1. This is an appeal preferred by defendants 1 and 2 from a final decree in a suit which wa3 instituted by the plaintiff against them and some other persons including one Jatindra Nath Bose. The plaintiff is a universal legatee under the will of his grandmother. The will was executed in 1909 and the testatrix died soon after. There were five executors named in the will amongst whom were the two defendants and the aforesaid Jatindra Nath Bose. According to the provisions in the will the plaintiff was to get the estate when he attained majority and the executors were to act as such during his minority. In 1911 all the five executors applied for and obtained probate of the will. Defendant 2 was also appointed guardian of the plaintiff. The plaintiff attained majority on 11th Aswin 1325 (=28th September 1918) and instituted this suit on 7th September 1923.
2. The plaintiff prayed inter alia for setting aside certain transfers which defendants 1 and 2 had made on declaration of his title to the properties transferred, for recovery of possession of the said properties, for production of certain papers and also for recovery of some moveables. With these reliefs which were granted to the plaintiff in part in the preliminary decree that was passed in the suit, we are not concerned. His other prayers were for accounts and for compensation. A preliminary decree granting these reliefs also was passed, which was taken to this Court on appeal, but the appeal was dismissed, the decree passed by the trial Court being upheld. In pursuance of the directions contained in the preliminary decree, the Commissioner made the usual investigation and submitted a report. On this report and with some modification of the recommendations therein the final decree has been passed.
3. It is unnecessary to set out in detail the pleadings of the parties or the points in issue that arose on them, because of the preliminary decree which can no longer be challenged. That decree settled the rights and liabilities of the parties to this extent: that it ordered defendants 1 and 2 to render accounts to the plaintiff for the period 1318 to 1326, both inclusive. At the investigation held by the Commissioner the appellants did not render any accounts or produce any account papers because, as they said, they had none in their possession The Commissioner thereupon proceeded on the basis of probable income and probable expenditure, upon such materials as the plaintiff supplied and on so much of them as he thought fit to accept and he submitted a report on that basis. The Subordinate Judge on the objection of the appellants made some little variations in the Commissioner's figures and then made the decree which is complained of in the appeal.
4. To resist the decree that has been passed, some general arguments have been advanced. One of them is that all that the preliminary decree had ordered was that the appellants should render accounts, and that when the appellants have been able to show, as they have shown, that the account papers were not with them but with certain gumasthas who are now in service under the plaintiff, their liability for accounts is gone. This argument is based upon a finding which is contained in the preliminary judgment. In the trial before the preliminary decree the appellant had raised the plea that the plaintiff was not entitled to a decree for accounts-because he was himself withholding the account papers through his own gumasthas. It was held that the charge, in so far as it was levelled against the plaintiff, was unfounded, but that it was probable that the defendants as executors neglected to take the accounts and the papers regularly from the gumasthas. The finding may perhaps be carried further, and it may even be conceded that the said gumasthas are withholding the papers in order to be absolved from their own liability. But how that can absolve the appellants from their liability to account, it is not possible to see. It has been argued that the preliminary decree merely calls upon the appellants to produce the account papers, and that as soon as they can explain why they cannot produce them they have no further liability. This argument obviously has no substance Another argument is that the thoka which the plaintiff produced should not have been relied upon, but the income of the estate should have been calculated on the basis of the inventory that was filed at the time of obtaining probate. The inventory does not appear to have been a complete one and in any case the figures given in it are no evidence against the plaintiff nor are they sufficiently reliable. The thoka which the plaintiff has relied on, and the oral evidence that he has given, have been sufficiently scrutinized, and we are not prepared to differ from the Commissioner and the Judge in the figures as regards the probable income that they have accepted.
5. A good deal of criticism has been levelled against the Judge's remark that 'every presumption must be made against executors who are not ready with accounts.' If the Judge meant by this that because the appellants did not produce the accounts a presumption was to be drawn to the effect that if produced the accounts would have gone against them-a presumption which Section 114, Evidence Act, contemplates-the Judge was certainly wrong, because it has cot been established that it was the appellants who were witholding the accounts. But we are satisfied that that is not what the Judge meant by the remark. The appellants had never kept any accounts, they had never submitted any accounts to the Court as they were bound to do under the law, and they had never regularly called upon their gumasthas to submit their accounts to them. We think what the Judge meant was that no reliance could be placed upon such executors, and that when they had thus failed in every respect to do their duty it might be presumed, unless there were strong reasons to the contrary, that the account which the plaintiff was putting forward in his evidence was fit to be accepted.
6. Nextly, it has been argued that the appellants cannot be held liable because under the will they were appointed only to have their work done through agents and servants. If there was any substance in this argument it should have been urged before the preliminary decree was passed. But in point of fact the argument is without any substance. The will gave them the liberty to appoint agents and servants and thereby authorized them to incur some additional expenditure. It never did, nor could it ever, relieve them of their liabilities as executors or empower them to delegate to others a fiduciary character which belonged to them as executors. So far as this contention is concerned it has also been said that the appellants, or at least one of them, namely appellant 1, bad no time to act as executor, that he was a busy medical practitioner and that he had consented to be an executor because he was obliged to yield to the earnest importunities of the testatrix and so he is not liable. It is sufficient to say that by such pleas the appellants or either of them cannot escape their ordinary liabilities as executors. This is a case in which not merely did the executors act as such, but they did so after having jointly applied for and obtained probate of the will along with the other three executors who were also named in the will. It is quite true that there is some evidence to show that the two appellants fell out with each other at one time, and it may also be that they were not pulling on well at all times. But there are enough materials noticed in the preliminary judgment of the Court below to support the Judge's finding that it is not true to say that defendant 1 did no work at all as executor, or that he had no connection at all with the estate. The fact that defendant 2 was taking a more active part and defendant 1 came in and interfered only when it suited his purpose-as is clearly found in the said judgment-cannot in our opinion make any difference in their joint liability on the basis of which the preliminary decree was passed in this case.
7. Another argument, on the face of it of some importance, has been advanced before us. The argument is that the question whether a decree for money should be passed against defendant 1 in view of the fact that no money ever came into his hands, was not decided by the preliminary decree, but on the other hand was expressly left open at that stage, and that therefore the Judge was wrong in not going into that question and in treating it as concluded. In support of this argument our attention has been drawn to issue 7 framed in the suit and the decision of the Judge thereon as contained in the preliminary judgment and a passage in the judgment of this Court in the appeal from the preliminary decree. In our opinion, this argument is misconceived.
8. What happened was this: The plaintiff's claim so far as accounts are concerned was of a twofold character, firstly in respect of moneys which were or with ordinary diligence might have been in the hands of the appellants (prayer kha to the plaint), and secondly, in respect of compensation for loss caused to the plaintiff's estate during the period of their executorship (prayer cha to the plaint). The first prayer gave rise to issue 6 and the general issue 12; the second prayer, to issue 7. The Judge made a decree calling upon the appellants jointly to render accounts for the period, the mean-ring of which is that if any money was found due as the result of such accounting, the two defendants were to be jointly liable for that amount. As regards issue 7, it was left over for consideration after accounts were taken. This issue was worded thus:
Did defendants 1 and 2 administer the estate of the late Kajabala Dasi justly and properly? Are the defendants liable for any loss or damage to the estate due to maladministration of the estate? If so, to what amount
9. The reason for leaving this issue Over for decision till after the accounting was that until accounts were taken it could not be found what loss was due and to whose fault. The law, so far as these matters are concerned, is perfectly clear:
Under the usual administration order obtained on a writ or originating summons, an executor or administrator can only be charged for actual receipt by himself, or his agent, not for a default of the co-trustee. And, if the statement of claim alleges wilful default, but the judgment at the trial gives no relief on that footing but does not dismiss the claim for that relief, the Court can, at any subsequent stage of the proceedings, upon evidence of wilful default, direct further inquiries and accounts on that footing: Williams on Executors, Edn. 12, Vol. 2, p. 1292.
10. Here, the preliminary decree was made against the two appellants because both of them were jointly and severally liable for the moneys that they or their agents received, and they were ordered to render account on that footing, and the question whether any of them was liable for any loss done to the estate which could only be on the basis of his own default and not of the default of his co-executor was left over for consideration till after the accounts were taken. The appellants having failed to render accounts, the Commissioner proceeded to find out what were the probable profits which must have come into the hands of the appellants or their agents. It matters not that the appellants themselves or any of them did not get the amount ; it was enough to make them both liable therefor, if not they but their agents got it.
11. It is no defence for one appellant to say that he did not get the amount until he can show affirmatively that it is in the hands of the other appellants, in which ease he may have a right to be reimbursed by the latter. So far as the question of liability arising on the ground of loss caused to the estate by misfeasance, malfeasance or mal-administration is concerned no evidence was adduced by the plaintiff and the Commissioner did not go into it, and no decree therefore has been passed by the Judges on that footing The Judge therefore was right in observing in his judgment that the preliminary decree having made both the defendants jointly and severally liable, and no question of liability on the ground of wilful default having arisen, it is not open to any of the two appellants to say that he is not liable because no money ever came into his hands. The passage in the judgment of this Court on which reliance has been placed on behalf of the appellants only states that if the appellants produced their accounts and showed that in any particular year no money came into their hands it was obvious that they would not have to account for anything so far as that year was concerned.
12. There remain now a few specific items in the accounts to consider. It has been argued that in calculating the receipts no allowance has been made for arrears that must have remained unrealized. The answer however is that just as arrears for the period 1318 to 1326 have not been taken into consideration, those for the period antecedent thereto were not also taken into account. Complaints have been made as regards rupees 30 per month allowed on the ground of household expenses, it being said that the positive evidence is that rupees 40 used to be paid every month. The evidence which the appellants have relied upon in this connexion is, in our opinion, not very convincing.
13. The next item is that relating to the repair of the house. That the house was repaired in or subsequent to 1318 is itself a matter of doubt. Item 3 relates to the marriage expenses of a girl of the name of Sukritibala. The plaintiff has examined the bridegroom himself with whom the marriage took place. The evidence which that witness has given does not show that the figure taken is an under-estimate.
14. On the other items objected to, namely, the collection expenses, we are also unable to disagree with the Court below. The result is that, in our judgment, the appeal ought not to succeed. It is accordingly dismissed with costs. There is a cross-objection, which however is of no substance and has not been seriously pressed. It is also dismissed.