CHANDRA KUMAR CHAKRAVARTI Vs. PRASANNA KUMAR CHAKRAVARTI

JUDGEMENT

(1.) This appeal is directed against a decree of dismissal made by the District Judge of Chittagong on an application for revocation of Probate of a Will. The testator, one Tarini Charan Chakravarti, made a testamentary disposition of his properties on the 5 December 1909 and died two days later. The respondents, Prasanna Kumar Chakravarti and Satis Chandra Chakravarti, applied for Probate of the Will on the 13 January 1910. Chandra Kumar Chakravarti, the nephew of the testator, entered a caveat on the 1 March 1910. Probate was, however, granted on the 11 April 1910. Thereupon an appeal was preferred to this Court, with the result that the order of the Primary Court was set aside on the 18 March 1913 and the case was remanded for re trial in the presence of both parties. On the 6th August 1914 an order for Probate was again made. An appeal, preferred to this Court, was dismissed on the merits on the 2 July, 1915. During a considerable portion of the period which elapsed between the first grant of Probate on the 11 April 1910 and the final on the 6 August 1914, the estate was in charge of an administrator pendente lite. The fees leviable on the Probate were paid on the 27 September 1915 and it may be assumed, for our present purposes, that the Probate became operative from that date, although the administration bond was not filed till the 20 February 1916. On the 6 November 1918 the appellants, who had unsuccessfully opposed the grant of Probate, commenced the present proceedings by an application for revocation under Sec. 50 of the Probate and Administration Act. The application was founded on two allegations, namely, first that the grant had become useless and inoperative through circumstances, and, secondly, that the persons to whom the grant had been made had wilfully and without reasonable cause omitted to exhibit an inventory and accounts in accordance with the provisions of Chapter VII of the Probate and Administration Act and had further exhibited under that Chapter an inventory and amounts which were untrue in material respects. The District Judge has dismissed the application on the ground that the petitioner has failed to establish the validity of his contentions. On the present appeal, the two points which were unsuccessfully urged before the District Judge have been reiterated with considerable zeal, We shall deal separately with them.

(2.) As regards the first point, namely, whether the grant has become useless and inoperative through circumstances, it has been contended that the opposite parties who took out Probate have completed their work. The District Judge did not accept this contention and observed that although after this lapse of time, they might be expected to have completed the administration, on the very showing of the petitioners, the work had not been actually completed. This view has been controverted by the appellants. Our attention has been drawn to the terms of the Will which, it has been argued, show that the estate has by this time vested in the universal legatee and that consequently there is no need for the continuance of the executors in their office. In support of this position reliance has been placed upon the decision of this Court in the cases of Taran Singh Hazari Vs. Ramratan Tewari 31 C. 89 at pp. 92, 93 and Sankar Nath Mukherji Vs. Biddutlata Debi 48 Ind. Cas. 295 : 28 C.L.J. 271. In the first of these cases it was pointed out that the duties of the executor are to administer the estate of the deceased, only so far and so long as to enable him to carry out the terms of the Will. Consequently after the property has ceased to be the estate of the deceased and has become the property of the residuary legatee under the Will, the executor as such has no authority to manage the estate on his behalf. In the second case, it was pointed out that the duties of an executor are to administer the estate of the deceased, only so far and so long as to enable him to carry out the terms of the Will. These cases do not apply to the circumstances of the present litigation. It is clear that although some of the duties imposed on the executors have been performed, there are others which still require to be carried out. It is, moreover, clear, as pointed out by Lord Macnaghten in Bombay Burmah Trading Corporation, Limited Vs. Frederick Yorke Smith 19 B. l : 21 I.A. 139 : 6 Sar. P.C.J. 498 : 10 Ind. Dec. (N.S.) 1, that so long as the person entitled to the estate has not taken it out of the possession of the executors, they are entitled to continue in occupation of the estate. In this connection, it is important to bear in mind that the appellants have really no concern with this matter; for they are not the persons who would be beneficially entitled to the estate, if the executors were removed from possession It is thus not necessary for us to determine, in the absence of proper parties, whether the estate is liable to be taken out of the hands of the executors by the person or persons beneficially entitled thereto. The fact remains that, under the terms of the Will, there are duties still to be performed by the executors; consequently it cannot be maintained that the grant has become inoperative through circumstances, and the first ground urged in support of the application for revocation cannot be sustained.

(3.) As regards the second point, we are inclined to the view that there was some confusion in the Court below and probably the true effect of the fifth clause of the Explanation to Section 50 was not fully realized. It appears to have been assumed by the District Judge that the executors are under a liability to submit accounts periodically, whereas it is clear from the decisions in Mohesh Chandra Bhattacharjee Vs. Biswa Nath 25 C. 250 : 1 C.W.N. 646 : 13 Ind. Dec. (N.S.) 168 and Sarat Sundari Vs. Uma Prasad Roy Chowdhury 31 C. 688 : 8 C.W.N. 578 that what the Statute contemplates is the submission of one inventory and one account. Sec. 98, Sub-section (1), provides in the first place that an executor or administrator shall, within six months from the grant of Probate or Letters of Administration or within such further time as the Court may from time to time appoint, exhibit in the Court, by which the same has been granted, an inventory containing a full and true estimate of all the property in possession and all the credits and also all the debts owing by any person or persons, to which the executor or administrator is entitled in that character. It next provides that an executor or administrator shall in like manner, within one year from the date aforesaid or within such further time as the Court may from time to time appoint, exhibit an account of the estate showing the assets that have tome to his hands and the manner in which they have been applied or disposed of. As was pointed out by Sir Francis Maclean, C.J., in the case of Mahesh Chandra Bhattacharjee Vs. Biswa Nath 25 C. 250 : 1 C.W.N. 646 : 13 Ind. Dec. (N.S.) 168, what is contemplated is that an account should be filed within one year from the grant showing the assets which have come to the hands of the executor or administrator and the manner in which such assets have been applied or disposed of. If the executor or administrator is not able to exhibit such an account within one year from the grant, he may obtain an extension of time from the Court. But the fact that time has been extended does not enlarge the scope of the account. The account of the estate which is required to be exhibited, whether it is exhibited within a year or thereafter, is the account contemplated by the second paragraph of Sub-section (1) of Sec. 98. In the present case, it is clear from the facts already stated that the Probate may be taken to have been granted on the 27 September 1915. The accounts, exhibited on the 7 July 1917 cover, we are told, the period from the 14 April 1915 to the 13 April 1916. The account subsequent to the 13 April 1916 was not filed, probably because it was erroneously assumed that the account to be exhibited was a periodical annual account and that the next account, required to be exhibited by the executors, was an account from the 14 April 1916 to the 18 April 1917, However that may be, the accounts submitted are in Court and it is open to the appellant to invite the Court to revoke the Probate on the ground that the accounts mentioned were untrue in material respects. In order to enable the Court to deal with this matter effectively, it is essential that the appellants should have in their petition of objection specifically stated what items in the accounts were untrue; they should also have stated in what respects the item or items challenged were untrue; it is not enough to make vagus allegations that the accounts are untrue. It is unfortunate that in the Court below, exception was not taken on this ground and the petitioners were not called upon to furnish fuller and more specific details as to their objection to the accounts, which related principally to accounts for periods antecedent to the grant of Probate. It appears that the executors ware in possession after Probate had been granted in the first instance on the 11 April 1910. No exception can be taken to those accounts now, for the purpose of an application under Sec. 50, because the only relief which the petitioners would obtain, if they could sustain such objections, would be the revocation of that grant. That grant, however, stood cancelled when the appeal to this Court was allowed on the 18 March 1913. Thus, whatever liability the executors might have incurred by their interference with the estate under the grant of the 11 April 1910 the incorrectness of the accounts for that period cannot be urged as a ground for relief under Clause (5) of the Explanation to Sec. 50. In so far as the relevant accounts are concerned, the appellants have not been able to refer us to such specific objections as would entitle us to hold that the accounts were untrue in material respects. Consequently there is co foundation for the prayer that the Probate should be revoked because the accounts exhibited are untrue in material respects.