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In Re: the Goods of Kanai Lal Khan - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1914Cal756,24Ind.Cas.447
AppellantIn Re: the Goods of Kanai Lal Khan
Cases ReferredRaj Narain Mookerjee v. Ful Kumari Debi
Excerpt:
surety for an administrator of estate, if may be discharged or substituted, - surety, creating charge on his immoveable property, release of charge--surety bond, discharge of and substitution--administration account, if may be examined by court. - .....the inventory and accounts were filed on the 16th february 1912. no further accounts have been filed. 1 think a copy of the account or an abstract thereof, which the sons-in-law say they have examined and found correct, ought also to be filed in this court with their certificate that that is the account they have examined and which they have found correct. the account is to be verified by the applicant and the certificate is also to be verified. there was a considerable amount of debts due by the deceased kanai lal khan. the affidavit of the administrator is that these debts have been paid. i think the receipts obtained from these persons ought to be filed. then, amongst the assets there was a largo amount of government securities which stood in the name of the deceased, but it was.....
Judgment:

Chaudhuri, J.

1. Kanai Lal Khan died on the 19th of February 1908 leaving him surviving an infant son, Shama Das Khan, his only son by a pre-deceased wife. He also left his mother, Lakhi Mani Dasi, and his widow, Sreemutty Santosh Kumari Dasi, and three daughters. He was living jointly with his cousins, sons of his father's brother. On the 21st April 1908 the petitioner, Raman Lal Khan, was appointed guardian of Shama Das Khan for the purpose of taking out Letters of Administration. On the 6th of July 1908 he obtained an order for grant to him of such Letters of Administration limited during Shama Das Khan's minority. The estate was a very large one, the gross value appearing from the affidavit of valuation to be over 26 lacs. The debts and trust properties amounted to over 9 lacs. There was considerable difficulty in finding sureties and on the 9th of July Mr. Justice Woodroffe made a special order giving the Registrar leave to accept Bunwari Lal Khan and Mani Lal Khan, two of the cousins of the deceased, as sureties for the petitioner upon their executing the usual bond but with a charge upon their immoveable property. Now so far as the charge on their immoveable property is concerned, it was a special order and somewhat unusual. As a rule sureties give their personal bond and their properties are not charged. Shama Das Khan died on the 15th December 1912 an infant, unmarried and intestate. Lakhi Mani, the paternal grandmother, thereupon became his heir. This is an application on behalf of the petitioner that the sureties might be discharged and the immoveable properties discharged from liability under the obligation of the said bond and that the Registrar do execute and register a release or other proper document discharging their respective shares. I made my order on the petition but before the order was drawn up, the Registrar brought certain facts to' my notice and upon a re-consideration of the matter I think the order I originally made should be modified. There is no precedent for discharging sureties or discharging the bond executed by them. There can also be no order for substitution, but the facts of this case are somewhat peculiar. There is no precedent for charging the immoveable properties of sureties. These properties are very largo. If it be strictly held that once a surety, he is always a surety, these properties would remain charged for an indefinite time much to the prejudice of the person concerned. It stated upon affidavits that the residue of the property has been made over to Lakhi Mani Dasi, the heiress of the infant, that she appointed her sons-in-law to examine the accounts of the administrator and that upon examination they as her attorneys have been satisfied with the accounts.

2. There is an affidavit by the sons-in-law about this matter and there does not seem to be any reason for doubting that the statements made in their affidavit are not true. Under the original bond an inventory was to have been filed on or before the 12th August 1909. The inventory and accounts were filed on the 16th February 1912. No further accounts have been filed. 1 think a copy of the account or an abstract thereof, which the sons-in-law say they have examined and found correct, ought also to be filed in this Court with their certificate that that is the account they have examined and which they have found correct. The account is to be verified by the applicant and the certificate is also to be verified. There was a considerable amount of debts due by the deceased Kanai Lal Khan. The affidavit of the Administrator is that these debts have been paid. I think the receipts obtained from these persons ought to be filed. Then, amongst the assets there was a largo amount of Government securities which stood in the name of the deceased, but it was stated in the original petition for Letters of Administration that they were purchased with the money of the joint family. So far as these Government securities are concerned there is a statement that the claim of the co-sharers has been released : they do not make any claim as, against the estate in respect of them. The Administrator says so in his affidavit and I think the affidavit on this point can be accepted. Very large sums were also lent out in mortgages, but now there is only a small sum outstanding. I think that the co-sharers should give a clear receipt to the Administrator that they have no claim against the estate of the deceased. I do not think it is necessary to re-examine the accounts in Court, there is no procedure to examine these accounts. It is never done in practice. I do not want these persons to be put to additional cost and trouble.

3. I think if the accounts are filed with the certificate such as I have mentioned, they may be accepted as correct. So far as this Court is concerned it has been held in the case of Raj Narain Mookerjee v. Ful Kumari Debi (2) by Sir Francis Maclean and Dr. Banerjee that under the provisions of Section 130 of the Contract Act the surety of an administrator can come to Court on notice to the other side to ask to be discharged from future administration of estate upon a proper case, being made for revocation of a continuing guarantee. Taking all the circumstances into consideration and treating this as a special case, I direct that a fresh bond may be taken from the present sureties for their administration of the estate keeping them personally liable to the extent of the original amount of the bond, but it is not necessary to keep their properties charged any further, as the debts have been satisfied as also the claims in respect of the Government securities. Therefore the fresh bond will only be a personal bond without in any way affecting their property. The petitioners will remain liable for their administration of the estate. The immoveable properties only will be considered as released by this order.

4. Mr. Khettry.--There is a large number of receipts and they are mostly in Bengali.

Chaudhuri, J.

5. The Registrar is to satisfy himself about the receipts.

6. Mr. Khettry.--And a copy of receipts may be filed.

Chaudhuri, J.

7. I give you liberty to satisfy the Registrar about the receipts. He will give such directions about them as he thinks fit.


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