MRS G H ORDE Vs. ASKINNER

JUDGEMENT

(1.) THE appellant, Mrs. G. H. Orde, made an application under the Encumbered Estates Act. She apparently relied on the provisions of Section 49 of the Act because she made the application in her capacity as the executrix of her deceased husband's will. She gave lists of her deceased husband's property and of the debts which were due from him. In the course of the enquiry, it was proved that she owed personal debts-in particular a debt of Rs. 4000 to one Murari Lal and consequently on the application of one of the creditors the learned Special Judge gave her the option of withdrawing her application or paying the debt. This order was passed on 24 April 1939. THEn on 6 July, she made an application that she had no personal debt, but the learned Judge was able to point out that she did owe a sum of as. 4000 and it is now not contested that she had a personal liability for the payment of this money. On the same date she made another application that she might be allowed to put in a list of her personal property, that is, to exercise her third option as allowed by the provisions of Sub-section 2 of Section 49. On the second application the learned Judge passed an order that it should be put up for disposal on 9 August 1939. On that date learned Counsel for the appellant stated that his client might be allowed a period of six months within which to pay her personal debt and that the list of property drawn up by the learned Judge under Section 11 should be allowed to stand. This statement obviously meant that the appellant did not wish to exercise her option of putting in a list of her own personal property. THE learned Judge allowed her a period of two months within which she was to pay her personal debts. In the meanwhile, she appealed against the order of 6 July 1939. This Court dismissed her appeal. THE position was that she was under an obligation either to pay off her personal debt or to withdraw her application. THE appeal in this Court was decided on 6 March 1942 and after the case went back, the learned Special Judge on 22nd August 1942 dismissed the application under the Encumbered Estates Act. At that time the appellant had neither paid off her personal debt nor withdrawn her application. Learned Counsel has suggested that the provisions of Section 49 did not apply to the appellant's case as her deceased husband could not be described as her ancestor, the term used in this section, and that she could not be described as his heir. THE answer to this argument is that the appellant must have made her application under the provisions of Section 49 on the assumption that she was the heir of her deceased husband and he was to be described as her ancestor within the meaning of the term as used in Section 49. If she had not come in under Section 49 of the Act, it is not clear to us how she could have come in at all. If she came into Court as the person who succeeded to her husband's property or to a part of it, she would have had to apply in her personal capacity and to include in her list of debts all her own debts as well as the debts due from her husband and in her list of property all her own property as well as the property to which she had succeeded under the will of which she was the executrix. She could not have come in otherwise under the provisions of Section 4 of the Act. THE manager of, property may make an application if he is a manager appointed by the Court of Wards and the guardian of a person under disability or some persons managing the property of one who is under disability may make an application under the Act, but the appellant did not occupy any of these positions.

(2.) LEARNED Counsel has also urged that the creditor who applied to the Special Judge that the application should be dismissed was too late in approaching the learned Judge. There is no force in this argument because the provisions of Sub- section 2 of Section 49 are that orders may be passed under that sub-section if at any time, in the course of the enquiry, it is proved either that the applicant is appropriating any part of her predecessor's property or that the applicant owes other debts which are recoverable from him personally and in respect of which claims have been preferred under Section 9 of the Act. The claim to the Rs. 4000 was preferred by Murari Lal under Section 9 of the Act and, consequently, an order could be passed under the provisions of Sub-section 2 of Section 49 at any time in the course of the enquiry. It cannot be said that any of the creditors was barred by any rule of limitation from approaching the Special Judge to pass such an order. There is no force in this appeal and we dismiss it with costs.