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Hari Padu Mandal Vs. Karunamoyee Dasi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1914Cal827,24Ind.Cas.214
AppellantHari Padu Mandal
RespondentKarunamoyee Dasi
Excerpt:
probate case - costs--decree that costs should come out of estate--execution of decree--manner of execution. - .....rs. 12 per cent. per annum. after she had taken out letters of administration, she applied to the district judge to execute the decree agaist the estate, to enable her to realise the costs which had been incurred by her and had been made payable out of the estate. exception was taken by the other administrator, hari pada mandal, to the effect that relief could not be had in the manner proposed. the district judge overruled the objection on the ground that karunnamoyee alone should not bear the whole burden of costs. the present appeal is directed against that order.2. it is plain that the parties have entirely misconceived their remedy. the decree directed that the costs of both parties should be paid out of the estate. this does not entitle one of the joint administrators to execute.....
Judgment:

1. This appeal is directed against an order in execution of a decree in a probate proceeding, and raises a question of some novelty. One Iswar Chandra Mandal left a Will. After his death his widow Karun-namoyee, the respondent in this appeal, applied for Letters of Administration with a copy of the Will annexed. Her step-son, Hari Padu Mandal, the appellant before us, entered caveat. Ultimately the widow and the son were appointed joint administrators on the 30th July 1913, and a decree was drawn up to the following effect : 'it is ordered that Letters of Administration with a copy of the Will annexed do issue to Karunnamoyee Dassi and Hari Pada Mandal jointly as agreed between the parties : and it is further ordered that costs of both the parties do come out of the estate.' In the schedule attached to this decree, the costs incurred by the plaintiff and by the defendant were entered as Rs. 1,041-11-9 and Rs. 21-3-6, respectively. The costs incurred by the plaintiff, it may be observed, included a sum of Rs. 1,017-8 on account of stamp duty payable on the probate. In fact before the decree was drawn up on the 18th July Karunnamoyee had applied to the Court for permission to raise a loan of Rs. 1,300 to enable her to pay this stamp duty and to meet other necessary expenses. Leave was granted to her to mortgage her half share in a particular property for Rs. 1,300, repayable within one year with interest at Rs. 12 per cent. per annum. After she had taken out Letters of Administration, she applied to the District Judge to execute the decree agaist the estate, to enable her to realise the costs which had been incurred by her and had been made payable out of the estate. Exception was taken by the other administrator, Hari Pada Mandal, to the effect that relief could not be had in the manner proposed. The District Judge overruled the objection on the ground that Karunnamoyee alone should not bear the whole burden of costs. The present appeal is directed against that order.

2. It is plain that the parties have entirely misconceived their remedy. The decree directed that the costs of both parties should be paid out of the estate. This does not entitle one of the joint administrators to execute the decree against the other. The proper course to follow is to sell or mortgage a sufficient portion of the estate in order that the mortgage executed by Karunnamoyee in respect of her half share may be paid up.

3. The result is that the order of the Court below is set aside and in lieu thereof it is declared that Karunnamoyee will be at liberty with the consent of the District Judge to mortgage or sell a sufficient portion of the estate in order to enable her to repay to the mortgagee, the sum borrowed, that is, Rs. 1,300 with interest thereon. The appellant, Hari Pada Mandal, has expressed his willingness to join in such a mortgage or sale. If he does so, the mortgage or sale will take place at the instance of both the administrators. But if he refuses to join in the transaction the respondent will be at liberty with the consent of the District Judge to execute the deed and pay the money. If a joint application is not made, the District Judge will have the mortgage or sale effected by either of the parties, after notice to the other. The District Judge will also determine how much of the sum covered by the mortgage previously executed is justly payable out of the estate and such portion alone will be repaid by the mortgage of the joint property or by the sale thereof. There will be no order for costs in these proceedings.


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