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1927 Supreme(Cal) 227
CALCUTTA HIGH COURT
Hari Chaitanya Sinha Chowdhury - Appellant
Versus
Ramram Sinha Chowdhury & Ors. - Respondent
Decided On : 30-06-1927
The main legal point established in the judgment is that executors can be appointed by necessary implication, and the jurisdiction of the District Judge is limited to the provisions of the statute.
Headnote:
Probate - Appointment of Executors - Indian Succession Act of 1925, Section 222(2), Section 224, Section 9, Probate and Administration Act - The court held that the minors were appointed executors by necessary implication and therefore, the grant of probate to them was valid. The order appointing a common manager was set aside as the District Judge could only exercise jurisdiction under the provisions of the statute.
Fact of the Case:
Hari Chaitanya Sinha Chowdhury appealed against two orders of the District Judge of Berhampore regarding the appointment of executors and a common manager of the estate of his father Govinda Sundar Sinha Choudhuri.
Finding of the Court:
The court found that the minors were appointed executors by necessary implication and upheld the grant of probate to them. However, the order appointing a common manager was set aside as the District Judge could only exercise jurisdiction under the provisions of the statute.
Issues: The issues revolved around the appointment of executors and a common manager under the terms of the will of Govinda Sundar Sinha Choudhuri.
Ratio Decidendi: The court held that the minors were appointed executors by necessary implication, validating the grant of probate to them. Additionally, the District Judge could only exercise jurisdiction under the provisions of the statute, leading to the setting aside of the order appointing a common manager.
Final Decision: The appeal was allowed in part and dismissed in part. The order appointing a common manager was set aside, and respondents 2 to 4 were awarded costs. The appellant was awarded costs against respondent 1, Ram Rim, and respondent 5 was to bear their own costs.
JUDGMENT
1. This is an appeal by Hari Chaitanya Sinha Chowdhury who was appointed an executor of the will of his father Govinda Sundar Sinha Choudhuri against two orders of the District Judge of Berhampore, one dated the 29th August 1925, and the other dated the 12th September 1925. The facts shortly stated are these: Govinda died leaving four sons and his widow. He had five sons : (1) Hare Krishna who had pre-deceased him leaving's widow Chittasakhi and two sons Gopi Ballav and Radha Ballav, (2) Hare Ram, (3) Ram Ram, (4) Had Chaitanya and (5) Hare Hare who was a minor at the time of his death. The testator appointed five persons as executors of his will. The ninth paragraph of the will runs thus:
In order to carry on the work according to the terms of this will, I appoint my song Sriman Hare Ram Sinha Choudhuri Sriman Ram, Ram Sinha Choudhuri, Sriman Hari Chaitanya Sinha Choudhuri and on behalf of my minor grandsons, Gopi Ballav and Radha Ballav, their mother Chittasakhi Dassy and on behalf of my minor son Hare Hare Sinha Choudhury, my wife Srimati Krishna Kamini Choudhurani, these five persons, as the executors of my will.
2. Probate was taken of the will by Ram Ram and Hari Chaitanya. The order for probate was dated 7th August 1920, but the probate was not issued until the 2Lst April 1923. Hare Ram, the second son of the testator renounced his executorship. The two ladies Chittasakhi and Krishna Kamini did not apply for probate. On the 22nd December 1923, Hare Hare, the minor son of the testator and one of his grandsons Gopi, Billa who had attained majority applied for grant of probate. Subsequently, Badha Ballav attained majority and he also apparently applied for probate of the will of his grandfather. In the meantime, an application was made by some persons interested in the property of Govinda for appointment of what has been called a common manager under para. 10 of the will which provides that if there is any difference of opinion among the executors and for certain other reasons, the District Judge will appoint a fit person among the sons and grandsons of the testator as common manager according to law for the management of the estate.
3. The District Judge by his order of the 29th August appointed Rim Ram Sinha Choudhuri one of the executors who had obtained probate as common manager of the estate of the deceased under the terms of the will. By his other order of the 12th September, he appointed the three applicants Hare Hire Sinha Choudhury, Gopi Ballav and Radha Ballav as executors. The contention on behalf of the appellant is that these three persons cannot be appointed as executors under the terms of the will. It is urged that their mothers were appointed executors and these persons were not so appointed and, therefore, the learned Judge was wrong in granting probate to them. On behalf of these persons, it is urged by Mr. Bose that these minors were appointed executors by implication and what the testator meant was that during the minority of those persons, their mothers would act as executors: otherwise there would be no meaning in the expression used by the testator that Chittasakhi would be the executor 01 behalf of the minor grandsons Gopi Ballav and Ridha Billav and Krishna Kamini would be the executor on behalf of the minor Hare Hare Sinha Choudhuri.
4. It is contended that although the language is not according to the legal formula, the real intention of the testator was that these minors were really to be executors but during their minority, their mothers would act on their behalf. It appears to us that this argument is quite sustainable. That being so, there is nothing wrong in making a grant to these persons by the order of the District Judge. u/s 7, Probate and Administration Act corresponding to Section 222(2), Indian Succession Act of 1925, an executor can be appointed by necessary implication, and we think that, in this particular case, the minors were appointed executors by necessary implication. If
