Mahesh Chundra Bhuttacharji and Nilkamal Bhuttacharji vs Bishwa Nath Buttacharji

Maclean, C.J.—The point we have to decide is a short one, viz., as to the true construction of sec. 98 of the Probate and Administration Act, V of 188r. The facts of the case lie within a narrow compass. The testator made a Will on the 17th of July 1884, and the two Appellants and the Respondent, who is represented by Mr. Hill, were appointed executors. The testator died on the 14th of September in that year, leaving an adopted infant son, and on the 1st of June 1885 probate was granted to the Appellants alone. On the 31st of January 1887, the Appellants filed, I presume, under the section, I have referred to, their accounts from 16th September 1884, a day or two after the testator''s death, to 30th September 1886. On the 10th of June 1887, by what I may call a somewhat short cut, the Respondent''s name was inserted into the probate as one of the executors, the other executors not objecting. In 1888, the Respondent brought a suit against the Appellant for an account of the executorship, alleging that he was not allowed by his co-executors to interfere in the management of the estate. However, on the 8th of January 1889, the Respondent withdrew that suit, and admitted that the accounts were correct. In 1891, another suit, on behalf of the infant beneficiary, was instituted by the mother, as his next friend, against the Appellants, for accounts from September 1884 to April 1891. I understand that the Respondent in this appeal was not a party to that suit. I do not understand how an administration suit could be regarded as properly framed, one of the executors not being a party. Be that as it may, on the 31st of December 1891 that suit was compromised, the compromise being declared by the Court to be for the benefit of the infant. Matters rested thus until the 9th of September 1895, when the Respondent applied to the District Judge of Dacca, under sec. 98 of the Act, to which I have referred, asking for accounts from the Appellants from the 1st of December 1886 to the 31st December 1896. That application was resisted by the Appellants, but on the 15th of January 1897, the learned Judge ordered the Appellants to give account for the period which I have mentioned, hence the present appeal.

These being the facts, the question turns upon the true construction of sec. 98 of the Probate and Administration Act; the question admittedly being whether the Court can, under that section, go on from time to time directing executors to deliver accounts, or whether, according to the true meaning of that section, that power can only be exercised once. The section has been read and I need not read it again; but to my mind the language is reasonably clear. It says, first, that the executor or administrator shall, within six months from a certain date, or within such further time as the Court which granted probate or letters of administration, may from time to time appoint, exhibit an inventory, and so on. Stopping there, I think it is clear that the words " from time to time appoint" relate to an extension of the period within which the inventory is to be exhibited, and if this be so, these words so used in this part of the section throw considerable light upon the meaning of the same words used in the subsequent part of the section. The words "from time to time appoint" cannot mean in the earlier part of the section, that the Court can go on, again and again, calling on executors to furnish an inventory. One inventory would be sufficient, but as, say in the case of a large estate, it might not be practicable to furnish that inventory within the time specified in the section, the Court is empowered to extend that period from time to time.

I now come to that part of the section dealing with the executor''s account. The material words are "and shall in like manner within one year from the grant, or within such further time as the said Court may from time to time appoint, exhibit an account of the estate showing the assets," and so forth. The language used is identical in both parts of the section and I am of opinion" that the words in the latter part of the section "from time to time appoint" relate to an extension of time for putting in the account, and does not authorize the Court to go on calling upon the executors to exhibit accounts from time to time, as often as the Court thinks fit. This view is emphasised by the consideration that the section speaks of "an account," that is one account, not a series of accounts. As I have pointed out, there are good reasons for giving the Court a discretionary power of extending the time both for the inventory and the account. In the case of a large estate it might not be possible for the executors to exhibit an account of the assets within the time fixed. The Legislature therefore empowers the Court to extend that period. I see nothing in the language of the section, read in its ordinary sense and signification, to authorize the Probate Court to go on from time to time ordering executors to go on exhibiting their account. "An account" means one account; it does not, to my mind, mean a series of accounts. With respect to the suggestion that the Respondent''s contention, if successful, would have a useful result in ensuring that an estate is properly administered, the answer to that is, that the ordinary Civil Courts are the proper tribunals, to which, to apply, if the parties interested are under the impression that the executors are not properly doing their duty.

Upon these grounds I think that the construction which the learned Judge has put upon the section is erroneous, and that the appeal must succeed, and be decreed with costs; and the appeal succeding, it is admitted by Mr. Bonnerjee, who obtained the rule, that rule becomes unnecessary. That being so, the rule will be discharged with costs. We assess the hearing fee in the appeal at three gold mohurs, and in the rule at one gold mohur.

Banerjee, J.

I am of the same opinion. Sec. 98 of Act V of 1881, so far as it is necessary to refer to it for the purposes of this case, enacts that an executor or administrator shall, within one year of the grant of letters of administration, or within such further period of the said Court may, from time to time appoint, exhibit an account of the estate showing the assets which have come to his hands and the manner in which they have been applied or disposed of. That means, admittedly, that there is to be a filing of accounts, and that is to be within one year firm the granting of the probate or letters of administration, or within such further time as the Court granting probate or letters of administration may from time to time appoint. The section does not say that the filing is to be first within one year of the order, then again within such further time as the Court may from time to time appoint; but it speaks of the time of filing being one year from the time of the probate or letters of administration being granted or within such further time as the said Court may from time to time appoint. What is spoken of as taking place from time to time is not the filing of a series of accounts, but the appointment of the time within which the filing of the accounts is to take place; or, in other words, the clause relates merely to the extension of the time within which the filing of the account must take place.