Francis W. Maclean, C.J.
1. The questions, which arise upon this appeal, are as to the principle upon which the accounts are to be taken in the suit, in regard to the commission to be allowed to the late Administrator General.
2. Three questions arise:
(1) whether he is entitled to charge more than one commission upon his commission;
(2) whether he is entitled to charge commission upon the entire collections of a revenue-paying estate in his hands; and,
(3) whether he is entitled to charge commission upon the estate of his testator in the hands of the Receiver of the joint estate, to a share of which his testator was entitled.
3. As regards the first question, it is dear that the late Administrator General was only entitled to charge one commission-upon his commission. The appellants, however, say that, although upon the face of the accounts of the late Administrator General, it may look as if he had charged more than this, in effect and as regards the amount actually charged, he has not charged more than one commission upon his commission. This being so, the matter resolves itself into one merely of account. If in the aggregate he has not charged more than the law warrants, there is an end of the matter: if he has, he must refund.
4. Then is he entitled to charge commission upon the entire collections of the revenue-paying estate come to his hands? Under Section 52 of the Administrator General's Act (II of 1874), he is entitled to a commission of three per cent. upon the amount or value of the assets, which he collects and distributes in due course of administration, one-half to be payable and retained upon collection of the assets, the other half on distribution. It was his duty to collect the rents and profits of the revenue-paying estate, and, when collected, they clearly became assets of the estate, and for that collection ho was entitled to receive 1 per cent. commission upon the amount. Having received these assets, it was his duty to distribute thorn in duo course of administration, and out of them his first obligation was to pay the Government Revenue. It is said he is not to be allowed the l per cent, commission on the amount he so pays for Government Revenue. It is difficult to see why this argument should prevail. It is clear from Section 54 that the Administrator General is to be paid, his commission for, 'not merely the expense and trouble of collecting the assets, but also his trouble and responsibility in distributing them in due course of administration.' If the collections of the estate were assets, as they undoubtedly were, and if the Administrator General collected them and then distributed them in duo course of administration, why should he not be paid his commission for the trouble and responsibility o such collection and distribution? It is said 'assets' in Section 52 means 'nett assets.' If so, you might have an estate of a lakh, and the debts 99,000 rupees; the Administrator General collects the assets and distributes them in payment of the debts, and he is only to be paid commission on the odd 1,000 rupees. This can hardly be. The expression 'assets' must be read in their ordinary sense. For these reasons it seems to me reasonably clear that the Administrator General is entitled to commission upon the entire collections of a revenue-paying estate.
5. As regards the third question, it is conceded that the Administrator General is entitled to commission on realizations made and handed over to him by the Receiver. But he claims more: he claims commission on the value of the corpus of the share of his testator in the joint estate, of which the Receiver was appointed. It would, I consider, be straining the language of the section to say that ho had 'collected' this asset. I do not see how he can successfully say so. Upon the first and third questions, I agree with the learned Judge in the Court below, but respectfully differ from him on the second.
6. The case then must go back for the account to be taken upon the footing of our opinion now expressed. As each party has partially succeeded, the costs of all parties of this appeal will be costs in the suit.
7. I agree with the opinion expressed by the Chief Justice on the three questions, which have been argued in this appeal. I would, however, add one observation as regards the second of these questions. The Administrator General is entitled to charge commission upon all assets collected and distributed by him in due course of administration.
8. The term 'assets' is usually denned as meaning and including 'property of a deceased person chargeable with and applicable to the payment of his debts and legacies.'
9. The revenue payable in respect of the estate of a deceased person can hardly be described as a debt of such person. But then, on the other hand, the Administrator General is entitled to charge commission on all assets distributed in due course of administration. The payment of revenue is one of the most important and responsible duties, which the Administrator General has to perform in respect of a revenue-paying estate in his hands, and I think, therefore, it must be conceded that the entire rents of a revenue-paying estate, when collected by the Administrator General become the 'property' of the estate in his hands and the application of such property in the payment of revenue is a distribution of such property in due course of administration. In this sense, the property of a deceased' person applied in payment of revenue is an 'asset' within the meaning of the Administrator General's Act, and as such is chargeable with commission.
10. I agree with the judgment of the Hon'ble the Chief Justice and of Mr. Justice Sale.