1. One Kailas Chandra Mukherji died in November, 1910, leaving a Will, dated the 28th August, 1908. He left two sons Jnanendra and Debendra by his first wife and four sons Jogendra, Jatindra, Jitendra and Jonendra by his second wife. He also left a daughter Ashalata by his second wife, who was unmarried at the time of his death. Jnanendra, Debendra and Jogendra had attained majority at the date of the Will, and Kailas Chandra Mukherji appointed all the said three sons as executors. Jogendra, however, died during the lifetime of his father and a few months before the death of the latter. No Probate was taken of the Will but on the 17th January, 1921, there was an agreement between the first party consisting of Jnanendra and Debendra and the second party consisting of Jatindra, Jitendra and Jonendra by which the disputes between them were referred to the arbitration of three gentlemen, Babu. Nanda Lal Pal, Babu Hari Charan Chatterji and Babu Kanti Chandra Ghose. The arbitrators made their award on the 25th November, 1921. On the 1st February, 1922, Jnanendra and Debendra applied to the Court against Jatindra, Jitendra and Jonendra that the award might be filed. This gave rise to the suit which was tried by the Subordinate Judge, Second Court, Hooghly. The Subordinate Judge made an order refusing to file the award and dismissed the suit. Hence this appeal.
2. It was stated in the agreement that a dispute had arisen between, the two parties for the partition of the moveable and immoveable properties left by their father and in respect of the construction of the 'Will and also with regard to the accounts connected with the estate left by him. It was stipulated that' Both the parties shall be bound by the award that may be given by the said arbitrators on making a partition or any other settlement in respect of the self-acquired moveable and immoveable properties of our father, by relying on the evidence and documents that may be put forward. None of the parties shall be competent to raise any objection or plea thereto. The parties shall all be bound by the decisions arrived at by the arbitrators, with respect to the respective assets or liabilities of the parties after examining and looking through the accounts of the income and expenditure of the estate left by our father since his death.' The Will was put forward as one of the documents in the case, but the arbitrators thought, to quote their own words, that it was 'unworthy of evidence.' The arbitrators nevertheless referred to the will but only for the purpose of ascertaining the testator's intention and not with the object of giving effect to the same, and, on the other hand, the arrangement contemplated by the testator was freely departed from in the award. As regards partition the allotments were made in contravention of the terms of the Will in order to suit the desire of the parties or their mutual convenience. The unmarried daughter Ashalata who was not a party to the agreement or the suit had been given certain ornaments by the Will, but the arbitrators held that Kailas had no authority to dispose of them and they awarded the same to the plaintiffs. There were other variations made though they ere of minor importance. The award also gave credit in favour of the plaintiffs in respect of a sum of Rs. 4,500 on the ground of maintenance charges incurred by them on account of the defendants.
3. The Subordinate Judge has dismissed the suit upon three main grounds, and these grounds have been challenged before us.
4. The first ground on which the Subordinate Judge has proceeded is that in his opinion the arbitrators exceeded their authority. In his opinion the arbitrators had no power to partition the properties or award the ornaments in violation of the terms of the Will as the parties did not challenge its propriety, and any intention on their part to do away with it was not apparent. So far as this ground is concerned I am unable to agree in the view of the learned Subordinate Judge, for the terms of the agreement left it open to the arbitrators to make any award they thought fit either in accordance with or in contravention of the Will. In my opinion the arbitrators did not exceed their authority. It is true that the award purported to interfere with the rights of strangers notably the daughter Ashalata, and the strangers would not in any event be affected by it; but as between the parties to the award its provisions must be held to be operative, if there is no other question about its validity.
5. The next ground on which the learned Subordinate Judge rested his decision is that one of the arbitrators Babu Nanda Lal Pal did not assent to one of the terms of the award, namely, that about the credit of Rs. 4,500 in favour of the plaintiffs on account of the maintenance of the defendants. The finding has been assailed before us and reliance in this respect has been placed upon certain passages in the deposition of the said arbitrator Babu Nanda Lal Pal as indicating a failure of memory on his part and also upon the deposition of another arbitrator Babu Kanti Chandra Goose as establishing that there was such assent. A careful study of the evidence of these two gentlemen has convinced,me that there must have been a misunderstanding in the matter, that is to say, Babu Nanda Lal Pal never assented to this particular provision, while Babu Kanti Chandra Goose on his part honestly thought that Babu Nanda Lal Pal had given his, assent. It is impossible to believe that such a positive statement as the one which Babu Nanda Lal Pal made in answer to the Court towards the end of his deposition, was due to a failure of memory. Both the witnesses are quite respectable and their integrity is beyond reproach, On this ground alone the dismissal of the suit is amply justified.
6. Another ground on which the judgment of the Subordinate Judge rests is that the plaintiffs being executors could not legally make any reference to arbitration which would go against the terms of the Will. This proposition has been challenged, it being urged that it will not hold good in this case as the plaintiffs have not taken Probate of the Will and have not accepted their office as executors. Now, the office of executor being a private office of trust named by the testator and not by the law, one named executor may refuse the office or renounce it. It is, however, too late to refuse or renounce when one has once elected to act as executor; and he may determine Such election by acts which amount to an administration. The acts which amount to an administration, so that the party cannot afterwards refuse, are (1) anything done by the executor with relation to the effects of the testator which shows an intention in him to take upon him the executorship, and (2) whatever acts will make a man not named executor in the Will, liable as executor de son tort (Williams on Executors, 11th Edition, Volume I, page 194). In the present case the plaintiffs, and for the matter of that the defendants as well, put the Will forward and relied on its contents, and were unable to agree as to its construction, but never showed any intention to act in defiance of its terms beyond leaving it to the arbitrators to settle the dispute in the best way they could and agreeing to abide by the award that they would make. The plaintiffs who are two of the executors named in the Will, have been handling the estate and effects of the testator ever since his death which took place so far back as 1910. Far from refusal or renunciation, the reference to the arbitration, one of the matters referred thereby being the construction of the Will itself, affords ample indication of the plaintiffs having accepted the office. They cannot be permitted to enter into an agreement the result of which may be, and in this particular ase has been, to bring about an award ullifying the intention of testator. The object sought to be attained by such an agreement is something that the law does not permit, namely, to allow the parties to acquire title to property in contravention of the terms of a Will in a case where the title is claimed under the Will itself, to allow the executors to have the Will construed by a tribunal of their own choice without proving the Will and evading the duty fixed by law, and to allow the executors and some of the legatees to join together and make an arrangement for the distribution of the properties contrary to the testator's intention and to the prejudice and detriment of the remaining legatee or legatees under the Will. The Court which is asked to pass a judgment and issue a decree in accordance with such an award may very well refuse to do so treating (Sick) rd as an invalid one. Under the English Law when it is too late for an executor to renounce, he having once elected to act as such, he may be cited to take Probate and his disobedience will amount to a contempt of Court.
7. In my opinion, therefore, the decision of the Court below is right and this appeal should be dismissed with costs hearing fee being assessed at three gold mohurs.