MULJI DAMODAR Vs. BOMANJI MANCHERJI

JUDGEMENT

(1.) BY an order of the 23 September 1882 Mancherji Bomanji, a Translator in the High Court, was appointed Committee of the above lunatic and it was also ordered that the said Mancherji Bomanji should receive by way of remuneration a commission of five per cent, upon all moveable property goods chattels and moneys received and collected by him as such Committee belonging to the estate of the said lunatic. Thereafter the lunatic had two sons born to him, the eldest Mathuradas in 1884 and the younger Mulji the present petitioner in 1887. BY an order dated the 19 April 1894 made on the ex parte application of the said Mancherji Bomanji it was ordered that in addition to the commission awarded to him by the order of the 23 September 1882 he should receive as such Committee commission at the rate of five per cent, upon the value of the immoveable properties belonging to the estate of the lunatic which had already come and would come thereafter into his possession. Under the said Order Mancherji Bomanji drew commission at five per cent, on the immoveable property belonging to the estate valued at Rs. 2,28,596. The lunatic died in 1897 leaving the two sons abovementioned as his only heirs according to Hindu law. Mancherji Bomanji was then appointed guardian of their property, and continued as such guardian until his death in 1904. Mathuradas died in 1906 ; and Mulji, who is now of age, is the sole surviving heir of the lunatic. Before he came of age he filed this petition through his duly appointed guardian Trimbuklal Tribhowandas Muni, as his next friend, to set aside the above mentioned order of the 19 April 1894. The respondents are the three sons and surviving executors of Mancherji Bomanji. It was argued by Mr. Inverarity for the petitioner that as the Court was not given power by Act XXXIV of 1858 to award remuneration to a Committee such power could only be derived from the Charter, and that in order to determine what powers the Court had in such case, reference could be made to the English authorities on the point. The principle followed by the Court of Chancery will be found in Shelford on Lunacy at p. 227. I think there can be no doubt that the Court has a discretionary power to allow a Committee remuneration but will only allow it under special circumstances. When some relation or friend of the lunatic can be found who is willing to act as Committee the Court will not as a rule, allow remuneration to such a person, but when, as in this case, no such person could be found and an official of the Court had to be appointed, the Court will exercise its discretion and allow remuneration. But in all cases the Court has the jurisdiction. However Mr. Inverarity's principal argument was that the order of the 19 April 1894 which was obtained by him being counsel for the Committee was obtained ex parte without notice to the next-of-kin and that the minor can challenge it on that, account. In considering such an application by a Committee the Court has to regard the interest of the lunatic: per Lord Hardwicke C: In re Annesley (1749) Ambl. 78, and from the cases cited in Shelford on Lunacy at pp. 227-230 it will be seen that applications for remuneration by a Committee were usually referred to the Master. Whether the next-of-kin have a right to be represented on such an application and consequent reference is not quite clear, but I have little doubt that the Master would issue notices to them as the Committee being interested in the application on his own account could not properly represent the interest of the lunatic. But the next-of-kin to the lunatic at the date of the application would not have a vested interest in the estate, and therefore they could have no right to be heard in their own interests. The lunatic however if he become of sound mind would have the right to impeach any order which he considered had been made without proper regard to his interest, and it is this right which Mr. Inverarity argues has devolved on the petitioner. No direct authority on this point was cited, at the hearing of the petition nor have I been able to find any. The order was acted upon by the Committee who drew his commission and passed his accounts before the Commissioner. The situation is further complicated by the death of the Committee. I have come to the conclusion that as the lunatic could have impeached the order himself if he had become of sound mind even after the Committee had passed his accounts, that right has devolved on the petitioner. The order of the 14 March 1894 will be set aside. I make no order as to costs.