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National Insurance Co. Ltd. Vs. Nissim Abraham Gubbay and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty ;Civil
CourtKolkata
Decided On
Reported inAIR1929Cal477
AppellantNational Insurance Co. Ltd.
RespondentNissim Abraham Gubbay and ors.
Cases ReferredGreedy v. Lavender
Excerpt:
- .....made out to my satisfaction--of getting something for himself if the sale is properly effected. as regards joseph, the objection to him is that he is a lunatic, which does not, in itself, go very much against him. in my opinion, for the present purpose, the price to be fetched does not depend upon the person who should have the carriage of the proceedings. that will depend upon the efficiency of the registrar at the sale. the main thing we ought to look at is to give the carriage of the proceedings to somebody who will carry them out forthwith without any chance of the matter being hung up for a year. on the whole, considering that the appellants have got interest to 15/l6th of the property, it appears to me that the best course would be that they should have the carriage of the.....
Judgment:

Rankin. C.J.

1. This is an application made by the present appellant before the learned Judge on the original side in the course of an administration suit to administer the estate of one Abraham Ezekiel Gubbay, who died in November 1906, the suit being brought in 1917. It appears that, with the exception of a certain wine business, the testator left all the properties to his executor upon a trust for conversion and for distribution, in the following shares : 7/16th to Ezekiel Abraham Gubbay, who was the executor; 4/16th to Nissim, who, in the administration suit, was the plaintiff; 3/16th to Elias; 1/16th to Seemah and 1/16th to Joseph In the end, by various assignments, Ezekiel became entitled, in his own right, to 11/16th share absolutely of the fund and, by various transactions made between him and the appellants--the National Insurance Co., Ltd.--the present position is this : The appellants are in the position of mortgagees as regards 11/16th share, where the equity of redemption is in the estate of Ezekiel, who has become insolvent and they are in the position of being sub-mortgagees of the 4/16th share of Nissim. This application was made to enable the appellants to be made parties to the suit and they also asked that they might have the carriage of the proceedings under the order, dated 26th November 1924, directing the sale of certain properties belonging to the estate. It appears that the suit has been going on for a very long, time and the order for sale was made almost four years ago. It does not seem as if the parties had been prosecuting the order for sale with any great diligence, because, although the order was completed in January 1925, and summons was taken out on behalf of the unencumbered share of Joseph amounting to 1/16th in March 1926. nothing practically had been done till the time when this application was brought on. In these circumstances, the learned Judge made an order to the effect that the applicants should be added to the suit as party defendants, but he qualified that with various words, to say:

for the purpose of watching the proceedings in this suit on the condition that the applicant do pay its own costs and be not entitled to any costs as against any of the other parties to this suit : And it is further ordered that the said applicant shall pay its own costs and shall not be at liberty to add its costs o and incidental to this application to its claim as such mortgagee and sub-mortgagee as aforesaid.

2. The first question is whether or not the appellants should be made parties to this administration suit. It appears to me to be a mistake to make an order for a person to be a party ''for watching the proceedings.' I see neither meaning nor purpose in such an order. In my judgment, the appellants who have sufficiently shown in this case that they have an interest to the 'extent of 15/16th share in the property ought to be allowed to become parties to 'the proceedings in order that there may not be any delay in carrying out the order for sale. I have no doubt, therefore, that the words 'for the purpose of watching the proceedings in this suit' ought not to be present in this order.

3. As regards the conditions as to costs: It seems to me that the argument of the appellants is right. The position is that the share of Joseph which is entirely unencumbered ought not to be made to pay a larger share of the costs because another party has encumbered its own share. This appears to be a matter which has often been considered and we have been referred to the case of Greedy v. Lavender [1848] 11 Beav. 417. In my judgment, there can be no doubt that the correct course, in such a case, when orders for costs are made, is to make them in such a form that the person who has not encumbered his share shall be relieved as far as possible in the matter of costs created by the fact that another cosharer has assigned or encumbered his share. The practice seems to be clearly enough laid down in the following passages in Daniell's Chancery Practice, 8th edn., p. 1075, to which we have been referred:

Where a person entitled either to a legacy or share of a residue incumbers his legacy or share, or by any act of his own occasions additional expense in respect of it beyond what is necessary for the due administration of the estate, the additional expense will be thrown upon the legacy or share; and only one set of costs will be allowed out of the estate to the person entitled and his encumbrances, and such coats will in general be made payable to the first incumbrancer, or to the encumbrances in order of their priorities, and then to the person entitlod. Where, however, each of the incumbrancers stood upon some portion of the share included in his incumbrance, the costs were directed to be divided among them equally.

4. It appears to me that, both as regards the present application and as regards any other future application, that is the principle which the Court would do well to apply. It is not, however, correct that an order should now be made purporting to govern or control future orders for costs, and as any order for costs is made, it will be for Joseph to represent to the Court that this principle is one which is to be applied and in that way to make sure that the Court administers this estate without throwing any improper burden on him. It is not necessary, in my opinion, that the present order should be qualified by a condition purporting to bind the hands of the Court is regards future orders for costs.

5. The next question is whether or not the second part of the prayer should be granted, namely, that the appellants should be given the carriage of the proceedings under the order for sale. It seems to me that this matter is very largely academicals. It will be for the Registrar to effect the sale and so far as the questions of getting proper price, issuing sufficient advertisement, choosing suitable date and so forth are concerned, the matter will be in the hands of the Registrar. What it is necessary to make sure of, is that the person who shall be given the carriage of the proceedings under the order for sale will not make delay in perfecting the order and carrying it out. As to that matter, the position seems to be this: Neither Nissim nor indeed Joseph appears to have been particularly active in insisting upon the order for sale being carried out. Both of them had certain merits at different stages of the suit. Nissim got the order in November 1924, and it is noticeable that he has done nothing since then. In the same way, in March 1926, Joseph's attorney asked for the carriage of these proceedings. But he does not appear to have been prosecuting that matter since then with any particular diligence. We have to consider whether it would not be better that the carriage of these proceedings should be given to those mortgagees who presumably will desire to get back their money within a reasonable time. It is said that these mortgagees are amply secured. But that is no sufficient answer. As regards Nissim, it is said that he is the plaintiff and he has a possible chance--but that is not made out to my satisfaction--of getting something for himself if the sale is properly effected. As regards Joseph, the objection to him is that he is a lunatic, which does not, in itself, go very much against him. In my opinion, for the present purpose, the price to be fetched does not depend upon the person who should have the carriage of the proceedings. That will depend upon the efficiency of the Registrar at the sale. The main thing we ought to look at is to give the carriage of the proceedings to somebody who will carry them out forthwith without any chance of the matter being hung up for a year. On the whole, considering that the appellants have got interest to 15/l6th of the property, it appears to me that the best course would be that they should have the carriage of the proceedings, They are given only the carriage of the proceedings under the order for sale. When the sale is effected and the money is brought in this order will have no effect.

6. As regards costs both before Costello, J,, and of this Court, I think the proper order should be that Joseph and Nissim should get their costs out of the general estate and the appellants should add their costs to their mortgage. Costs will be taxed on scale 2 so far as applicable.

B.B. Ghose, J.

7. I agree.


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