WADILAL CHUNILAL Vs. MURLIDHAR GIRDHARLAL SHAH

JUDGEMENT

(1.) THIS is a petition filed by the sole surviving executor of the will of one Girdharlal Nahalehand for review of the Order passed by me in Chambers on March 20,1969 whereby I had ordered that the inventory and accounts filed by the said executor and tendered in Court on that day be taken on file and had given further directions in the following terms: - And I do further order that in the event of accounts being disputed the same be referred to the Commissioner of this Honourable Court for taking accounts and I do further order that the Commissioner do examine the same and certify to this Court whether the said Inventory and accounts represent a true, complete and just account of the administration of the estate of the abovenamed deceased.

(2.) IN the proceedings that ensued before the Commissioner of Accounts, on August 12,1969, the applicant, who is a legatee under the Will of the deceased and at whose instance the said Order was made, brought in objections and surcharges to the inventory and accounts filed by the petitioner -executor and several meetings thereafter took place before the Commissioner. In para. 7 of the present petition, it is submitted that, under Section 817 of the Indian Succession Act, the only obligation cast upon an executor is to exhibit a true inventory containing a full and true estimate of all the property and an account of the estate. It is further submitted in the said paragraph that there is no obligation in law cast upon an executor under the said section to pass the said inventory and accounts before the Commissioner for taking accounts and this Court, in the exercise of its Probate jurisdiction, has no power to order a Reference to the Commissioner for that purpose. Reliance is placed in support of that proposition on the decision of a single Judge of this Court in the case of Morarji v. Bai Panbai (1926) 29 Bom. L.R. 683 in which that practice has received judicial recognition, and it is stated in para. 8 of the present petition for review that that practice not having been pointed out to me at the time when I made my said Order dated March 20, 1969, there has been a resultant error of law that goes to the jurisdiction of this Court. On those grounds, the petitioner has prayed that my said Order dated March 20, 1969, be reviewed, and the portion thereof which requires the inventory and accounts to be referred to the Commissioner for taking accounts, if accounts are disputed, be deleted. When the petition came up for admission before me, I had directed notice before admission to be given of the same to the original applicant. The original applicant has appeared through counsel in response to that notice, and it has been agreed between the parties that the hearing before me is to be regarded not merely as being for the purpose of admission, but is to be treated as the final hearing of the review petition. I may state that there has been a very full argument of this matter before me on both sides.

(3.) BEFORE I do so, however, I would prefer to refer to the statutory provisions which have a bearing on the point which I am now considering . Section 817 of the Indian Succession Act lays down that an executor or administrator must, within six months from the grant by the court,. exhibit in that Court an inventory containing a full and true estimate of all the property in possession, .. and shall in like manner, within one year from the grant.. 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. Sub -section (3) of that section proceeds to lay down that if an executor or administrator, on being required by the Court to exhibit an inventory or account under the said section, intentionally omits to comply with the requisition, he is deemed to have committed an offence under Section 176 of the Indian Penal Code; and Sub -section (4) enacts that the exhibition of an intentionally false inventory or account under that section is to be deemed to be an offence under Section 198 of that Code. Rule 663 of the Rules of this Court (on the Original Side), 1957, lays down, inter alia, that the executor's oath which is to accompany a petition for probate and is to be endorsed on the will, when possible, is to be in Form No. 92 prescribed under those Rules. Under the said Form No. 92 the executor's oath is that he would exhibit 'a full and true inventory' of the property and credits of the deceased, and also render 'a true account' of his administration to the Court. It may be mentioned that the executor's oath in the present case is actually in terms of the said Form No. 92 and the petitioner who is the sole executor now surviving is, therefore, bound to carry out the undertaking given by him in those terms.