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A.K. Macdonald Vs. A.M. Wilson - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1940Cal354
AppellantA.K. Macdonald
RespondentA.M. Wilson
Excerpt:
- .....comprises a tea garden in assam known as the titadimord tea estate. of that estate the defendants, messrs. barry & co., are managing agents, but i am told that there is no written managing agency agreement. the fact is that they managed the estate during the testator's lifetime, and have continued so to do after his death. the summons was presented and filed on 20th february of this year, as was also the plaintiff's affidavit in. support.2. the plaintiff states that between 1931 and 1938, her co-trustees have by a majority sanctioned the carrying out of various works upon the titadimord tea estate, which she regards as being in the nature of capital expenditure, and also sold certain' machinery being part of the trust property, and purchased new as well as other machinery, and.....
Judgment:
ORDER

Panckridge, J.

1. This is an originating summons taken out by Mrs. Anne Kerr Macdonald, the widow of one Robert Hampton Macdonald, who died at Harrogate, England, in 1922, leaving a will dated 8th March 1920. The testator was domiciled in Scotland, and in the concluding passages of his will he declares that it should be construed and given effect to according to the law of that country. By the will the testator appointed' the plaintiff a trustee in conjunction with three other persons, the defendant, Alexander Maurice Wilson, who is described as an advocate residing at Aberdeen, the defendant, Erskine Macdonald Aird residing at Glasgow, and the defendant, Robin Hamption Erskine Aird, described as a tea planter of Rupai Estate, Doom Dooma, Upper Assam. The testator, after directing payment of his debts and funeral expenses, and after giving certain pecuniary legacies, directed the trustees to hold his estate in trust for payment to the plaintiff, should she survive the testator, of the free income of the rest, residue and remainder of his estate, heritable and moveable, during all the days and years of her life. There are directions as to the division and disposition of the estate on the death of the plaintiff. The testator and the plaintiff were residing at Harrogate at the time of his death, and the plaintiff thereafter continued to reside there for some time. The testator's estate comprises a tea garden in Assam known as the Titadimord Tea Estate. Of that estate the defendants, Messrs. Barry & Co., are Managing Agents, but I am told that there is no written managing agency agreement. The fact is that they managed the estate during the testator's lifetime, and have continued so to do after his death. The summons was presented and filed on 20th February of this year, as was also the plaintiff's affidavit in. support.

2. The plaintiff states that between 1931 and 1938, her co-trustees have by a majority sanctioned the carrying out of various works upon the Titadimord Tea Estate, which she regards as being in the nature of capital expenditure, and also sold certain' machinery being part of the trust property, and purchased new as well as other machinery, and arbitrarily forced her to share in meeting all this expenditure by means of deductions from the income payable under the terms of the trust. She also complains that on various occasions one or other of her co-trustees has visited her while she has been living at Harrogate, and that they have unjustifiably debited their travelling expenses against her income, although the business of the trust did not require them to make the journeys in respect of which the expenses were incurred. She also complains that in 1936 the defendant Robin Hampton Erskine Aird travelled from Assam to Calcutta and met her there on her arrival. She says that the other trustees are now debiting her with Mr. Aird'a travelling expenses from Assam, although she did not request him to come to Calcutta to meet her, and indeed had purposely refrained from acquainting him of her proposed visit to India, because she desired to see things for herself. Finally she complains that the defendants, Messrs. Barry & Co., although she has requested them to provide her with an opportunity and all proper facilities for inspection of the accounts of the tea estate, have consistently refused to do so. The summons asks for the decision of the Court on various questions, amongst others, whether the trustees are at liberty to meet capital expenditure upon the trust property so as to impose on the life-renter or tenant for life a diminution of income without her consent or the sanction of the Court, and she asks similar questions with regard to the travelling expenses with which she has been debited. She also asks whether she as beneficiary or trustee is entitled to examine the accounts maintained by the defendants, Messrs. Barry & Co., and whether she is entitled to inspect the tea estate. There is a prayer for a direction on the trustees to furnish full and proper accounts, and a prayer that the trustees and Messrs. Barry & Co., may be directed to give her inspection of the relative books.

3. Mr. Issacs appearing for the defendant trustees has urged, first, that the Court has no jurisdiction, and secondly that the summons is not maintainable. With regard to the question of jurisdiction I have come to the conclusion that Mr. Issacs' contention is well founded. It is now settled that Ch. 13 of the rules and orders of the original side, which govern the procedure with regard to originating summons, must be read subject to the provisions of 01. 12, Letters Patent, and it follows, that the Court has no jurisdiction to entertain an originating summons unless it would have jurisdiction to make an administration decree with regard to the estate in respect of which relief by originating summons is sought. Accordingly, unless either the cause of action in the hypothetical administration suit can be said to arise wholly within the local limits of the jurisdiction, or in the alternative, unless part of the cause of action arises therein and leave, of the Court is obtained, the originating summons must be dismissed. In this case no leave under Clause 12 was obtained. The definition of 'cause of action' as the bundle of facts which the plaintiff must prove in order to succeed is well-known and where it is sought to have the estate of a deceased person administered by the Court in terms of that person's will, the execution of the will and the grant of probate both appear to me to be essential constituents of the bundle.

4. In this case the will was executed out-side the jurisdiction, and the assumption by the executors, including the plaintiff herself, was registered at Edinburgh on 31st July 1929. I assume that this assumption is under the law of Scotland the equivalent of a grant of probate. This seems to disclose at least two facts, which took place in Great Britain outside the jurisdiction of the Court and which it' is necessary for the plaintiff to prove before she can succeed. As no leave has been obtained under Clause 12, the circumstances that a part of the cause of action arose outside the jurisdiction is fatal. I do not express an opinion whether any part of the cause of action can be said on the affidavit in support of the summons to have arisen within the jurisdiction. It may be necessary to decide that hereafter.

5. With regard to Messrs. Barry & Co., Mr. Bose has adopted Mr. Issacs' arguments on the jurisdiction, and he has also submitted that as regards his clients an originating summons cannot be maintained. In my opinion that submission is justified, because I do not think that against Messrs. Barry & Co. the plaintiff can be said to have a claim either as a trustee or as a beneficiary. As she is one of the trustees, Messrs. Barry & Co. are her agents, but her position as regards them is that of a principal to an agent, not of a trustee to a cestui que trust, or of a cestue qui trust to a trustee. Mr. Issacs has also argued that as against his clients these proceedings are not maintainable as an originating summons. Without deciding that question, I feel bound to say that his arguments fail to convince me because I am disposed to think that these questions of overcharges and debits against the income are matters which can be properly dealt with in a common account between the trustees and the beneficiary, but in my view the question of jurisdiction is fatal, and the summons must accordingly be dismissed with costs. There will be one set of costs for the trustee defendants to be recovered by them in the first instance out of the estate. Messrs. Barry & Co. will also be entitled to their costs. All the parties undertake not to object to the affidavits filed being used again in case a fresh summons is taken out by the plaintiff.


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