P L D 1955 Federal Court 145 (PLP)

R. R. Guha, Senior Advocate Federal Court (M. L. Acharya, Advocate, Federal Court, with him), instructed by D. N. Datta, Attorney, for Respondent. Dates of hearing: 9th and 10th December 1954, (at Dacca). MUHAMMAD MUNIR, C. J.‑This is a certified appeal from a judgment of the High Court of Dacca reversing the order of the District Judge and dismissing the appellant's application to be substituted for a renouncing executor. The facts which give rise to this appeal lie within a narrow compass and may be stated only in so far as they are necessary for the determination of the legal point involved in the appeal. On the 27th February 1920, Jagamohan Pal made a will and for the administration of the estate appointed Babu Jogindra Nath Sen, Babu Nebaran Chandra Guha Mustafi and Babu Shyam Chand Basak as executors. Clause 16 of the will provided :‑ "In case of difference of opinion in any matter among the executors the opinion of the majority shall prevail : and on any of the executors appointed by me, dying or retiring without appointing an . executor, the remaining executors shall elect another executor in his place, the opinion of the majority prevailing in case of difference of opinion in that respect. The said elected executor will be competent to act like the executor appointed by me. If any executor appointed by me desires to resign his office he will be competent to appoint another executor with the consent of the other executors. The said appointed executor will be competent to act by exercising as much power as the other executors. On any executor resigning his office or dying without an executor being appointed in his place, the remaining executors shall perform the duties . . . .". The testator died on the 29th September 1926, and the three executors named in the will applied for probate which was granted to them on the 23rd August 1929. One of the executors, Jogindra Nath Sen, died on the 8th September 1941, but the administration of the estate continued to be carried on by the two surviving executors. On the 30th September, 1945, Babu Nibaran Chandra Guha Mustafi executed a deed purporting to resign from the office of executor on the ground of old age and to appoint in accordance with the provisions of the will his son Swami Turiananda as executor in his place. The deed stated that the consent of the other executor had been obtained for this appointment, and the High Court has found that such consent was in fact obtained. Babu Nibaran Chandra Guha Mustafi died on the following day. On the 21st January 1946, an application was made by Swami Turiananda to be substituted for his father as executor. The application did not refer to any specific provision of the law under which it was made, but it stated the relevant facts and prayed : "Your honour may be placed to substitute your petitioner as an executor in the probate already granted to the will of the late Jogindra Pal in place of Babu Nibaran Chandra Guha Mustafi since deceased." The District Judge made the order prayed for, but on appeal by Radha Kanta Pal, who had put in a caveat, the High Court disagreed with the District Judge, set aside his order and dismissed the application. The present appeal has been filed by Swami Turiananda against that judgment of the High Court. We have heard lengthy arguments of counsel on both sides but in view of the admissions made at the Bar, the decision of the appeal rests on a short legal issue. The learned Judges of the High Court have taken the view that an executor who has taken probate cannot resign at pleasure and that the only coure open to him, if he wishes to renounce, is to make an application under section 263 of the Succession Act if his case comes within any of the several clauses to that section. In the present case, the renouncing executor made no application for permission to renounce and he died on the day following the appointment of the appellant as his succes sor. The question that falls for decision therefore, is, whether the appellant's application for substitution could be considered as an application under. section 263, and if not, whether any warrant for an application of the present kind is to be found in the provisions of the Succession Act which is an exhaustive and consolidating statute. It is conceded by Mr. Nandi, learned counsel for the appellant, that any provision in a will which comes into conflict with the provisions of the Succession Act is void and unenforceable and that if the will in the present case is to be taken as empowering any of the executors appointed by the will to resign at pleasure and irrespective of the conditions on which an executor may renounce or the grant of probate to him revoked under the Act, the will to that extent would be void. What he contends, however, is that, the will must be read as giving to the executors the power to renounce to the extent that such power is recognised by the Act. The argument put forward by him involves several steps and proceeds as follows : By reference to English Law and some Indian decisions he seeks to establish the preliminary proposition that it is open to a testator to delegate to a person named in the will the power to appoint an executor. The English Law on this subject is thus stated in 'Williams on Executors and Adminis trators .Volume 1, 13th Edition, page 16 "A testator appointed A and B executors and by her will directed generally that should one executor die the survivor was `to choose another to the best of his judgment and so to continue to the true intent and meaning of two executors. Upon the death of A, B appointed C to be executor, to act with him.C did not take probate during the life time of B. Sir H. Jenner Fust held that probate might pass to C, and .that he might appoint another executor to act with him (In the Goods of Deichman, 3 Curt. 123). So where a testator bequeathed his estate in trust to F and G who were nominated executors, with direc tions conjointly with the testator's wife to appoint a third person as trustee and executor, it was held by Sir .H. ,Tenner Fust that, though there was no probability of agreement between F and G and the testator's wife in the choice of such third person, the appointment of executors was not hereby void, but that F and G were entitled to probate, with a power reserved for the third person when appointed (Jackson Bs. Paulet, 2 Robert 344). I here are at least two Indian Cases, Moosa Haji v. Haji Abdul 5 Bom. L R 639. and In re Durga Dass Kossary A I R 1934 All. 804., which lay down that where a person named in the will is empowered to appoint an executor, the executor so appointed is an executor appointed by necessary implication within the meaning of subsection 2 of section 222 of the Succession Act and a probate can be granted to him. 1n the present case, therefore, according to Mr. Nandi, Swami Turiananda was an executor appointed by necessary implication to whom probate could have been granted with the other executors if Babu Nibaran Chandra Guha Mustafi had not himself been appointed by the will as an executor and had merely been authorised to nominate one of the executors. This legal position has been accepted by the High Court to be correct and is not disputed by Mr. Guha . . . Mr. Nandi then refers to section 224 of the Act which provides that where several executors are appointed probate may be granted to them simultaneously or at different times. The rule in this section is explained by the illustration that where A is an executor of B's,‑ will by express appointment and C an executor to it. by implication, probate may be granted to A and C at the same time or to A first and then to C, or to C first and then to A. This section is cited in support of the second step in the argument, namely that the appointment of Swami Turiananda being by necessary implication, probate could be granted to him subsequently on his being nominated by the resigning executor and that the application for sub stitution made by him to the District Judge should really be considered to be an application for a new probate or for the. inclusion of his name as an additional executor. Lastly, it is contended that it was not a case in which the appellant on his being nominated by his father claimed to be substituted as an executors as of right and that the application that was made to the District Judge must be read as implicitly recognising the legal position that the resigning and the nominating executor could neither resign nor nominate without an order of the Court. The relief for substitution, it is suggested, was prayed for because neither the resignation of Babu Nibaran Chandra Guha Mustafi nor the nomination by him of the appellant as a substitute could be effective without an order of the Court. Though the original position adopted by the learned Counsel for the appellant was that section 263 of the Act is not appli cable where the appointment of only one of several executors is sought to be revoked, he argued in the alternative that if under that section the grant for the reasons stated in that section can be revoked from one of the several executors Who originally took the probate, the appellant's application for substitution should be considered as an application for revocation of the grant in favour of Babu Nibaran Chandra Guha Mustafi and for a new grant to the appellant conjointly with the surviving executor. After giving careful consideration to the arguments addressed we are inclined to the view that the Act does not empower an executor to renounce except in the manner provided in section 230 or by applying for revocation of the grant under section 263 of the Act. Under section 230 an executor may renounce orally in the presence of the Judge or by a writing by himself and no such renunciation being made the executor is precluded from ever thereafter applying for probate of the will appointing him as executor. In England the rule corresponding to that enacted by this section has been construed as prohibiting an. executor from renouncing if ho has once intermeddled with the estate. Where, therefore, an executor by partially administering the estate has taken upon himself the burden and elected to undertake the duties of an executor, he must be held to have made his choice and cannot subsequently resign or renounce. This section is not directly in point because, as pointed out by the learned Judges of the High Court, it clearly refers to cases where the renunciation is before the grant of the probate and is no authority for the proposition that where the Court will permit an executor to renounce under this provision, the Court will also do so after the probate has been granted to him. On the contrary, the section is capable of the construction that after the grant there is no power left in the executor to renounce because not only he has disqualified himself from renunciation after taking the probate but having actually made his election to take the probate he must be held to have intermeddled with the estate and thus brought himself within the rule that such intermeddling disables him from a subsequent renunciation. In the Goo of joaguim Josa Ferreira Veiga (164 English Reports, 1176.) Sir C. Cresswell found no precedent in England for allowing an executor who has taken the grant to renounce and there is no reason why, in the absence of a statutory provision to the contrary, the rule here should be different. That being so, it seems to us that if a person having taken the probate wishes to relieve himself of C the responsibilities of the Ace of an executor for a valid reason, he can only do so by asking the Court to revoke the grant in his favour under section 263 which provides that the grant of probate or letters of administration may be revoked or annulled by the Court for just cause. Among the instance of just cause mentioned in that section is the case where a grant bas become useless and inoperative through circumstances. Mr. Nandi contends that this section is not applicable and cannot be called in aid where one of the several executors wishes to renounce or applies for revocation of the grant to him and that what the section empowers the Court to do is to annul the whole grant because the variouse clauses of the explanation to that section go to show that the ground on which the grant may be revoked should be such as affects the whole grant and not merely the grant in favour of one of the executors. If this be the true interpretation of the section, then there is an hiatus in the Act because on that construction of the section there is no provision in the Act for revocation where one of the several executors has become of unsound mind or too old to discharge the duties of his office or has gone abroad. The case of a person becoming insane after the grant of the probate is specifically mentioned in the 8th illustration but that illustration refers to the case of a sole executor and no provision is to be found anywhere else in the Act enabling one of the several executors to ask to be relieved on any of the ground just mentioned. Where a sole executor dies and the administration does not pass to his executor, the estate can be administered by the grant of letters of administration. Under section 226, when probate ' has been granted to several execu tors and one of them dies, the entire representation of the testator accrues to the surviving executor or executors. If section 263 does not empower the Court to revoke the grant where one of the several executors becomes of unsound mind, then in the absence of any express provision in the Act like section 226 which deals with the death of one of several executors, there is no provision in the Act by which the representation of the testator might accrue, to the remaining executors. if one of them becomes insane. In England there have been several cases of revocation and a fresh grant under the rule corresponding to that enacted in section 263 of the Succession Act where the original grant was in favour of several executors and only one of them became subject to some disability. Thus in the Estate of Shaw, 1905 p. 92, where one of three executors, who had proved a will, subsequently became of unsound mind, the Court, on the application of the others revoked the grant and made a fresh grant of probate to the applicants reserving power for the person of unsound mind is case he should recover and .apply to join in the probate, The same practice has been followed where one of several administrators has become insane. In the Goods of Phillips (I1824 2 Add. 335.) one of the three administrators, cum testamento annexo, was found to be of unsound mind, and committees had been appointed. There was standing in the name of the deceased in the books of the Bank of England certain sums, his property ; neither the interest could be received nor the principal stock transferred, as directed by the will, in consequence of such unsoundness of mind. In these circumstances, the Court directed that upon the letters of administration already granted being . brought in by the two sane administrators, and the committees of the third, letters of administration de bonis non etc., should, by consent of the said committee, issue de novo to the two former administrators only. Several other cases are cited at page 268 of Williams on Executors and ,Administrators, 13th Edition, where an original grant of administration was revoked because the person to whom it was made became incapable, went abroad, absconded, disappeared or ceased to reside within the country and a fresh grant was made. There is nothing in section 263 to warrant the inference that it appears only where the whole grant has to be revoked on the ground of want of jurisdiction, fraud or some similar circumstance which had the effect of vitiating the entire grant and that it is not applicable to cases where one of the several executors to whom the probate was originally granted has become of unsound mind or too old to act or has left the country. We think this interpretation to be more reasonable and one that should be adopted because otherwise the Act would suffer from a lacuna and there would be no provision in it to complete the administration of an estate where one of the several executors become incapable of acting and by the absence of a provision in the will the remaining executors cannot carry on the administration. As already pointed out even an obvious case such as where one of the executors become insane will, on a contrary interpretation, be outside the provisions of the Act. We do not see any sufficient reason why in such cases the English Rule of revoking the grant and issuing a fresh grant should not be followed. On this interpretation of section 263, the provision in the will giving to each of the executors an unqualified power of resigning and nominating with the consent of the majority of the executors a substitute was contrary to the provisions of the Act and the clause conferring that power could be held to be valid only if it were taken to mean that the resigning or renouncing executor before nominating his successor was to obtain from the Court a revocation of the grant in his favour, and the person nominated by the renouncing executor was, jointly with the other executors, to obtain a fresh grant in accordance with the English practice, On a plain reading on the will in the present case it seems to us to be quite clear that the testator intended to empower each of the executors to resign or renounce irrespective of any such grounds as might justify the revocation of the grant under section 263 and that being so the clause conferring that power must be held to be repugnant to the intention of the Act and therefore void and unenforceable. Even if it assumed that the testator intended to empower the executors to renounce by applying to the Court for the revocation of the grant in the circumstances mentioned in section 263, the fact remains that the resigning executor made no such application and unless a case for the revocation of the grant was made out before the Court the resignation or renunciation was ineffective and therefore there was no occasion for the nomination of his successor by the resigning executor. In our opinion the view taken by the High Court was right and we dismiss this appeal with costs. A. H. Appeal dismissed.