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Giribala Dassi Vs. Bijoy Krishna Haldar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1904)ILR31Cal688
AppellantGiribala Dassi
RespondentBijoy Krishna Haldar
Excerpt:
probate - security bond--probate and administration act (v of 1881) section 78. - .....time to time by any general or special order directs.' it seems to us that it is only when the judge grants probate, that he may direct that the person to whom the grant is made should give security. the words used in the section are any person to whom probate is granted.' and though the last three lines of the section, declare that the 'bond shall be in such form as the judge from time to time by any general or special order directs,' they for simply to the form in which the security shall be given--form that may be prescribed by the judge from time to time, civil be observed that there is no other section in the act which entitles the district judge to call for security at any time after the grant of the probate. no doubt if, upon an application made under section 50 of the act for.....
Judgment:

Ghose and Pargiter, JJ.

1. This is an appeal by an executrix, to whom probate of a will had been granted in March 1899, under Section 78 of the Probate and Administration Act, it was competent to the Judge, when granting the probate, to direct that the executrix should give security for the due fulfillment of her office as executrix, but no such direction was given at the time, and necessarily no security bond was executed by the executrix. About two years afterwards, the application was made by the opposite party before us, for revocation, of the probate upon the ground that the inventory and account exhibited by the executrix were untrue.

2. The learned judge, upon investigation, has found that though the inventory and the account are wrong, yet they are not, to use his own words, 'wilfully wrong' and that no good purpose would be served by revoking the probate already granted. But he is, at the same time, of opinion that good cause has been made out for calling upon the executrix to furnish security; and he has accordingly directed that she should furnish security to the extent of Rs. 10,000. It is against this order that the executrix has appealed to this Court.

3. Section 78 of the Probate and Administration Act runs as follows: 'Every person to whom any grant of letters of administration is committed, and, if the Judge so direct, any person to whom probate is granted, shall give a bond to the Judge of the District Court, to enure for the benefit of the Judge for the time being, with one or more surety or sureties, engaging for the due collection, getting in, and administering the estate. The deceased, which bond shall be in such form as the Judge from time to time by any general or special order directs.' It seems to us that it is only when the Judge grants probate, that he may direct that the person to whom the grant is made should give security. The words used in the section are any person to whom probate is granted.' And though the last three lines of the section, declare that the 'bond shall be in such form as the Judge from time to time by any general or special order directs,' they for simply to the form in which the security shall be given--form that may be prescribed by the Judge from time to time, civil be observed that there is no other section in the Act which entitles the District Judge to call for security at any time after the grant of the probate. No doubt if, upon an application made under Section 50 of the Act for revocation of the probate the probate is revoked, and a new executor or administrator is appointed, it is open to the Judge to direct that security should be given by such executor or administrator, as the case may be. But in the present case the learned Judge is of opinion that the probate granted to the appellant in 1899 should not be revoked; and we do not see under what authority he could have directed that the executrix should now give security, which he did not at the time of the grant of the probate direct to be given. Upon these grounds, we set aside the order of the District Judge complained against. Each party should bear his own costs in both the Courts.


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