1. This was an application to the District Judge of Hooghly by a gentleman who was a surety in an administration bond granted in connection with the estate of his mother, to whose estate his sister was appointed administratrix, and the application was that the Court should call upon the administratrix to furnish a new surety and to release him from the liability under the security bond.
2. The applicant's case is this. He admits that he became surety for his sister for the due administration of the mother's estate, to the extent of Rs. 22,000, but he says that the administratrix is wasting the estate, and that he is powerless to stop her by an administration suit or otherwise, as he has no interest in the estate, and he cannot prevail on any of the beneficiaries, who, he alleges, are colluding with his sister against him to take such administration proceedings, and, under such circumstances, he says it is only fair and reasonable that he be discharged. The matter came before the District Judge, who did not go into the matter very fully, but held that ho had no jurisdiction to accede to the application, and accordingly refused it.
3. The case then came before this Court about a year ago, and, on consideration, we thought, before deciding the question of law, which was then based upon a hypothetical state of circumstances, that it would be better to ascertain whether in point of fact the administratrix had been guilty of mal-administration of the estate, so we remanded the case in order that the Lower Court should determine whether or not the alleged case of mal-administration could be substantiated, the case being retained upon the file of this Court. The record went back, and the District Judge has found that the case of mal-administration had been made out, and it now comes back to us.
4. In this state of circumstances, two questions arise: first, whether the District Judge has power to discharge the surety; and, if so, secondly, whether he ought to have done so in this case.
5. Upon the first point the Probate and Administration Act is silent: there is no express provision enabling the Court to discharge the surety.
6. But Section 51 of the Act gives to the District Judge jurisdiction to grant and revoke Probates and Letters of Administration in all cases within his district, and the giving of an administration bond with sureties is part and parcel of the procedure connected with the granting of Letters of Administration. Section 78 specially empowers the Judge to call upon the administrator to give a bond with one or more surety or sureties. There is no provision in the Act as to what is to be done or what the Court can do in the event of the death of the surety, or in the event of the surety, under such circumstances as the present, desiring to be relieved of the burden which he has undertaken. In my opinion Section 78 ought not to be read as meaning that the District Judge can once and once only direct a bond with sureties to be given, and that after that has been done he becomes then and there functus officio, and that he has no power in the event of the surety dying, say the nest day, to call upon the administrator to furnish another. Surety. That would be a narrow and not a common sense view to take of the section, and would lead to most inconvenient results. Having regard to Section 51, I do not see why we should limit Section 78 to one application, and say that, when once the Court has taken a bond with sureties, it cannot take a second with fresh sureties, if the necessity arise. I, therefore, think that the Court had jurisdiction to entertain the present application. Then arises the question whether it ought to have been granted.
7. Speaking with every respect I think that there is a great deal of force and common sense in the observation of the late Vice-Chancellor Malins, in the case of Burgess v. Eve; observations which have a distinct bearing upon the point immediately under discussion, and apart from Section 130 of the Indian Contract Act, to which I will refer in a moment, I should have been disposed to hold, upon general equitable principles, that the surety, situated as is the present applicant, seeing the person, for whom he is the surety, wasting the estate, whilst he is powerless to interfere, should have the right of being discharged from his suretyship as regards future transactions. Had he been a beneficiary in the estate, and so could have invoked the aid of the Court in an administration suit to prevent the waste of the estate, different considerations might possibly have applied. But, apart from this view, I think the case falls within Section 130 of the Indian Contract Act, and I fail to see upon principle why we should hold that that section does not apply. That section is perfectly consistent with the equitable doctrine which has been laid down by Vice-Chancellor Malins in the case I have cited.
8. It is true that in the Bombay High Court in the case of Bai Somi v. Chokshi Ishvardas Mangaldas (1894) I. L. R. 19 Bom. 245, it was held that a surety for the guardian of a minor's estate, appointed under the Minor's Act, should not be released from his obligation as surety on account of the guardian's mal-administration of the estate, and it was held that Section 130 does not apply to such a case. No doubt, in principle that is very like the present case, But one of the reasons for the decisions given in that case was this: 'In holding this view of the sureties obligation, we do not say that the surety may not apply to the Court to take steps for his protection against the guardian.' That probably means that he might have applied to the Court as the next friend of the minor for the discharge of the guardian. But such reasoning has no application 'to the present case, for the surety here, not being a legatee; or a creditor of the estate, can take no steps to protect either x the estate or himself by instituting administration proceedings.
9. Here the surety is absolutely without a remedy, and, if the view of the Court below is sound, he is compelled to look on and see the administratrix wasting the estate, which probably means, in the result, a serious pecuniary liability upon himself. That does not commend itself to my mind, and, for the reasons I have given, I think the applicant is entitled to be discharged, so far as relates to the future, from his suretyship. I am not dealing with the case of a person, who becomes surety, and then from mere caprice or for no sound reason desires to be discharged.
10. The appeal must, therefore, be allowed with costs.
11. I am of the same opinion. There is no reason why Section 130 of the Indian Contract Act should not apply to the case of the surety here. The learned vakil for the respondent very properly conceded that he was not able to contend that that section was not applicable to the present case. If that is so, the surety by giving a notice as contemplated by Section 130 could have the guarantee revoked. And, if the Judge is to be held to have no power to deal with the matter and to require the administrator to find fresh surety, it would lead to an anomalous result. There would be an administrator without any surety, the guarantee having been revoked by the operation of Section 130 upon notice having been given by the surety, and there would be no power in the Judge to require the administrator to furnish a fresh surety. That would be the result, if we were to give effect to the contention urged on behalf of the respondent that the District Judge, after having made his order for the execution of the surety bond, ceases to have any further power regarding the matter. I think the proper view to take of Section 78 of the Probate and Administration Act, under which the surety bond is taken, would be to hold that the Judge has power to deal with the matter of the surety bond, upon a contingency like the present arising, and that he does not become functus officio after the first surety bond is executed.