RADHIKA NATH BISWAS Vs. RATI KANTA BAKSHI

JUDGEMENT

(1.) We are invited in this appeal to consider the property of an order of dismissal made by the District Judge on an application by a surety to an administration bond to be released from future liability thereunder. It appears that Letters of Administration, with a copy of the Will annexed were granted to one Rati Kanta Bakshi in respect of the estate of one Harish Chandra Sarkar. Radhika Nath Biswas became surety and undertook to pay any amount not exceeding Ha. 11,524 for which the administrator might be found liable under his bond in the event of a breach of covenant thereof by him. The estate is still under administration by Rati Kanta Bakshi, and the widow of the testator has instituted an administration suit on the allegation that the estate had not been properly administered by him. During the pendency of that suit, the appellant made the present application to the District Judge to be relieved of future liability under his bond, on the allegation that as the administrator had not properly administered the estate, ho could not any longer continue as surety with, safety to himself. The District Judge has refused the application on the ground that the allegation made by the petitioner against the administrator has not been established.

(2.) In support of the present appeal reliance has bean placed on the decision in Raj Narain Mookerjee V/s. Ful Kumari Debi (1802) 29 Cal. 68 which appears to have been quoted without disapproval in In the goods of Kanai Lal Khan (1914) 18 C.W.N. 320. The case, however, is of no assistance to the appellant. It is not an authority for the unqualified proposition that a surety to an administration bond is entitled as a matter of right, to he relieved of future obligation at his choice. We may add that even the limited view expressed in this decision cannot be reconciled with Bai Somi V/s. Chokshi Ishvardas Mangaldus (1895) 19 Bom. 245 and has been doubted in Subroyo Chetty V/s. Ragammal (1905) 28 Mad. 161 and Kondhia Lal v. Munki (1909) 31 All. 56. In the case before the Madras High Court, Section 130 of the Indian Contract Act was held inapplicable to the special contract of suretyship entered into by a surety to an administration bond on the analogy of the decisions in In the goods of Stark (1866) 1 P. 76, Calvert V/s. Gordon (1828) 7 B. & C. 809 and Lloyds V/s. Harper (1880) 16 Ch. D. 290. It is not necessary for out-present purposes to pronounce a decision upon this conflict of judicial opinion, which was noticed in Surendra Nath V/s. Amrita Lal Pal (1920) 47 Cal. 115 Let; it be conceded that it is open to a surety, with the sanction of the Court to obtain a discharge from future liability, upon good cause shown. In our opinion, such cause has not been established in this case. It would indeed be unfortunate if during the pendency of an administration suit the Court wore to give judgment in a summary proceeding, on the alleged misconduct of the administrator.

(3.) The result is that the order made by the District Judge is affirmed and this appeal dismissed with coats. We assess the hearing fee at two gold mohurs.