M SUBRAYA CHETTY Vs. ASRAJAMMAL

JUDGEMENT

(1.) In this case the 1 defendant who is the administratrix of her husband's estate gave the bond required by Section 78 of the Probate and Administration Act and the plaintiff became one of her sureties. The plaintiff brought a suit in which he alleged that the 1 defendant was wasting and mismanaging the estate and he asked that he might be discharged from his recognizances as a surety as regards future transactions on the part of the first defendant or alternatively that the first defendant might be directed to discharge certain specified claims against the estate and complete the administration. The learned Judge dismissed the suit and the plaintiff appeals.

(2.) As regards the plaintiff's first claim for relief that he may be discharged from future liability under his surety bond, we think the learned Judge was right in refusing to make the order asked for. In Williams on Executors, 1893, Vol. I, p. 462, it is laid down that the Court will not discharge the original sureties to an administration bond and allow other sureties to be substituted for them and a similar statement of the law and practice is to be found in Dixon on Probate, p. 271 and Tristram and Coote's Probate Practice, 11 Edition, p. 105. The authority cited is Re Stark L.R. 1 P. & D. 76. The later case of Re Ross L.R. 2 D. & D. 274, where an administrator having gone abroad and under an order in chancery, assets had accrued to the estate during his absence, a substitute was allowed to execute the fresh bond which was necessarily limited to the administrator's execution of a similar bond on his return is in no way inconsistent with the rule of practice which was recognised in Re Stark L.R. 1 P. & D. 76. 2. Mr. Chamier on behalf of the plaintiff sought to distinguish the case of Re Stark L.R. 1 P. & D. 76 upon the ground that the basis of the decision in that case was that the substituted sureties could not be made responsible for past transactions and that the plaintiff in the present case only asked to be released from responsibility as regards future transactions. But the case of Re Stark L.R. 1 P. & D. 76 appears to have been accepted by practitioners as recognising the rule that the original Sureties cannot be discharged either as regards past or future liability.

(3.) No precedent is to be found for the order which we are asked to make and on principle, we do not think that any such order ought to be made. The making of such an order might defeat the object for which an administrator is required to find sureties to his administration bond. We are unable to agree with the decision in the case of Raj Narain Mookerjee V/s. Full Kumari Debi I.L.R., 29 C. 68. The attention of the learned Judges of the Calcutta High Court does not appear to have been drawn to the case of Re Stark. If, as we should be prepared to hold, the surety to an administration bond is not entitled to an order discharging him from future liability on an application in the probate proceedings to the judge or officer who is the obligee under the bond of suretyship, it seems to follow a fortiori that he is not entitled to this relief where he claims it as here in a separate suit.