T M VENUGOPALA MUDALIAR Vs. TKEMBARU NAIDU

JUDGEMENT

(1.) This appeal is concerned with the interpretation of Order 45, Rule 1, Clause (d) of the Rules of the Original Side of this Court. Order 45, states when an originating summons may issue. Clause (d) of Rule 1 provides for the issue of an originating summons to compel executors, administrators or trustees to pay into Court moneys in their hands. The appellants say that before an order can be passed under this clause it must be admitted by the defendant that he has money actually in his hands. The respondents say that this interpretation is too narrow and the Court can on the issue of an originating summons investigate accounts of an executor, administrator or trustee and order him to pay into Court what is found to be due by him.

(2.) The relevant facts of this case are these. On the 7 December, 1926 one Chellammal died leaving a will dated the 19 August, 1926. She appointed three executors, two of whom are the present appellants. On the 4 May, 1927, the executors applied to this Court for probate of the will and probate was granted. The will directed that a sum of Rs. 6,000 should be paid to Balammal, a grand- daughter of the testatrix, for the purchase of a house. The will also directed that the house should be enjoyed by Balammal during her lifetime and that after her death the property should be divided equally among her children when the youngest had attained majority. The respondents are the children of Balammal and on the 20 October, 1939 they took out the originating summons which has given rise to this appeal. They asked that the appellants should be directed (i) to pay into Court a sum of Rs. 3,717 alleged to be in their hands as executors, (i)to exhibit a true and proper account of receipts and disbursements in connection with the administration of the estate and (iii) to bring into Court such further sums as might be found to be due on the taking of the account. The allegation that the appellants had in their hands the sum of Rs. 3,717 was based on a statement of account filed in Court by the executors on the 3 November, 1927 in accordance with the provisions of Section 317 of the Indian Succession Act requiring a statement to be filed within one year of the grant of probate. It is, common ground that until the present proceedings were instituted no final statement of account was filed by the executors. The defence was that the appellants had not got in their possession this sum of Rs. 3,717. They averred that they had lawfully disposed of it in connection with the administration of the estate.

(3.) Without considering whether in the circumstances the respondents were entitled to ask for an order against the appellants under Order 45, Rule 1, Clause (d), the Assistant Registrar embarked upon an investigation into the accounts and his conclusion was that the appellants were liable to the estate in the sum of Rs. 716-15-0. The Assistant Registrar did not hold that the appellants had this money in their hands. His order indicates that he accepted the appellants statement that the money had been expended, but he found that they were liable for the Rs. 715- 15-0 because the disbursements which they pleaded were wholly or partially unwarranted. For instance, the appellants said that they paid an advocate Rs. 300 for obtaining probate. The Assistant Registrar apparently did not doubt that the advocate had been paid, but he considered that a reasonable fee was Rs. 75, which was all that he allowed. Another sum of Rs. 300 was disallowed because the Assistant Registrar was not satisfied that this disbursement had been authorised by Balammal. The appellants had debited the estate with the sum of Rs. 560 as being costs incurred in a certain suit. The Assistant Registrar disallowed Rs. 130 out of this amount. There is no suggestion in the Assistant Registrar's report from beginning to end that the appellants had the Rs. 716-15-0 in their hands.