P.B. Mukarji, J.
1. This matter has been set down before me for judicial determination under a special direction from the learned Chief Justice on 14-5-1952.
2. It has been a long standing point which has caused the offices of this Court constant headache for over half a century. On every occasion the point avoided Judicial determination by special departmental directions obtained from Judges confined to individual cases without setting the law and practice on the point.
3. The point is that if an Order is made by the Court for grant of Letters of Administration to a person on his executing a personal bond without surety, can he obtain such Letters of Administration if he has that bond executed not personally but by an agent to whom he grants a power of attorney to do the same.
4. Before proceeding to discuss and decide the point I consider it proper to set out briefly the facts of the case.
5. Rajendra Narayan Singh Deo Maharaja of Patna and the certificated, guardian of the person and property of Pushpamitra Singh Deo the only son of Kumar ' Brojendra Narayan Singh Deo deceased applied to this Court and obtained as such certificated guardian Letters of Administration of the estate of the deceased. The order granting the Letters of Administration was made on 3-4-1952 in these terms:
'It is ordered that subject to the applicant furnishing security by a personal Bond in the above goods Letters of Administration of the property and credits of the above named deceased be granted and issued to the said applicant.'
6. Then on 7-5-1952 Solicitor Hirendra Kumar Mitter for the grantee wrote a letter to the Registrar, Original Side of the High Court, from which I quote the relevant extracts:
'My client the petitioner is a Member of Parliament and he is now at Delhi to attend Sessions which will commence shortly and he cannot come down to Calcutta till July next. The estate of the deceased will suffer loss if the Letters of Administration are not issued forthwith. In the circumstances and in accordance with Chapter 35 Rule 19 of the Rules I request you to nominate a gazetted officer at Delhi before whom my client will execute the Bond at Delhi and the Bondmay be attested by such officer. If you feel any difficulty in nominating a gazetted officer at Delhi for that purpose and with a view to save costs my client suggests that the settled Bond may be executed by my client's constituted attorney duly authorised for the purpose by a Power of Attorney properly executed and registered by my client. In this connection I beg to refer to you to the notes at page 356 of Mr. Ormond's Rules 4th Edition, in the Goods of Andrew Yule deceased.'
The letter raises two problems for decision, one about nominating a person at Delhi and the other about the feasibility of carrying out that order of Court through a constituted attorney. The Registrar felt great difficulty in acceding to the request contained in that letter and referred the matter to the learned Chief Justice. The application now comes up before me for judicial determination on an assignment from the Chief Justice.
7. Order 19 of Chapter 35 of the Original Side Rules of this Court provides:
'The execution of Administration Bonds by persons other than a Guarantee Society shall be attested by the Registrar or Master or where . executed outside the Court House by the Registrar or the Master or such gazetted officer as may be nominated by the Registrar for that purpose.'
8. On a reading of this Rule, I cannot conceive of the Registrar of the Original Side of this State High Court nominating a gazetted officer at Delhi outside the jurisdiction of the State High Court and requiring him to accept such nomination and order him to carry out the obligation imposed thereunder. I do not think that such an officer is amenable to the, jurisdiction of this Court or its Registrar. In case of refusal by such a nominated officer this Court will be powerless to enforce such nomination. On a construction of that Rule, I am of the opinion that such nomination under this Rule by the Registrar has to be of a person who is amenable to the jurisdiction of this High Court. A gazetted officer at Delhi not being such a person cannot and should not be nominated by the Registrar under Chap. 35, Rule 19.
9. But the more important point raised in this application relates to the nature of the personal bond of the administrator and whether an agent's bond can be regarded as such a personal bond.
10. The Attorney's reference to Ormond's Rules of the Original Side of the High Court 4th Edition at page 356 is inaccurate the correct reference being page 556 of the said Edition of the Rules. 'In the Goods of Andrew Yule deceased' is a case quoted at the foot note on that page of the Rules. There it is said that the Bond in that case was signed for the administrator who was absent from Calcutta by his attorney duly authorised under a General Power of Attorney which had been registered. It is stated there that it was held by Chaudhuri J. that this was a sufficient execution of the Bond. This foot note also proceeds to suggest that although that case was of an additional Bond, Chaudhuri J. expressed the view that such procedure might also be adopted in the case of an original Bond and reference is made to a passage at p. 307 of Tristram & Coote'5 Probate Practice. It is this particular foot note which appears to have caused most of the trouble in the present case.
11. I had the Old Records Department searched for the purpose of finding out the papers of 'In the Goods of Andrew Yule deceased'. Prom the records of that case it appears that on 1-5-1918 Mr. Hechle the then Registrar of the Original Side of this Court put up a long departmental notebefore Chaudhuri J. The basis of that note was the case 'in the Goods of Ross' (1877)-2 P D 274 (A) and a passage in the 15th Edition of Tristram & Coote's Probate Practice.
12. On the basis of these two authorities Mr. Hechle suggested in his departmental note to the learned Judge that a constituted attorney could sign the personal Bond. Upon that Chaudhuri J. gave the following departmental direction:
'I think the Bond as signed by the administrator',3 attorney can be accepted 'in this case'. Ithink it may also be done in the case of anoriginal Bond.'
13. It is clear however from this that there was no judicial determination of the point and this departmental direction of Chaudhuri J. was given without any arguments being heard at the Bar, a privilege which I had in the present case. Then the case put up before Chaudhuri J. was of an additional Bond and not the case of an original Bond and the observation of the learned Judge about an original Bond was obiter. It is also clear from Chaudhuri J.'s direction, that the learned Judge did not give any general direction but onlydirected acceptance of the attorney's bond in that particular case.
14. I proceed now to examine the authorities placed before me.
15. In the case of -- '(1877) 2 P D 274' (A) a person having taken out administration to thegoods of the deceased went abroad and subsequently under an order of the Court of Chancery a considerable sum became payable to the estate of the deceased and to his brother and sister whowere also deceased. Then what happened in that case was the order could not be passed and entered until the additional duties in regard to these estates had been paid. But then the administrator was at that time in Japan. The Court allowed another person to file the affidavit as to the increase of property and to execute the Bond to cover the increased duty (in the place of theadministrator) with two sureties on the distinct understanding that as soon as possible the administrator should execute a similar Bond. Sir James Hannen, President of the Probate Division delivering judgment observed at p. 275:
'The question is, can the Court allow such Bond to be given by some other person than the one primarily liable to give such Bond, that is by the Administrator? It does not seem to me that in this respect my power is in any way limited by the Statute, and from the case cited 'In the Goods of Stewart Sutherland', (1862) 4 SW & T (Sup) 189 (B) it is clear that there are cases in which the Judges of this Court have allowed some one, other than the original administrator, to execute the Bond under the circumstances, for instance, that it is impossible for the administrator to do so, or where there is a pressing necessity that it should be done by some one else. Here the latter is the ground of the application. There is a necessity that the additional duty should be paid at once. The applicant is undoubtedly a proper person to do what is necessary and I will allow him to do so, but it must be-understood that the administrator himself must execute a similar Bond as soon as possible.'
16. Now the limits of this decision should bestrictly observed. First the condition must be such that it indicates the existence of a situation almost verging on impossibility for the original administrator to sign a personal Bond. Secondly it is only as a very temporary expedient that such a Bond is accepted by the Court it being alwaysunderstood that even in such cases where it is done the administrator is directed to execute asimilar Bond as soon as possible. None of theseconditions is satisfied in the present case. Attendance in the sessions in Parliament at Delhi is not considered by me to be one of such conditions and even then it was possible for him to come on any Saturday to Calcutta to execute the Bond. Secondly there was no order by him that when he does come he will personally execute the Bond but in the meantime his agent may be allowed to tide over the present inconvenience. So much for the authority. In the Goods of Ross (A).
17. In the latest edition of the Tristram and Coote's Probate Practice which is the 18th Edition published in 1940 the point is stated at page 271 as follows:
'In certain circumstances another person will be permitted to make and execute the Bond.'
18. In support of the above proposition the learned Editors rely on the same case 'In the Goods of Ross (A) and the case of Stewart Sutherland (B) referred to by Sir James Hannen. It is also said at that page under the heading 'Administrator absent':
'A person acting under a Power of Attorneyfrom the absent administrator is allowed toexecute the necessary documents.'
19. No authority is cited for this second proposition. The above authorities are intended to apply not as a principle of law but as a measure of temporary expedient. The Court's practice, if such there be, to adopt such temporary expedient cannot in my view be elevated to a principle of law.
20. In all these cases and the statements of the law on the point there was already an administrator duly appointed and functioning but who was not present to sign additional bond or additional affidavit. That singular fact fundamentally distinguishes the present case before me. Here there is no administrator yet because the condition stated in the Order of the Court appointing has not been yet satisfied. These authorities therefore do not help the contention of the applicant.
21. Our law on the subject must be analysed at this stage. Rule 15, Chapter 35, Original Side Rules, provides that every person to whom a grant of Letters of Administration, other than a grant under Section 212 (now renumbered as Section 241) of the Indian Succession Act is committed shall give a Bond in the name of the Chief Justice with one or more sufficient sureties to be approved by the Registrar. The forms of the Bonds are set out in Forms Nos. 6 and 7 and shall unless otherwise ordered by the Court or a Judge be given in the amount of the full value of the property for which the grant is made. Almost to the same effect is provision contained in Section 291 of the Indian Succession Act.
22. Now in this case the order of the Court dispensed with the surety and that presumably because of the status of the applicant and that is why the Court ordered that his personal Bond would be enough. I cannot conceive how a personal bond of the applicant under express order of the Court can now be substituted by a Bond executed by his constituted attorney as a sufficient satisfaction of the Court's express order. It is not so much a case of risk as the quality of the Bond. No one disputes that in case of non-performance of the conditions, a Bond executed by a constituted attorney is as good a Bond from such point of view as a Bond by the principal himself. But does that mean a 'personal' bond within the meaning of the order of the Court, I will pursue the matter further in this way. Should necessity arise, the Court will have to sue or cause to be sued upon the Bond so executed. It may transpire that there is some defect in the Power of Attorneyand it may be that the principal might contest that the constituted attorney did not have exactly the same power in executing such Bond as he purported to have. It may be that these points may not ultimately succeed. But why should a risk even of such litigation or why should such risk at all be taken when this Court has ordered a personal Bond?
23. A reference at this stage to Mortimer's Probate Practice may be useful. In the marginal note at p. 455 of the Second Edition of that great work, it is said 'Bond to be executed by the applicant in person, except in very special circumstances.' Even there it is said that the administrator should as soon as possible execute a similar Bond. That is supported again by the old authority of -- 'In the Goods of Boss' (A). To the same effect is another passage in that book at p. 492.
24. The case to which Sir James Hannen referred in his judgment which I have quoted above may also be noticed in some detail here. That case is -- '(1862) 4 SW & T (Sup) 189' (B). That was a case of a married woman and it decides the question that where a married woman is entitled to administration and her husband refuses to join in the Administration Bond or to assist his wife in obtaining the administration the Court will grant the administration to her allowing a third person to execute the Bond for her. This case is no authority for the proposition that the Court's Order for a personal Bond can be discharged by an attorney's or agent's Bond.
25. In that case deceased Stewart Sutherland made a will at Sea bequeathing his property after the death of his wife divided equally amongst his children. Probate of this Will was granted to his widow who died later on and Sarah Bessel, the wife of George Bessel, was the only surviving child of the testator and was entitled to a certain sum of money which had been transferred to the Court of Chancery. Sarah was living within the same house as her husband but maintained herself by her own industry. Her solicitor applied to her husband to join her in the administration Bond which the husband declined, it was then that the Court allowed her administration permitting a third person to execute the Bond for her. Thesewere days when there were many legal incapacities for married women in England and this particular case shows that the law then prevailing in England was that a married woman could not be granted administration without her husband signing the Bond for her. Indeed as pointed out in Mortimer's Probate Practice, 2nd Edn. at p. 272 on the authorities cited there that before the Married Women's Property Act, 1882 in England the general rule was that a married woman could not take out administration without her husband's consent. Sutherland's case (B) is only an authority for the proposition that in such a case where the husband refused, the Court granted administration to the married woman allowing somebody else, a third person, to execute the Bond for her. That law however has been changed in England since the Married Women's Property Act, 1882.
26. Prom an analysis of the law as stated in the text books and deducible from the cases, I find no warrant for the proposition that where Courb grants to an applicant Letters of Administration only on the condition of his executing a personal Bond, such grant can be made if the applicant instead of giving his personal Bond offers a Bond to be executed by his duly constituted attorney. In the case of Ross (A) as well as in the propositionsstated by Tristram & Coote and in Mortimer the reference is to the cases of an administratoralready appointed and presumably already having signed a Bond and for some reason he is either absent or otherwise not in a present position to execute further or additional bonds or affidavits. It is in such cases only that the Court adopts the temporary expedient of allowing an agent to sign such additional Bond or further affidavits with the obligation that the administrator himself when he returns or is in a position 'will sign the Bond as soon as possible.' But where as in this case before me the Court itself by its very order of grant makes it clear that the grant is not to issue until the applicant signs and executes a personal Bond the case to my mind is entirely different. His appointment as an administrator has not yet taken place because the condition for the issue of the grant to him has not yet been satisfied. If he wants now to produce somebody else's Bond that means that he will have to go behind the order for grant already made. But this application before me is not for varying the terms of the order of grant. In my opinion therefore the principles governing execution of an original bond are entirely different from the principles governing execution of additional bonds or further affidavits for the simple reason that in the latter case there is a primary bond or affidavit of the administrator on the faith of which the Court can act to tide over an emergency by allowing a third person to execute for the administrator with the added obligation that the administrator will sign a similar bond as soon, as possible.
27. Before I conclude a short reference to the Power of Attorneys Act is necessary to deal with an argument advanced before me. The argument is that under Section 2 of that Act the donee of a power of attorney can execute or do any affidavit instrument or thing in and with his own name and signature and his own seal and every such affidavit instrument and thing so executed and done shall be as effectual in law as if it had been executed or done by the donee of the power of attorney in the name and with the signature and seal of the donor. That an agent under such a power of attorney can execute a Bond which has the same effect in law as if executed by the donor himself is an indisputable proposition. The Privy Council dealing with a case whether a document executed by an agent under a power of attorney can be acknowledged for registration under the Indian Registration Act by another agent acting under a power of attorney given for that purpose held that it could be done and Viscount Sumner in -- 'Puran Chand v. Manmatha Nath', AIR 1928 PC 38 at p. 39 (C) observes:
'A document is executed when those who take benefits and obligations under it have put or have caused to be put their names to it. Personal signature is not required and another person duly authorised may by writing the name of the party executing, bring about his valid execution and put him under the obligation involved. Hence the words 'person executing' in, the Act (S. 35 of the Registration Act) cannot be read merely as 'person signing.''
But that observation related to the scheme of the Indian Registration Act and the construction thereunder. This will be clear from the observations of the learned Lord at p. 39 where His Lordship says:
'Their Lordships have failed to find in the scheme of the Act (Indian Registration Act) anything repugnant to this construction. Any other would involve risk of confusion and might even defeat the statutory procedure by multiplying the persons who have to be traced and induced to attend either by themselves or by some representative.'
28. Now to my mind the provisions of the Powers of Attorneys Act or the observations of the Privy Council relating to the Indian Registration Act are not an answer to the points involved in the present case before me. I am of the opinion that when the Court makes an order for the grant of Letters of Administration on the condition that the applicant will execute a personal Bond and for that purpose security is dispensed with, the uppermost consideration in the Court's mind is the personal character of the applicant and his executing the Bond in such personal capacity and the fictions of law by which agents are empowered to do the work of the principal as completely as the principal himself while may be good enough for many legal purposes are not good for administration under such order of Court in such terms which enjoin execution of a personal Bond by the administrator. The word 'personal' does not occur at all in the Power of Attorneys Act or in the Indian Registration Act. I attribute to it the meaning which it ordinarily should have unrelieved by any statutory modification or by the doctrine of agency.
29. When the Court orders that before the Letters of Administration are issued to the applicant, he has to execute a 'personal' bond, it means administrator's own bond signed by him personally and individually. In such a case an agent's or attorney's bond, however duly empowered such agent or attorney may be, cannot be a substitute for the administrator's 'personal' bona. In my judgment the word 'personal' in such cases cannot be extended to cover authorised act of the agent which is deemed to be as good an act as that of the principal himself under the law of agency or the Power of Attorneys' Act. The Court in such cases want The original and not the derivative executant.
30. Such a view and such orders of Court directing personal bond by the administrator are in my opinion in consonance with the law of administration of the estate of the deceased. In the first instance, administration is essentially and usually a personal responsibility of the administrator and the law does not favour vicarious discharge of such responsibility by other agehcies of the administrator, as a method of ordinary practice. The Administrator cannot normally be allowed to delegate his responsibility and even in limited cases where the law allows him to do that, the Court looks to the Administrator and not to his delegate to answer for the administration. Secondly, the legal origin of taking a bond exemplifies still more this view. An Administrator is the person to whom the representation of the deceased is committed by the Court for default or in the absence of an executor. His office resembles that of an executor but because he has not been selected by the deceased, he is in general obliged to give a bond with sureties for the due performance of his office. Therefore the Court's order for personal bond must be strictly followed and observed.
31. Such a view can cause no inconvenience in practice. If the applicant does find any difficulty in attending for the purpose of executing a personal Bond under such an Order of Court he can always apply for varying the terms of that Order on those grounds, in which case the Court might accept a Bond through an attorney with or without sureties. But then it will no longer be an order upon the applicant to execute a 'personal Bond.
32. I therefore hold in this application on the two points of the attorneys' submissions which I have quoted above at the beginning of this judgment that (1) the Registrar cannot nominate agazetted officer at Delhi before whom the applicant can execute the Bond at Delhi under Chapter Six Rule 19 of the Original Side Rules as I construe it and (2) that under the terms of the order of grant as it stands the Bond must be executed by the applicant himself personally and not by any constituted attorney authorised by him for 'that purpose.