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Sheikh KalimuddIn Vs. Musammat Mahurni and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in13Ind.Cas.690
AppellantSheikh Kalimuddin
RespondentMusammat Mahurni and anr.
Cases ReferredUma Charan Das v. Mukta Keshi Das
Excerpt:
administration-bond - assignment--second assignment while first is in force, whether valid-appeal--order assigning bond--probate and administration act (v of 1881), sections 78, 79, 86--civil procedure code (act v of 1908), section 105. - .....letters of administration to the estate of one mania baksh and executed a bond in favour of the district judge under section 78 of the probate and administration act, 1881, for the due administration of the estate. as apparently he did not administer it properly, the bond was assigned under section 79 of the act to gyasuddin, a son of maula baksh. gyasuddin, however, came to terms with the appellant and did not sue on the bond. the widow and the other children of maula baksh then sought to have the bond assigned to them. this has been granted by the district judge and hence this appeal.2. a preliminary objection is taken that no appeal lies. we think this contention must prevail. section 86 of the act enacts that every order of a district judge under the act shall be subject to appeal.....
Judgment:

1. The appellant in this case was granted Letters of Administration to the estate of one Mania Baksh and executed a bond in favour of the District Judge under Section 78 of the Probate and Administration Act, 1881, for the due administration of the estate. As apparently he did not administer it properly, the bond was assigned under Section 79 of the Act to Gyasuddin, a son of Maula Baksh. Gyasuddin, however, came to terms with the appellant and did not sue on the bond. The widow and the other children of Maula Baksh then sought to have the bond assigned to them. This has been granted by the District Judge and hence this appeal.

2. A preliminary objection is taken that no appeal lies. We think this contention must prevail. Section 86 of the Act enacts that every order of a District Judge under the Act shall be subject to appeal to the High Court under the rules contained in the Code of Civil Procedure applicable to appeals. One of those rules is to be found in Section 105 of the Code which lays down that, save as otherwise expressly provided, no appeal shall lie from any order. There is certainly no express provision in the Code for an appeal from an order assigning a bond. This seems to be in accordance with the view taken in Brojo Nath Pal v. Dasmony 2 C.L.R. 589 and Abhiram Dass v. Gopal Dass 17 C. 48. It was not taken in Uma Charan Das v. Mukta Keshi Das 28 C. 149 but in that case the effect of the words 'under the rules contained in the Code of Civil Procedure' seems not to have been considered.

3. We think, however, that the order of the District Judge is altogether without jurisdiction and that we can accordingly revise it. Under Section 78, the bond enured for the benefit of the District Judge. Under Section 79, be can assign it on conditions. Bat there is no provision in the law which authorises him to assign it again while the first assignment is still in force. If there had been a condition that the assignment should be void, if the assignee failed to comply with certain requirements, in that case a reassignment might perhaps be possible. But there is no such condition in the present assignment. All that is stipulated is that any money decreed should be deposited in Court, a condition that can hardly be said to have been broken. No doubt, the respondents can apply to have the hatters revoked, if they can make out a case under Section 50 of the Act, and can Hue the administrator. They can also hold Gyasuddin responsible as a trustee for them under Section 79 for all that he has recovered. But they cannot obtain an assignment of the bond from the District Judge when it is no longer his to assign.

4. Accordingly, the appeal is dismissed, but in the exercise of our revisional jurisdiction, we set aside the order of the District Judge assigning; the bond to the respondents. They will be at liberty, if so advised, to proceed with the application for revocation of the Letters of Administration which the District Judge has left undetermined. We make no order as to costs.


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