KHETTRAMONI DASI Vs. DHIRENDRA NATH ROY

JUDGEMENT

(1.) The plaintiff in the suit--and the appellant before me in this second appeal--is the widow of the late Sibram Rai, who died in 1895, leaviug a Will, by which he appointed the late Ashutosh Rai to be his executor. The latter took out probate of the Will in November 1895 and subsequently died in 1903. The defendant, now respondent, is his minor son and heir. The plaint was filed in 1907, and the relief sought is set out in the prayers contained in paragraph 8 of that document. For the present purpose, it is only necessary to refer to the first prayer and a part of the second. The plaintiff prayers firstly, for a decree for an account on the footing that the defendant is liable to render an account for the period during which his father acted as executor, extending, it is alleged, up to the date of his father's death. Then a decree is prayed for "for such an amount as may upon adjustment of account be found due from the defendant No. 1". These prayers must be read with paragraphs 3 and 5 of the plaint. In paragraph 3, it is suggested that the deceased executor committed a devastavit and the following words occur:-- If a regular account be made, it will appear that the said Ashutosh Rai wrongfully misappropriated a large amount of money belonging to the said estate." Paragraph 5 asserts that the defendant is liable to render an account and to pay the money that may, upon an adjustment of account, be found due. It is clear, therefore, that though in the earlier paragraph a devastavit is charged, the claim for all account is also put on the basis that the defendant is liable to render an account and to pay to the plain-tiff any balance which may be found to be due to her. The written statement denies liability, it does not expressly say that the estate had been fully administered but I think that this is plainly implied. Paragraph 3 for instance asserts that the defendants father rendered to the District Judge the accounts which he was liable to render according to law" and paragraph 8 that no papers of the plaintiff were or are with this defendant's father or this defendant himself."

(2.) Both the lower Courts have concurred in dismissing the suit. It is admitted in appeal that, as both Courts have found, there is no evidence on the record of misappropriation or devastation of the estate by the deceased executor. It is contended, however, that the defendant's liability to render an account of his father's executorship and to pay over the balance (if any) due to the plaintiff has not been considered or dealt with. To a certain extent that is true and I will assume that the legal representative of a deceased executor is not only liable for a devastavit committed by the latter but may also be called upon to render any account which the latter should have, but has not, rendered. Such an account need not necessarily be an account upon the footing of with full default as the learned Subordinate Judge seems to suppose. The claim under consideration is the ordinary claim for an account and for any balance which may be found to be due on the account being taken.

(3.) But when all this has been said, it still remains that the plaintiff in a suit for an account, as in any other suit, must show that she is entitled to the relief for which she seeks. The present plaintiff has, I think, failed to establish her claim to an account and on this ground, if on no other, I think, that her suit has been properly dismissed. It is clear from the Munsif's judgment that there is nothing to show that the account due from the deceased executor under Section 98 of the Probate and Administration Act, 1881, is not now lying in the office of the District Judge, or that there rested upon the deceased executor any duty to account over and above the duty imposed by the section to which I have referred.