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1961 Supreme(Pat) 103
PATNA HIGH COURT
S.C.Misra and S.P.Singh JJ.
Basudeo Narain Singh
Versus
Prayag Dutt Narain Sahi
Letter Patent Appeal No. 8 of 1954 ;
Decided On : OCTOBER 11, 1961
An order appointing an executor or managing executor is not a judgment within the meaning of Clause 10 of the Letters Patent of the Patna High Court and is therefore not appealable.
Headnote:
LETTERS PATENT - APPEAL - JUDGMENT - ORDER APPOINTING EXECUTOR OR MANAGING EXECUTOR - NOT A JUDGMENT - NOT APPEALABLE.
Fact of the Case:
Two appeals were filed against two orders of a single Judge of the Patna High Court, one appointing three executors to administer the estate of a deceased person and the other appointing one of the executors as the managing executor. The respondents raised a preliminary objection challenging the maintainability of the appeals on the ground that the orders were not judgments within the meaning of Clause 10 of the Letters Patent of the Patna High Court.
Finding of the Court:
The court held that the orders appointing the executors and the managing executor were not judgments within the meaning of Clause 10 of the Letters Patent of the Patna High Court. The court relied on the decision of a Division Bench of the Patna High Court in Gobind Lal Nakphophas case, AIR 1955 Pat 56, which held that the term "judgment" in Clause 10 of the Letters Patent means a decree and not an order.
Issues: Whether the orders appointing the executors and the managing executor were judgments within the meaning of Clause 10 of the Letters Patent of the Patna High Court.
Ratio Decidendi: The court held that the orders were not judgments because they were not adjudications on the merits of the dispute between the parties and did not create any rights in favour of any party. The court also noted that the jurisdiction to suspend or remove an administrator and appoint another in his place was vested only in the High Court and not in the District Judge, which suggested that the Legislature intended to limit the scope of appeals from such orders.
Final Decision: The court dismissed the appeals as incompetent.
Misra, J.
1. These are two appeals under Clause 10 of the Letters Patent against two orders of a learned single Judge of this Court. One Tulsi Prasad Narain Singh executed a Will on the 25th October, 1935. by which he appointed five executors to carry out his directions in the Will. Certain properties were dedicated to a deity Sri Durga Panchayatan; certain cash legacies were made in favour of the persons mentioned in the Will who are his relations; some money was to he spent annually for some charitable purposes; in favour of some persons provision was made for annuities for life and in favour of some other persons, including his daughter Shrimati Lalita Kuar, perpetual annuities were granted. The executors named in the Will applied for and obtained Probate of the Will. Tulsi Prasad Narain Singh died shortly after the execution of the Will. In 1940, disputes arose which gave rise to M. T. C. Nos.71 and 72 of that year M. J. C. No.71 arose on the application of Srimati Lalita Kuar for the removal of all the executors after the death of Munshi Rajeshwar Prasad, Am-Mukhtar of the testator, and M. J. C. No.72 arose out of the application of Jadunadan Prasad Singh, one of the executors and brothers of the testator, for the removal of Balindra Prasad Narain Singh. These two applications were disposed of by Agarwala, J. as he then was, on the 3rd of April, 1941. Balindra Prasad Narain Singh was discharged from the office of the executor and Bireshwar Prasad Narain Singh was appointed in his place in M. J. C. No.72 of 1940. Prayagdutta Narain Sahi was appointed executor in succession to Munshi Rajeshwar Prasad, as a result of a compromise in M. J. C. No.71 of 1940. Letters Patent Appeals were filed against the decision in the two cases which were disposed of by Fazl All and Ray, JJ. , as they then were, on the 13th of February, 1946, and Prayagdutta Narain Sahi was made the managing executor, the remaining two executors being Janardan Prasad Narain Singh and Bireshwar Prasad Narain Singh. On the 5th of October, 1949, another executor Janardan Prasad Narain, Singh also died. After that, three petitions were filed, one by Prayagdutta Narain Sahi, the managing executor, being M. J. C. No.229 of 1950; Bireshwar Prasad Narain Singh filed another giving rise to M. J. C. No.90 of 1951 and a third petition was filed by a number of annuitants which gave rise to M. J. C. No.85 of 1952. M. J. C. Nos.85 and 90 were, directed against the managing executor Prayagdutta Narain Sahi, Das, J. , as he then was, disposed of these applications by his judgment dated the 4th of September, 1952. Prayagdutta Narain Sahi was removed from the office of the managing executor on the ground of various irregularities and mismanagement, but he was allowed to continue as an ordinary executor. M. J. C. No.229 of 1950 was dismissed. The learned Judge, however, directed the District Judge of Darbhanga in M. J. C. No.91 of 1951 to submit the names of three persons to be appointed as executors to fill up three vacancies in the board of executors in accordance with the direction of the testator, Sri Tulsi Pd. Naraiu Singh. He recommended three names, being those of Babu Krishna Prasad Narain Singh, Babu Lachhmeshwar Pd. Narain Singh and Babu Girdhari Prasad Narain Sahi, the son of Prayagdutta Narain Sahi, the managing executor, who was removed from that office, although some of the annuitants objected to the name of Babu Girdhari Prasad Narain Sahi.
2. The recommendation of the learned District Judge was considered by Ramaswami, J. (as he then was) and all the three persons recommended were appointed as executors to administer the estate of Tulsi Prasad Narain Singh also with the remaining two executors, namely, Bireshwar Prasad Narain Singh and Prayagdutta Narain Sahi. Letters Patent Appeal No.3 of 1954 has been directed against this order of the learned single Judge dated the 4th December.1953. Letters Patent Appeal No.8 of 1954 is directed against the order dat
