PULIN BEHARI DEY Vs. SATYA CHARAN DEY

JUDGEMENT

(1.) This is an appeal by the first defendant in a suit for administration, partition, accounts and incidental reliefs against an executor. Rakhal Chander Dey, the admitted owner of the subject- matter of the litigation, died on the 31 July 1901. Two days before his death, he made a testamentary disposition of his properties. He appointed his eldest son Pulin Behan Dey as executor and directed that his second son, Sattya Charan Dey, at that time an infant, do become joint executor on attainment of majority. He left a widow, Thakomoni Dasi, the mother of Satya Charan Dey, and his three sisters. His first wife, the mother of Pulin Behari Dey, had died during his lifetime many years before. After the death of Rakhal Chandra Dey Probate was taken out by Pulin Behari Dey on the 15 July 1903. Satya Charan Dey attained majority on the 16 February 1917 and took out joint Probate on the 12 July 1918. On the 20 August 1918 he instituted the present suit against his step-brother Pulin Behari Dey and his mother Thakomoni Dasi who was joined as the second defendant. The object of the suit was to obtain from Pulin Behari Dey, who had acted as executor during his minority, accounts of the management of the estate. The plaintiff also asked for administration of the estate in accordance with the terms of the Will of his father. The suit lasted for three years and was not taken up for final disposal till the 16 June 1921. On that day the case was heard ex parte and a preliminary decree was made. That decree is now assailed by the first defendant substantially on four grounds, viz., first, that the procedure adopted by the Subordinate Judge was unfair and made it impossible for the appellant to establish his defence before the Trial Court; secondly, that the order for accounts is unjust and incomplete; thirdly, that the Subordinate Judge should have held that the three properties mentioned in the schedule to the plaint had been validly created debutter and were consequently not liable to be treated as secular properties capable of division and, fourthly, that the order for maintenance in favour of the second defendant is contrary to the provisions of the Hindu Law.

(2.) As regards the first point, it is plain that the appellant has no substantial grievance. The plaint was lodged on the 20 August 1918 and after the written statement had been filed, issues were framed on the 30 January 1919. The plaintiff was diligent and on the 15 April 1919 he made an application for the issue of a Commission for the examination of his mother. The writ was issued on the 30 April 1919 and the examination was completed in due course. The first defendant, however, did not take any steps to summon his witnesses. It has been stated to us in justification of his conduct that, as the matters in difference were referred to arbitration, he believed in good faith that no "steps in Court would be necessary. We find, however, that the proceedings for arbitration which ultimately proved infructuous occupied the period between the n August, 1920 and the 2 May, 1921. It was not till a very late stage of the suit, that is, on the 1 June 1921, that the first defendant made an application for examination of a lady Kishoreemoyee Dasi on commission. This application was granted and a writ was issued in due course. On the 13 June however the first defendant applied for extention of time on the allegation that, the lady had been taken ill and could not be examined on Commission. The Subordinate Judge refused this application for adjournment on the ground that the defendant had net taken steps in time. A further application for adjournment was made on the same day and was refused on the ground that it was frivolous. The Subordinate Judge further expressed the opinion that the case which had been pending for three years should be heard as early as practicable. On the next day, the case was taken up for disposal; the first defendant, though repeatedly called, did not appear. On behalf of the plaintiff witnesses were examined and the second defendant was also represented by her Pleader. In our opinion, the conduct of the first defendant cannot possibly be justified. Even if we assume for a moment that time should have been allowed to examine the lady on Commission, there is no conceivable reason why the first defendant should not have appeared to give evidence himself.'s There is also no explanation why he should not have instructed has Pleader to cross-examine the witnesses produced by the plaintiff, particularly his uncle, Brojo Nath Dey, who went to the box as a witness on behalf of the plaintiff. There is no doubt, in our minds that the applications for adjournment on the 13 June 1921 were not bona fide and were intended to prolong the proceedings as far as practicable. The Subordinate Judge adopted the only course open to him in the circumstances, namely, to proceed with the trial of the suit in the absence of the first defendant. We hold accordingly that the first ground urged by the appellant cannot be sustained.

(3.) As regards the second point, it has been urged that the order for accounts is defective and that the Court should have enunciated the principles which should regulate the taking of accounts from the appellant. In our opinion, there is no substance in this contention. The first defendant as executor had a threefold duty to perform, viz., to keep accounts, to deliver accounts and to vouch accounts after delivery. If he has kept accounts, he should deliver them to the Commissioner and prove them in due course. When the accounts are duly proved questions may arise as to, the measure of his liability. The principles which regulate the extent of liability of an executor are well known and will be found formulated in Secs.146 and 147 of the Probate and Administration Act. They are also explained by the Judicial Committee in the case of Aga Mahomed Rohim Sherazee V/s. Meerza Aly Mahomed Shoostry 4 W.R.P.C. 106 but it is plainly idle to discuss questions of law as to the measure of his liability as an executor till the facts have been ascertained by the Court. There is, however, one point urged before us on behalf of the appellant which deserves notice. The appellant has contended that in his written statement he stated that he was entitled to obtain out of the estate of his father the sale proceeds of the ornaments which belonged to his deceased mother and had been converted by his father into money. This question, in our opinion, should be investigated when accounts are taken by the Commmissioner. The point in fact raises the question of the extent of the assets received by him when he became, executor to the estate of his father. The burden of proof; on this point, however, will lie entirely, upon him. He has to establish at this distance of time that his. mother did, in fact, possess ornaments, that those ornaments were converted by his father and that a certain sum of money was kept by his. father as the sale proceeds of those ornaments. He has, in addition to prove that at the time he became executor his claim against the estate of his; father on this basis had not already become barred by limitation. In other words, he has to prove that he was a creditor of, the estate of his father at the time when he became executor and that he was consequently entitled to retain the amount due to him. We are of opinion that he should have an opportunity to prove his allegation in this respect before the Commissioner. The question will ultimately be decided by the Court on the report of the Commissioner.