Authored By : S.C. Ghose, J. Pratt

S.C. Ghose and J. Pratt, JJ.

1. This is an appeal by one Babu Chuni Lal Bose,Administrator to the estate of the late Raja Han Bahadur Singh, against anorder of the Subordinate Judge of Gaya, disallowing the petition of objectionpreferred by the said administrator to the execution of a decree passed infavour of one Rai Narain Das against Rani Asmed Koer and Raja Ran BahadurSingh. The facts out of which the contest between the parties arises areshortly these: Rani Asmed Koer, widow of the late Raja Modh Narain Singh,executed a mortgage bond in favour of the said Rai Narain Das. The latterbrought a suit to enforce his mortgage security against Rani Asmed Koer. RajaRan Bahadur Singh who was then the reversionary heir, was brought on the recordas a Defendant and a compromise was come to between the Plaintiff and Raja BanBahadur Singh, upon which the decree of the 29th March 1873, was passed.Subsequently, on the 18th December 1899, proceedings for the execution of thesaid decree were taken out against Raja Ran Bahadur Singh and in the course ofthis execution, an account was prepared showing the amount due to thedecree-holder. Ran Bahadur, however, objected to the said account; but whilethe matter was still pending before the Court, he died on the 19th March 1380and this fact having been brought to the notice of the Court, an order was madeon the 7th April 1890, upon the decree-holder, to take necessary steps againstthe legal heirs of the deceased judgment-debtor. It would appear that two persons,Raj Kumari Ratan Koer, who claimed under a will of Raja Ran Bahadur Singh andone Chotey Narain Singh, who was apparently regarded as the nearest agnaterelation and heir ab intestato of the said Raja, were made parties to theproceedings. Notices were issued and though the said notices were served uponthem, they did not enter appearance, the result being that the account preparedby the Office of the Subordinate Judge was approved and confirmed on the 7thMay 1890. The decree-holder was then called upon to take further steps, but nosuch steps having been, taken within the proper time, the application wasdismissed for default of prosecution on the 15th July 1890. However that mayhe, the main question that we have been called upon to determine is whether thesaid order of the 7th May 1890 is conclusive between the parties.

2. With a view to determine this question, it is necessaryto state that Raja Ran Bahadur Singh, by his will, bequeathed all his propertyto Raj Kumari Ratan Koer (she being his grand-daughter, born of a son who hadpredeceased him), with the exception of ten villages which were given toMusammat Rameswar Koer, alias Dulhin Sahiba, the widow of that son. Ratan Koer,applied for letters of administration with the will annexed; but this applicationwas opposed by Chotey Narain Singh and two other persons, Karowr Patti NarainSingh and another, the former claiming (so we gather from the judgment of theDistrict Judge dated the 16th February 1891, which came up to this Court onappeal) as the nearest agnate of Raja Ran Bahadur Singh, being, as stated, hisgrandfathers great great-grandson and the two latter, as his grandfathersbrothers great-grandsons upon the ground that the will was untrue. TheDistrict Judge refused the application upon the ground that the will was notproved, but this judgment was reversed in appeal by the High Court on the 1stSeptember 1891; and the order of the High Court was affirmed in appeal by thePrivy Council on the 8th December 1894. Ratan Koer, however, died before takingout letters of administration and she left a will demising her estate to herdaughter Raj Kumari Bhubaneswari Koer alias Bacha Saheba and appointing hermother, Rameswar Koer and her husband, Rajeswari Prosad Narain Singh, asexecutrix and executor, respectively.

3. In the meantime, on the 21st September 1890, thedecree-holder presented his second application for execution, the previousapplication of the 18th December 1889 having been, as already stated, dismissedfor default on the 15th July 1900. This application, as we gather, was madeagainst Raj Kumari Ratan Koer and Chotey Narain Singh; and upon thisapplication the mortgaged property was advertized for sale. Ratan Koer seems tohave objected to the execution on the ground that the dispute in regard to thewill left by Raja Ran Bahadur Singh had not teen then finally decided and thatthe sale ought not to take place until such decision. The execution case,however, was struck off on the 1st August 1891.

4. A third execution was taken out on the 19th August 1893and it was taken out against the same persons, Ratan Koer and Chotey KaramSingh, as the legal representatives of Raja Ran Bahadur Singh, the former beingdescribed to be in possession of the estate of the said Raja Ran Bahadur Singh.In the course of this execution Ratan Koer pleaded, among other matters, thatthe, account which had been prepared in the course of the execution in 1890 waswrong and not binding upon her, it having been approved of in her absence andat a time when the right of succession of the several claimants to the estateof the late Raja had not been adjudicated and when no letters of administrationhad been granted. She, however, stated, that, by reason of the will of Raja RanBahadur Singh, she was in possession of the estate, save and except tenvillages which had been bequeathed to Rameswar Koer. The Subordinate Judgedealt with the question thus raised by Ratan Koer and by his judgment of the9th July 1894, held that the substituted judgment debtors having been madeparties to the previous execution case of 1890 and the account having beenadopted by the Court on the 7th May 1890 after service of notices upon them andRaj Kumari Ratan Koer having preferred no appeal against that order, she wasnot competent to question the correctness of the said account. He also heldthat the decree was not barred by the law of limitation as was contended for bythe judgment-debtor.

5. An appeal was preferred against this order by Ratan Koerto the High Court; but pending this appeal, Ratan Koer died on the 21st May1895. Thereupon, on an application being made by Rameswar Koer and RajeswariProsad Narain Singh, the executrix and executors appointed by the will of RatanKoer, they were substituted in her place as Appellants, but subsequently, uponan objection being raised by the decree-holder, Respondent, it was hold by aDivision Bench of this Court on the 2nd January 1896 that Rameswar Koer andRajeswari Prosad Narain Singh did not represent the estate of Raja Ban BahadurSingh and that therefore, they had no right to continue the appeal preferred byRatna Koer and that the appeal must abate. Accordingly the appeal did abate.Subsequently the present application for execution was presented on the 25thApril 1896 and it was against Musammat Rameswar Koer and Rajeswari PrasadNarain Singh as executors of Musammat Bhubaneswari Koer, alias Bacha Saheba,minor. This application was, however, understood to be an application againstthe minor Bhubaneswari Koer as well and it was opposed by those two individualsupon the ground that they were not the executors of Rajkumari Bhubaneswari Koerand that, therefore, the execution could not proceed against them whenBhubaneswari Koer had not been properly represented. On the 2nd January 1897,the Subordinate Judge disallowed the objection; and against this order anappeal was preferred to the High Court by Musammat Bhubaneswari Koer throughher guardian and next friend Musammat Rameswar Koer, but no such appeal waspreferred by Rameswar Koer and Rajeswari Prosad Narain Singh in theirindividual capacity, audit was held that Bhubaneswari being only a legatee ofthe executrix of the original judgment-debtor, she could not represent theestate of Raja Ran Bahadur Singh and further that she had not been properlyrepresented in the appeal; the result being that appeal was decreed and theorder of the Court below was set aside, but only in so far as it affected theAppellant before this Court, namely, Musammat Bhubaneswari Koer. In the meantimeRajeswari Prosad Narain Singh died and it would appear that subsequently anapplication for execution was presented against Rameswar Koer only and this wasopposed by her on tie 8th June 1898 upon the ground that she being only anexecutrix to the will of Raj Kumari Ratan Koer, could not represent the estateof Raja Ran Bahadur Singh and that the beneficial owner of the propertiessought to be sold in execution was Raj Kumari Bhubaneswari Koer under the willof her mother, Rai Kumari Ratan Koer and that, therefore, the properties couldnot be sold. On the 20th June 1898 the Subordinate Judge disallowed theobjection of the Rameswar Koer upon the ground that the order of hispredecessor of the 2nd January 1897, disallowing the objection of RameswarKoer, was binding upon him and conclusive between the parties. This order wasappealed against to the High Court; and a Divisional Bench dismissed the appealupon the ground as that that portion of the order of the Subordinate Judge ofthe 2nd January 1897, which directed execution to proceed against the executorsunder the will of Ratan Koer as representing the estate of Ran Bahadur Singh,had not been interfered with in appeal by the order of this Court of the 31stAugust 1897, the said order of the 2nd January 1897 was binding upon theAppellant.

6. The original, decree-holder, we might here mention, isdead and the decree has now passed by transfer by his heirs to on DakshinaMohun Roy. But before this transfer was effected, an application was made bythe original decree-holders heirs, under Section 38 of the Probate andAdministration Act, for administration of the estate of Raja Ran Bahadur Singh,limited for the purpose of representing the deceased in the execution suit andan order to that effect was made on the 11th November 1899 and it would appearthat, on the 16th March 1901, administration was issued to the presentAppellant, Babu Chuni Lal Bose and he has been duly substituted in place of thejudgment-debtor, so that whatever defects there might have existed in thematter of the execution proceedings that were taken out on different occasionsby the decree-holder against the persons described as representing the estateof Raja Ran Bahadur Singh, have now been removed and we have before us a personwho, for the purposes of the execution case, fully represents the estate of thesaid Raja Ran Bahadur Singh. It should also be mentioned that the name of thepresent holder of the decree, Dakshina Mohan Roy, was duly substituted in theplace of the original decree-holder, but, in connection with a litigation nowpending in the Original Side of the High Court, Mr. Beeby has been appointedadministrator pendente lite to the estate of Dakshina Mohun Boy and he nowrepresents the decree-holder, who is the Respondent before us Having stated thefacts which bear upon this appeal, we now revert to the order of the 7th May1890; and the main question, as already indicated, which arises in this appealis whether that order accepting the account which was then prepared, is conclusivebetween the parties. The question also arises whether the order of the 9th July1894 disallowing the objection of Ratan Koer and holding her to be bound by thesaid order of the 7th May 1900, is also conclusive between the parties. TheSubordinate Judge has decided both these questions against the judgment-debtor.A further question seems to have been raised in the Court below by thejudgment-debtor or rather by the administrator that the execution of the decreewas barred by the law of limitation, but we need not deal with that question,it not having been raised before us by the learned Counsel on behalf of theAppellant.

7. The Subordinate Judge, however, at the same time hasexpressed the opinion that if the question of the conclusiveness of the orderof the 7th May 1890 and that of the 9th July 1894 were open to him forconsideration, he would hold that there was a mistake in the account previouslyprepared in the sum of Rs. 21,280 and that the judgment-debtor was entitled tocredit in respect of that amount.

8. The learned Counsel for the Appellant has contended thatRatan Koer was only a residuary legatee under the will executed by Raja RanBahadur Singh and that though she obtained an order for the grant of letters ofadministration, yet none was taken out by her and that therefore she could notrepresent the estate of Raja Ran Bahadur at the time when the order of the 7thMay 1890 and 9th July 1894, respectively, were passed and that it is open tothe true legal representative to Raja Ran Bahadur Singh to show notwithstandingthose orders, that the account upon the footing of which execution has beentaken out is wrong.

9. Section 4 of the Probate and Administration Act providesthat the executor or the administrator, as the case may be, is the legalrepresentative of a deceased person and all the property of the deceased vestsin him. Section 12 ordains that probate of a will, when granted, establishesthe will from the death of the testator and renders valid all intermediate actsof the executor as such. Section 14 says that Letters of Administrationentitles the administrator to all rights belonging to the intestate aseffectually as if the administrator had been granted at the moment after hisdeath and Section 15 lays down that letters of administration do not rendsvalid any intermediate acts of the administrator tending to the diminution ordamage of the intestates estate.

10. These two latter sections, however, do not apply to thiscase for this was no case of intestacy, as regards the estate of Ram BahadurSingh. Section 19 provides, among other matters, that when a deceased has madea will, but has not appointed an executor, an universal or residuary legateemay he admitted to prove the will and letters of administration with the willannexed, may be granted to him. And we may take it that Ratan Koer was regardedas tilling the character of a residuary legatee and administration was orderedto be granted to her, though she did not actually take out the letters.

11. It will be observed that Section 190 of the IndianSuccession Act, which provides that no right to any part of the property of aperson who has died intestate can be established is any Court of Justice unlessletters of administration have been granted, has been omitted from the Probateand Administration Act; but Section 187 of the Act, though it has not beenincorporated in the Probate and Administration Act, has been retained in theHindu Wills Act. That section provides that no right as executor or legateecan be established in any Court of Justice unless a court of competentjurisdiction within the province shall have granted probate of the will underwhich the right is claimed, or shall have granted letters of administrationunder the one-hundred and eightieth section, so that we may take it that anexecutor or as administrator cannot establish his right under the will untilprobate or administration has been granted. But the question here is notwhether the right of Ratan Koer under the will could be established without aprobate or administration, But whether proceedings in execution could be takenagainst her as the representative of Ran Bahadur Singh.

12. Under Section 82 of the Probate and Administration Act,after any grant of probate or letters of administration, no other than theperson, to whom the same shall have been granted, shall Lave power to sue orprosecute any suit, or otherwise act as representative of the deceased, untilsuch probate or letters of administration shall have been recalled or revoked.If in this case probate or letters of administration had been granted to anybody, he would be the legal representative of the deceased Raja Ran BahadurSingh and the decree-holder would have been bound, having regard to theprovisions of Section 234, Code of Civil Procedure, to bring such legalrepresentative upon the record of, the execution case of the year 1890) whenRaja Ran Bahadur Singh died. But though the Raja left a will under which RatanKoer was the residuary legatee and an application for probate or letters ofadministration seems to have been made almost immediately after (i.e. 7th April1890) as we gather from the judgment of the District Judge dated the 16thFebruary 1891 to which we have already referred, it was not until the 1stSeptember 1891 that the High Court ordered letters of administration to begranted. Ratan Koer, however, was in the meantime in possession of the estateleft by the Raja. In this circumstance, the question arises, who representedthe deceased at the time when, after the death of the Raja, the decree-holderwas called upon by the Court to take the necessary steps against the legalheirs of the deceased judgment-debtor. It could not be rightly said thatbecause no probate of the will or letters of administration had been granted toany person nobody represented the deceased at the time. And here we cannot dobetter than refer to the observations of Markby J. in the case of ProsunnoChunder Bhuttacharjee v. Kristo Chytunno Pal I.L.R. (1878) Cal. 342. "Theexecutor does no represent the deceased by virtue of the will until he hasobtained probate. Who then represents the deceased who has left a will from hisdeath until probate has been obtained Surely some one must do so, or the lawwould not have provided that the statute of limitation should run between thedeath and the grant of probate and it undoubtedly does," and later on heobserved: "Upon the whole I think that until some other claimant comesforward the party who takes possession of the estate of a deceased Hindu mustin the present state of the law be treated for some purposes as hisrepresentative and that a judgment obtained against such a representative isnot a mere nullity. Even if it cannot be executed against the estate in thehands of the executor when he has taken out probate, it is at any ratesufficient to enable the Plaintiff to bring a suit against the executor inorder to have the decree satisfied." This view was accepted by the MadrasHigh Court in the case of Janaki v. Dkanu Lall I.L.R. (1891) Mad. 454, wherethe learned Judges observed as follows:--"If therefore the Creditor isprecluded from bringing in any one as the personal representative of thedeceased until some one had proved his will, Jus just claims would be liable tobe defeated by the simple expedient of refusing to apply for probate until thedebt had become barred. This certainly cannot have been the intention of thelaw. It appears to us that, though the executor can establish no right withouttaking probate, the existence of the will cannot be ignored for all purposewhatsoever," And it was held that the persons who toot possession of theestate of the deceased upon his death were liable to be treated by the creditoras his representative, even though they themselves were liable to be dispossessedby the executors on taking oat probate. The question in these two cases nodoubt arose with reference to the suit brought by the creditor against therepresentative of the deceased debtor and the effect of the judgment passed insuch suit and not with reference to proceedings taken in execution of a decreeagainst a person as the legal representative of the deceased judgment-debtor;but the principle under-lying the observations which we have quoted are equallyapplicable here. We find however that the Madras High Court, in the case ofChathakelan v. Govinda Karumiar I.L.R. (1893) Mad. 186, has held that the words"legal representative," as occurring in Section 234 of the Code, donot necessarily include a person in possession who does not in law representthe estate of the deceased; and that a stranger in possession of the propertyof the deceased person, who was not a party to the decree ought not to bepreceded against in execution or otherwise, than by a regular suit. But wouldit be right to regard Ratan Koer as a stranger is possession There was ft willin her favour and she asked for letters of administration with the will annexedand this will was ultimately proved to be true; and apparently, it was on thebasis of the right conferred by the will that she entered into possession. Hepossession could not, we think, be regarded as the possession of an executor deson tort, as Mr. Hill compared her with, so that her acts would not be bindingupon the true legal representative, but she was a person who was the residuarylegatee and who was entitled to administer the estate upon letters ofadministration being received. But apart from this consideration, there wasChotey Narain Singh and he was throughout the execution proceedings regarded asthe legal heir of the deceased ab intestato. If Ratan Koer could not representthe estate at the time surely Chotey. Narain Singh, or the two other persons,who opposed the application of Ratan Koer for probate of the will did. Butnothing seems to have been suggested in the Court below, nor has it beensuggested before us that there was any other legal heir ab intestato of thedeceased Ban Bahadur Singh than Chotey Narain Singh. In these circumstance itseems to us that the substitution of Ratan Koer and Chotey Narain Singh as thelegal representative of the deceased judgment-debtor was a good and legalproceeding and it follows that the order made by the Court on the 7th May 1890,confirming the account prepared by the office was a perfectly legal order and soit was held by the Subordinate Judge on the 9th July 1894, when it wasdetermined that Ratan Koer and Chotey Narain Singh were made parties to theexecution proceedings, that after service of notices upon them the accountswere adjusted and confirmed and that the question of the correctness of theaccount could no longer be questioned. This order, as we have already noticed,also became final by reason of the appeal that was preferred by Ratan Koerhaving abated in consequence of her death, the legal representative of Raja RanBahadur Singhs estate, having not been substituted in her place.

13. Upon these considerations, we think that the viewadopted by the Court below is right and that the question of the correctness ofthe account, that was prepared and adopted in the year 1890, is no longer openfor consideration. The result is that this appeal is dismissed with costs.

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Chuni Lal Bose vs.Osmond Beeby (25.06.1903 - CALHC)+