Authored By : S.C. Ghose, Hamilton Wincup Gordon

S.C. Ghose and Hamilton Wincup Gordon, JJ.

1. This is an appeal from a decision of the District Judgeof Bankura revoking probate of the will of one Durga Das Chatterjee. The willbears date the 6th April 1885, and the testator died in March 1890. Thereafter,the testators eldest son, Annoda Prosad Chatterjee, the appellant before us,obtained probate as executor of that will on the 8th December 1890. Subsequently,Kali Krishna Chatterjee, the grandson of the testator (son of another son,Baroda), a minor, through his guardian applied in the year 1891 for revocationof the probate, and his application was dismissed on the 25th January 1892.Then a suit was brought in 1892 in the Subordinate Judges Court by ThakomoniDebi, the widow of the testator, for the purpose of obtaining revocation of thesaid probate and removing the present appellant from his post as executor andthat suit also was dismissed on the 24th June 1893. Now, Kali KrishnaChatterjee having come of age, has tiled the present petition for revocation ofthe probate. The application purports to be made under Clause 4 of theExplanation to Section 50 of the Probate and Administration Act; and thelearned District Judge has revoked the probate under that clause, on the groundthat the executor, Annoda Prosad Chatterjee, has been guilty of misconduct andmismanagement as such executor, and that, therefore, he is not a fit and properperson to retain the management of the estate.

2. On appeal, it is contended that the District Judge had nojurisdiction, under Clause 4, Section 50 of the Probate and Administration Act,to make the order he has made ; and we think that this contention is sound. Clause(4) runs as follows: "That the grant has become useless and inoperativethrough circumstances." We think that the District Judge has misunderstoodthe real meaning of these words. The meaning of the words "useless andinoperative through circumstances" are explained in the illustrationsattached to the Section ; and we are unable to say that mismanagement by anexecutor comes within the purview of Clause 4, Section 50 of the Act. No doubtthe question may arise whether the words "just cause," as explainedin Section 50, are exhaustive, or illustrative. If they are, illustrative, andnot exhaustive, it might be said that the District Judge had jurisdiction toremove the executor on the ground of mismanagement, but certainly not underClause 4. We think, however, that these words are exhaustive ; and this view issupported by the fact that the Legislature thought it necessary to amendSection 50 of Act V of 1881 by Act VI of 1889 by adding to the explanation afifth Clause relating to the wilful omission by an executor to exhibit aninventory or account, and to the exhibiting of a false inventory or account.Had the words "just cause," as explained in Section 50, been merelyillustrative, there would have been no necessity to add to it this fifthclause.

3. Further, we observe that Sections 146 and 147 of theProbate and Administration Act make an executor or administrator liable fordevastation or neglect to get in any part of the property, which we think alsoshows that the Legislature did not intend to include within the purview ofSection 50 of the Act a case of mismanagement by an executor. In this view ofthe matter, we think that the order of the learned Judge is based upon amisconception of the law, and that therefore it must be set aside.

4. We may add that this decision will not debar therespondent from making an application to the District Judge under Clause 5,Section 50 of the Act, or from making any other application as he may beadvised.

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Kali Krishna Chatterjee and Ors. vs. Annoda Prosad Chatterjee (31.07.1896 - CALHC)