1. This is an application made under Sections 151 and 152 of the Code of Civil Procedure for amendment of the judgment of this Court in Appeal from Original Decree, No. 23 of 1920.
2. Section 151 presumes the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Section 152 authorises the Court to correct clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. This may be done by the Court either of its own motion or on the application of any of the parties. Section 153 provides that the Court may, at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. We have no doubt that in the events which have happened it is open to us to give necessary directions under one or other of these provisions of the Code.
3. The history of this litigation is set out in our judgment which has been reported: Surendra Nath Chatterjee v. Sivadas Mookerjee, 69 Ind. Cas. 867 : 35 C.L.J. 488; (1922) A.I.R. (C) 182. We were called upon to consider in the appeal the question whether the Will executed by Rai Bahadur Krishna Mohan Mookerjee on the 24th June, 1916, and a codicil had been revoked and cancelled The Trial Court came to the conclusion the Will as also the codicil had been revoked. On appeal we held that the Will had been revoked but that the codicil was in full operation. Our views were summarised in the following passage of our judgment: 'Our conclusion is that the second Will executed on the 24th June, 1916, was revoked by the testator on the 14th April, 1918, by the execution of the deed of gift and also by tearing; but that the codicil was not revoked either in law or in fact.' After this statement of our conclusion we proceeded to add as follows: 'the result is that this appeal is allowed and the decree of the District Judge set aside. We direct that Probate be issued to the appellant in respect of the codicil dated the 24th June 1916.' Our attention has now been drawn to the fact that as the Will was revoked, the provision for the appointment of executors disappeared. Consequently, no Probate could be granted in respect of the codicil which did not embody a provision for the appointment of executors This escaped the notice of the Court and our judgment must accordingly be amended We direct that the judgment be amended by the substitution of the words. 'Letters of Administration' for word 'Probate.'
4. We have been pressed to hold, however, that if Letters of Administration are issued instead of a Probate, the Letters of Administration should be issued in favour of the petitioner Sivadas Mukherjee alone, who is one of the sons of the testator. We have anxiously considered whether we should accede to this prayer and we have with some reluctance come to the conclusion that we should not grant the application. The testator left two sons, Kedarnath Mukherjee, and Sivdas Mukherjee, as also a grandson by a daughter named Surendra Nath Chatterjee. By his Will, he had appointed all these persons as executors; and if we had not held that the Will had been revoked, the Probate would have issued, in the normal course of events, to these three persons as executors. Probate, however, cannot be granted in the events which have happened, and the Court is called upon to consider who should be appointed administrator. The rule for the appointment 6f an administrator is formulated in Section 41 of the Probate and Administration Act, 1881, which is in the following terms: 'When a person has died intestate, or leaving a Will of which there is no executor willing and competent to act, or, where the executor is, at the time of the death of such person, resident out of the Province, and it appears to the Court to be necessary or convenient to appoint some person to administer the estate or any part thereof other than the person who, under ordinary circumstances, would be entitled to a grant of administration, the Judge may, in his discretion, having regard to consanguinity, amount of interest, the safety of the estate and probability that it will be properly administered, appoint such person as he thinks fit to be administrator.' It will be observed that one of the elements to be taken into consideration is consanguinity; judged by this test, a claim by either of the sons of the testator is entitled to preference over that of the grandson by daughter. There are, how ever; other elements which must be taken into consideration, such as safety of the estate and the probability that it will be properly administered. The principle which underlies this statutory provision was formulated by Sir John Nicholl in the case of Earl of Warwick v. Greville (1809) 1 Phill. 123 at p. 125 : 161 E.R. 934: 'The selection rests with the discretion of the Court; that discretion, however, is not to be arbitrarily or capriciously assumed, but to be a legal discretion governed by principle and sanctioned by practice; in exercising it, the Court is not to be guided by the wishes or feelings of parties, but is to look to the benefit of the estate and to that of all the persons interested in the distribution of the property. The first duty of the Court then is to place it in the hands of that person who is likely best to convert it to the advantage of those who have claims, either in paying the creditors, or in making distribution; the primary object is the interest of the property.' Now, in the case before us, there is no room for doubt that Sivadas Mukherjee is in involved circumstances and that his creditors have already taken proceedings against him for the realisation of their dues. Kedarnath Mukherjee has expressed no desire to act as an administrator and the Court would be reluctant to force administration upon an unwilling person. In these circumstances, Surendra Nath Chatterjee, the grandson, is obviously the person who should be entrusted with the administration of the estate. He has expressed his readiness to furnish security to the satisfaction of the Court in accordance with Section 78 of the Probate and Administration Act which provides that '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.'
5. We direct accordingly that Letters of Administration with copy of the codicil annexed be issued to Surendra Nath Chatterjee and that he do furnish security to the extent of Rs. 2,000 (two thousand) with two sureties for Rs. 1,000 each His first duty will be to distribute the assets amongst the legatees in terms of the codicil of the 24th June, 1916, and to provide for the performance of Devasheba in accordance with the first clause thereof. Our attention has been drawn to a scheme of Devasheba which was prepared by the testator on the 24th June, 1916. This was not incorporated in the codicil and consequently we cannot include it in the grant. But, for the sake of convenience, the scheme as framed by the testator, may, for the present, be adopted as the scheme for the management of the Devasheba subject, however, to this reservation that if the scheme in any respect contravenes the provisions of the codicil, the scheme must to that extent be modified.
6. The result is that our original judgment is amended by the substitution of the words 'Letters of Administration' for 'Probate' and Surendra Nath Chatterjee is appointed administrator on the terms and conditions mentioned. The decree based on the judgment will be amended accordingly. Bach party will pay his own costs of these proceedings. The administrator will be entitled to take his costs out of the estate. We assess the hearing fee at one gold mohur. Let the Probate already issued be amended by the District Judge so that it may be read as Letters of Administration instead of Probate. The administrator will act under the direction of the District Judge.