Judgement Appeal from a decree of the High Court (March 23, 1906) affirming a decree of Sale J. (March 29, 1905) in favour of the respondent for Rs.1,07,159, with interest, against the appellant and one Banku Behary Bannerjee. The respondent sued under the circumstances stated in the judgment of their Lordships to recover the value of eighty-six and a half Bank of Bengal shares from three defendants—Cowie, to whom letters of administration to the estate of Edmnnd Craster Craster, the deceased owner of the shares, had been granted, and the appellant and the said Banku Behary Bannerjee, who were sureties in a bond conditioned for due administration by Cowie. It appeared that Craster died in 1898 leaving a will of which probate was granted in England to two executors. He left three sons (no one of them being named Henry Craster Craster) and two daughters. In 1902 Cowie applied to the High Court for the grant to himself of letters of administration of the estate of the deceased as the attorney of an alleged Henry Craster Craster, and in such petition falsely stated that the deceased had died intestate and had left the said Henry Craster Craster his only son and next of kin him surviving. The petition was supported by a false Law. Rep. 35 Ind. App. 109 ( 1907- 1908) Debendra Nath Dutt V. Administrator-General of Bengal 36 declaration and affidavit by Cowie, and had annexed thereto a power of attorney whereby the alleged Henry Craster Craster purported to empower Cowie to make the application. Cowie sold the shares and converted them to his own use. The sureties pleaded that, the grant of letters of administration having been obtained by misrepresentation and fraud, and there-fore being void, the bond was likewise void and unenforceable, both as itself induced and obtained by fraud and also as entered into under a mutual mistake as to the circumstances and the subject-matter of the contract, and also as founded on a misrepresenta tion made to the appellant by the Court, namely, that the said Henry Craster Craster really existed and was the only son and next of kin of the deceased, and that these facts had been well proved to the Court. The High Court in appeal (Harington and Stephen JJ. The High Court in appeal (Harington and Stephen JJ. dissenting) found that there had been no mutual mistake of fact essential to the agreement, and held that, although the grant of the said letters of administration was obtained by fraud and was void ab initio, the said bond was not void, and had not been rendered void by the existence of a will made by the said Edmund Craster Craster ; also that the granting of letters of administration by the Court to the said Cowie did not amount to any representation whatever by the Court; that the eighty-six and a half shares in the Bank of Bengal having been lost to the estate, and the proceeds having been received and misappropriated by Cowie, the sureties were liable to pay the amount; and that the position of the sureties had not been altered to their prejudice by the delay of the executors of the deceased in informing them of the fraud, and consequently they were not discharged by such delay. The material portion of the judgment of Harington J., one of the dissentient judges, is as follows — “ I am unable to agree that the sureties are liable under the contract on which they are sued. I think no liability under that contract ever attached to them because both they and the Court were under a mistake of fact essential to the agreement, and that fact was the authority of Cowie as attorney of the next of kin to apply for, and receive, a grant of letters of administration. "Under s. 214 of the Succession Act the Court has power to make a grant to the attorney of the person entitled to administration, and to no other person. If therefore Cowie had not succeeded in deceiving the Court as to the existence of Henry Craster Craster, and in misleading the Court into the belief that he was duly authorized by Henry Craster Craster to apply for letters of administration, the order of the Court of July 29, 1902, granting letters of administration to Cowie as the duly constituted attorney of Henry Craster Craster, the next of kin of the deceased, could never have been made, and similarly the bond could never have been taken by the Court. " Suppose the Court had been made aware, after the order of July 29, 1902, and before the execution of the bond on August 15, that Cowie was not the attorney of the next of kin, and was not a person to whom a grant of letters of administration could be committed under s. 214, the Court could not have taken the bond under s. 256, nor could the Court have permitted the letters granted under the order of July 29, 1902, to issue from the office. " The fraud therefore practiced by Cowie induced in the Court a mistake as to a fact which was essential to the agreement, because, but for that mistake, the Court would neither have granted letters of administration to Cowie, nor have taken a bond from the appellants. " Then the fact of Cowies authority was equally essential to the agreement from the point of view of the appellants. Law. Rep. 35 Ind. App. 109 ( 1907- 1908) Debendra Nath Dutt V. Administrator-General of Bengal 37 " It appears on the evidence that the draft petition, setting out Cowies title to letters of administration, was shewn to the appellants before they executed the bond, and they were informed, truly enough, that the Court had granted the petition. "Both the appellants say that they would not have executed the bond, if they had not believed that Cowie was the duly appointed attorney of the next of kin. I believe the appellants when they say this—and I have no doubt that, while they were prepared to guarantee the due performance of the duties of administrator by a person authorized for that purpose by the person beneficially entitled to the deceaseds estate, that they were not prepared to give such a guarantee in the case of a person not so authorized. " Both parties to the bond were equally deceived by Cowie, and they were deceived in a matter essential to the transaction. The Court believed it was making a grant to a person legally entitled to claim it; the appellants believed that they were guaranteeing the honest administration of the estate by a person legally entitled to letters of administration. Had it not been for the mistake as to Cowies authority, the Court could not have taken, and the appellants would not have given, the bond under which it is sought to make them liable. Had it not been for the mistake as to Cowies authority, the Court could not have taken, and the appellants would not have given, the bond under which it is sought to make them liable. " In my opinion, on these facts, the case falls within the scope of s. 20 of the Contract Act, and the agreement by which the appellants undertook to be bound to the Court, in a penal sum conditioned for the due administration of the estate of Edmund Craster Craster deceased by Ernest Hardwicke Cowie, one of the constituted attorneys of Henry Craster Craster, is void, because both parties to the agreement were under a mistake as to a matter of fact essential to the agreement. "In effect, the Court agrees to issue letters of administration under s. 214 of the Succession Act to the attorney of the next of kin, if the attorney of the next of kin will engage with two sureties for the due administration of the estate, and accordingly the sureties engage that the attorney of the next of kin shall duly administer the estate. Both parties contract on the basis that the person to whom administration is committed is the person duly authorized by the next of kin to represent him, and neither party would contract if the administrator did not fill that position. “ The sureties did not guarantee the truth of the allegations made in the petition of Cowie as to his authority to apply for letters of administration. Both the Court and the surety accepted the truth of these statements, and contracted on the assumption that they were true. " The question whether the appellants re estopped by their own deed from alleging that Cowie was not one of the duly constituted attorneys of the next of kin has not been argued. I do not think it could successfully be contended that they are estopped by a statement made by their co-contractor as to a matter of fact peculiarly within his knowledge, unless it be shewn that they have been guilty of some negligence. Here they satisfied themselves that the Court had granted the petition on the evidence which had been tendered by Cowie. Here they satisfied themselves that the Court had granted the petition on the evidence which had been tendered by Cowie. I do not think they were bound to inquire further—or that they were guilty of negligence in executing a bond containing this statement." After distinguishing the cases of Lester v. Gooch (( 1868) 17 W. R. 139.) and Mayor, &c, of Kingston-upon-Hull v. Harding ([ 1892] 2 Q. B. 494.), the learned judge proceeded— " It has been contended in argument that the same reasoning would apply if the letters were recalled on the subsequent discovery of a will—the existence of which was unknown at the time the Law. Rep. 35 Ind. App. 109 ( 1907- 1908) Debendra Nath Dutt V. Administrator-General of Bengal 38 application for letters of administration was made. It is said that in that case the grant would have been made, the bond accepted by the Court, and executed by the sureties equally under a mistake in point of fact essential to the agreement. The contract of suretyship would therefore be void, and the sureties would be discharged from their liability to make good any misappropriation of the deceaseds estate by the grantee of letters of administration prior to the probate of the will. " I do not feel pressed by this argument for two reasons First, I do not think a contract is void on the ground of common mistake if the parties to the contract contemplate the possibility of the mistake and agree as to what is to be done if there is such a mistake. It is hardly correct perhaps to call it a mistake when it is a contingency contemplated by the parties with a provision in the contract as to what is to be done if such a contingency happens. The sureties engage in their bond that if a will is discovered and probate be granted thereof, the administrator shall render up and deliver the letters of administration to him granted in Court. It would involve an absurdity to say that the contract was void ab initio and the sureties were discharged because of the existence of a will, when the contract contains a stipulation by which the sureties agree as to what is to be done if a will is discovered and proved. It would involve an absurdity to say that the contract was void ab initio and the sureties were discharged because of the existence of a will, when the contract contains a stipulation by which the sureties agree as to what is to be done if a will is discovered and proved. " Secondly, the existence of a will unknown at the time letters are applied for in no way affects the risk the sureties take upon themselves, and therefore a mistake as to the existence of a will is not a matter of fact essential to the agreement into which the sureties enter. The sureties agree to warrant due administration by a person duly authorized by the next of kin to represent him. This risk they undertake is not affected by the existence of a will unknown to any of the parties. The sureties do not undertake the heavier risk of warranting due administration by a person not so authorized. A common mistake therefore as to the authority of the person guaranteed is a mistake on a matter of fact essential to the agreement, because it directly affects the risk undertaken by the sureties. The risk of guaranteeing a person authorized by the beneficiary might be small the risk of guaranteeing a person not so authorized would be much greater, as a beneficiary may be expected, in his own interests, to choose an honest man to administer the estate. But the risk of guaranteeing the person in whom the beneficiary had confidence would in no way be increased or lessened by the existence of a will unknown to the person guaranteed. "In my opinion to hold the sureties liable is to impose on them a liability which they never agreed to undertake ; I think therefore that the appeal should be allowed and the suit dismissed." Lord R. Cecil, K.C., and Boydell Houghton, for the appellant, contended that the administration bond was entered into on the basis that Cowie was, as stated 011 the face of the bond and believed both by the obligee and by the sureties, the administrator of Crasters estate. It was proved that the letters of administration were void, and the bond therefore was also void. It was proved that the letters of administration were void, and the bond therefore was also void. Both the appellant as surety and the obligee were under a mistake of fact essential to the bond, and accordingly the bond is void under s. 20 of the Indian Contract Act, 1872. That mistake of fact was as to Cowies authority as attorney of the next of kin to apply for and receive a grant of letters of administration. The Court by granting those letters held Cowie out to the sureties as the duly authorized attorney of the next of kin, the person entitled to letters, and the duly appointed administrator. The appellant relied on that representation, and executed the bond on that basis. Besides, by the due construction of the bond the sureties only warrant the due administration by a person who is actually authorized as administrator, and do not warrant due administration by a person not so authorized. They referred to the reasons given by Harington J., and to Ellis v. Ellis ([ 1905] 1 Ch. 613.), Kepp v. Wiggett (( 1850) 10 C. B. 35.), and Holland v. Lea. (( 1854) 9 Ex. 430, 439.) Simon, K.C., and Sargant, for the respondents, contended that the majority of the High Court were Law. Rep. 35 Ind. App. 109 ( 1907- 1908) Debendra Nath Dutt V. Administrator-General of Bengal 39 right in their decision. Cowie broke the condition of the bond by failing in due administration, and accordingly his sureties were liable. Mistake or fraud by Cowie in inducing them to execute the bond, even if it afforded good gro und for setting the bond aside as between themselves and Cowie, does not affect the transaction as between the sureties and the Court or the persons entitled to the protection of the bond, and does not entitle the sureties to set it aside as against them. The grant of letters was made on the strength of the bond, not the bond on the strength of the grant, and in reliance on any implied representation effected by the grant. Even if the grant was void ab initio, the administration de facto took place and the sureties were responsible. Reference was made to s. 242 of the Indian Succession Act, and to Lester v. Gooch. (17 W. R. 139.) Lord Robert Cecil, K.C., replied. Even if the grant was void ab initio, the administration de facto took place and the sureties were responsible. Reference was made to s. 242 of the Indian Succession Act, and to Lester v. Gooch. (17 W. R. 139.) Lord Robert Cecil, K.C., replied. The judgment of their Lordships was delivered by LORD MACNAGHTEN. This is an appeal from the High Court of Judicature at Fort William in Bengal. The appellant Debendra Nath Dutt was one of two sureties in a bond conditioned for the due administration by Ernest Hardwicke Cowie, a solicitor in Calcutta, of the estate of a retired Indian civil servant named Craster. Mr. Craster died in England in August, 1898, leaving a will which was duly proved here in the following month of October. Part of the deceaseds estate consisted of shares in the Bank of Bengal and other Indian assets. The Indian assets escaped the notice of the executors and remained unclaimed and outstanding. On July 29, 1902, Cowie, who is stated in the printed cases to have been one of the solicitors to the Government, and who certainly was then in good credit, obtained an order for the grant of letters of administration to himself as attorney for a fictitious person represented by him to be the only son and sole next of kin of the deceased, who had, as he pretended, died intestate. The letters of administration were issued on August 15, 1902, on the production of a bond in the usual form executed by Cowie and the two sureties, who received a small payment for their services but were not themselves parties to the fraud or cognizant of it. By these means Cowie obtained possession of the bank shares, sold them in the market, and converted the proceeds to his own use. The fraud was not discovered till the end of 1903 or the beginning of 1904. Cowie then absconded. He was apprehended, tried, and convicted. The grant of administration in his favour was can-celled, and in May, 1904, letters of administration with a copy of the will annexed were granted to the Administrator-General of Bengal. The bond of August 15, 1902, was then assigned to the Administrator-General, and he brought this suit against Cowie and Cowies sureties. Cowie made no defence. The grant of administration in his favour was can-celled, and in May, 1904, letters of administration with a copy of the will annexed were granted to the Administrator-General of Bengal. The bond of August 15, 1902, was then assigned to the Administrator-General, and he brought this suit against Cowie and Cowies sureties. Cowie made no defence. The suit was heard by Sale J. That learned judge pronounced a decree in favour of the Administrator-General, the result of which, so far as regards the sureties, was that they were ordered to pay to the administrator a sum equal to the amount of the proceeds of the bank shares misappropriated by Cowie, together with interest and costs. Both the sureties appealed to the High Court. But that Court in its appellate jurisdiction by a majority affirmed the order of Sale J. and dismissed the appeal with costs. The case of the appellant Dutt, who alone has appealed to His Majesty, as presented to this Board, was that the letters of administration granted to Cowie, having been annulled by the Court on the ground of fraud, must be regarded as a mere nullity from the beginning; that Cowie, therefore, never was administrator, and that the bond, so far as the sureties were concerned, was void and of no effect; for the sureties undertook to be responsible for a real administrator, not for a person assuming to act in a capacity which he never possessed and which the Court could not have conferred upon him. The case was argued very ably by the learned counsel for the appellant, who said everything that could be said on his behalf. But there is really no substance in the appellants Law. Rep. 35 Ind. App. 109 ( 1907- 1908) Debendra Nath Dutt V. Administrator-General of Bengal 40 contention. So long as the letters of administration granted to Cowie remained un-revoked, Cowie, although a rogue and an impostor, was to all intents and purposes administrator. He, and he alone, represented the deceased in India. His receipts were valid discharges for all moneys received by him as administrator. As administrator he collected the assets belonging to the deceased in India, and he misappropriated the assets which he so collected. For his acts and defaults as administrator the appellant and his co-surety became and must remain responsible. He, and he alone, represented the deceased in India. His receipts were valid discharges for all moneys received by him as administrator. As administrator he collected the assets belonging to the deceased in India, and he misappropriated the assets which he so collected. For his acts and defaults as administrator the appellant and his co-surety became and must remain responsible. Their Lordships are therefore of opinion that Maclean C. J. and the learned judges who concurred with him were perfectly right, and they will humbly advise His Majesty that the appeal must be dismissed. The appellant will pay the costs of the appeal.