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Official Trustee of Bengal Vs. Kumudini Dasi - Court Judgment

LegalCrystal Citation
SubjectCivil;Family
CourtKolkata
Decided On
Judge
Reported in(1910)ILR37Cal387,6Ind.Cas.973
AppellantOfficial Trustee of Bengal
RespondentKumudini Dasi
Excerpt:
probate and administration act (v of 1881), section 50 - just cause--jurisdiction--probate granted to official trustee who is not competent to accept executorship--official trustee's act (xvii of 1864,) sections 8, 9. - .....act, ought to revoke the probate that has been granted. this probate was granted by mr. justice chitty on the 18th of november 1907, his order being that probate of the will be granted to the official trustee of bengal: the probate actually granted was expressed to the official trustee of bengal for the time being. at the time when the application was made mr. gray was official trustee, but he was merely officiating temporarily in the place of mr. miller the permanent incumbent. the ground on which mr. justice fletcher has revoked this grant of probate was that mr. justice chitty had no jurisdiction to grant the probate now sought to be revoked first, because the official trustee is not capable of being appointed executor; and, secondly, because the learned judge had no......
Judgment:

Lawrence Jenkins, C.J.

1. This is an appeal from the Original Side of this Court in the Testamentary and Intestate Jurisdiction, the judgment complained of being one passed by Mr. Justice Fletcher, who directed that the grant of probate of the Will of one Manick Lal Seal, deceased, to the Official Trustee be revoked, and that the grant of probate issued to the Official Trustee of Bengal for the time being be brought into the Registry of this Court. There is no dispute as to the facts, and the only question is whether this is a case where the Court, under Section 50 of the Probate and Administration Act, ought to revoke the probate that has been granted. This probate was granted by Mr. Justice Chitty on the 18th of November 1907, his order being that probate of the Will be granted to the Official Trustee of Bengal: the probate actually granted was expressed to the Official Trustee of Bengal for the time being. At the time when the application was made Mr. Gray was Official Trustee, but he was merely officiating temporarily in the place of Mr. Miller the permanent incumbent. The ground on which Mr. Justice Fletcher has revoked this grant of probate was that Mr. Justice Chitty had no jurisdiction to grant the probate now sought to be revoked first, because the Official Trustee is not capable of being appointed executor; and, secondly, because the learned Judge had No. jurisdiction, in so far as he directed the grant to issue to the Official Trustee for the time being.

2. It has not been contended before us that Mr. Justice Fletcher's view of the law is not correct, and, speaking for myself, I am glad that he has raised this point. I think, however, the appeal must succeed on the ground that, although Mr. Justice Chitty's order may have been erroneous on the ground stated, it cannot be said that he had no jurisdiction to make the order. It has become a common place that it is within the jurisdiction and competency of the Court to decide wrongly as well as to decide rightly, so that, even if it be assumed for the purpose of this case that Mr. Justice Chitty took an erroneous view of the position of the Official Trustee under the Official Trustee's Act, it cannot, in my opinion, be said that he made an order as to which he had no jurisdiction. Reading the judgment of Mr. Justice Chitty, I have little doubt that, he regarded the Official Trustee as a corporation sole, represented by the incumbent for the time being. He, therefore, regarded the Official Trustee as a person who could be appointed as executor within the meaning of the Probate and Administration Act. Further than that, he obviously was o opinion that there was nothing in the Official Trustee's Act which precluded his becoming an executor of a Will. However erroneous that decision may have been--and it is assumed for the present purpose that it is erroneous--still it was a decision to which the learned Judge was entitled to come. He was the. Judge at that time exercising the testamentary jurisdiction of the Court in its Original Side, and the subject-matter then before him was clearly one with which he was in every way competent to deal. There was, therefore, no defect in respect of subject-matter, or parties, or the nature of the proceeding, so that I am of opinion that the case does not fall within Section 50 of the Probate and Administration Act. Further, I think this is not a case where it would be convenient to exercise the power of revocation and annulment given by Section 50 of the Probate and Administration Act to the Court. The estate is one of very considerable value: probate was granted as far back as November 1907, and we are told, and it is not disputed, that during the three years that have elapsed since the grant of probate many transactions have taken place, so that serious questions might possibly arise, notwithstanding the saving provision of Section 8i of the Act, were the grant now to be cancelled.

3. The result then is that, even assuming the order of Mr. Justice Chitty to have been erroneous, I still think that the order for revocation should be set aside.

4. I notice that Mr. Justice Chitty, in the course of his judgment in In the Goods of Manick Lal Seal 35 C. 156, points out that if the Official Trustee takes up the executorship, he will receive no remuneration for that portion of the duties, bat only under the Official Trustee's Act, for his management as trustee: and it has been stated before us that no remuneration is claimed, or will be claimed, in respect of the executorship. I must point out that it was not competent for the learned Judge to express any opinion as to the right of the Official Trustee to remuneration--as trustee--for that was obviously not a matter before him. My reason for alluding to that remark is to safeguard myself against being supposed to have assented to the view that this Court, in its testamentary jurisdiction, can come to any decision as to the right of the Official Trustee to remuneration as a trustee, or even as to his capacity to take up the trusteeship.

5. The appeal must, therefore, succeed. The order of Mr. Justice Fletcher must be set aside. The respondent must pay the appellant's costs both in this Court and in the Court of first instance without prejudice to the right of the latter to have the costs to be paid out of the estate. We direct that probate be re-issued.

Woodroffe, J.

6. I agree that the order of the learned Judge should be set aside. In this case the Official Trustee applied for probate as being a person appointed by the Will of the testator, and the application was made to a Court having probate jurisdiction. It is admitted that the Court had jurisdiction over the subject-matter, that is the grant of probate. The question then to be decided was whether the Official Trustee was a person entitled to apply for such probate. This was not a question of jurisdiction, but was one of the questions which a Court possessing probate jurisdiction had to determine daring the course of its exercise. If Mr. Justice Chitty had not jurisdiction to decide this point, what Court had? There was no defect, therefore, in the proceedings within the meaning of Section 50 of the Probate and Administration Act. Whether the decision on the question as to the right of the Official Trustee to obtain probate was a right or a wrong decision does not concern us, but having been given it was binding on a Court of co-ordinate jurisdiction. Further, the Court has discretion under Section 50 of the Probate and Administration Act to revoke or annul the grant of probate. No doubt, there are cases where a Court which is given a discretion by the statute is bound under the circumstances of the case to exercise that discretion in the applicant's favour; but this is not the case here. This is a case where revocation was likely to cause the greatest inconvenience, for we are informed that the administration having gone on for several years has nearly come to an end. It would, therefore, be disastrous at such a stage to re-open S.11 that had been mean while done under an order to which the present respondent was a consenting party. Such consent may not give jurisdiction: but it is a circumstance which may be, and should be, considered OH the question whether the Court should exercise its discretion at the instance of such party and declare that there had been no jurisdiction.


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