A C CHIDAMBARA MUDALIAR Vs. NKRISHNASWAMI PILLAI

JUDGEMENT

(1.) These are appeals from a judgment in two suits which were tried together. One was a suit by Chidambara Mudaliar, one of the executors of the deceased Naga Pillai, on a mortgage for Rs. 6500--executed by the 1st defendant, another of the executors in favour of four persons, who it is alleged transferred it to the plaintiff. The mortgage, as found by the Subordinate Judge was really executed by the 1st defendant, as executor of the deceased under his will, Exhibit OO, benami for the plaintiff in the following circumstances. The plaintiff, though it was unnecessary for him to do so, thought proper to obtain probate of the will Exhibit EE, from the District Court of Trichinopoly and for some time administered the estate under the grant. In January 1901 the 1st defendant, the son of the deceased, who had come of age, presented a petition C.M.P. No. 83 of 1901 for the issue of probate to him along with the plaintiff and alleged therein that the plaintiff had failed to file in court within one year the accounts required of him as executor under the Probate and Administration Act V of 1881. The plaintiff then filed certain accounts which were referred to a commissioner by an order made on the above petition under what provisions of law does not appear, as the accounts required by the Probate and Administration Act are filed merely for the information of all concerned and to enable them to take proceedings against the executor if the occasion calls for it. On the 8th July 1901 the Commissioner presented a report Exhibit XI in which he stated that the plaintiff had not kept proper accounts, that his management had been fraudulent, and that he was unfit to continue as executor. On the 11th February 1902, the 1st defendant and the plaintiff as petitioner and counter petitioner C.M.P. No. 83 of 1903 already mentioned, presented a petition of compromise, Exhibit XIII, statingthatit had been agreed that the 1st defendant should accept the plaintiffs accounts showing Rs. 6686 as due to him from the estate, and should execute a mortgage of the estate for that amount in the plaintiff s favour and that the plaintiff should renounce the executorship and hand over certain articles. The mortgage Exhibit LL, which is that now sued on, was executed by the 1st defendant on 14th April 1902 and on 22nd April 1902 the parties presented a further petition, Exhibit PP, stating that the mortgage had been executed and that the plaintiff was willing to renounce the executorship and to comply with the other terms mentioned in the petition, and praying the Court to pass orders in accordance with the compromise. On this the court passed the following order " Accepted and ordered in terms of the petition."

(2.) The Subordinate Judge has held, in my opinion rightly, that this mortgage is not binding on the estate. One objection taken is that it was executed after the grant of probate to the plaintiff and before the grant to the 1st defendant. Now Section 82 of the Act provides that after a grant of probate no other than the person to whom the same shall have been granted shall have power to act as representative of the deceased until the probate is recalled or revoked; and it is contended that, though it was obligatory on the executors of the will to have taken out probate yet one of them having done so the terms of the section expressly prohibit the other executor to whom probate had not been granted from acting as the representative of the deceased and that the fact of probate having been subsequently granted to such executor is not sufficient by virtue of Section 1 to validate acts done by him in express disobedience to Section 82. The Act does not say that this section is only to apply to cases governed by the Hindu Wills Act XXI of 1870, but (Section 2) that Chapters II to XIII which include this section are to apply to every Hindu, and I do not think it is open to us to refuse to apply the provisions of the section on grounds of real or supposed inconvenience. On the other hand it maybe said that the balance of convenience is in favour of the section being applicable. There is however a more serious objection to the mortgage. In face of the commissioner s report, Exhibit XI, which must have been known to the 1st defendant, as it was obtained at his instance, the compromise by which the plaintiff s claim against the estate for Rs. 6,686 cannot be said to have been entered into bona fide in the interests of the estate and would appear to have been entered into by 1st defendant mainly with the object of getting the plaintiff to withdraw in his favour from the office of executor, it appears not to be free from doubt whether an executor can enter into a compromise with his co-executor at all. See Cook v. Collingridge (1823) 37 Eng. Rep. 979 s.c. 23 R.R. 155 and De Cardova v. De Cardova (1879) L.R. 4 A.C. 692 and the strong language of the Court of Appeal; in In Re Fish (1893) 2 Ch. 418 as to such settlements between trustees. Assuming however that a co-executor has such a power as held by Kekewich, J. in Re Houghton (1904) 1 Ch. 622 it is essential that the compromise should be a bona fide one, and I do not think that the compromise above referred to can be considered to be a bona fide one or in any way binding upon the estate. As regards the order made by the District Judge accepting the compromise, it does not appear that the true facts were then brought to his notice or how on a petition for the grant of probate to an additional executor, he had jurisdiction to sanction a compromise between two executors imposing a heavy burden on the estate. It was then contended that the plaintiff was entitled to a charge on the estate for the sums found. due to him in the account taken in the suit. An Executor however has only a right of retainer and no charge on properties not in his possession which at one time formed: part of the estate, Pearey Mohun Mukerjee v. Narendra Nath Mukerjee (1909) I.L.R. 37 C. 229, s.c. 20 M.L.J. 171 P.C. This case is also authority for the position that such a claim by a plaintiff is governed by Article 120 and is therefore barred. I think that the Subordinate Judge should have dismissed the plaintiff s suit on the mortgage and that it must now be dismissed and his appeal must be dismissed with costs throughout. The amount allowed in that suit will be allowed in the account taken in the other suit and included in that decree.

(3.) The connected suit was instituted under Section 92 of the Civil Procedure Code with the requisite permission for the removal of the defendant, the plaintiff in the other suit, from the position of trustee of the charities created by the will, and also prayed for an account against him which was ordered. The account was taken in the connected suit which was tried with this suit, with the result that a sum of over Rs. 300 was found due to the defendant, and a decree for that amount was given him in the connected suit. There is no appeal against that decree, but the appellant contends that a large sum ought to have been found due to him and it is urged in reply that, as his claim against the trust is barred by limitation, no decree can be given to him in the suit under Section 92 of the Code of Civil Procedure for the amount found due to him on taking the account. We are unable to agree with this contention. Though the appellant s right to sue is barred, his claim is otherwise unaffected, and it would not be right to remove him from the office of trustee without providing for payment to him in the account which has been taken as between him and the trust at the instance of the plaintiffs, more especially as in the connected suit we have held that the mortgage by which he sought to secure his claim against the estate is not binding on it. There is moreover no reason why a decree for the amount found due should not be given against the estate. As regards the particular items I agree with the judgment about to be delivered. No order as to costs. The memorandum of objections is dismissed with costs. Seshagiri Aiyar, J.