Judgement

Appeal (No. 66 of 1934) from an order made by the High Court of Judicature at Fort William in Bengal in its appellate jurisdiction (April 24, 1933) affirming an order made by a judge of that Court (March 17, 1931).

The question for decision was whether the Administrator-General of Bengal, acting as executor of the will of one Pasupati Mukherjee, deceased, was bound to make over to the respondent, the widow of the testator, the share of her deceased son, Tirthapati Mukherjee, in the estate of his father notwithstanding that the respondent had not taken out a succession certificate in respect of her sons estate.

The facts appear from the judgment of the Judicial Committee.

Costello J. was of opinion that the proper order was to direct the Administrator-General to hand over to the widow Tirthapati Mukherjees share of the residuary estate less a sufficient sum to cover any claim which might be made by the Crown for Court fees upon the footing that the widow ought to have taken out a succession certificate as a condition precedent to her right to have the funds handed over to her.

An appeal against that order by the Secretary of State for India and by the Administrator-General of Bengal was dismissed. Pearson J., to whom under clause 36 of the Letters Patent the matter was referred on the disagreement of C. C. Ghose A.C.J. and Mitter J., held that it was not incumbent upon the widow to take out a succession certificate to enable her to recover the share of her son Tithapati in the testators residuary estate.

The proceedings in the High Court are reported at ( 1933) I. L. R. 60 C. 1135.

1935. July 18, 19. Dunne K.C. and Wallach for the appellants, Sects. 104 and 302 of the Succession Act, 1925, had nothing to do with the facts and circumstances of this case. The order of the Court was irregular ; the Administrator-General should not have been ordered to deal with the estate under an agreement to which he was not a party, recorded in a probate suit. Such an agreement could only be given effect to on an originating summons or suit Kamal Kumari Devi v. Narendra Nath Mukherji. (( 1907) 9 Cal. L. J. 19.) Where rights of a minor are affected the proper course is to proceed by suit Provas Chandra Sinha v. Ashutosh Mukherji. (( 1929) I. L. R. 56 C. 979.) The sons residuary share, as soon as ascertained, would constitute a debt due to him by the Administrator-General, and under s. 214, sub-s. 1 (a), a succession certificate should have been taken out before any order for the payment of the sons share to his mother was made.

Radcliffe K.C., Turnbull and Pringle for the respondents. The Administrator-General accepted the agreement and acted upon it, and agreed to abide by the order of the Court. After the agreement was approved by the Court there could be no question affecting minors interests. It was part of the inherent powers of the Court to sanction compromise on behalf of minors. An administration suit was not necessary. It was for the Court in its discretion to relegate parties to a suit in a proper case. The order was not one for the payment of any particular sum. Sect. 214 was a charging section and must be strictly applied. There must be a debtor " of the deceased person. The Administrator-General was not a debtor of Tirthapati. The only right of the residuary legatee was to call on the executor to administer the estate. As to "debt," see per Brett M.R. in Webb v. Stenton. (( 1883) 11 Q. B. D. 518, 525.) There could not be a debt until the residue was ascertained. There might be no residue Barnardos Homes v. Income Tax Special Commissioners. ([ 1921] 2 A. C. 1,) There was nothing that could be called a debt between the Administrator-General and Tirthapati, and s. 214 had therefore no application and no question of a succession certificate arose.

Dunne K.C. replied.

Oct. 14. The judgment of their Lordships was delivered by

SIR LANCELOT SANDERSON. This is an appeal from an order dated April 24, 1933, and made by the High Court