Ghose and Gordon, JJ.
1. The petitioner, who obtained this rule, is the Maharani of Burdwan, and the opposite party, Shajani Kanta Chatterjee, is a pleader practising in the District Court at that Station. The facts are shortly as follows: Lalla Bangsha Gopal Nanda, the Maharani's brother, died in Pous 1299, leaving a will in which he appointed as his executors his wife Kanchan Dai, Jugut Bandhu Mitter and Shajani Kanta Chatterjee. Shajani Kanta being unwilling to act as executor unless he received some remuneration for his services, Kanchan Dai offered him, and he accepted a sum of Rs. 125 a month as remuneration for undertaking the duties of executor. Before, however, any formal agreement could be entered into, the Maharani's dewan proposed to Shajani Kanta that he should accept a perwana for Rs. 125 a month from the lady instead of from Kanchan Dai. Shajani Kanta agreed to this, and accordingly on the 15th Magh 1299 (27th January 1893) he received a perwana from the Maharani, in which she undertook to pay him monthly Rs. 125 so long as he continued to perform the duties of executor to the estate of her late brother. In pursuance of this agreement, Shajani Kanta on the 16th Magh applied jointly' with his co-executor for and obtained probate of the will of Lalla Bangsha Gopal Nanda, and he continued to receive from the Maharani the stipulated remuneration up to Kartick 1300, but from that month the payment ceased. Shajani Kanta accordingly sued the Maharani in the Small Cause Court of Burdwan to recover Rs. 375 on account of his salary for the months of Aghran, Pous and Magh of 1300, and the learned Judge of that Court decreed his claim. The Maharani then moved this Court, and a rule was issued on the plaintiff to show cause why, for reasons stated in the petition, the judgment should not be set aside.
2. The rule has been argued before us by the learned Advocate-General for the Maharani and by Mr. Bonnerjee for the opposite party.
3. The first point urged by the learned Advocate-General was, that the alleged contract was gratuitous and without consideration. We are however unable to accept this view. Reading the perwana and the plaintiff's evidence together, it seems to us clear that there was consideration for the alleged contract. The Maharani was desirous that the estate of her late brother should be administered, and accordingly with this object she promised, in the perwana referred to, to pay the plaintiff a monthly sum of Rs. 125 as remuneration so long as he continued to perform the duties of executor. The plaintiff, who was not legally bound to accept the office of executor, in accordance with the desire of the Maharani as conveyed in her perwana, applied for probate as executor, and having obtained probate, he performed the duties of executor, and for some months received the stipulated remuneration from the Maharani. There was thus, we think, a clear consideration for the alleged contract [see Indian Contract Act, Section 2 (d), Addison on Contracts, p. 2, 9th Edition, and Pollock on Contracts, 5th Edition, p. 1761.]
4. The second ground taken before us is, that under Section 23 of the Contract Act, the consideration of the alleged agreement is unlawful, because such an agreement is positively forbidden by law, or is of such a nature that if permitted it would defeat the provisions of the law. The law relied upon is Section 56 of Act II of 1874, the Administrator-General's Act, which provides as follows : No person other than the Administrator-General acting officially shall receive or retain any commission or agency charges for anything done as executor or administrator under any probate or letters of administration or letters ad colligenda bona, which have been or shall be granted by any Court of competent jurisdiction within the meaning of sections one hundred and eighty-seven and one hundred and ninety of the Indian Succession Act, 1865.'
5. The learned Advocate-General contends that the word 'receive' in this section means receive from any body and not merely from the assets of the estate, and that therefore in the present case the plaintiff is prohibited by law from receiving from the Maharani any remuneration whatsoever for the performance of the duties of executor. We are however not prepared to ascribe to the word 'receive' in this section this wide and general meaning. Having regard to the scope and object of the Act, as well as to the terms of the section, it seems to us that the words 'receive and retain' bear a more restricted meaning, and that they refer rather to the receipt or retention by an executor or administrator of commission or agency charges from the assets of the estate than from any third person; and in this view we think Section 56 does not apply to the present case.
6. The third and last point which has been pressed upon us is that the consideration or object of the alleged contract is unlawful, because such a contract is opposed to public policy, in other words, that it is opposed to public policy, not only to permit an executor to receive any allowance or remuneration for his services from the estate in respect of which he is acting as executor, but also to permit him to receive under any circumstances remuneration for such service from any person whatsoever. No doubt the authorities cited before us [see Williams on Executors, Book II, Part IV, p. 1860, Edition 1879; in the case of Robinson v. Pett 3 P. Wms. 249, of Scattergood v. Harrison Mosely 130, and the case of Joygopal Bysack v. Roma Nath Bysack Pulton 113], go to show that an executor's office should be voluntary and gratuitous, and that as a general rule, an executor or administrator is entitled to no allowance at law or in equity for personal trouble and loss of time in the execution of his duties. In one English case, however, to which our attention has been drawn, viz., the case of Chetham v. Audley 4 Vesey 72 the Lord Chancellor allowed an executor in India passing his accounts in England commission upon receipts or payments according to the practice then prevailing in India. The leading English cases bearing on the subject are that of Robinson v. Pett (cited above), and the cases referred to therein, and the principle which appears to underlie these decisions is that bargains which secure remuneration to the executor out of the estate itself ought to be discouraged as tending to dissipate the property. This principle has, however, no application to the present case.
7. It has however been strongly contended before us that the present contract is against public policy, because it creates an interest at variance with a duty [see case of Egerton v. Earl Brownlow 4 H.L.C. 1-250]. that is to say, if the plaintiff be remunerated for his services there will be an inducement for him to neglect his duties and to prolong the administration instead of acting with care and diligence. We think that there is much force in this contention, but at the same time, although an agreement of this character may appear to some extent for the above reason to be opposed to public policy, we are not prepared to hold that such an agreement is necessarily unlawful. We think it should be borne in mind that, if a sole executor or where there is more than one, all the executors, renounced, the estate of the testator might go unadministered unless the executor or executors undertook to accept office on receipt of remuneration from a third person, and it is quite possible that more public mischief and inconvenience might be occasioned by the estate remaining unadministered than by rewarding an executor for administering it. In the present case it seems to be quite clear upon the evidence that Shajani Kanta would not have taken upon himself the duty of executor unless be was remunerated, and we are not prepared to say that, under the circumstances, the agreement entered into between him and the Maharani was unlawful. On the whole, we think that the decree of the Judge of the Small Cause Court ought not to be interfered with, and accordingly the rule will be discharged with costs.