JOGENDRA LAL CHOWDHURY Vs. ATINDRA LAL CHOWDHURY

JUDGEMENT

(1.) Jogendra Lal Chowdhury applied to the District Judge of Hooghly for probate of the will of his father Badan Chandra Chowdhuri dated 17 July 1901, of which he is named as the sole Executor. Badan Chandra Chowdhuri died on 18 August 1907. On 29 August 1908 the respondent Atindra Lal Chowdhuri a grandson of Badan Chandra Chowdhuri filed a caveat. He did not deny the factum of the will of 17 July 5901 which was duly registered, but pleaded that the execution of it by his grandfather was procured by the undue influence of the appellant. He claimed (that a former will of 3 July 1899 (which was also registered) was the true last will of the testator. By the former will he would have received a share in the testator's estate. By the latter he was entirely disinherited. It is admitted that of the former will, as of the latter the appellant was appointed sole executor. On 23 December 1908 Atindra Lal Chowdhury filed an application for the appointment of an administrator pendente lite. The application was heard by the District Judge on the 6 February 1909. On 30 April 1909, he passed an. order that an administrator pendente lite should be appointed, and on 6 May 1909 he appointed Babu Girindra Nath Banerji, pleader, as such administrator. Against this order Jogendra Lal Chowdhuri has appealed. No exception is taken to the administrator appointed on personal grounds, but it is contended that such an order was wholly unnecessary in this case.

(2.) It was contended by counsel for the respondent No. 1 that in contested probate proceedings, where the case is likely to be protracted, an order for an administrator pendente lite will be made as of course, and he relied upon the cases Rendall V/s. Rendall 1 Hare 152. and Bellew V/s. Bellew 4 S. and S. 58. Those cases were decided before the passing of the Court of Probate Act, 1857, Section 70 of which corresponds with Section 34 of the Indian Probate and Administration Act, 1881. It is necessary in England, and must also be necessary here, that in each case the Court should be satisfied that the appointment is necessary and proper (see Williams on Executors Vol. I p. 400). The circumstances of this case are somewhat peculiar. The caveator did not in these probate proceedings put forward any objection to the appellant's appointment as executor, nor to his acting in that capacity. On the contrary he desired and still desires to set up the former will of which also (as we have said) the appellant is the named executor. Moreover, for more than a year, i. e., between the death of the testator and the application for probate, the caveator raised no objection to the estate remaining in the appellant's hands, nor did he in fact do so for four months after the application for probate. It is clear that his main object was and is to get the first will substituted for the second, in which case the appellant would still be entitled to administer the estate as executor. In this respect the case is not unlike that of Mortimer V/s. Paull L.R. 2 P. and D. 85 where there was no question as to the appointment of the executor and the Court, accordingly, refused to appoint an administrator pendente lite.

(3.) It remains then to be considered whether there is anything against the appellant personally which would necessitate the Court taking the estate out of his hands at the present stage and entrusting it to a stranger. The charges which the caveator has preferred against the appellant in his present application are that he has concealed a number of Government promissory notes belonging to the estate, that he has fraudulently suppressed accounts which the testator had with certain Banks, that he withdrew a sum of Rs. 3,360 from the National Bank of India without authority that he has manipulated and falsified a book of account of the testator by making entries and alterations in pencil; that he is indebted to the estate of the testator; that there are debts to the estate which are likely to become. time-barred, and that during his father's lifetime he received rents from tenants without granting them receipts. The learned District Judge has gone through these charges and has found that not one of them is proved. We need not deal with them in detail. It is sufficient to say that we entirely agree. It is, however, necessary to say that, in our opinion, the mode in which the accounts were kept during the testator's life-time, and any laxity, there may have been in keeping them, has absolutely no bearing on the present question. It appears that the appellant held a power-of- attorney from his father for the management of his property, the accounts were written by one Sarada, a clerk in the local municipality, and occasionally checked by Raghu Nath Dass, a pleader. The subsequent action of the appellant and Raghu Nath Dass with respect to the book of accounts for the period preceding the testator's death appears to us to tell rather in favour of the appellant than against him. The pencil entries and notes show that what he was doing was fair and above board, and we have no doubt that his object was to reduce to something like order the accounts which admittedly had been imperfectly kept. The fact that the appellant is a debtor to the estate, which he admits, would be no obstacle to his acting as executor or remaining now in charge of the estate. It does not appear that the amount is large or that the appellant has, in any way, misrepresented that amount.