1. This appeal is against the decision of the District Judge of Dacca rejecting an application for Probate, under somewhat novel circumstances. One Kumar Ronendra Narayan Roy died on the 14th September 1910 leaving him surviving a widow who is the respondent before us. He is alleged to have executed a Will in the year 1904. Two gentlemen Mr. Peary Lal Roy and the present appellant were appointed executors under the said Will. They made an application for Probate before the District Judge of Dacca on the 4th November 1910. The widow disputed the Will and she had applied on the Original Side of this Court for grant of Letters of Administration of her husband's estate apparently on the allegation that he had died intestate. This dispute between the parties went on for a considerable time: On the 20th September 1912 Mr. Peary Lal Roy and the appellant before us filed an application before the Judge signed by them dated the 10th September 1912. In that application it was recited that the petitioners in consultation with their legal advisers and having regard to the interests of all parties concerned in the estate and also to the wishes of the deceased, desired to place the management of the property under the Court of Wards for saving it from ruin. It was also recited that the lady respondent would withdraw her application for Letters of Administration in this Court and had agreed that she would never thereafter make any application for Letters of Administration in any Court. The petition concludes in these terms: 'The petitioners hereby renounce the executorship of the said Will of the late Kumar Ronendra Narayan Roy Choudhry and they pray that this suit may be dismissed and their costs may be allowed from the estate of the deceased Ronendra Narayan Roy.' On the same day another application was filed on behalf of Sarajubala Debi the respondent almost in the same terms as the petition of the two gentlemen, and it concluded in these words: 'The defendant prays; that the said renouncement of executorship under the disputed Will be recorded by the Court and that this suit may be dismissed and that the cost of defendant may be allowed from the estate left by her husband.' Another petition was filed by the appellant alone on that date in which it was stated: 'That the appellant had agreed to renounce the executorship on two conditions. The first condition has been set out in the petition filed by your petitioner and the other applicant Mr. P.L. Roy, Bar-at law. The second condition that the Will of Kumar Ronendra Narayan Roy, the deposition of Mr. F.M. Leslie, Solicitor one of the two attesting witnesses of the said Will and the whole record of the above mentioned suit should be kept in safe custody in your Honour's Court, has been omitted in that petition through mistake.' The prayer was that an order should be passed for the safe custody of the Will and the whole record of the above mentioned suit. On these petitions the learned Judge made the following order on the 20th September 1912: 'This case is taken up to day at the request of both parties. Two petitions of compromise are filed. The petition for Probate is dismissed in terms of the compromise. The two petitions filed on either side will form part of the final order.' It is unnecessary to set out the rest of the order. There was some dispute subsequently as regards the question of costs between the parties and the Court decided the matter on the 17th September 1915. Nothing further was done with regard to the case. Apparently after the dismissal of the application for Probate the property vested in the widow of the deceased, and the Court of Wards took over the management on her behalf and has been in possession of and managing her estate since then.
2. On the 27th June 1921 the appellant made an application for Probate of the aforesaid Will to the District Judge of Dacca which gave rise to the present proceedings. The material facts stated in the application are that the petitioner was supplied with a copy of the draft of the Will in September or October 1910, and on the 5th October he had written letters to the widow, that is, the respondent, informing her of the contents of the Will and he also gave necessary instructions and directions to the Manager of the estate and the Manager had acted. according to the instructions of the petitioner till the 5th December 1910. It is further stated how, at the instance of the Collector, the Commissioner and certain other persons, this petitioner had been induced to file a petition renouncing the executorship, and it is alleged that the steps taken by the Collector amounted to undue influence. It is also alleged that the estate was involved at the time of the death of the testator and debts amounting to over three lacks of rupees had been paid off since--evidently by the Court of Wards. It is not necessary to state the other facts contained, in the petition. This application was verified by one of the attesting witnesses to the Will according to the provisions of the Probate and Administration Act. On the filing of this petition the learned Judge thought it desirable to issue notices to the opposite party named in the petition as well as to the Collector as representing the interest of the other co-sharers to show cause why the petition should not be admitted. Thereupon the respondent appeared and objected to the petition being heard, and after hearing the parties without taking any evidence the learned Judge has rejected the application on the ground that the petitioner was not entitled to apply for Probate of the Will of Kumar Ronendra Narayan Roy.
3. The first objection that has been taken on behalf of the appellant by his learned Counsel is that the procedure followed by the learned Judge is erroneous. He ought to have registered the application, issued notice to the persons concerned, ought to have raised proper issues, after the other side had filed their written objections, and decided the case as a suit, and ought not to have dismissed the application in the way he has done. Having regard to the circumstances of the present case that an application for Probate had already been made and dismissed on a petition filed by the present appellant and in that petition he had renounced his executorship on which an order had been passed, that an application for Probate of the very same Will has been made about 9 years afterwards, the learned Judge could rightly consider the preliminary question as to whether the application was maintainable or not. He might have heard it ex parte, but instead of doing so he gave notice to the other side to assist him in coming to his conclusion and we are of opinion that there is nothing wrong in his having done so. There is no doubt that this application of the 27th June 1921 is a fresh application for Probate by one of the executors named in the alleged Will, and not for reviving the proceedings initiated in November 1910. Various questions were raised in the lower Court, one of which was whether this application is maintainable unless the order made on compromise on the 20th September 1912 is set aside. We are of opinion that the learned Judge is right in holding that the order passed on compromise cannot operate as a bar to an application for Probate of the Will. This proposition is accepted by the learned Counsel on both sides. It is unnecessary to state anything further on this point.
4. The real question for decision is whether the appellant had renounced his executorship by his petition filed on the 20th September 1912 before the District Judge, and if so, was the renunciation valid in law, and whether the appellant is entitled to retract that renunciation and present this fresh petition for Probate. From the portions of the petition set out above there cannot be any doubt that the appellant as well as Mr. P.L. Roy did renounce their executorship as this was distinctly stated in their petition.
5. It is, however, contended on behalf of the appellant that it was not a renunciation as contemplated by Section 17 of the Probate and Administration Act, because the renunciation can only be made when another person has applied for grant of Letters of Administration and citation is issued calling in upon the executor to accept or renounce his executorship. As there was no such application of any third person, the petition of the appellant of the 20th September 1912 was no renunciation under Section 17. This argument disregards the first portion of Section 16 of the Probate and Administration Act which states that when a person has not renounced his executorship there should be citation issued upon him. This contemplates that renunciation can be made by the executor without issue of citation and in the present case the renunciation was made by writing signed by the persons renouncing and is, therefore, in accordance with Section 17 of the Act.
6. It is next contended that the appellant had intermeddled with the estate of the deceased inasmuch as he had done those acts which have been stated in his petition, that is, giving instructions to the Manager about the management and so forth, between October 1910 and the 5th December 1910, when an Administrator pendente lite was appointed. It is argued that where a person has intermeddled with the estate of the deceased his renunciation is invalid in law and he is, therefore, entitled to ask for Probate. It is stated that such a person, is compelled by the Court in England to take out Probate, and we should follow the same procedure. It is also urged that this has been so laid down in two cases decided in Bombay, Dayabai Tapi Das v. Damodar Tapidas 20 B.227 : 10 Ind. Dec. (N.S.) 710 and Ayesha Bai v. Ebrahim Haji Jacob 32 B. 364 : 10 Bom. L.R. 117. The case in Ayesha. Bai v. Ebrahim Haji Jacob 32 B. 364 : 10 Bom. L.R. 117 has no connection whatsoever with the question of renunciation or application for Probate. In that case the executor named in the Will never took out Probate but dealt with the property of the testator. After his death the legatee brought a suit for accounts against the representatives of the executor, and it was held that an executor who had intermeddled with the estate of the deceased although he had not taken out Probate, was accountable as an executor. The decision in that case can have no reference to the question for decision in the present case. The case in Dayabai Tapi Das v. Damodar Tapidas 20 B. 227 : 10 Ind. Dec. (N.S.) 710 is also a different one. There the executor had been dealing with the estate of the deceased and when called upon to take out Probate his plea was that Probate was not necessary, he was willing to take out Probate if the Court so desired but that he had not money in his hands to pay for the Probate duty and the expenses. Thereupon the Court made an order that the person who desired that Probate should be taken should pay half the costs and the other half should be paid by the executor. There was no question of renunciation by the executor. It is not necessary for us to say -whether we agree that the order made by the learned Judge in that case was according to law, as that case has no bearing on the present one.
7. A person intermeddling with the estate of the deceased is no doubt liable to account for his dealings with the estate. It appears that in England the Court may compel such an executor to take out Probate so as to represent the estate. It is unnecessary for us to consider in the present case whether the law is the same in this country, as no one applied for compelling the appellant to take out Probate. We may, however, observe that the practice in England has grown up under different conditions and is regulated by different Statutes and the practice there need not necessarily be followed by us here.
8. We have next to decide whether the renunciation is invalid in law. The renunciation by the appellant was accepted by the Court and an order was passed on such renunciation. In the case of Mohamidu Mohideen Hadjiar v. Pitchey (1894)A.C. 437 : 63 L.J.P.C. 90 : 6 R. 510 : 71 L.T. 99 (P.C.), Lord Macnaghten in delivering the judgment of the Privy Council observed: 'It has been held that an executor, even after taking the oath of office, may renounce before Probate is actually granted.' We are unable to hold in this case that the acts alleged to have been done by the appellant render his renunciation invalid in law in the absence of any express provision to that effect.
9. The question then is whether having renounced the executorship the appellant can make a fresh application for Probate. In our opinion he cannot. Section 17 of the Probate and Administration Act runs thus: 'The renunciation may be made orally in the presence of the Judge or by a writing signed by the person renouncing, and when made shall preclude him from ever thereafter applying for Probate of the Will appointing him executor.' These are clear provisions on which the matter should be decided, and we cannot qualify these provisions of the section by engrafting exceptions on them. It has been contended before us on the analogy of English cases decided under 20 and 21 Victoria, Ch. 77, Section 79 that it is open to the executor to retract his renunciation so long as no fresh grant of Administration has been made to some other person.
10. It seems to have been held in England that the old practice was not abrogated by the Statute and the Court is not itself concluded, but may permit a retractation of an executor's renunciation in a fit case: In the goods of Badenath (1864) 3 Sw. and Tr. 465 : at P. 466 : 33 L.J.P. 176 : 10 Jur. (N.S.) 521 : 11 L.T. 275 : 164 E.R. 1355 and In the goods of Gill (1873) 3 and. D. 113. It is fruitless to endeavour to interpret the rules relating to procedure under the Indian Act by reference to what has been decided with regard to another Statute in England on different considerations, even if the language of the two Statutes had been the same. Here even the terms of the two Statutes are not the same. In our opinion the appellant is precluded from applying for Probate of the Will under the provisions of Section 17 of the Probate and Administration Act. But assuming that he can be allowed to retract his renunciation, it is for the Court to decide whether it is a fit case in which he should be so allowed. Having regard to the circumstances, that the renunciation was by reason of consultation with the appellant's legal advisers and all parties concerned for the benefit of the estate, that because of this renunciation the other side also withdrew her application for Letters of Administration, that this petition has been filed about 9 years after the matter had been settled, and that a grant of Probate now may create doubts about the rights of other persons dealing with the estate, we do not consider it to be a fit case in which the appellant should be permitted to retract his renunciation.
11. It is lastly urged that the learned Judge was wrong in dismissing the application without taking any evidence in support of the petition. The only matter which required any evidence was the so called undue influence, assuming that undue influence alleged to have been exercised by third persons has tiny bearing on the question in controversy. It, however, appears from the judgment of the learned Judge that this point of undue influence was not seriously pressed before him and he, therefore, held that it scarcely called for discussion. There was no other matter upon which any evidence was necessary because the other facts alleged had been assumed to be correct.
12. We agree with the learned Judge's conclusion and this appeal must, therefore, be dismissed with costs. We assess the hearing-fee at 25 gold mohurs.