LADKAVAHOO Vs. CHARANDAS CHATURBHUJ

JUDGEMENT

(1.) This application is with reference to a deficiency in the income of funds set apart to answer an annuity payable to the appellant, defendant No. 5, under an order of this appellate Court dated January 25, 1926. Under the will of her husband this lady was given inter alia by Clause 7 an annuity of Rs. 750 a month. It was directed to be paid out of the residuary estate. A decision was given by Mr. Justice Kajiji which subsequently went to the appellate Court who reversed it and directed an inquiry before the Commissioner to ascertain in effect the proper sum to be set apart to answer the annuity. Unfortunately although we have a full judgment on the first hearing when the appellate Court ordered a reference before the Commissioner, we have no judgment on the second occasion when the order in question was made. That order expressly provides that the lady is to be paid the interest on a particular sum of Rs. 2,29,500 as and when such interest should accrue due, but not exceeding a sum of Rs. 11,475 every year for the purposes mentioned in the said Commissioner's report. Then the order went on to say that the receiver appointed should continue to act "until further order of this Honourable Court, and that any of the parties are to be at liberty to apply to the Court as there may be occasion."

(2.) Now this maximum of Rs. 11,475 was approximately the yearly amount of the annuity mentioned in Clause 7 of the will, together with certain other payments. But the order did not expressly provide as to what was to happen in the event of the income of the fund being insufficient to meet the annuity. What happened was that when the Commissioner made his report, and when the Court made its order, the selected Government security, namely, five per cent, loan 1945, was standing at or a shade below par. When, however, the money came actually to be invested some months later by the Accountant General, this loan had risen largely in the market. Consequently the securities actually purchased are insufficient by their income to meet the annuity in question. It appears that the lady then made an application to the Chamber Judge for an increased sum to he brought into Court, but that application was refused as it was considered to be a matter for this appellate Court.

(3.) Now in the above order of the appellate Court, the liberty to apply was somewhat ambiguously worded, for it was not made clear whether an application thereunder was to be made to this appellate Court or whether it was to be made to the trial Court. I take it that in the case of an ordinary administration suit, it is wrong to come to the appellate Court merely because at some phase of the case the matter has been before the appellate Court. Once the matter has been decided by the appellate Court, then all future applications with regard to the administration of the estate should come before the Judge of first instance in the ordinary way. But I do feel here that in one sense there is a deficiency in the order of the appellate Court in that it did not provide for the invested sum not providing an adequate income; and consequently that it is not unnatural to apply to this Court to remedy the defect. Accordingly without in any way departing from what I personally consider to be the proper general practice, I think that in this particular case we may properly make a supplementary order. If the point had been expressly mentioned to the appellate Court as to what was to happen in the event of the fund being insufficient to answer the annuity, I am sure the appellate Court would have added an appropriate provision to meet that contingency. Accordingly I think we can still do it now.