BASUDEO NARAIN SINGH Vs. PRAYAG DUTT NARAIN SAHI

JUDGEMENT

(1.) These are two appeals under Clause 10 of the Letters Patent against two orders of a learned single Judge of this Court. One Tulsi Prasad Narain Singh executed a Will on the 25th October, 1935. by which he appointed five executors to carry out his directions in the Will. Certain properties were dedicated to a deity Sri Durga Panchayatan; certain cash legacies were made in favour of the persons mentioned in the Will who are his relations; some money was to he spent annually for some charitable purposes; in favour of some persons provision was made for annuities for life and in favour of some other persons, including his daughter Shrimati Lalita Kuar, perpetual annuities were granted. The executors named in the Will applied for and obtained Probate of the Will. Tulsi Prasad Narain Singh died shortly after the execution of the Will. In 1940, disputes arose which gave rise to M. T. C. Nos. 71 and 72 of that year M.J.C. No. 71 arose on the application of Srimati Lalita Kuar for the removal of all the executors after the death of Munshi Rajeshwar Prasad, Am-Mukhtar of the testator, and M.J.C. No. 72 arose out of the application of Jadunadan Prasad Singh, one of the executors and brothers of the testator, for the removal of Balindra Prasad Narain Singh. These two applications were disposed of by Agarwala, J. as he then was, on the 3rd of April, 1941. Balindra Prasad Narain Singh was discharged from the office of the executor and Bireshwar Prasad Narain Singh was appointed in his place in M.J.C. No. 72 of 1940. Prayagdutta Narain Sahi was appointed executor in succession to Munshi Rajeshwar Prasad, as a result of a compromise in M.J.C. No. 71 of 1940. Letters Patent Appeals were filed against the decision in the two cases which were disposed of by Fazl All and Ray, JJ., as they then were, on the 13th of February, 1946, and Prayagdutta Narain Sahi was made the managing executor, the remaining two executors being Janardan Prasad Narain Singh and Bireshwar Prasad Narain Singh. On the 5th of October, 1949, another executor Janardan Prasad Narain, Singh also died. After that, three petitions were filed, one by Prayagdutta Narain Sahi, the managing executor, being M.J.C. No. 229 of 1950; Bireshwar Prasad Narain Singh filed another giving rise to M.J.C. No. 90 of 1951 and a third petition was filed by a number of annuitants which gave rise to M.J.C. No. 85 of 1952. M.J.C. Nos. 85 and 90 were, directed against the managing executor Prayagdutta Narain Sahi, Das, J., as he then was, disposed of these applications by his judgment dated the 4th of September, 1952. Prayagdutta Narain Sahi was removed from the office of the managing executor on the ground of various irregularities and mismanagement, but he was allowed to continue as an ordinary executor. M.J.C. No. 229 of 1950 was dismissed. The learned Judge, however, directed the District Judge of Darbhanga in M.J.C. No. 91 of 1951 to submit the names of three persons to be appointed as executors to fill up three vacancies in the board of executors in accordance with the direction of the testator, Sri Tulsi Pd. Naraiu Singh. He recommended three names, being those of Babu Krishna Prasad Narain Singh, Babu Lachhmeshwar Pd. Narain Singh and Babu Girdhari Prasad Narain Sahi, the son of Prayagdutta Narain Sahi, the managing executor, who was removed from that office, although some of the annuitants objected to the name of Babu Girdhari Prasad Narain Sahi.

(2.) The recommendation of the learned District Judge was considered by Ramaswami, J. (as he then was) and all the three persons recommended were appointed as executors to administer the estate of Tulsi Prasad Narain Singh also with the remaining two executors, namely, Bireshwar Prasad Narain Singh and Prayagdutta Narain Sahi. Letters Patent Appeal No. 3 of 1954 has been directed against this order of the learned single Judge dated the 4th December. 1953. Letters Patent Appeal No. 8 of 1954 is directed against the order dated the 19th of January, 1954, passed by the learned Judge by which he appointed Girdhari Prasad Narain Sahi as managing executor, as recommended by the learned District Judge of Darbhanga, rejecting the objection of the appellants to his appointment.

(3.) Before the appeal could be heard or merits, Mr. Lalnarain Sinha for the respondents raised a preliminary objection challenging the maintainability of the appeal. His contention was that the order passed by the learned single Judge was in the exercise of his discretionary jurisdiction and no appeal lies against such an order under Clause 10 of the Letters Patent, inasmuch as such an order does not amount to a judgment within the meaning of the term in Clause 10 against which alone an appeal under the Letters Patent would be competent. He has referred in this connection to Sections 295. 600 and 301 of the Indian Succession Act (39 of 1925) as also to a number of decisions bearing on the question of the meaning of the term "judgment" as used in Clause 10 of the Letters Patent, and Mr. Kaushal Kishore Sinha for the appellants has also referred to a number of decisions to establish that the two orders passed by the learned single Judge giving rise to these appeals fulfil the requirement of a "judgment" as it is used in CL 10 of the Letters Patent, and, as such, the appeals are competent in the eye of law. Section 295 of the Indian Succession Act provides that a proceeding for grant of probate before the District Judge is in the nature of a regular suit in which the petitioner for probate and letters of administration is in the position of a plaintiff and the person appearing to oppose the grant is in the position of a defendant. Section 300 relates to the concurrent jurisdiction of the High Court and the District Judge in the matter of grant of probate or letters of administration. Section 301 runs thus:--