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Surendra Nath Pramanik Vs. Amrita Lal Pal Chaudhuri and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in51Ind.Cas.936
AppellantSurendra Nath Pramanik
RespondentAmrita Lal Pal Chaudhuri and ors.
Cases Referred and Gour Chandra Das v. Sarat Sundari Dasya
Excerpt:
probate and administration act (v of 1881), sections 60, 78 - probate--probate court, power of, to call for fresh security from executors--revocation on failure to furnish fresh security--'just cause,' meaning of. - .....on the 31st january 1910, the district judge made the following order:will proved; application for probate granted; bond for rs. 16,000 with two sureties to be filed on or before 2nd march 1910.3. the petitioners for probate applied for and obtained an extension of time, and the bond filed on the 8th march was accepted on the 4th april 1910. probate was thereafter made ready and delivered to the executors on the 6th april 1910. the executors apparently took possession of the estate op the authority conferred on them by the probate, on the 15th february 1919 the beneficiaries presented an application to the district judge, stating that one of the sureties to the bond had become insolvent, that the other had heavily mortgaged his properties, and that for the protection of the estate,.....
Judgment:

1. These appeals are directed against two orders made in a Probate proceeding, one for fresh security to be furnished by the executors, another for cancellation of the Probate on the refusal of the executors to comply with the order for fresh security. The events which led up to these two orders may he briefly recited.

2. One Manohar Pal Chaudhuri made a testamentary disposition of his properties and died on the 9th September 1909. The executors named in the Will applied for Probate on the 5th December 1909 in the Court of the District Judge of Nadia. The Will was proved in due course, and on the 31st January 1910, the District Judge made the following order:

Will proved; application for Probate granted; bond for Rs. 16,000 with two sureties to be filed on or before 2nd March 1910.

3. The petitioners for Probate applied for and obtained an extension of time, and the bond filed on the 8th March was accepted on the 4th April 1910. Probate was thereafter made ready and delivered to the executors on the 6th April 1910. The executors apparently took possession of the estate op the authority conferred on them by the Probate, On the 15th February 1919 the beneficiaries presented an application to the District Judge, stating that one of the sureties to the bond had become insolvent, that the other had heavily mortgaged his properties, and that for the protection of the estate, which, it was asserted, was maladministered, it was essential that the executors should be called upon to give fresh sureties. The Court, after notice to all parties concerned, held an enquiry, and on the 15th February 1919 recorded that the security given by the executors was no longer sufficient, inasmuch as one of the sureties had become bankrupt and the other had heavily mortgaged his properties. The District Judge accordingly ordered the executors to furnish fresh security for Rs. 16,000 on or before 3rd March 1919. The executors applied to the Judge to review this order, but to no purpose. This was followed by an application for extension of time, which also was refused. On the 3rd March, the Court cancelled the grant and ordered the executors to return the Probate for cancellation without delay. We are invited in these appeals to consider the legality and propriety of the orders made on the 15th February and 3rd March 1919.

4. As regards the first of these orders, it is plain that the order was made with jurisdiction and was justified by the events which had happened. Section 76 of the Probate and Administration Act provides 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 of the deceased, which bond shall be in such form as the Judge from time to time by any general or special order directs.' Under this provision, the Courtis bound to take a bond in the case of administrators, but has a discretion in the case of executors. In the case before us, the Court, in the exercise of its discretion, took a bond with two sureties before the Probate was committed to the executors. This bond was taken with a view to secure the proper administration of the estate of the deceased. It is consequently essential, if the purpose of the bond is not to be defeated, that it should, unless the Court otherwise directs, remain operative and effective till the administration has terminated. Circumstances, however, have materially changed since the bond was given by the executors; the sureties have become worthless, and the Court is plainly competent to call for fresh security; indeed, it is incumbent upon the Court to take such a step for the protection of the estate. This view is supported by the decision in Raj Narain Mookerjee v. Ful Kumari Debi 29 C. 68 ; 6 C.W.N. 7 where it was ruled that under the Probate and Administration Act a District Court, after once having taken a bond with sureties, has jurisdiction to take a second bond with fresh sureties if the necessity for such action should arise. Our attention has been drawn to the decisions in Subroya Chetty v. Ragammall 28 M. 161 ; 14 M.L.J. 482; Kandhia Lal v. Manki 1 Ind. Cas. 143 ; 31 A. 56 ; 6 A.L.J. 19 ; A.W.N. (1908) 288 and In re Arthur Gerald Norton Knight 5 Ind. Cas. 311 ; 33 M. 373 ; 7 M.L.T. 160 which, it is said, dissent from the view taken in Raj Narain Mookerjee v. Ful Kumari Debi 29 C. 68 ; 6 C.W.N. 7. These cases, however, do not touch the point raised before us. They deal with the question of the power of the Probate Court to release a surety to an administration bond from future liability. Upon that subject, these has been some divergence of judicial opinion: Stark, In the goods of (1866) 1 P. 76 ; 35 L.J.P. 42 ; 13 L.T. 682 ; 14 W.R. 349 Kanai Lal Khan, In the goods of 24 Ind. Cas. 447 ; 18 C.W.N. 320. The question before us is whether, when by reason of change of circumstances, the bond has ceased to serve its purpose wholly or partially, the Court is competent to call for fresh security. The answer must, in our opinion, as well on authority as on principle, be in the affirmative. The bond is taken with a view to ensure the due administration of the estate. The administration is a continuous act, extending, it may be, over many years; it is obviously essential for the fulfilment of the purpose of the bond that it should, unless the Court takes other measures, such as substituted security, remain continuously valid and operative during the whole of this period. We must hold that the Court is competent to require a new bond or additional security where the interest of the estate requires it, and specially where some new situation arises, such as an unforeseen increase of assets or the unexpected breakdown of one or both sureties. We have been pressed to take the contrary view on the authority of the decision in Giribala Dassi v. Bijoy Krishna Haldar 31 C. 688 ; C.W.N. 668 where it was ruled that the Probate Court is not competent to call upon an executor (to whom Probate has already been granted) to furnish security at any time after the grant of the Probate. This decision is clearly distinguishable, and we need not accordingly consider whether it is not based on an unduly narrow construction of Section 78 of the Probate and Administration Act, and whether it is not capable of the more beneficial interpretation that though Probate has been initially granted without a bond, the Court may, in its direction, subsequently require a bond, provided change in the situation or circumstances of the executor or his conduct of the trust appear to render this a prudent measure. We hold accordingly that in this case the District Judge was competent to call for fresh security and that the order of the 15th February must be confirmed.

5. As regards the second order, it has been argued that the Court was not competent to revoke the Probate under Section 50 of the Probate and Administration Act, even though the executors refused or failed to comply with the order of the Court for fresh security. It is further contended that Section 50 of the Probate and Administration Act is exhaustive and that the explanation of the expression just cause' is not merely illustrative: Annoda Prosad Chatterjee v. Kalikrishna Chatterjee 24 C. 95 ; 12 Ind. Dec. (N.S.) 728; Bal Gangadhar Tilak v. Sakuwrbai 26 B. 792 ; 4 Bom. L.R. 637. This may be conceded; the question thus arises, whether the fourth Clause of the explanation is applicable here. That clause authorises revocation on the ground that the grant has become useless and inoperative through circumstances. No inelastic rule can be formulated to test the applicability of this clause; the matter must be determined with regard to the events which have actually happened in each case. But we may state at once that we are not prepared to accept the view that the clause applies only to cases where the circumstances which have made the grant useless and inoperative were in existence at the date of the grant, though unknown to the Court and to the parties concerned. The phraseology of the clause is sufficiently general to make it applicable to cases where the circumstances contemplated have happened since the date of the grant. This is dear from illustration (h), which provides for the case where the person to whom Probate was or Letters of Administration were granted has subsequently become of unsound mind. This appears to have been overlooked in the cases of Bal Gangadhar Tilak v. Sakwarbai 26 B. 792 ; 4 Bom. L.R. 637 and Gour Chandra Das v. Sarat Sundari Dasya 15 Ind. Cas. 44 ; 40 C. 50 ; 16 C.W.N. 880. The view we take is in accord with the decisions, Patterson, In the goods of 2 C.W.N. cocix (309), where the administrator was convicted of a criminal offence ana sentenced to a term of imprisonment, Covell, In the goods of (1890) 15 P.D. 8 ; 59 L.J.P. 7 ; 61 L.T. 620 ; 38 W.R.79, where the administrator disappeared, Sowerby,In thegoods of (1892) 65 L.T.764, Shaw, In the goods of (1905) P.D. 92 ; 74 L.J.P. 39 ; 92 L.T. 428, Phillips, In the goods of (1824) 2 Add. 335 ; 162 E.R. 316 and Newton, In the goods of (1843) 3 Curt. 428, where an administrator became a lunatic, Jenkins, In the goods of (1819) 3 Phil. Ecc. 33 ; 161 E.R. 1249, Edward Hoare, In the matter of (1833) 2 Sw. & Tr. 361 ;5 L.T. (N.S.) 768, Bradshaw, In the goods of (1888) P.D. 18 ; 57 L.J.P. 12 ; 58 L.T. 53 ; 36 W.R. 848 ; 52 J.P. 56, Loveday, In the goods of (1900) P. 154 ; 69 L.J.P. 48 ; 83 L.T. 692, Colclough, In the goods of (1902) 2 I.R. 499 ; 6 Ir. L.R. 828, Thomas, In the goods of (1912) P. 177 ; 107 L.T. 201 ; 81 L.J.P. 91, where the administrator either left the country or absconded or could not be traced or expressed a desire to withdraw. We must consequently take it as settled law that the circumstances which make the grant useless and inoperative and thus justify revocation may have come into existence after the original grant was made. We have next to determine, whether, in the present case, the grant has become useless and inoperative through circumstances. It does seem at first sight difficult to apply the clause to a case where the administration bond has become valueless; but if we bear in mind the purpose of the grant we may, without undue strain on the language, bring the case within the Clause. In this connection, the following observations of Sir Francis Jeune in Loveday, In the goods of (1900) P. 154 ; 69 L.J.P. 48 ; 83 L.T. 692 may be usefully borne in mind:

6. 'The real object which the Court must always keep in view is the due and proper administration of the estate and the interests of the parties beneficially entitled thereto; and I can see no good reason why the Court should not take fresh action in regard to an estate where it is made clear that its previous grant has turned out abortive or inefficient. If the Court has, in certain circumstances, made a grant in the belief and hope that the person appointed will properly and fully administer the estate, and if it turns out that the person so appointed will not or cannot administer, I do not see why the Court should not revoke an inoperative grant and make a fresh grant.' The real object which the Court must always keep in view is the due and proper administration of the estate and the protection of the interests of the parties beneficially entitled thereto. Prom this standpoint, the case may well be deemed to fall within the scope of the fourth Clause of Section 50.

7. The point of view just indicated shows that the order of the District Judge may be sustained on a somewhat different ground. The order for Probate is inseparable from the order for security; indeed, there was in this case only one entire indivisible order, and the grant was not committed to the executors till the security had actually been furnished. As has been explained above, unless the Court otherwise directs, the security must, for the protection of the estate, remain in force till the administration is completed. if the security vanishes, the condition subject to which the grant was made is no longer fulfilled, and in such circumstances the Court has inherent power to withdraw the order for grant so as to prevent an abuse of its proce Sections If this view is not adopted, grave injustice may obviously result. Immediately after the grant has been made, the security may be destroyed, for instance, by earthquake or by the violent action of a river. The Court, as we have seen, is entitled, in such an event, to call upon the executor or administrator to furnish fresh or additional security and must be deemed to possess authority to enforce the order it makes. If the contrary view prevailed, the order of the Court might be defied with impunity and the conclusion would follow that the Court was helpless to prevent an injustice which might be committed by virtue of a grant made by itself. Consequently should Section 50 be deemed inapplicable, the order for cancellation might well be regarded as consequential, made by the Court in the exercise of its inherent power to enforce obedience to its direction.

8. The result, therefore, is that the second order like the first must be confirmed. The appeals are dismissed with costs. We assess the hearing fee at one gold mohur in each appeal.


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