Naba Chundra Chowdhury vs Tripura Charan Chowdhury

The subject-matter of this appeal is an order made by the District Judge of Chittagong under sec. 98, (clause 3) of the Probate and Administration Act, sanctioning the prosecution of the Appellant under sec. 176, I. P. C. because he had intentionally omitted to comply with the requisition of the Court calling upon him to file his accounts within a certain time given It appears that the Appellant obtained probate of a Will from the Court of the District Judge some time before the year 1896. At that time one of the beneficiaries, who was a miner, having attained majority, applied to the Judge for revocation of the probate that had been granted to the Appellant, under sec. 50 of the Probate and Administration Act The Judge, on the 3rd September 1896, made an order, under clause, 4 of that section, revoking the grant of the probate. At the same time he directed the Appellant to deliver up the probate to the Court; and he further directed that the office should report if the accounts had been duly tiled by him. On the 18th September 1896, the Appellant asked for a month''s time to file the accounts. This time was allowed; and it appears that on the 8th December of the same year, the Judge made the following order :--" The opposite party asks for another one month''s time to file the accounts. He can do so. He is liable to be prosecuted under sec. 98, (clause 3)of Act V of 1881. But under the circumstances, I think no further action is called for unless applicant moves the Court. Case disposed of" and so on.

On the 8th February 1897, the Applicant, namely, the Petitioner, at whose instance the probate had been revoked, asked for accounts being called for from the Appellant. Thereupon, an order was made by the District Judge to the effect that notice be issued upon the Defendant to file accounts within 3 months

On the 18th May 1897, 4 days'' further time was allowed to the Appellant to produce the accounts. On the same date, however, the Judge made the following order:--" I find that the Petitioner obtained probate 12 years ago and has never filed any accounts. I cannot give any time. The above order is cancelled. I sanction prosecution under sec. 176, I. P. C. The proceedings to be sent to the Magistrate of the District for orders and it further appears that later on the same date, another order was made which was as follows :--"The probate holder has filed accounts. The above order sanctioning prosecution will remain in abeyance for one week until the accounts are examined. Put up May 25th." On the 27th May 1897, the office made a report to this effect :-- " The accounts filed are not supported by any vouchers, so it cannot be said whether they are correct. The Petitioner''s pleader was asked to examine them but he did not do so;" that is to say, the party at whose instance the accounts were called for under the order of the 8th February 1897, did not care to examine the accounts. The Judge, however, on the 4th June 1897, took up the matter and made the following order :--" The petition disclaiming "liability to submit accounts is rejected. The accounts which are filed are not considered by me to be genuine accounts. I believe that they have been recently prepared.

There is another order of an earlier date to which, we think, we had better also refer to, and that is an order of the 25th May 1897, which was as follows :-- " The account filed is of no value. The original papers must be filed, and if it is necessary to explain what portions of the joint accounts belong to the minor, written explanation must be given so that the Court can check the accounts produced. The Petitioner is allowed 10 days to file the original paper." In connection with this order, we desire to mention that on the 4th June 1897, the Judge recorded the following order in addition to what we have already noticed. "The order sanctioning prosecution will remain good. The papers to be forwarded to the District Magistrate in accordance with Order No. 14, dated 18th May, the Petitioner may raise any of the pleas contained in his petition in the Magistrate''s Court.

Now, in the petition which is here referred to, the Appellant explains why he was not in a position to file the original accounts. But the learned District Judge, without examining whether that explanation was well-founded or not, left the matter to be dealt with by the Magistrate, whereas sec. 98 provides that "if an executor or administrator, on being required by the Court to exhibit an inventory or account under this section, intentionally omits to comply with the requisition, he shall be deemed to have committed an offence under sec. 176, I. P. C.;" and clause 4 of the section says :--"The exhibition of an intentionally false inventory or account under this section, shall be deemed to be an offence under sec. 193 of the Code." So far, therefore, as the question of intention was concerned, it was not considered by the learned Judge. Going back, then, for a moment to the orders of the 18th May 1897, it will be observed that the accounts were actually produced by the Petitioner, though not within the time originally appointed by the District Judge. It seems to us that if that officer was of opinion that the omission to produce the accounts within the proper time was intentional, he might have no doubt made an order sanctioning prosecution of the Appellant under sec. 176, I. P. C., subject however to a question which we shall hereafter notice; but he was not right in making that order depend upon an examination of the accounts themselves. If the accounts were untrue, he might possibly have made an order, if he could consistently with the provisions of clause 4 of sec. 98. But the order with which we are now concerned is an order expressly under clause 3 of that section; and we think that in the circumstances of this case, and having regard also to the fact that the accounts were produced by the Appellant, the Judge ought not to have made an order sanctioning the prosecution of the Appellant under sec. 176 without any enquiry whether the omission to produce the accounts was intentional. We also think that he ought not to have made the order, when the party at whose instance the accounts was called for did not think it worth his while to examine them. We desire further to say that there were apparently no materials before the District Judge, upon which he could be in a position to say that the accounts were intentionally false within the meaning of clause 4, or that the Appellant had intentionally omitted to comply with the requisition of the Court within the period appointed. We think, therefore, that the order sanctioning the prosecution of the Appellant under sec. 176, I. P. C., ought to be set aside. The question which we had in mind, while referring to the power of the Judge to make an order for prosecution is (and it has been raised before us by the learned vakil for the Appellant) shortly this--whether the District Judge had to authority in law to call upon the executor, after his functions as an executor had ceased, to file the accounts which he might have been compelled to produce during his executor ship, as enjoined by sec. 98 of the Probate Act, and, therefore, it has been contended before us that the order calling for the accounts after the probate had been revoked, as also the order sanctioning the prosecution of the Appellant by reason of the accounts not having been produced within proper time, were unauthorized. We think, however, having regard to the view which we have already expressed in regard to the propriety of the order itself as made by the District Judge, that this question of law need not be decided on the present occasion. We make no order as to the costs of this appeal.