Walter Salis Schwabe Kt., K.C., C.J.
1. The question is whether for the purpose of arriving at the amount of commission payable to the Administrator Genera] in the administration of an interstate estate in cases where the administration commenced before April 1914, the value of the assets is to be taken at the date of their collection or at the date of their distribution.
2. By the Act of 1913, the fees, whether by percentage or otherwise, to be charged in respect of the duties of the Administrator-General are those that may be prescribed by the Government provided that in respect of estates the administration of which commenced before the Act, the fees prescribed are not to exceed the fees leviable in respect of such an estate under the Act of 1874, which had been in force down to that date, and which was by that Act repealed. The word 'prescribed in that section means 'prescribed by rules issued by the Government.' So far as Madras is concerned, rules have been issued by Government in 1916. Rule II(1) prescribes that the Administrator General shall be entitled to receive a commission upon the amount or value of the assets which he collects at rates varying according to' the total value of the estate. Sub-section 3(c) of the same rule, referring to the commission payable in such cases, says that such commission shall be payable to and retained by him upon the collection of the assets'. The rule goes on after a full stop. In the case of any estate the administration of which has been committed to the Administrator-General before the 1st April 1914 the commission chargeable shall be at the rate of five per centum as prescribed by Section 52 of the Administrator-General's Act, 1874, or at the rate of three per centum in the case of estates falling under Section 53 of that Act.' Though, it is very difficult to construe that rule, I think that it means that the new rates prescribed are to prevail in respect of estates newly coming under the administration, but that in respect of old estates, the old law is to prevail. I think that the object of that was to avoid the difficulties which would otherwise arise owing to the provisio in Section 42 of the Act of 1913 which would involve an examination in each case to ascertain whether or not the rate charged exceeded the rate chargeable under the old Act, and in my judgment, the policy was to keep alive for the pre 1914 administrations the old Act of 1874.
3. We will therefore have to look at the Act of 1874 (Section 52) to ascertain how the amount to be charged by the Administrator-General is to be arrived at. In construing Section 52 of the Act of 1874, we must apply all the rules of construction which applied to that section when in force, in order to throw light on the intention of the legislature in enacting particular words in the section under interpretation, and therefore I think, in order to solve the question of the meaning of Section 52, we are entitled, and indeed bound, to look to Sections 53, 54 and 55.
4. The first principle of interpretation is to take the ordinary interpretation of the words, and it is only in cases in which there might be more than one ordinary interpretation of words, that one has to look to anything outside to arrive at the meaning. The words of Section 52 are. 'The Administrator General of Bengal shall be entitled to receive (a commission) at the rate of three per centum, and the Administrator General of Madras and Bombay respectively at the rate of five per centum, upon the amount or value of the assets which they respectively collect and distribute in due course of administration.' The amount of the commission, whether it be three per centum or five per centum, is made payable upon the amount or value of the assets collect and distributed. The ordinary English meaning of these words is 'on what is both collected and distributed' or to put it in other words 'on what, having been collected, is distributed.' On that interpretation the value cannot be properly ascertained until distribution. It is said that, if one looks at Section 54, it is clear that the meaning is not the ordinary English meaning, but the words must be read either to mean 'on the amount or value of the assets when collected' or 'on the amount or value of assets when distributed whichever may be the lesser amount', and an argument was addressed to us based on Section 54 which in fact provides that one half of the commission is to be payable and retained by the Administrator General upon collection and the other half upon distribution, which is said to show that you must value at the time of collection in order to arrive at the commission payable. I confess that this provision of Section 54 gives rise to very considerable difficulty, but, on the whole, I think it can be explained by saying that the object of Section 54 was to provide for the payment on account to one Administrator General, and the possible adjustment of accounts between him and a subsequent Administrator General when one had collected and the other had distributed, and was not intended to and did not, affect the amount that was to be paid by the estate; and I think the words 'The amount of the commission lawfully retained by the Administrator General upon the distribution of the assets shall be deemed a distribution in the due course of the administration within the meaning of this Act' are a corroboration of this view; because in my view, if the other interpretation were right, that clause might be read 'the amount of the commission lawfully retained by the Administrator General upon the collection or the distribution of assets shall be deemed a distribution in the due course of administration within the meaning of the Act.' In my view the true explanation is that that section had nothing whatever to do with the public, except in so far as it entitled the Administrator General to retain some money in advance, and that the rights as between the public and the Administrator General are governed by Section 52; and I see on reason for departing from what in my view is the natural interpretation of the words of that section and there is no reason for not holding that the amount which the Administrator General is to receive is a percentage on the value of the assets distributed provided of course they have before distribution been collected by him; with the result that if there is a rise in the value of the estate since collection, he gets a larger amount by way of commission, and if there is a fall in the value of the estate his commission decreases proportionately.
5. On these grounds I think this judgment must be reversed and the appeal must be allowed but, as the matter is one of public importance and the Administrator General quite properly does not press for his costs, without costs. The respondent will take his costs, out of the estate.
Coutts Trotter, J.
6. I think this is a very difficult case. The matter arises by reason of Section 42 of Act III of 1913 which provides for fees to be fixed for the Administrator General by rules promulgated by Government. The Act took the place of an old Act, II of 1874 which provided fees for the Administrator General on a totally different basis. In those days the taking of the fees was a personal remuneration for his services; under the present Act the fees go to Government and the Administrator General is paid a fixed a salary for the work of his office. By the rules certain rates are fixed. By Rule 11(3)(a) the Administrator General is entitled to receive on the amount or value of the assets which he collects in due course of administration remuneration according to a certain scale varying with the value of his estate. Sub-rule (c) runs as follows: 'Such commission shall be payable to and retained by him upon the collection of the assets, in the case of any estate the administration of which has been committed to the Administrator General before the 1st April 1914 (it is in regard to such an estate that this case has arisen) the commission chargeable shall be at the rate of five per centum as prescribed by Section 52 of the Administrator General's Act, 1874, or at the rate of three percentum in the case of estates falling under S 53 of that Act'. The argument that has been put forward in this case is that the reference to Section 52 of the Act of 1874 and Section 53 of that Act did not incorporate anything of those sections beyond the rate of percentage which is contained therein, five per centum in one case and three per centum in the other. That is a very attractive argument and would make a very short way to the decision of the case, but, in my opinion, it is an argument that cannot be accepted, though I have very great doubt about it. The words occur in a section which is not fixing a schedule or scale of charges which is Sub-section (a), but in a section which appears to be defining and fixing the time at which the commission shall be payable to and taken over by the Administrator General, which is upon the collection of the assets. I cannot think that even a careless drasftsman would insert in such a section some topic which did not relate to the matter therein but related to what I may call the method of computation of the commission as distinct from what the amount of the commission is to be.
7. Having got over that initial difficulty I find myself in the position, that I am to look to Section 52 of the Act of 1874 to find out how the perception of this commission is to be carried out, and the section runs thus: 'The commission shall be received at the following rates, viz., at the rate of five per centum upon the amount or value of the assets which they ;that is the respective Administrators-General) respectively collect and distribute in due course of administration.' They are to be paid commission on the value of what they collect and distribute. If these words stood alone, I should have very little difficulty about it. It seems to me that they must mean as my Lord paraphrased it the amount of assets which, having collected, they proceed to distribute in due course of administration. They cannot distribute before they have collected. It may be that the words are superfluous, but to my mind they bear the plain meaning that the commission is to be taken on what reaches the hands of the beneficiary through the hands of the Administrator General. It seems to me that that produces the most reasonable result, that the beneficiary should pay commission only on what reaches him during the course of administration, I cannot overlook another aspect of the case viz., that the new Act unquestionably has put an end to that construction, so that to the mere argument that it is reasonable, I do not think that I ought to attach too much weight in construing the Act of 1874. Nevertheless I think that this is the primarily reasonable meaning of the words apart from any question of policy or equity. But then it is said, in order to construe Section 52, you have got to look to Section 54 of that Act and if you find that that contemplates some other method of computation, then, although Section 54 is no doubt dead, it is perfectly legitimate to use it as a means of ascertaining what must have been the necessary meaning of Section 52. I accede to that argument and I think we are entitled and indeed bound to look at the other sections for the purpose of construing any one of them though only one is in fact re-enacted, Section 54 says that one half of the commission shall be paid to and retained by such Administrator General upon the collection of the assets and the other half shall be payable to the Administrator General who distributes any assets in due course of administration, and may be retained by him upon such distribution. If the object of that section is clearly to provide for the case where there is a change in the office of the Administrator General during the course of the administration of any given estates and to provide a method by which the commission should be shared between the successive incumbents of the office, then of course, the provision that one half of the commission would be paid to the Administrator General who collects the assets will of course take effect, whether there is going to be a change or not, because no one knows whether the Administrator General will survive to distribute or whether he will not. The argument based on these words is that 'one half of such commission' involves this position that the exact amount of the commission must be known at the time of the collection of the assets, because you cannot allot one half of a quantity which is not once and for all fixed. The answer appears to me to be that you can make an approximate estimate of the likelihood of the total amount of the assets and on such an estimate the one half commission has to be based. If the estate, as is the case in regard to the estate that has given rise to the present discussion, increases in value between the collection and distribution, it is obvious that there has got to be a collection of the other half of the commission upon the estate which has increased in value. Some suggestions have been made in the helpful arguments of Mr. V.V. Srinivasa Ayyangar as to how that is going to be worked out. Where there are two halves you must obviously have a second valuation of some sort if you are to carry out Section 52 and bring in the value of the estate at distribution at all. This is no doubt a rough and ready rule and to carry it out literally may effect the result that (he subsequent Administrator General would get a large commission, while his predecessor who had worked for the collection would get a comparatively small amount. That may be the effect of that section. Another method is to suggest that what the section contemplates - for it says not a word about it - must be some sort of real adjustment as between the Administrator General in office at the time of collection and the Administrator General in office at the time of distribution so as to make their shares equal. But I think it is unnecessary for me to go into the various suggestions as to the true construction of Section 54 because, as I have already said, Section 54, to my mind, is only legitimately considered as a guide to construe Section 52, I have come to the conclusion in agreement with my Lord, that Section 54 whatever it means and whatever be its true construction, is an important guide. There are two possible results, first that the Administrator General should have a little cash in hand to proceed with his work of collecting the assets and administering the estate and secondly that the foundation should be laid for an adjustment of some sort as between successive Administrators General. But Section 54 does not control the fixing of the commission as-between the Administrator General - whether he be the same person throughout or not--on the one hand and the beneficiary who is to pay the commission on the other, and, in my opinion, the commission fixed by Section 52 can only be the commission upon the value of the assets as they are ultimately distributed and placed in the hands of the beneficiary or beneficiaries.
8. I therefore agree that this appeal must be allowed.