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Sarat Sundari Barmani Vs. Uma Prosad Roy Chowdhry - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1904)ILR31Cal628
AppellantSarat Sundari Barmani
RespondentUma Prosad Roy Chowdhry
Cases ReferredChundra Bhuttacharjee v. Biswa Nath Bhuttacharjee
Excerpt:
probate, revocation of - probate and administration act (v of 1881 as amended by act vi of 1889) sections 50, 98--executor-inventory--account--commission--district judge, powers of. - .....section clearly says so; and we find no such words. nor again does the section give the district judge power to hold a judicial inquiry into the inventory and account of his own motion; and to make the executor or administrator pay the costs of it.4. all that the district judge has to do under the section is to see that the inventory and account prima facie satisfy the requirements of the section, that is, that the inventory appears on inspection to be a full and true estimate of all the property, credits and debts, and that the account on inspection appears really to be a true one showing the assets and their disposal (vide section 76). to ascertain this it would be necessary that the inventory and account should be passed under some examinations by the judge staff so as to detect.....
Judgment:

Ghose and Pargiter, JJ.

1. After stating the facts as set forth above their Lordships continued: The main grounds urged in this appeal may be summarized thus:

(i) That the invontory and account filed during the early stage of the proceedings had been accepted and were final under Section 98 of Act V, and that the District Judge had no power to call for a revised inventory and account.

(ii) That he had no power to call for accounts for the subsequent period.

(iii) That he had no power to appoint commissioners to audit the accounts.

(iv) That he had no power to commence proceedings to revoke the probate under Section 50 of Act V of 1881 on his own motion.

(v) That he had no power to admit under Section 50 an. application of a person, who had no sufficient interest.

There are many other grounds which deal with partieular incidents in the proceedings or with questions of fact and it is unnecessary for us to go into them.

2. The consideration of the first ground depends on the question, what is the duty of the District Court in taking the inventory and account under Section 98 of Act V. On one side it has' been contended by the appellants that the District Judge has no power to examine any inventory or account that may be put in under Section 98, and that his duty practically ends with receiving them, when they are put in. On the other hand, it is maintained that the District Judge has full power to check and scrutinize them in order to see whether they are full and true, and to institute an inquiry for that purpose.

3. We are of opinion that his duty lies in the mean between these two contentions. The section does not mean that an executor or administrator may tender any papers he pleases and that by simply styling them a full and true inventory or an account of the estate he complies with the requirements of the section. On the other hand, the section nowhere imposes on the District Judge the duty of scrutinizing and auditing the papers and of undertaking for that purpose elaborate and expensive proceedings. Such a scrutiny would be an onerous charge, which we cannot hold to have been laid on him, unless the section clearly says so; and we find no such words. Nor again does the section give the District Judge power to hold a judicial inquiry into the inventory and account of his own motion; and to make the executor or administrator pay the costs of it.

4. All that the District Judge has to do under the section is to see that the inventory and account prima facie satisfy the requirements of the section, that is, that the inventory appears on inspection to be a full and true estimate of all the property, credits and debts, and that the account on inspection appears really to be a true one showing the assets and their disposal (vide Section 76). To ascertain this it would be necessary that the inventory and account should be passed under some examinations by the Judge staff so as to detect manifest mistakes or omissions. If such were discussed, the papers would not satisfy the section; and the Judge would have power to require the executor or administrator to amend the account in order to comply with the section; and for this purpose the section empowers him to extend the time.

5. This, in our opinion, is the scope of the Judge's duties under Section 98. The has no power to institute an audit of the inventory and account at the expense of the executor or administrator. The section vests him with no such power, nor can such an authority be implied from the provisions of the Code of Civil Procedure as to the appointment of a commissioner t to examine accounts, to which provisions the District Judge has referred.

6. The learned Judge in support of his orders upon this matter has discussed very largely the position of the executors in this case, the provisions of the Mitakshara law as regards the joint interest of the minor son of the late Maharaja, in the estate left by the Maharaja and certain other questions hut in the view, which we have already expressed, and such as we shall presently express, this discussion may be left out of consideration. We may, however, remark that the Judge has, in discussing the questions, mixed up the position of the executors--as executors acting under the probate granted by the Court, and their position as guardians of the minor under the Guardians and Wards Act. He was concerned in this case only with the position and duties and obligations of the executors under the Probate Act.

7. Reference has been made to the 11th Clause of the will, in which the testator enjoined on his executors to prepare accounts annually and submit one copy to the District Judge. But that did not enlarge the Judge's power; it was a duty laid on the executors, similar to the other duties laid on them. It would authorize a person interested in the will to take action against them, if they disregarded it, but it did not empower the Judge to exact an account annually.

10. We must, however, deal with the inventory and account in this case separately. The foregoing statement of facts shows that the inventory was never accepted as satisfying Section 98, for, when it was refiled after amendment in September 1899, the Collector objected to the valuation and a miscellaneous cage was begun, which lasted, until it was compromised in June 1902. The acceptance was deferred pending the hearing of that case. It appeared therefrom that the inventory was not a full and true one, and did not satisfy the section. We hold, therefore, that the District Judge had power to require that it should ho amended in order to secure compliance with the section.

11. With regard to the account, the proceedings were different. It was amended as directed by the Judge and was refiled in December 1899. It was then checked and he recorded the note 'Accounts checked and reported to he correct.' That is he accepted the account as being correct, and treated it as satisfying Section 98, for DO further action was taken with regard to it. There was no adjournment nor any allowance of time. There is nothing in any of the orders recorded at that time to suggest that the account was kept in suspense or as awaiting further enquiry. That being so, the District Judge in 1902 had no power to reopen the matter judicially under toe first clause of Section 98. He had, of course, liberty to look into the account, just as he might institute a research into any other papers preserved in his Court. Whatever steps he might take after such an examination would depend on the law. Section 98 would give a Judge no power to call for a revised account, if an account had already been exhibited as required by the section and such account had been accepted as prima facie true; but if it appeared that the account filed was materially untrue, the section clearly indicates the procedure which he could have adopted, namely, to take action under its fourth sub-section. That, however, the Judge did not do; and the proceedings, which he actually took in connection with the accounts after the compromise, were ultra vires and illegal.

12. The second ground urged is that the District Judge had no power to call for accounts of the subsequent period, namely, from 21st Falgoon 1305 to the end of 1308 (March 1899 to April 1902). The account required by Section 98 is one that should show 'the assets which have come to his (the executor's or administrator's) hands and the manner in which they have been applied or disposed of.' It is contended by the appellants that, since the account is to be rendered within one year ordinarily, it is intended to comprise only the transactions of the first year, after the grant of the probate, and hence that the District Judge has no power under the section to call for the accounts of any subsequent period.

13. On the other hand, there is the argument that, since the account is to show the assets that have been collected and the manner in which they have been applied or disposed of, it cannot be complete, until all the assets have been collected and have been applied or disposed of; and, therefore, that the account must comprise, the whole of the time which the executor or administrator spends as such in collecting and disposing of the assets, consequently, that any account filed before that full account is rendered is only an instalment of the account required by the section; and that it is for this purpose the District Judge is authorized to extend the period prescribed for Pondering the account. Further, it has been argued that, since the section authorizes the Judge to extend the period of one year by the words ' within such further time as the Court may from time to time appoint,' it also authorizes him to extend his demand so as to have an account for any further time allowed; and that consequently he may demand accounts for the entire extended period, which may elapse, before the account Required by the section is filed.

14. Reference has been made to the English Practice in these, mutters, but it is hardly a guide here, because the provisions of Act V of 1881 differ very materially from the law in England. It is not necessary, however, for us to decide this question, namely, for what period altogether the District Judge has authority to demand an account under Section 98; for, on the facts as they occurred in this case, it is clear that the District Judge in 1899 accepted the account which the executors filed shortly after the expiry of a year from the grant of the probate, as being true and as satisfying (as it did prima facie satisfy) the requirements of that section. Certainly, (to use the. words of the section) he appointed no further time whatever for any purpose contemplated by the section. That acceptance was evidently considered as a final one for the requirements of the section. Hence it was not open to the new District Judge in 1902 to treat the matter as still incomplete or to order further accounts for subsequent years, on the strength of the words 'within such further time as the Court may from time to time appoint.'

15. It is indeed true that in accordance with the order of the Judge, the executors did produce the accounts of the subsequent years; but they evidently thought that his order must ho loyally obeyed, and we do not think that that circumstances affects the true position of things here.

16. The learned Judge with reference to the question whether he had authority to call for accounts of the subsequent years and whenever he thought proper, refers to the case of Mohes by Chundra Bhuttacharjee v. Biswa Nath Bhuttacharjee (1897) I.L.R. 25 Calc. 250, decided by a Divisional Bench of this Court consisting of Maclean C.J. and Baneree J. In one portion of his judgment he expresses the opinion that the view he has adopted is not in conflict with that ease; but, in another place, he expressly dissents from it and prefers to abide by the report of the Select Committee and the speech of a member of the Legislative Council in connection with Act VI of 1889, by which the Probate and Administration Act was amended. And later on he states that 'English lawyers are prone to make mistakes in considering the jurisdiction of the Probate Courts in this country and that it should be remembered that a Probate Court in India is also an Equity Court,'

17. We entirely deprecate these observations of Mr. Roy, the District Judge. He was bound to have loyally followed the decision of this Court, and he ought to have known that, determining what the Act means, ho could not refer to the proceedings in the legislative Council. We should add that remark to the effect that 'English lawyers are prone to mistakes as regards the jurisdiction of the Probate Courts in country' was wholly unwarranted and should never have made.

18. The decision regarding the third ground follows necessarily from the foregoing conclusions. As the District Judge had authority under Section 98 to order a judicial enquiry into account at the expense of the executors, he had no power appoint commissioners under the Civil Procedure Code to an the accounts rendered.

19. The fourth ground is that the District Judge had no power to commence proceedings to revoke the probate under Section 50 of the Act on his own motion, and this contention in our opinion, is valid; for, in doing so, he is at once both plaintiff and Judge in the matter--a position which, is entirely contrary to all recognised procedure. The proceedings taken under that section must be taken upon the petition of some plaintiff, and the District Judge must deal therewith judicially in the regular way.

20. Chapter V of the Act lays down the practice to be followed both (sic) and in revoking probates and letters of administration; and Section 83 in that Chapter directs that, in any case in which there is contention, the proceeding shall take the form of a suit and be tried according to the Civil Procedure Code.

21. The permit the District Judge to take action under Section 50 of his own motion would also lead in many' cases to unjust cones-quinces for instance, even if the action fails, the cost must, fall on the (sic)ecutor or administrator--that is on the estate, there being no ordinary plaintiff, who can be condemned in costs, if his case fails.

22. The fifth ground relates to the petition made by Uma Prosad Roy Chowdhry, and strictly speaking, it does not come into(sic) in this appeal, for, though ho has been made the respondent in this appeal, we do not find that the District Judge passed (sic) order making him a party to the proceedings which were (sic) on when he made his petition under Section 50, and much (sic) any order making him the plaintiff in those proceedings. (sic) not described as such in either of the two judgments now (sic) appeal. All that we find is that ho is mentioned incidentally therein, and that he is described as plaintiff in the decree under appeal. All that happened appears to have been that (sic) Prasad's petition was filed in the proceedings and they (sic) on the same as before, that is on the District Judge's own (sic). If Uma Prasad's petition is regularly made the found-(sic) of a future case under Section 50 (and our judgment in this (sic) will be no bar to proceedings being taken thereon), the (sic) may then be considered, whether he has such an interest entitles him to apply for revocation of the probate.

23. For these reasons we hold that, with the exception of the demand for the revised inventory, all the proceedings taken by the District Judge were contrary to law. Those taken under Section 50 for the revocation of the probate were ultra vires horn the commencement. It does not appear clear that the District Judge admitted Uma Prosad into them as the nominal plaintiff, but, even if he did so admit him, the proceedings could not be validated by joining Uma Prosad as plaintiff during their last stage. When Uma Prosad made his petition it might and should have constituted a distinct case under Section 50 and should have been conducted separately and regularly.

24. We, therefore, set aside all the proceedings taken by the District Judge on the 14th November 1902 and afterwards, as already mentioned with regard to the inventory and accounts. It is however still open to the District Judge to proceed with and take fresh proceedings upon Uma Prosad's petition, on which, as far as we can see at present, no regular orders have yet been passed.


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