Asutosh Mookerjee, Acting C.J.
1. This is an appeal from the judgment of Mr. Justice Beachcroft on exceptions to a report of the Assistant Referee disallowing the claim of the appellant against the estate of his grand-uncle which is the subject-matter of an administration suit on the Original Side of this Court. The facts material for the determination of the question raised before us may he briefly narrated by reference to the annexed genealogical table:
Narottam (d. 1225),
| | | | | |
Sonatan, Adwaita, Manick, Sree Kanto, Sadhu Charan, Baishnab Charan,
(d. 1230), (d. 1271), (d. 1273), (d. 1260), (d. 1248), (d. 1252),
| | | | | |
Satyabhama, Bankulal, Rakhal Das, Chundilal, Raj Kristo, |
(d. 1276), (d. 1283), (d. 1232), (d. 1313), (d. 1302), |
| | | | | |
Bepin Behary Dutt. | Kali Das Sarala, | Nritya Gopal. |
| (d. 1301), | |
| | | |
| | | ___________|
_________| Sourendra | _________|_______
________|_________ (claimant). | | |
| | | Harajaya. Sabitri.
| | |
Nundo Gopal. Anand a Gopal. |
Banwari, 4 other sons.
4 sons, (Plaintiffs).
2. Chandi Lal Sinha who, in his lifetime, carried on an extensive business in Calcutta and other places, died on the 11th August 1906, and left an estate of considerable value, both moveable and immoveable. After his death, his business was continued by some of his sons who incurred various liabilities to outsiders in course of time. On the 13th June 1910, the present suit for the administration of his estate, for partition, and for incidental reliefs was commenced by his heirs. On the 20th January 1910, Mr. K.P. Basu, an Advocate of this Court was appointed Receiver of the estate of Chandi Lal Sinha, and, shortly thereafter, he proceeded to take possession of the properties. On the 16th August 1912, a preliminary decree was made whereby the suit was referred to the Assistant Referee with directions to take the usual administration accounts and to make the usual enquiries. The decree farther directed that creditors be invited by public advertisement to prove their claims against the estate before the Assistant Referee within a specified time. In answer to the advertisements, four claims were filed, only one of which represented debts left by Chandi Lal. An adjudication was held by the Assistant Referee on the claim so filed and a report followed. On the 26th January 1915, the Assistant Referee submitted a report after the accounts had been taken and the enquiries directed by the administration decree had been made. The report was confirmed by a decree dated the 19th April 1915, whereby the Receiver was directed to satisfy the claims which had been allowed in the report. Meanwhile, on the 15th December 1913, the present appellant, Sourendra Mohan Sinha, a grandnephew of Chandi Lal Sinha, had instituted a suit in the Court of the Subordinate Judge of Burdwan to enforce a claim against the estate of his grand-uncle. He obtained a Rule from the Burdwan Court to restrain the Receiver from dealing with the estate of Chandi Lal Sinha. On the other hand, the Receiver, on the 21st September 1915, obtained a Rule against the claimant with a view to restrain him from proceeding with his application in the Burdwan Court. On the 10th December 1915, an order was made by this Court at the instance of the claimant, giving him liberty to prove his alleged claim against the estate of his grand uncle in the administration suit. Accordingly, the claim was filed on the 17th December 1915. The substance of the claim was that he was entitled to realise from the estate of Chandi Lal Sinha a large sum of money, as the latter had, during his minority, taken possession of and managed the estate of his father Kalidas Sinha. On the 17th January 1916, liberty was given to the Receiver to appear before the Assistant Referee and to contest the claim. Some weeks earlier, a similar order had been passed on the 5th December 1915, on the application of one Prithichandlal Chaudhuri who claimed to be a creditor, not of Chandi Lal Sinha but of the heirs of Chandi Lal Sinha, against whom he had obtained a decree for money on the 29th June 1910 in a suit instituted by him in the Court of the Subordinate Judge of Purnea on the 5th June 1903. In the order made on the application of Prithichandlal Chaudhuri, it was explicitly stated that he was given liberty at his own risk as to costs to oppose the claim of Sourendra Mohan Sinha against the estate of Chandi Lal Sinha, deceased. In these circumstances, Prithichandlal Chaudhuri and the Receiver both appeared before the Assistant Referee and contested the claim of Sourendra Mohan Sinha, After a protracted investigation which, it is said, extended over 110 hearings, the Assistant Referee reported against the claim Mr. Justice Beachcroft, after a hearing which lasted for 30 days, confirmed the report of the Assistant Referee and dismissed the claim with costs. On the present appeal, the decree made by Mr. Justice Beachcroft was intended to be assailed on a variety of grounds on the merits, and adjournments were repeatedly taken to enable the appellant to scrutinise the accounts. But ultimately, Mr. Bose, who appeared on behalf of the claimant appellant, intimated that the grounds on the merits could not be pressed with any hope of success and that he would consequently confine himself to the question of costs which involved an important point of principle.
3. Mr. Justice Beachcroft has held, with regard to the hearing before the Assistant Referee, that both the creditor Pirthichand and the Receiver were entitled to their costs. As regards the hearing of the exceptions, he has allowed all costs of Pirthichand and the Receiver, subject to the reservation that there would be only one set of Counsel's fees, inasmuch as the main argument was that of the Counsel for the Receiver, and the Court had not been given any additional assistance by the presence of Additional Counsel because the defence of Pirithichand and the Receiver were identical. In our opinion, the order as to costs cannot be supported.
4. Prithichand Lal, who is frequently described in these proceedings as one of the creditors, had really no locus standi to intervene. Ha was not a creditor of the estate of Chandi Lal Sinha which was under administration; he was merely a creditor of the heirs of Chandi Lal Sinha; even his application to attach any portion of the assets left by the latter had been unsuccessful. The way in which he is described as one of the creditors seems to indicate that this distinction was not realised, and he appears to have been treated as if he was a creditor of the estate under administration, It is not necessary for us to determine now whether he should have been at all allowed to (sic) as a creditor of the hairs of Chandi Lal (sic); this, at any rate, is clear that one was permitted to intervene at his own risk as to costs and to oppose the claimant. His intervention was wholly unnecessary. The Receiver was quite competent to defend the estate from assailants who put forward stale or unfounded claims. As was ruled by the Court of Appeal in Williams v. Buchanan (1891) 7 T.L.R. 226, where a third party with no sufficient reason appears and defends an action separately, he must bear the costs of so doing, even though the plaintiff be unsuccessful in the action. Lord Esher, M.R., observed that, although the Court had a discretion in the matter Hanbury v. Upper Inny Drainage Board (1883) 12 L.R. Ir. 27, the Court would refuse the third party his costs, as no one had a right unduly to increase the costs of litigation except at his own expense. He had no reason to think that the defendant would not fight the action to the uttermost, and it would certainly not be fair to make the plaintiff pay the costs of the appearance of the third party whom he did not want to see; he had no reason for going to the expense of a separate appearance and ought not, consequently, to have costs against any body: he had in fact chosen to indulge in a luxury for which he must pay. Bower L.J. added that the third party might have gone to the defendant's Solicitors and got them to act for him, as his case and that of the defendant were identical. The same principle was applied in almon, In re, Priest v. Uppleby (1889) 42 Ch. D.351 : 61 L.T. 146 : 38 W.R. 150 substance of the matter thus is, that the intervention of Prithichand, assuming it to have been proper, did not change the character of the proceeding or alter its scope; he voluntarily came into it as a prudent measure, not of immediate protection but of possible personal benefit hereafter, when upon the completion of the administration proceedings and the termination of the administration suit, the residue, if any, left of the estate of Chandi Lal might ultimately pass into the hands of his heirs. In these circumstances, it would be clearly unjust to compel the claimant to pay an additional bill of costs of the intervenes. This view is substantially in accord with that adopted by Jesael, M.R. in Watts, In re Smith v. Watts (1882) 22 Ch. D. 5 : 52 L.J. Ch. 209 : 48 L.T. 167 : 31 W.R. 262, and by Parker, J., in Schwabacher, In re, Stern v. Schwabacher (1907) 1 Ch. D.719 : 76 L.J. Ch. 399 : 96 L.T.554.
5. The result is that the appeal is allowed in part and the decree modified only in respect of costs. The claimant will pay the Receiver his costs of and incidental to the reference and of the application to the Court; such costs will be assessed as of a hearing on Scale No. 2 and the fee of one Counsel only will be allowed. The claimant appellant will also pay the Receiver the costs of this appeal. Prithichand Lal, as also other parties, will pay their own costs of the reference, of the application before Mr. Justice Beachcroft and of this appeal. The order as to costs will include all reserved costs.
6. I agree.