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In Re: Arthur Gerald Norton Knight - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in5Ind.Cas.311
AppellantIn Re: Arthur Gerald Norton Knight
Excerpt:
succession act (x of 1865), section 256 - discharge of sureties--original side rules, rule 470--jurisdiction--practice. - - 6. i could like to add a few words as the question relates to a matter of practice......an order by mr. justice wallis refusing to direct the discharge of certain sureties and that the surety bond executed by them should, be cancelled and held void.2. the sureties were appointed under section 256 of the succession act. their bond provides that on the fulfilment of the conditions specified in the bond, the bond shall be void and of no effect.3. i have practically no doubt that in this particular case the administration is complete and that the conditions of the bond have been fulfilled, and that, consequently, under the condition of the bond, it has become void and of no effect. that being so, i should have been glad, if i could see my way to do so, to make the order we are asked to make. but so far as i am aware, there is no provision of law which enables us to make the.....
Judgment:

Arnold White, C.J.

1. This is an appeal from an order by Mr. Justice Wallis refusing to direct the discharge of certain sureties and that the surety bond executed by them should, be cancelled and held void.

2. The sureties were appointed under Section 256 of the Succession Act. Their bond provides that on the fulfilment of the conditions specified in the bond, the bond shall be void and of no effect.

3. I have practically no doubt that in this particular case the administration is complete and that the conditions of the bond have been fulfilled, and that, consequently, under the condition of the bond, it has become void and of no effect. That being so, I should have been glad, if I could see my way to do so, to make the order we are asked to make. But so far as I am aware, there is no provision of law which enables us to make the order. The only rule which can be said to have any bearing on the question is Rule 470 of the Original Side Rules and that Rule is to this effect: 'An application by an administrator or surety to vacate a bond or surety to recognisance may be made by summons in chambers.' I think that rule applies to an application to vacate a bond during the pendency of the administration with the view to having another surety appointed in the place of the surety whose bond is vacated. And with regard to the substitution of sureties, the English practice would appear to be that the Court will not discharge an original surety to the administration bond and allow another to be substituted for him. That was what was held In the goods of Stark 35 L.J.P. 42 and my recollection is that we have followed that practice in this Court.

4. We have looked at the English Probate rules, and so far as I can see, there is no provision for making the order which we are asked to make in this case. I ought to refer to a case to which our attention has been called a case in which an order was made by Mr. Justice Boddam on the 13th August 1907. On a similar application, we are told by Mr. Downing, that Mr. Justice Kernan also made an order under similar circumstances. The only observation I have to make with regard to these orders is, that orders of this sort, if made at all, would be made as of course. In all probability, in the case of these orders, the point was not considered and the learned Judges assumed that they had jurisdiction. I can only say with all respect, having considered the matter fully and having had the assistance of Mr. Downing's arguments, I cannot follow the decision of Mr. Justice Boddam.

5. Mr. Justice Wallis did not see his way to make the order and I do not see my way to say that Mr. Justice Wallis is wrong. The appeal is dismissed.

Krishnaswamy Iyer, J.

6. I could like to add a few words as the question relates to a matter of practice. I am not aware of any provision in the Indian Succession Act enabling the sureties to make an application to the Court for their discharge. Mr. Downing has called our attention to none. Indeed I am not aware of any provision in the Act authorizing the administrator to make an application to the Court for an order of discharge or for a declaration that the administration has become complete.

7. It seems to me that the principle of law is that as the bond becomes void on the happening of that condition and if, as a matter of fact the administration has become complete in this, case, the bond becomes void. If it is not, the bond is in force. There is no need for the Court being invited to make a declaration on the subject. I agree in the order of the learned Chief Justice.


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