneys had stated that they had no objecion to the Letters of Administration being granted to the executors themselves. Not only that, Mr Srivastava had with him the judgment of Brij Mohan Lall, J. dated 4-11-1952 in which the learned Judge had clearly observed:
''One Mrs. Annie Elizabeth Marshall or Watson died at London on the 26th of December 1951. On the 10th October, 1951, she had executed a will appointing three persons, viz., Dr. Ian Mackenzie Munro, James Cruickshank and Douglas Alexander Ritchie Youngson as executors. They took out a probate of the will from the sheriff of the Lothians and Peebles of the Commissariat of Edinburgh. The executors reside outside the Union of India. They have appointed the present two petitioners as their attorneys.' He had in proceedings in Testamentary Case No. 22 also conceded the right of the Executors to receive the Letters of Administration (vide the judgment of Brij Mohan Lall, J., dated 19-12-1952 and the application A 23/1). Mr J. K. Srivastava, who is a very senior lawyer and who had been the Administrator General for a very long time before 19th of December 1952, must be attributed the knowledge of the provisions of Section 229 of the Indian Succession Act which provides that 'when a person appointed an executor has not renounced the executorship, letters of administration shall not be granted to any other person until a citation has been issued, calling upon the executor to accept or renounce his executorship. .... .'.
Hemust also be attributed the knowledge of the provisions of Section 241 of the same Act which reads:
'When any executor is absent from the State in which application is made, and there is no executor within the State willing to act, letters of administration, with the will annexed, may be granted to the attorney or agent of the absent executor, for the use and benefit of his principal, limited until he shall obtain probate or letters of administration granted to himself'
The facts mentioned above clearly show that he fully knew that howsoever long he succeeded in delaying the proceedings in Testamentary Case No. 22 of 1952. notwithstanding his efforts, the Letters of Administration would ultimately have to be issued to the executors or their attorneys to his own exclusion and the delay in the grant of the Letters of Administration was bound to very adversely affect the interests of the estate. An Administrator General is appointed to help the heirs or legatees of a deceased person and protect the estate of deceased persons and not to obstruct the administration of their estates, but. for reasons best known to him and which have not been explained to us by his counsel Mr Misra. In spite of our enquiry, Mr Srivastava adopted the most curious attitude before Brij Mohan Lall, J. that the grant of Letters of Adminis-tration to the executors should be held up untilspecial appeal No. 185 had been decided. We have later on in our judgment shown that there eould not, in the circumstances of the case, be the remotest chance of there being conflicting orders in special appeal No. 135 and Testamentary suit No. 22, with the result that Mr. Srivastava had no excuse legal or moral for the obstructive attitude he adopted Nothing has been brought to our notice which would show that the request of Mr. Srivastava was made bona fide in the interest of thestate; and all the circumstances operating in the case indicate that it was not.
In special appeal No. 135, the three executors and the two attorneys were the appellants. Both in the Testamentary case No. 16 of 1952 as also in the special appeal No. 135, they had jointly taken up the position that the Letters of Administration should be granted to the executors or their Attorneys it was quite obvious to Mr. Srivastava from the very beginning of the proceedings in Testamentary Case No. 16 of 1952 that he could not get the Letters of Administration and whether He liked it or not under the law the same had to be issued to the Executors to the exclusion of everyone else. Under these circumstances, however generous we may be to Mr. J. K. Srivastava, the only inference which we can draw from his extraordinary conduct in objecting, contrary to the interest of the estate to the issuance of the Letters of Administration to the executors who had an unanswerable case and whose right he himself had to concede in Testamentary Case No. 16 and again in Testamentary case No. 22 of 1952, is that Mr. Srivastava was adopting dilatory and pressure tactics actuated by motives of personal gain (shown later on in this judgment) and not by any consideration for the good of, or for the protection of the estate. What has surprised us is that on 22nd of December 1952, that is three days after the judgment dated19-12-1952 had already been delivered by Brij Mohan Lall. J granting Letters of Administration to the executors, which rendered special appeal No. 135 infructuous on the merits and accorded judicial recognition to the right of the executors to receive the letters. Mr. Srivastava thought it proper to make a written application praying that 'this Hon'ble Court be pleased to stay the grant in favour of the executors until the appeal of the executors has been withdrawn or decided.'
It is also very odd that even though Mr Srivastava without any justification and without any right on his part to receive the Letters was opposing tooth and nail the grant of Let ters of Administration to the Executors on the ground that appeal No 135 had been filed on20-11-1952, he himself had applied on 7th of December 1952. i.e. 17 days after that appeal had been filed in this Court, for the grant of the Letters of Administration to himself That he had knowledge of this appeal is apparent from one of his own applications (No. A23/1) made in Testamentary Case No. 22 of 1952. He must have known that delay of years inthe issuance of the Letters of Administration could only result in irreparable damage being caused to the estate, an eventuality which the Executors and their counsel had to avoid at all costs. It is by means of these pressure tactics that the Administrator General induced Mr. Chaudhary to give the undertaking.
In our judgment, Mr. Srivastava was only manoeuvring for a situation in which he could later on object to the hearing of appeal No. 135 with regard to costs only and thus secure for himself the sum of about Rs. 56,000 by way of personal fees (for which as shown later in this judgment he had done no work) without the matter receiving the scrutiny of the appellate Bench, even though a competent appeal had been tiled and the Court on its appellate side was seized of the matter. He knew at that time that even in 1952 the position regarding the listing of special appeals in this Court was such that it would take years for the special appeals to be heard. As it is, it is only in 1966 that we are able to decide these appeals of 1952 and that too only when, by means of a separate order, we have refused adjournment of the hearing of the appeals sought by the counsel (Mr. V.P. Misra who was appearing in the case from the very beginning and Mr. Jagdish Swarup who was also in the case for a long time past) on wholly insufficient grounds. Since by his conduct Mr. Srivastava induced Mr. Chaudhary to give the undertaking, in our opinion, he is estopped from raising the plea of the non-maintainability of the appeals on the ground of the undertaking assuming that there are any merits in the plea regarding which we hold to the contrary
15. Even if there were no estoppel operating against the Administrator-General, the plea relating to competence of the appeal would still have no force. Due to the circumstance that on 19th December, 1952 the Letters of Administration had been granted to the Executors, special appeal No. 135, so far as the merits were concerned, had become infructuous and could not be proceeded with except with regard to costs. Undertaking or no undertaking, no counsel could or should, under the circumstances have pressed that appeal on the merits and no Court would have listened to him either. Therefore, even without the undertaking the appeal could not have been heard on the merits. The absence of an undertaking could not have altered the position and that the appeal on the merits had become infructuous. But, there is a great difference between an infructuous appeal and an incompetent appeal. The grant of the Letters of Administration to the Executors who had already obtained the Probate could not have been made dependant on the undertaking of Mr. Chaudhary. Appeal No 135 was filed by the very persons who had made application for Letters of Administration in Testamentary Case No. 22. The reliefs claimed by them in special appeal No. 135 and in Testamentary case No. 22 were the same. i.e., Letters of Administration may be granted to them. Consequently, there was no dangerof conflicting orders being passed in the two cases and with great respect to Brij Mohan Lall, J. In our opinion, there was hardly any necessity for getting from Mr. Chaudhary the undertaking which the latter was forced to give in order to save the estate from irreparable injury.
In this connection, it would be worth-while noticing that the Administrator-General had not appealed against the judgments dated 4-11-1952 and 21-11-1952, and so far as he was concerned, these judgments had become final, with the result that there was not the remotest possibility of there being conflicting orders in special appeal No. 135 and the application for Letters of Administration made by the Executors in Testamentary case No 22. Apart from the bar of estoppel operating against the Administrator General, in view of the pressure under which the undertaking was given and the fact that no such undertaking was in the circumstances of the case required, we are of the opinion that the undertaking cannot be used to defeat special appeal No. 135 or even special appeal No. 453. We are not aware of any law and none has been brought to our notice in support of the contention that even if circumstances render a part of an appeal infructuous, it cannot be heard in respect of the rest even though the rest be only costs. Mr. V. P. Misra has also not cited any decisions but has requested us to look into certain cases that were cited at an earlier hearing of these appeals before another Bench of which one of us (Jagdish Sahai, J.) was a member. The hearing could not be concluded due to the absence of the learned Advocate-General but those cases were noted on the back of the paper book. Having looked into them, we are of the opinion that none of them apply to the facts before us. We are, therefore, not mentioning them in this judgment
16. We have reproduced earlier in this judgment Rule 10 of Chapter IX of the Rules of Court so far as relevant for our purposes. There is nothing in that rule which precludes the filing of an appeal against a judgment which deals with the merits of the controversy and also with costs, in respect of costs alone. Nor is there anv thing in that rule which prevents the hearing of an appeal on costs alone, though when filed it was directed against the merits of the decision as also costs, but due to the operation of circumstances subsequent to the filing of the appeal, the appeal on the merits has become infructuous
17. That being the position we are of the opinion that special appeal No. 135 is competent and can be heard with regard to costs alone
18. Mr. Misra's objection with regard to the hearing of special appeal No. 435 was that if the judgment dated 4-11-1952 became final and the order of Brij Mohan Lall, J awarding costs under Section 42 of the Administrator General's Act to the Administrator General could not be disturbed, then in view of the language of Rule 28-A of the Rules, the AdministratorGeneral would be as of right entitled to costs under that rule and the judgment of Brij Mohan Lall, J., dated 21-11-1932 cannot be attacked on merits. Whether or not the case at all falls under Rule 28-A, we would consider later on. At this stage it is enough to say that once we have held that special appeal No. 135 with regard to costs alone has not become incompetent, the preliminary objection of Mr. Misra with regard to special appeal No. 453 alse must be rejected. In fact, Mr. Misra has conceded that once we hold the judgment of Brij Mohan Lall, J. dated 4-11-1952 is sub judice and appeal No. 135 is competent, even with regard to costs only, special appeal No. 458 would also have to be heard on the merits.
19. in this view of the matter we decide the preliminary objection against the Administrator-General and proceed to discuss the merits of the two appeals.
20. We will first take up appeal No. 135.
21. The evidence on the record and the circumstances show that the Administrator-General's effort in suit No. 16 was to obtain Letters of Administration for himself. It is also clear from the judgment of Brij Mohan Lall, J dated 4-11-1952 that both he and the Administrator General treated the latter's application in case No. 16 as an application for Letters of Administration. The learned Judge in his judgment dated 4-11-1952 observed:
'It is stated by the Administrator-General that he is prepared to deposit the necessary court-fee and that an order may be made for the preparation of the letters of administration in his favour.'
Brij Mohan Lall, J. has said it much more clearly in his judgment dated 21-11-1952 given in the same case wherein he observed:
'In this case the Administrator-General had also made an application for the grant of Letters of Administration, although his application was rejected on a technical ground.'
Inasmuch as he had dismissed the application of the Administration-General also along with that of the Attorneys, in our opinion, no costs should have been awarded to the Administrator-General.
22. There is, however, another reason why costs should not have been awarded to the Administrator-General in Testamentary case no 16 of 1952. Right from the very beginning of the proceedings in that case, he knew that the Executors' case was unanswerable and that the Letters of Administration would ultimately have to be granted to them, yet he did not gracefully withdraw from the proceedings but continued to press his application. The extract that we have given from the judgment of Brij Mohan Lall J. dated 4-11-1952 clearly shows that right till the end the Administrator-General was asking for the Letters of Administration to be granted to himself, which he admittedly could not get in view of the provisions of Section 229 of the Indian Succession Act. It is thus obvious that it was not mere technicalities that stood in the way of the Administrator-General. His application could not butbe dismissed en merits, and Letters of Administration could not under the law be grantedto him. This being the clear position, with greatrespect to Brij Mohan Lall J. It is not correctto say that the Administrator-General's application was dismissed on a technical ground.We are satisfied that no ground of law orequity existed to entitle the Administrator-General to costs from the Attorney. It is forthis reason also that we are of the opinion thatno costs should have been awarded to theAdministrator-General in Testamentary caseNo. 16 of 1952 and inasmuch as Brij MohanLall J. has done so by means of the judgmentdated 4-11-1952, he has, with great respect,in our opinion, committed an error which mustbe corrected by this Bench.
23. Lastly, even on merits we are of the opinion that the Executors should have been granted Letters of Administration in case No. 16 and their application in that case should not have been dismissed on the technical ground that it was not in order.
24. There was no hurdle of limitation standing in the way of the Executors and the learned single Judge had ample powers to allow a proper amendment to be made. In our judgment, in this case, it would have been a proper exercise of discretion to allow them to suitably amend their application so as to make it a proper application for the grant of the Letters of Administration. It is true that in the circumstances of the case, there is no necessity now to record a formal decision on the question whether Letters of Administration should have been granted to the executors in suit No. 16. All that we are doing is to go into that question in order to find out whether, considering the merits of the application of the Executors, which was supported by their Attorneys (the Attorneys were only acting for the Executors and had undertaken to withdraw in their favour), there could be any just ground for awarding costs to the Administrator-General. It must be remembered that the case of the Attorneys was not inconsistent with but complementary to that of the Executors.
25. Unfortunately, on the ground of the application of the Executors not being in order, Brij Mohan Lall, J. considered it 'unnecessary to enter into the (further) question whether the Executors could get Probate or Letters of Administration', and refused to grant them the Letters of Administration on account of defects which were only procedural. He did not refuse them the Letters on the ground that they were not entitled to them. In this connection we would only like to point out what was observed by the House of Lords in Kendall v. Hamilton, (1878-79) 4 AC 504 where it was observed:
'Procedure is but the machinery of the law after all the channel and means whereby law is administered and justice reached. It strangely departs from its proper office when, in place of facilitating, it is permitted to obstruct, and even extinguish, legal rights, and it thus made to govern where it ought to subserve.'
The Executors in this case belong to a foreign land and if their application was not in accordance with the law provided by the Indian Statute, they should have been permitted to suitably amend it and remove the defects and only if they had refused to do so, should their application have been dismissed. In our judgment, in cases like these it is the duty of the Court to allow amendments. We find support from Cropper v. Smith (1884) 26 Ch. D. 700 where it was observed:
'It is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they made in the conduct of their cases by deciding otherwise than in accordance with their rights .. .. .. I know of no kind of erroror mistake, which if not fraudulent or intended to over-reach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace.'
There could not have been the least doubt that in view of the circumstance that they had obtained Probate of the will, it was the legal right of the Executors and they alone could receive the Letters of Administration from this Court. Consequently, far from costs being awarded against their Attorneys and made recoverable from the estate, Letters of Administration should have been granted to them. It has been urged that Brij Mohan Lall J. has awarded costs against the Attorneys and not against the Executors, but with great respect to him he failed to see that even the case of the Attorneys was superior to that of the Administrator-General in view of the clear provision of Section 241 of the Indian Succession Act read with Section 229 of the same Act, which we have already reproduced earlier. Besides, the Attorneys were only the Agents of the Executors and had undertaken to withdraw in their favour. Therefore, there could, in our opinion, under the circumstances, be no valid ground' for awarding costs even against the Attorneys. In this connection we would also like to point out, and it is clear from the judgment of Brij Mohan Lall J. dated 21-11-1952, that though apparently costs were ordered against the Attorneys, the same were really made payable by the estate, i.e the Executors.
26. For the reasons mentioned above, we are, with great respect, of the opinion that Brij Mohan Lall J. was clearly in error in awarding costs to the Administrator-General. In our opinion, in view of the circumstances mentioned above and in view of the fact that the legal right to obtain the Letters of Administration was that of the Executors and that the Administrator-General had no right whatsoever to obtain the Letters of Administration, the judgment of Brij Mohan Lall J. dated 4-11-1952 even with regard to costs was not correct and for that reason cannot be allowed to stand. We also find merits in the submission of Mr. Jag-dish Swarup that Brij Mohan Lall J should at least have followed the same course in suitNo. 16 which he followed in suit No. 22 where he did not make the Administrator-General pay the costs, though his application was dismissed and that of the Executors allowed. It is true that costs are a matter of discretion and that an appellate court would not normally interfere with the discretion of the original court. In the present case, however, in our opinion costs were awarded to the Administrator General in disregard of well accepted principles. We, therefore allow special appeal No 135 of 1954 with costs
27. We now come to special appeal No 453 of 1955. Rule 28-A of the Rules framed under the Administrator-General's Act reads:
'Whenever the Administrator-General appears in the High Court of the State 'on behalf of any estate' with a view to 'obtaining Letters of Administration or probate,' or 'to conduct proceedings in' connection with the administration 'of such estate.' then in addition to the fees chargeable 'under Section 42 of the Act' and prescribed by the Rule 28 of these rules, he shall be entitled to 'a personal fee' charge able to such estate at the following rates 'which shall not be credited to the public account of the State' (underlined here in ' ' by us) (1) for each case fee at 2 per cent of the value of the claim subject to a minimum of Rs 75:
Provided that in a case decided without contest, the fee shall be half sub.je.cl to a minimum of Rs. 50/-. (2) For an application moved in the High Court of the State Rs 32/-if it is not in pending ease mentioned in (1) above:
Provided that no fee shall be payable for an application which is merely of a routine nature.
(3) For any other matter not covered by this rule, such fees as the High Court may allow.'
Rule 28 reads:
'The fees mentioned in Schedule V to these rules 'plus a surcharge of 25 percent thereon', shall be the fees prescribed under Section 42 of the Act. provided thai they may be reduced, compounded for. or remitted as provided in these rules.' (underlined (here in ' ') by us The words underlined (here in ' ') by us above were added with effect from 1-4-1949
28. Section 42 of the Ac I reads:
'42 (1) There shall he charged in respect of the duties of the Administrator General such fees, whether by way of percentage or otherwise, as may be prescribed by the Government.
Provided that, in the case of any estate, the administration of which has been commit ted to the Administrator General before the Commencement of this Act, the fees prescribed under this section shall not exceed the fees leviable in respect of such estate under the Administrator-General's Act 1874. as subsequently amended:
Provided further that, in respect of the duties of the Administrator-General under the Regimental Debts Act. 1893. the fees prescribed in this section shall be determined in accordance with the provisions of that Act.
(2) The fees under this section may be of different rates for different estate or classes of estates or for different duties, and shall, so far as may be, be arranged so as to produce an amount sufficient to discharge the salaries and all other expenses incidental to the working of this Act (including such sum as Government may determine to be required to insure the revenues of the Government against loss under this Act.)'
Section 43 of the Act reads:
43 (1) Any expenses which might be retained or paid out of any estate in the charge of the Administrator-General, if he were a private administrator of such estate, shall be so retained or paid and the fees prescribed under Section 42 shall be retained or paid in like manner as and in addition to such expenses.
(2) The Administrator-General shall transfer and pay to such authority in such manner and at such time as the Government may prescribe, all fees received by him under this Act, and the same shall be carried to the account and credit of the Government.'
In the present case the Administrator-General is a salaried officer of the Government. We have stated the various provisions mentioned above as. In our opinion, the same would facilitate the interpretation of Rule 28-A of the Pules. In case No 10 (or even in case No. 22 but we are not concerned with that case, the dispute being with regard to costs awarded in suit No. 16). the Administrator General has done no work for the estate beyond making an infructuous application The application he made was not likely to serve the interest of the estate in any wav and was bound to be dismissed He neither administered the estate nor took any part in its administration
28. Before Rule 28-A can apply, the Administrator General must appear 'on behalf of any estate' The words 'on behalf of any estate' in our opinion govern the rest of the sentences occurring in the opening part of the rule and those sentences must be read conjointly with those words Besides the words 'such estate 'which occur in the opening part of the rule clearly show that the estate contemplated by rule 28-A must be one which the Administrator General can represent or the proceedings must be such in which the Administrator-General represents or can represent the estate it is also clear from the language of the rule that he must appear on behalf of the estate with a view (i) to obtaining Letters of Administration or probate and (ii) 'to con-duel proceedings in connection with the administration of such eslate' in the inslant ease, the Administrator-General could not have appeared on behalf of the estate He could not acquire any representative capacity in view of the presence of the executors who had been appointed under the will and to whom probate of the will had been granted by a competent court of law and whose right he himself conceded. If he could not representthe estate under the law, the infructuous application that he made for Letters of Administration in suit No. 16 cannot be said to have been made on behalf of the estate.
29. Mr. V. P. Misra has contended that the application made by the Administrator-General on 25-8-1952 in suit No. 16 was not an application for Letters of Administration but in the nature of a caveat. If that is so (though we and Brij Mohan Lall J. have held it to be an application for Letters of Administration) then it could not be an application for Letters of Administration or Probate and also not one made 'to conduct proceedings in connection with the Administration of such estate' By filing a caveat a person does not conduct proceedings in connection with the administration of an estate. He only warns the court of the right of some one other than the applicant
30. The use of the words 'to a personal fee chargeable to such estate .. .. .. which shallnot be credited to public account of the State' throw much light on the matter. The sum that is liable to be paid to the Administrator-General under rule 28-A has been described not only as fee but as 'persona] fee'. It is elementary that fee involves an element of quid pro Cfuo : see Lower Mainland Dairy Products Sales Adjustment Committee v. Crystal Dairy Ltd., 1933 AC 108 and Commr., Hindu Religious Endowments. Madras v. Sri L. T. Swamiar : 1SCR1005 in other words, the amount payable under Rule 28-A must be for some services rendered to the estate. Fee is not an ex gratia payment nor is it in the nature of a bounty or gift. In the shorter Oxford Dictionary, the word fee' has been given amongst others, the following meanings:
'Payment to a public Officer for the execution of the functions; hence, professional or other remuneration; charge; wages '
31. In Tomlin's Law Dictionary 'fee' has been defined as:
'Certain perquisites allowed to officers or persons engaged in the administration of justice, as a recompense for their labour and trouble; ascertained either by Acts of the legislature, or by ancient usage, which gives them an equal sanction with a statute of the land.' in Ramanatha Aiyer's Law Lexicon, the follow ing has been said with regard to 'fee'.
'Fees, are a charge or emolument, or compensation for particular acts or services, reward or compensation for service rendered or to be rendered, a payment in money for official or professional services', whether the amount be optional or fixed by custom, compensation paid to professional men. as an attorney or physician; the reward or compensation allowed by Law to an officer for specific services performed by him in the discharge of his official duties, frequently for services rendered in the progress of cause, 'to be paid by the parties obtaining the benefit of the acts, or receiving the services, at whose instances they were performed.' Sometimes the term may mean charges and is often used inter-changeably with the term 'costs'. (Underlined (here into ' ') by us).
The fee contemplated by rule 28A must, therefore, be an amount which is payable to the Administrator-General for services rendered to the estate and at the instance of the estate as for example, when he administers the estate or when having the capacity to represent the estate, he applied for Letters of Administration or probate or partakes in proceedings in connection with the administration of the estate bona fide with a view to help and administer the estate. Again, the use of the word 'personal' clearly shows that some extra service must be rendered by the Administrator-General personally, different from his normal duties under the Administrator-General's Act, which would entitle him to receive that fee.
32. Lastly, the matter is concluded by the use of the words 'shall not be credited to the public account of the State'. Section 43 of the Act clearly shows that all amounts received by the Administrator-General are to be deposited in the account of the Stale funds. Inasmuch as Rule 28-A provides an exception to that general rule, it must be held that the rule contemplates some extra burden on him personally so heavy as to justify the conclusion that the fee provided by Section 42 read with Rule 28 of the Rules is inadequate. The rate of personal fee. i.e., 2 per cent on the capital value of the estate is so heavy as to suggest some act in the nature of the administration of the estate, on the part of the Administrator-General. It could not be the intention of the rule making authority that such a heavy fee should be paid to the Administrator-General personally without his doing any work in the administration of the estate and only for making an infructuous application which was bound lo be dismissed. We also find some support from the words 'Provided that in a case decided without contest' occurring in the first proviso to Rule 28-A. Those words show that even if the Administrator-General being competent to represent the estale. had applied for Letters of Administration or probate and had obtained them without a contest, he would be entitled to receive only half the fee. It would be absurd to hold that when his application, far from being allowed or decided in his favour, is rejected, he would be entitled to full 2 per cent on the capital value of the estate in the name of 'personal fee' without that amount being required to be deposited in the State funds, and without the Administrator-General having done any work for the estate
33. in our judgment, Rule 28-A cannot be so read as to provide an ex gratia payment to the Administrator-General. He in the present case did not, ir our opinion, act bona fide at all. He intervened in suit No. 16 knowing full well that the Letters of Administration would ultimately have to be issued to the Executors. In our view, therefore, he neither represented the estate nor made any application on behalf of the estate for Letters of Administration or Probate nor conducted proceedings in connection with the administration of theestate on behalf of the estate. We are also satisfied that he did not render any personal service to the estate so as to justify a personal fee to himself, dispensing with its deposit in the public account of the State. The right which he alleges to have under Section 7 of the Act, he really did not have in the present case, because the Executors having obtained a probate had not only a superior right to the Administrator-General but had extinguished any right he had.
34. For the reasons mentioned above, weare of the opinion that rule 28-A does not apply to the facts of the present case at all
35. We would also add that apart from other reasons, inasmuch as we have flowed special appeal No. 135 with costs against the Administrator-General and have set aside the order of Brij Mohan Lall J. dated 4-11-1952 awarding costs to the Administrator-General under Section 42 of the Act read with rule 28, no personal fee under rule 28-A can be paid to the Administrator-General, because rule 28-A is clear that personal fee under that rule can only be in addition to the costs under Section 48.
36. The result is that we allow the special appeal No. 453 of 1955 also with costs against the Administrator-General. We assess the costs of special appeal No. 135 of 1954 as Rs. 50/- and that of special appeal No 453 of 1955 as Rs. 2,000/-. We have fixed the sum of Rs. 2,000/- in special appeal No. 453 because the legal fee itself would be Rs. 1,600/- odd and the Executors had to incur a lot of other expenses also.