1. This is an appeal by defendants 1 and 2 from a preliminary decree for accounts passed by the learned Subordinate Judge of Burdwan in a suit brought by the plaintiff Radha Raman Sarkar against the persons who were appointed executors of the will of one Rajabala Dasi. These persons were appointed executors by her will dated 6th December 1909 which appears to have been about the time when she died and the grant to them was limited to the minority of the plaintiff. The date of the grant to them of the probate was 8th May 1911. The learned Judge has found and it appears to be clear that the plaintiff came of age in September 1918 and he has decreed accounts for 1911 to 1919 against defendants 1 and 2 only. He has also given certain directions with regard to the taking of these accounts.
2. The first question that was raised in this appeal when it was opened was the question whether or not the learned Judge was correct in making an order for accounts for the period of 1911 onwards and that matter having been argued, it was not further persisted in. It appears that, from 1911 onwards, these persons were at all events nominally executors and it is quite clear to me that they must account.
3. A question was raised as to whether the learned Judge was right in endeavouring to determine the time up to which these executors acted as such. In my judgment for the purpose of the account there is no point in dealing with that matter now. These executors, when they give the accounts, have got to state their receipts and payments and if in any particular year they have not received any money, it is quite obvious that they would not have to account for any. On the other hand, if in any particular year, say 1919, they did receive money belonging to the estate, they must clearly include that in their account, and it is idle to say that, though they received money and did not accounts for it, they are not liable because they have ceased to be executors. It does not appear to me that it is necessary, for this Court to trouble itself with that matter.
4. It is to be observed that the executors were oxigninally five in number. Two of these persons have died and Mr. H.D. Bose has been able to satisfy me upon authorities including a citation in Seaton on Decrees, Seventh Edition, p. 1459, and Williams on Executors, Eleventh Edition, p. 1629, that it is not necessary for the plaintiff to implead the representatives of these deceased executors unless he wants to do so.
5. There remains, however, a question as to one Jatindra Nath Bose who is a party to these proceedings as defendant. The plaintiff's case is that, this man Jatindra, although he did allow his name to be put forward for the grant of probate and did not renounce nevertheless has taken no part at alt i even from the beginning in the management of the estate as executor. There can be no doubt that prima facie all the surviving executors ought to be made parties to a suit for account and the order for account ought prima facie to be made against them all. We have however, to see whether this point which prima facie is a good point though a technical point is one which it is open to the appellants before us to take. I find that, in para. 15 of the plaint, the prayer for relief as regards accounts is expressly limited against defendants 1 and 2 and the mass of materials which is disclosed by the written statement in no way objects that, if a decree for account is to be made, it is necessary that defendant 5 should join in rendering the account, with defendants 1 and 2. The issues which were settled for the trial of this case raised no such objection on the part of these defendants. Issue 6 was whether the plaintiff was entitled to a decree for accounts against defendants 1 and 2 and, if so, for what period and against whom. When the learned Judge comes to deal with this matter in his judgment, he deals with it in a way which shows that no objection was raised before him that defendant 5 was a necessary party to the order directing the account. Defendant 5 would have, it seems to me, in these circumstances, some grievance, if we were not at this stage of the proceedings to direct that an order for account be made against him also and, in view of the course taken in the Court below, I am of opinion that it is not necessary for us to add, defendant 5 as a party against whom a decree for account is to be made. I see no objection to the directions which the learned Judge has given and I am loath to make any amendment in the decree passed by the Court below. It appears to me that the proper order to pass in the case is that this appeal should be dismissed with costs. Hearing fee five gold mohurs.
B.B. Ghose, J.
6. I agree.