In Re: Akshay Kumar Ghosh v. . — 1949 DIGILAW 99 (CAL)

JUDGMENT P.B. Mukharji, J. - This is a summons taken out by the Applicant, Ashit Kumar Ghosh, to set aside the ex parte order dated March 28, 1945, alternatively to set aside those provisions in the said ex parte order which are not authorised by the terms of the will of the testator Akshay Kumar Ghosh and for necessary directions. 2. On March 28, 1945, Pravash Chandra Mallik and Dulal Chand Aich, as executors and trustees of the will of Akshay Kumar Ghosh, made an application. That application was made in the Testamentary and Intestate Jurisdiction of this Court u/s 302 of the Indian Succession Act and under the Indian Trusts Act and the Trustees and Mortgagees Powers Act. An order was obtained on the same day on such application. The application was made ex parte without notice to the present Applicant who is the sole residuary legatee under the will and the only person who is the beneficial owner of the estate left by the said will. 3. The terms of the order, dated March 28, 1945, are as follows: (i) It is ordered that the said executors be at liberty to maintain the persons mentioned in para. 22 of the said petition and to incur expenses on the heads mentioned in Parts III and IV of the said Ex. A to the said petition in the same way as the said executors have been doing unless the adopted son Ashit Kumar Ghosh obtains direction to the contrary from the Court after attaining majority ; (ii) And it is further ordered that the said executors be at liberty to pay to the said Pravash Chandra Mallik as the Chief Manager of the estate of the said deceased a salary of Rs. 1,000 per month with effect from January 1, 1945, rising to Rs. 1,500 by increment of Rs. 50 every two years unless the said adopted son Ashit Kumar Ghosh obtains directions to the contrary from the Court after attaining majority. 4. The rest of the order relates to liberty granted to the executors to purchase the property at Metiabruz, as mentioned in para. 41 of the said petition at a price not exceeding Rs. 50 every two years unless the said adopted son Ashit Kumar Ghosh obtains directions to the contrary from the Court after attaining majority. 4. The rest of the order relates to liberty granted to the executors to purchase the property at Metiabruz, as mentioned in para. 41 of the said petition at a price not exceeding Rs. 25,000 and the executors were further directed to retain and pay out of the estate of the said deceased the costs of that application as between attorney and client including fees actually paid to counsel to be certified by two attorneys of this Court. 5. The Applicant has attacked the two main provisions of the order dated March 28, 1945, giving liberty to the executors to incur expenses for maintenance of persons mentioned and the payment of increased salary to Pravash Chandra Mallik. 6. Under the will of the said Akshay Kumar Ghosh deceased, Prorash Chandra Mallik combines the office of both an executor to the estate and the Chief Manager to the estate. Probate was obtained by the Respondents on March 10, 1932, from this Court. 7. Mr. Niren De appearing on behalf of the Respondents has contended that the application is not maintainable. In support of this argument he has urged that an ex parte order can only be set aside if there is fraud on the processes of the court or if the order is beyond the jurisdiction of the court. He has submitted that the order dated March 28, 1945, was neither in fraud on the processes of the court nor beyond its jurisdiction. He has relied on the observations of Greaves J. in Basanta Kumar Das v. Kusum Kumari Dasi ILR (1916) Cal. 28, 33. 8. That case, however, was (i) not a case of an ex parte order, (ii) nor a case u/s 302, Succession Act. It will, therefore, be necessary here in this case to consider whether these factors make any difference. Greaves J. says that there was no procedure in the CPC by which one Judge can sit in appeal over the order of another in the case that he was , dealing. Mr. Sanyal, for the Applicant, does not contest that proposition. It will, therefore, be necessary here in this case to consider whether these factors make any difference. Greaves J. says that there was no procedure in the CPC by which one Judge can sit in appeal over the order of another in the case that he was , dealing. Mr. Sanyal, for the Applicant, does not contest that proposition. He says, first, that CPC preserves inherent jurisdiction to recall an ex parte order and secondly, draws my attention to p. 34 of that report where Greaves J. says that court has inherent jurisdiction to review its own orders in case of "fraud or under special circumstances". Mr. Sanyal has also contended that, u/s 302, Indian Succession Act, I have always power to issue directions to the executors in respect of the estate or its administration, whatever may be the previous order on the subject under that section, particularly when that order was ex parte. It is also his further submission that court has inherent jurisdiction to recall an order made without jurisdiction. Hiralal Mukerji v. Premamoyee Debi (1905) 2 C.L.J. 306. 9. The application resulting in the order of March 28, 1945, was made under (i) the Indian Trust Act, (ii) the Trustees and Mortgagees Powers Act and (iii) Section 302 of the Indian Succession Act and as I have said, was made in the Testamentary and Intestate Jurisdiction of this Court. u/s 34 of the Indian Trusts Act, an application under that Act, in my opinion, could be made only to the Principal Civil Court of the Original Jurisdiction. I do not consider that such an application can be made in the Testamentary and Intestate Jurisdiction. u/s 43 of the Trustees and Mortgagees Powers Act, the application under that Act must be served upon or its hearing attended by all persons interested in such application. I consider Applicant Ashit Kumar Ghosh is a person vitally interested in the application and the non-service of the application upon him makes the orders passed under that Act liable to be set aside. I am of the opinion that an application u/s 43 of that Act should be made in the Ordinary Original Civil Jurisdiction of the High Court. Because the High Court in exercising its powers under this section does not, in my judgment, exercise any Testamentary or Intestate Jurisdiction but the jurisdiction as an original court under the statute. I am of the opinion that an application u/s 43 of that Act should be made in the Ordinary Original Civil Jurisdiction of the High Court. Because the High Court in exercising its powers under this section does not, in my judgment, exercise any Testamentary or Intestate Jurisdiction but the jurisdiction as an original court under the statute. In that view of the matter the application resulting in the order of March 28, 1945, in so far as it was made under these two statutes was beyond the jurisdiction of this Court in its Testamentary and Intestate Jurisdiction. 10. Section 302 of the Indian Succession Act confers jurisdiction on the High Court to give to the executors or administrators any general or special direction in regard to the estate or the administration thereof in cases where probate or letters of administration have been granted under such Act. This direction can only be given on an application made to the High Court. Section 302 is found in Ch. IV, Part IX of the Act under the heading of "The practice in granting and revoking "Probates and Letters of Administration" and in my judgment, the court, when called upon to exercise its jurisdiction under that section, acts in pursuance of its Testamentary and Intestate Jurisdiction under Clause 34 of the Letters Patent. 11. The question then remains whether the order of March 28, 1945, as an order u/s 302 of the Succession Act can be challenged as (i) being obtained ex parte, (ii) being obtained by executors by overreaching the court or (iii) being outside the jurisdiction conferred by Section 302 of the Indian Succession Act. 12. I will consider first whether the order can be challenged, as having been made ex parte. 13. Mr. Sanyal has argued on the basis of the decision of Sudevi Devi v. Sovaram Agarwallah (1906) 10 C.W.N. 306, 310 that the court has inherent power to deal with an application to set aside an order made ex parte on a proper case being substantiated. Woodroffe J. said in that case: 14. It is an elementary principle that (in the absence of any special legislative rule excusing notice) no order should be made in favour of one party against and to the prejudice of another unless that other has had an opportunity of showing that it should not be made. Woodroffe J. said in that case: 14. It is an elementary principle that (in the absence of any special legislative rule excusing notice) no order should be made in favour of one party against and to the prejudice of another unless that other has had an opportunity of showing that it should not be made. And the court has an inherent power to deal with an application to set aside an order made ex parte and to set it aside upon a proper case being substantiated. 15. Indeed in Daniell's Chancery Practice (7th Ed. Vol. II, p. 1303) it is laid down: If there is any irregularity in the order or it has been obtained upon false suggestion or by suppression of any material fact it will be discharged on special application by motion although on the merits it would have been a proper order to make. 16. A number of cases is collected at that page in Daniell's Chancery Practice and I will refer to only one. In Bidder v. Bridges (1884) 26 Ch. D. 1, 3, Kay J. says: And first of all it is said I cannot discharge the order. I certainly have not the smallest doubt that, where an order has been obtained ex parte, upon an application to discharge that order the parties who were not before the court have just as much right to be heard and to urge any ground for discharging that order, as they would have had, if they had been there when the order was made, to contend that it should 'not be made. Cotton L.J. on appeal upheld this view of Kay J. 17. There is no legislative provision u/s 302 of the Indian Succession Act "excusing notice", to use the language of Woodroffe J. The general rule and therefore, the maxim audi alterem partem applies. In this case, no notice was served on the Applicant, who was the sole residuary legatee and owner of the residuary estate under the will and who was the person whom I consider to be vitally interested in the estate and in the administration thereof. In this case, no notice was served on the Applicant, who was the sole residuary legatee and owner of the residuary estate under the will and who was the person whom I consider to be vitally interested in the estate and in the administration thereof. The executors, by that order of March 28, 1945, obtained a charter to spend money and incur expenses for a whole host of persons, who, the Applicant contends, are not entitled to such maintenance under the will and the executors also obtained a charter to spend an enormously increased salary for one of themselves Pravash Chandra Mullik in his capacity as Chief Manager out of the estate. Both these matters, I consider, are against the Applicant and to his prejudice within the meaning of the law as laid down by that very learned and experienced Judge Woodroffe J. I am of the opinion that, whether the contentions of the Applicant are right or wrong, they are serious contentions and as such, the executors, acting in a fiduciary capacity, should have given notice to the Applicant as the most interested person in the estate. 18. A Full Bench reference of the Calcutta High Court presided over by Mclean C.J. in Taslimam v. Harihar Mahto ILR (1940) Cal. 253 laid down the principle that the court has inherent power to deal with an application to set aside an order made ex parte and to set it aside upon a proper case being substantiated. 19. I, therefore, hold that I have the jurisdiction to set aside or discharge the ex parte order, dated March 28, 1945, which I consider should not have been made without notice to or hearing the Applicant. 20. In the affidavit in opposition filed by the Respondents it is said the Applicant was a minor. Indeed he was, but a guardian for him could certainly have been appointed under the CPC for the purposes of the application. It is now said in the said affidavit in opposition of the Respondents that the said ex parte application was made in consultation with Jnanendra Krishna Ghosh, the natural father of the Applicant. But not a word to that effect was said in the elaborate ex parte petition of forty-four paragraphs. In the affidavit of Jnanendra Krishna Ghosh, affirmed on September 28, 1948, he has denied that the ex parte application was made in consultation with him. But not a word to that effect was said in the elaborate ex parte petition of forty-four paragraphs. In the affidavit of Jnanendra Krishna Ghosh, affirmed on September 28, 1948, he has denied that the ex parte application was made in consultation with him. 23. I will consider next whether the Court was overreached by the executors in making the order of March 28, 1945. If so, the Court has always power and jurisdiction to recall such an order. 24. Mr. Sanyal, appearing for the Applicant, has strongly criticised the executors application resulting in the order of March 28, 1945, as an order made by misrepresentation of the facts and by suppression of the material facts from the court. That is also his client's pleading in paras. 20 and 21 of the petition before me. On that basis, he has argued that the court can always set aside an order obtained by misrepresentation or suppression of material facts and he says that the court was overreached and was induced to make an order on March 28, 1945. He has relied on the well-known decision in Rashmoni Dassi v. Ganoda Sundari Dassi (1914) 19 C.W.N. 84. 25. Mr. De, on the other hand, has contended that I should place no reliance on the allegations contained in paras. 20 and 21 of the petition because they contained no particulars of misrepresentation or suppression. It was open to the Respondents to ask for particulars of the petition and if necessary, even to apply for particulars of the petition Sitaram Poddar v. Hariram Poddar (1935) 40 C.W.N. 913, but nothing was done. Misrepresentation does not necessarily mean actual falsehoods, but may be by suggestio falsi and suppressio veri. I am not satisfied by the petition of the executors that it does not suffer from both. 26. Learned Advocate-General, leading Mr. Misrepresentation does not necessarily mean actual falsehoods, but may be by suggestio falsi and suppressio veri. I am not satisfied by the petition of the executors that it does not suffer from both. 26. Learned Advocate-General, leading Mr. Sanyal on behalf of the Applicant, has drawn my attention to the overwhelming fact that the application resulting in the order dated March 28, 1945, was made by the executors after more than thirteen years of administration and only a year and a half before the Applicant, as the sole residuary legatee, attained majority, I do not find from the petition of the executors, which resulted in the order in question, the reason why the executors sought a charter of liberty for expenditure, which they have been incurring out of the estate for so many years and the reason why it was necessary to make such an application after that length of time and when the residuary legatee was about to attain majority. Mr. De has drawn my attention to the auditor's report dated September 19, 1944, appearing as Ex. B to the executor's petition in Part V of the annexure of their petition and has relied on the words "perhaps due to abnormal economic "condition such difference (increase) may be explained and "justified, still care and endeavour should be employed to keep "expenses under proper control and within limits" and has argued that, because of this remark of the auditors, the executors felt the need of obtaining an order u/s 302 of the Indian Succession Act sanctioning the expenses. The argument is ingenious, but I think quite unsound. "To keep "expenses under proper control and within limits" is not to obtain ex parte order from court granting liberty to go on spending. Auditor did not make such a suggestion as Mr. De seemed to think. I do not consider increase of prices due to abnormal circumstances had anything to do with this question at all. What is questioned is that the expenses for which the executors obtained the sanction were not permissible at all under the will and the question was not whether increased amounts should be allowed. De seemed to think. I do not consider increase of prices due to abnormal circumstances had anything to do with this question at all. What is questioned is that the expenses for which the executors obtained the sanction were not permissible at all under the will and the question was not whether increased amounts should be allowed. The conclusion is irresistible that the real motive for the application by the executors was the thought that the administration after thirteen years was about to close and the sole residuary legatee was about to attain majority and the executors wanted to keep themselves protected and save their acts and expenditure being questioned and so obtained at the fag end of the administration, ex parte and without notice, a charter of "liberty" under the order of March 28, 1945. If this was not suppression or concealment or misrepresentation, I do not know what that is, especially where the conduct of executors in dealing with the estate is concerned and in respect of which law is so rightly jealous. 27. In my opinion, this is not fair conduct on the part of the executors. The duty of an executor is to be scrupulously fair. The standard of fairness demanded from the conduct of the executor is the highest and the utmost diligence or exacta diligentia is his only protection. Snell on Equity, 20th Ed., p. 146 and p. 260. I do not find that, from that point of view, the executors, in this case, have satisfied the standard of fair conduct which is at once their duty and obligation. While a special point is made by the executors of the enormous increase in prices since the commencement of the war and the enormous increase of the household and Deva Sheba expenses, as alleged in para. 27 of the petition, I do not find sufficient emphasis or presentation of the other aspect, viz., the enormous increase of the income of the estate which will naturally obviate the necessity of making an application for sanction of expenses. There was no difficulty in administration on the ground of the inability of the income of the estate to meet the expenses on account of rise in prices. There was no difficulty in administration on the ground of the inability of the income of the estate to meet the expenses on account of rise in prices. But the increase of income has come out in the petition only when one of the executors, viz., Pravash Chandra Mallik was certifying himself on his own good work for the estate with a view to increase his own salary as Chief Manager in para. 37 of the petition. That is neither proper presentation nor exacta diligentia. 28. I have carefully read the petition of the executors resulting in the order of March 28, 1945 and I have come to the conclusion that there has not been that proper and fair presentation of facts, which it was the bounden duty of the executors to do and all the more so, when they were obtaining that order ex parte without notice to the residuary legatee. I consider that the petition of the executors did not (i) state the reason why the application was made after thirteen years of administration and just on the eve of the residuary legatee attaining majority, (ii) state the reason why, if the income of the estate was sufficient to meet the expenses on the ground of rise in prices and when there was no question of inability of the estate to meet its expenses, this application for sanction of expenses for maintenance of persons mentioned in the first part of the order dated March 28, 1945, was made, (iii) pointedly bring out that some of the persons, at any rate, on whose account expenses for maintenance were claimed, were in fact legatees or annuitants under the will. If the testator had given such persons legacies or annuities under the will, then the executors should have expressly pointed out to the Court that, in addition to the legacies or annuities, some more payments were being made to them on the ground of maintenance which was obviously not the intention of the testator. I am not sure whether this can at all be done under the terms of the will. I am not sure whether this can at all be done under the terms of the will. I will mention only some of these persons, viz., Manoj Mitra, Manmohan Basu, Bibhuti Basu and Radha Kanta Basu, (iv) the executors were more anxious in the petition to make it appear as though the expenses have increased without sufficiently bringing it to the notice of the court that the income had also enormously increased which would obviate the necessity of such an order in 1945 and that such increase of income was only brought out to show the good work which the executor Pravash Chandra Mallik is supposed to have done for the estate so that he might obtain a personal benefit in the shape of an increase of his salary as Chief Manager. 29. I have come to the conclusion that the Court was overreached by the executors in making the order of March 28, 1945. In that view of the matter and on the authority of Rashmoni Dassi v. Ganoda Sundari Dassi (supra) I hold that the order is liable to be set aside. 30. I come next to the consideration whether such an order can be said to come properly within the jurisdiction and power contemplated and conferred by Section 302 of the Indian Succession Act. This consideration involves the question of construction of Section 302 of the Indian Succession Act. 31. The words of the section are seemingly wide enough when they use the expression "Any general or special directions in "regard to the estate or in regard to the administration thereof". Page J. in Provas Chandra Sinha v. Ashutosh Mukherji ILR (1929) Cal. 979, 988 was inclined to think that the court could not be competent, on an application u/s 302, to determine any disputed question of title and the issue of directions to the executor or administrator should be confined to the management and administration of the estate. The Privy Council decision in Secretary of State for India in Council v. Parijat Debee ILR (1935) Cal. 677 : L.R. 63 IndAp 61 does not throw much light on the construction of this section. There direction was sought u/s 302 by the Administrator-General who had accepted probate of the will to pay Parijat Debi her deceased son's share in the residue without production of Succession Certificate. 677 : L.R. 63 IndAp 61 does not throw much light on the construction of this section. There direction was sought u/s 302 by the Administrator-General who had accepted probate of the will to pay Parijat Debi her deceased son's share in the residue without production of Succession Certificate. There was no disputed question of fact nor complicated question of title or law. Sir Lancelot Sanderson, delivering advice of the Privy Council, beyond saying that "this section is in general terms as regards "application" (i.e., as to who can make the application) did not construe that section. 32. In my opinion, Section 302 should not be read in such a way as to make this section in the statute a substitute for a suit in any and every case relating to the estate or its administration. The legislature uses the word "directions", which, in my judgment, should receive a construction consonant to the ordinary meaning of that word. The word "directions" does not, in my view, mean adjudication and determination of substantive rights, but they mean, in my judgment, directions to help the executors in the difficulties in respect of practical management or administration, where no disputed question of title or difficult question of construction of will or complicated questions of law are involved. I fail to see what practical difficulties in administration or management there were in this case which called for an order of the nature made on March 28, 1945. 33. At this stage I will refer to some of the proceedings between the Applicant and the executors and which I consider have a bearing on the conduct of the executors and the directions I propose to issue on this application. 34. Ashit Kumar Ghosh attained majority on August 13, 1946. Within six of seven months thereafter, i.e., on March 31, 1947, he filed a suit, being Suit No. 838 of 1947, against the executors for construction of the will of Akshay Kumar Ghosh deceased, for removal of executors, for administration, receiver and other reliefs. 35. In para. 9 of the plaint in that suit the Applicant questioned the validity of the order of March 28, 1945 and contended the payments made in pursuance of that order were illegal and should be refunded. 35. In para. 9 of the plaint in that suit the Applicant questioned the validity of the order of March 28, 1945 and contended the payments made in pursuance of that order were illegal and should be refunded. An application was made in that suit for the appointment of a receiver and for the removal of the executors and by an order made by Clough J. on or about August 1, 1947, the learned Judge was not prepared to hold on the materials before him then that such payments were instances of maladministration justifying the removal of the executors. Learned counsel for the Respondent executors has, on that ground, attempted to argue that the Applicant cannot again question the validity of the order dated March 28, 1945, on the ground of res judicata. I have no hesitation in rejecting that argument. I have seen the order of Clough J. and I do not consider that he ultimately or at all decided this question on an interlocutory application to the prejudice of the Applicant, who as Plaintiff has this question as a main issue in the administration suit. 36. On May 30, 1947, another application was made in that suit by the Applicant for settlement of issues, for deciding a preliminary issue relating to the contention that the provision in the will postponing the possession of the Applicant till he attained the age of twenty-five is void and inoperative and for the expeditious determination of the suit. Clough J. made an order on July 21, 1947, answering the preliminary issue in the negative for the Plaintiff, holding the relevant clause in the will to be valid. On appeal, the order of Clough J. dated July 21, 1947, was set aside and it was held that the clause in the will was invalid and that the Plaintiff Applicant was entitled to immediate possession. 37. On August 12, 1948, Das J. passed the preliminary decree in the said suit and appointed the Applicant receiver without security and without remuneration. It was the usual preliminary administration decree, but the important clause of that decree for the purposes of this application was the following direction, viz., The Referee will take the accounts subject to any order or orders that may have already been made in the course of administration unless those orders be set aside. 38. It was the usual preliminary administration decree, but the important clause of that decree for the purposes of this application was the following direction, viz., The Referee will take the accounts subject to any order or orders that may have already been made in the course of administration unless those orders be set aside. 38. It is now contended by the Applicant before me that u/s 302 of the Indian Succession Act. I have in any event jurisdiction to grant special or general directions to the excutors to account for the monies spent under the order of Das J. dated March 28, 1945, so that in taking accounts under the preliminary decree the Referee may go into the question. I consider this argument of the Applicant to be sound and correct. 39. Ex parte orders made u/s 302 of the Indian Succession Act cannot, in my judgment, be res judicata and binding on the estate in such a manner that persons interested in the administration of the estate such as the Applicant will be bound by such order. Such ex parte orders u/s 302 of the Indian Succession Act do not, in my view, give any final protection to the executors, if on a subsequent enquiry it is found that the executors acted improperly. In this connection it is important to bear in mind the special legislative provision in Section 34 of the Indian Trusts Act, which provides that a trustee, stating in good faith the facts in a petition under that section and acting upon the opinion or direction given by the court, shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee. Almost similar indemnity is provided by Section 43 of the Trustees and Mortgagees Powers Act. That legislative indemnity is not given u/s 302 of the Indian Succession Act. From that, I conclude that an order u/s 302 of the Indian Succession Act does not provide that indemnity to the executor and the conclusion seems irresistible that acts of the executor under such an order remain questionable particularly when such an order was obtained ex parte. 40. Besides the terms of the order of the learned Judge "unless "Ashit Kumar Ghosh obtains direction to the contrary on "attaining majority" show that the learned Judge did not intend the order to be finally binding on the Applicant. 40. Besides the terms of the order of the learned Judge "unless "Ashit Kumar Ghosh obtains direction to the contrary on "attaining majority" show that the learned Judge did not intend the order to be finally binding on the Applicant. Further, the particular clause in the preliminary decree, which I have just quoted above, shows, in my judgment, that the learned Judge did not contemplate that the Referee in taking accounts will be concluded by the order of March 28, 1945, if the order was "set aside" and probable setting aside of the order was in his contemplation. 41. Out of deference to the arguments made at the bar, I will notice some of these arguments and the authorities cited in support thereof, if only to show why I do not propose to give my decision on them on an application u/s 302 of the Indian Succession Act. 42. The will of Akshay Kumar Ghosh appoints by Clause 1 the Respondent Pravash Chandra Mallik as one of the executors. Respondent Mallik was the Chief Manager of the estate and the will in that clause states that-- such Chief Manager has now been getting salary from the estate. In spite of his being appointed as executor he shall continue to get salary as the manager. 43. The law is jealous about executors. It is an admitted fact that Respondent Mallik was getting a salary of Rs. 500 per month at all material times until the order of March 28, 1945. The court never allows an executor or trustee any remuneration for his time and trouble, specially where there is an express legacy for his pains. That is so even when it appears that the executors have deserved more and benefited the estate to the prejudice of his own affairs, such as was the case made out in the petition of the executors in this case resulting in the order of March 28, 1945. The leading authority for this proposition is Robinson v. Pett (1734) 2 Wh. The leading authority for this proposition is Robinson v. Pett (1734) 2 Wh. and T.L.C. (7th Ed.) 606 : 24 E.R. 1049 and the Lord Chancellor made it quite clear in that case that an executor or administrator shall have no allowance for his care and trouble and the reason which the learned L.C. gave was that if such pretences were allowed the trust estate might be loaded and rendered of little value besides the great difficulty of settling and adjusting the quantum, of such allowance. There is no hardship in that rule of law, because a trustee or an executor may refuse to accept the trust or renounce the executorship. This rule has been followed in India and Wadia J. in Shivramdas v. B.V. NerurKar ILR (1937) Bom. 843 followed it and also drew attention to another reason for that rule, viz., the ground of prudence that a trustee may not put himself in a position in which his interest and duty come in conflict. An exception has been made for the solicitor trustee, who is allowed his costs, but that is only an exception and is not intended to apply to other class of person such as Respondent Mallik, as was pointed out by Lindley L.J. in In re Corsellis. Lawton v. Elwas (1887) 34 Ch. D. 675. The principle of Robinson v. Pett (supra) has also been followed in this Court in Narayan Coomari Debt v. Shajani Kanta Chatterjee ILR (1894) Cal. 14, 20. The cases on this well-settled principle are conveniently collected in White and Tudor's Leading Cases in Equity, 9th Ed., Vol. 2, pp. 555 to 576. 44. The case of Faster v. Ridley (1864) 46 E.R. 993 the Court permitted an allowance to the executors and trustees for the trouble and loss of time in managing the testator's leasehold property and carrying' on business. But that case was a case where parties entitled to three-fourths of the property desired the executors and trustees to carry on the business and there was no allowance or remuneration under the will. As was pointed out by Sir John Leach V.C. in Brocksopp v. Barnes (1820) 5 Madd. But that case was a case where parties entitled to three-fourths of the property desired the executors and trustees to carry on the business and there was no allowance or remuneration under the will. As was pointed out by Sir John Leach V.C. in Brocksopp v. Barnes (1820) 5 Madd. 90, 56 E.R. 829 that the trustee is not entitled to any compensation for personal trouble and loss of time and if the nature of the trust was such that a trustee ought not to undertake without compensation he should make a special case before the court before he accepts the trust and I do not know of any case where the executor as in this case not only accepted the trust without demur but continued on a salary of Rs. 500 per month for thirteen years of administration. 45. Principles governing allowances to non-resident trustees or payment of commission to them, as was the case In re Freeman's Settlement Trusts (1887) 37 Ch.D. 148 stand on an entirely different footing and appear to have no application to the facts of the present case. Lindley L. J. in In re J. Thorley v. Massam and in re W.R. Thorley Thorley v. Massam (1891) 2 Ch. 613, 624 observes as follows: The trustees and the executors apart from the will, could not charge for their trouble in carrying on the business of the testator. It would be competent to them if they did not like to carry on that business to have nothing to do with it. They need not take it unless they like. No implied right of remuneration would arise from the mere fact that they executed the trusts which they elected to perform. Nor could they in point of law frame a declaration based on any implied contract of payment, for the simple reason that they are the paymasters and the payees ; they are the persons to employ themselves and they cannot create any implied obligation to pay out of such a state of things. * * * * * They cannot get a shilling out of the estate either at law or in equity for their services except under the will. 46. * * * * * They cannot get a shilling out of the estate either at law or in equity for their services except under the will. 46. In that view of the law, the gift of salary to Pravash Chandra Mallik as Chief Manager would be considered as a legacy under the will or else the moment Mallik becomes executor he would be incompetent to draw any salary. Mr. De has drawn my attention to the case reported in Sarat Chandra Mukhopadhya v. Sadasiva Mitter (1938) 43 C.W.N. 172. The ratio in that decision is expressed clearly by Panckridge J. in the following terms: The court will not construe testamentary directions of this nature as trusts enforceable at the instance of the appointee unless the testator indicated his intention in unambiguous language. 47. I do not consider, on the present materials, that this case is of any assistance to the Respondent. There, no question arose as to the executor himself being appointed to some other capacity with a benefit attached to that capacity and therefore, the legal disability of an executor charging for his care and trouble was not under consideration. In any event, again this is a question which could hardly be decided in the absence of the residuary legatee as was done by the order of March 28, 1945. 48. On that basis of the law, it is possible to take the view of construction of Clause 1 of the said will that the case of executor Mallik to increase his salary as Chief Manager was misconceived in law and in equity. Again, Lewin points out at p. 403 (14th Ed.) of his Law on Trusts that, where a settlor has directed a remuneration to the trustee, but has not declared the amount, a reference will be directed to settle the quantum meruit according to circumstances of the case. I do not finally decide this question u/s 302, as I do not consider this to be a proper subject matter for adjudication under that section. I do not finally decide this question u/s 302, as I do not consider this to be a proper subject matter for adjudication under that section. I consider that it is a matter, in any event, of construction of the will on a very difficult and important branch of the law and is not a proper subject matter of directions to the executor in respect of the assets or its administration on a mere application u/s 302 of the Indian Succession Act and is, therefore, beyond the jurisdiction of that section. 49. The other part of the order purports to give liberty to maintain certain persons out of the estate. It is, I consider, a very serious order. This is not a question of mere management or administration of the estate, but of creating new bounties out of the estate, which, in my judgment, the court has no jurisdiction to do u/s 302, unless authorised by the expressed terms of the will. As at present advised, I cannot find any term in the will, which can be construed to produce such an effect. Indeed, the will grants certain legacies or annuities to the very persons who are under this order being given liberty to be maintained out of the estate and at the cost of the estate in addition to the legacies or annuities under the will. I fail to see, as at present advised, how the court can supplant the will of the testator and make a new will of its own and direct expenses to be incurred at the cost of the estate for maintaining people, whom the testator thought fit only to grant certain legacies or annuities. I have mot been able to persuade myself to the view that such a course is at all possible u/s 302 under the language of "directions "to the executors regarding the estate or its administration". In my judgment, such an order is beyond the jurisdiction conferred on this Court u/s 302 of the Indian Succession Act. Kindersley V.C. Re Lorenz's Settlement (1861) 1 Dr. and Sm. 401 (402) : 62 E.R. 433 (434) construed Section 30 of 22 and 23 Vic. Clause 35, whose provisions I consider in pari materia with those of Section 302 of the Indian Succession Act. Kindersley V.C. Re Lorenz's Settlement (1861) 1 Dr. and Sm. 401 (402) : 62 E.R. 433 (434) construed Section 30 of 22 and 23 Vic. Clause 35, whose provisions I consider in pari materia with those of Section 302 of the Indian Succession Act. In that case that learned V.C. observed as follows: Now, my understanding of that section of the Act is that it was intended by the legislature that the court should have the power to advise a trustee or executor as to the management and administration of the trust property in the manner which will be most for the advantage of the parties beneficially interested, but not to decide any question affecting the rights of those parties inter se, otherwise the effect would be that a deed or will involving the most difficult questions and relating to property to an amount however large, might be construed and most important rights of parties decided. 50. The executors, by obtaining the order of March 28, 1945, have saddled the estate with the cost of maintenance of a large number of persons and have decided their right to be so maintained and the executor Mallik, by the device of paying himself as a manager three times his salary, has saddled the estate with a large financial burden which the law prima facie prohibits. In that view of the matter, I do not consider that the order of March 28, 1945, in so far as it purports to achieve these two objects, is within the competence and jurisdiction conferred by Section 302 of the Indian Succession Act. 51. Mr. De has also argued that these expenses are authorised by Clause 18 of the will under the words "other necessary expenses". On the present materials, I cannot accept that argument. It would appear that clause, on a proper construction, may very well mean that the executors shall defray the expenses of the son mentioned in that clause for education and similar expenses in respect of that son and does not authorise the executors to introduce a large number of dependents, some of whom are annuitants under the will, to be maintained at the cost of the estate as "necessary expenses". In any event, the court, in my opinion, cannot and should not proceed to any construction without hearing the "son". 52. In any event, the court, in my opinion, cannot and should not proceed to any construction without hearing the "son". 52. Again, I consider, this is not a matter of summary disposal by directions to executors u/s 302 of the Indian Succession Act and having regard to the view I take of the scope and construction of that section, I consider it beyond my jurisdiction and powers under that section to determine. 53. It is necessary here at this stage to refer to two cases relied upon by Mr. De. The first is a decision of a single Judge of the Madras High Court in Akkayya v. Vanama Lahsharnima ILR (1927) Mad. 849. There, Devadoss J. observed that cases like re Lorenz's Settlement (supra) and Re Samuel Marie Brereton ILR (1883) Bom. 381 and in Re Lakshmibai ILR (1888) Bom. 638 have no application to proceedings u/s 302. I have not been able to see the reason why those cases and the principles laid down there are inapplicable to proceedings u/s 302. The language used by Section 302 is "directions in regard to the estate or to the "administration thereof". The language used in 22 and 23 Vic. Clause 25, Section 30 is also "Directions on any question respecting the "management or administration of the assets of any testator". The fact that that section also permits taking of opinion or advice does not, in my judgment, alter the effect of that section. Nor do similar words, in my view, of Section 43 of the Trustees and Mortgagees Powers Act make any difference when that section also uses the words "Direction on any question respecting "management or administration of the assets of the testator". I respectfully agree with the decisions in Re Samuel Marie Bereton (supra), in In Re Lakshmibai (supra); and Provas Chandra Sinha v. Ashutosh Mukherji (supra) and find myself unable to follow the decision in Akkayya v. Vanama Lakshamma (supra) and particularly the observations made therein at pp. 853-4. It is, in my view, not at all legitimate to enquire whether the legislature in India overlooked an English practice in the Court of Chancery. What is more important, in my view, is to find similarity of expression used in Section 30 of 22 and 23 Vic. Clause 25 and the construction put upon such similar expression. 853-4. It is, in my view, not at all legitimate to enquire whether the legislature in India overlooked an English practice in the Court of Chancery. What is more important, in my view, is to find similarity of expression used in Section 30 of 22 and 23 Vic. Clause 25 and the construction put upon such similar expression. I respectfully dissent from the observations of Devadoss J. in Akkayya v. Vanama Lakshamma (supra) where the learned Judge has said that the High Court has power u/s 302 to give the directions which the Court of Chancery in England has under Order 55, Rule 3. I find that observation of the learned Judge is based on the remarks of Kekewich J. in Conway v. Fenton (1888) 40 Ch. D. 512, 515. I prefer, however, to follow the decision of the Court of appeal in In re Giles, Real and Personal Advance Company v. Michell (1890) 43 ch. D. 391 and the observations of Cotton L.J. In my opinion, the substantive provisions of Order 55, Rule 3 of R.S.C. are not in pari materia either in language or in scope with Section 302 of the Indian Succession Act and it is not sound, in my judgment, to dissociate Sub-clause (g) of Order 55, Rule 3 of R.S.C. from the main and substantive part of Order 55, Rule 3. Order 55, Rule 3 of R.S.C. relates to the well-known procedure by Originating Summons, which, under the Rules of the Chartered High Courts and under Ch. XIII of the Original Side Rules of this Court, are available in this country. Application u/s 302 of the Indian Succession Act is not, in my judgment, intended to be an Originating Summons. The rationale of Originating Summons was merely a procedural reform, whereby, instead of having the old Chancery Administration Suit, a simpler procedure was made available by the. Summons. Therefore, Originating Summons has always been the historic successor of administration suit in Chancery or has been regarded as a suit: Haridas Chatterjee v. Saroj Kumar Chatterjee (1939) 44 C.W.N. 214 and Re Giles Real and Personal Advance Company v. Michell (supra). But not so, in my view, an application for direction u/s 302 of the Indian Succession Act. 54. Therefore, Originating Summons has always been the historic successor of administration suit in Chancery or has been regarded as a suit: Haridas Chatterjee v. Saroj Kumar Chatterjee (1939) 44 C.W.N. 214 and Re Giles Real and Personal Advance Company v. Michell (supra). But not so, in my view, an application for direction u/s 302 of the Indian Succession Act. 54. Section 302 of the Indian Succession Act is, in my judgment, neither a substitute for a suit or a substitute for an Originating Summons, but is a directory jurisdiction similar to that which Kindersley v. Clause considered in re Lawrence Settlement (supra). I am, therefore, unable to accept and follow the decision in Akkayya v. Vanama Lahshamma (supra) when it says "This "section (Section 302) gives ample power to the court to settle questions "arising between the executor and the legatees and between the "legatees themselves and also power to construe a will whenever "the court is asked to do so". I prefer to follow the construction put on Section 302 of the Indian Succession Act, by Fazl Ali and Monoharlall JJ. in Sudhansu Mohan Sirkar Vs. Harish Chandra Dutta, AIR 1940 Patna 194 and by the Lahore High Conrt in AIR 1934 120 (Lahore) and my own which I have given hereinbefore. 55. Mr. De, on behalf of the executors, has argued that the claim of the Applicant is barred by acquiescence. Executor's plea of acquiescence against the legatee, particularly one who has been a minor for the best part of the administration and who attained majority on August 13, 1946, does not impress me. Mr. De has relied on the decision of Abdul Kader Choudhury v. Upendra Lal Barua (1936) 40 C.W.N. 1370. I do not consider that, as a matter of fact, there has been any acquiescence at all and therefore, in my view the case, has no application. The order itself gives the Applicant the right to obtain necessary directions to the contrary on his attaining majority. Ashit Kumar Ghosh attained majority on August 13, 1946, and as I have said before, within six or seven months thereafter filed the administration suit, being suit No. 838 of 1947 and in para. 9 of the plaint questioned the validity of the order of March 28, 1945. Ashit Kumar Ghosh attained majority on August 13, 1946, and as I have said before, within six or seven months thereafter filed the administration suit, being suit No. 838 of 1947 and in para. 9 of the plaint questioned the validity of the order of March 28, 1945. During the pendency of the administration suit and in August, 1947, certain correspondence passed between the respective solicitors of the Applicant and the Respondents, which are annexed to the affidavit of the Respondents. I do not read the correspondence as a general acceptance of the order of March 28, 1945. Indeed, the very first letter in the annexure dated August 13, 1947, registers a complaint and asks for removal of certain persons. All that the correspondence shows is that the Applicant is prepared to allow his natural father and Satyendra Sinha to remain. If the Applicant as the sole residuary legatee of the estate is agreeable to pay for the maintenance of these gentlemen and having regard to the order, that I have decided to issue in this application, the Referee may allow such expenses for maintenance. I do not consider that, because the Applicant may be agreeable to bear the expenses of maintenance of his natural father and Satyendra Sinha, therefore, the Applicant has acquiesced in the order of March 28, 1945. Actually, on or about July 29, 1947, Clough J., I am told, restrained the executors from spending the amounts of maintenance under order dated March 28, 1945, at the instance of the Applicant. I should have considered that the proper conduct on the part of the executors, to say the least, should have been to stop spending any money when the suit was filed on March 31, 1947, where their conduct was questioned and should not have waited till an order of injunction or restraint was made upon them. 56. In the affidavit, which the executors have affirmed in opposition, to this application, it is remarkable that no indication is given by the executors as to the amount of monies spent under the liberty given in the order of March 28, 1945, from March 28, 1945, up to the date when they were restrained by order of dough J. as aforesaid. 57. 57. I, therefore, hold that, in so far as the order of March 28, 1945, is an order u/s 34 of the Indian Trusts Act, it was beyond the jurisdiction of this Court in its Testamentary and Intestate Jurisdiction, in which such application was moved, and in so far as a copy of that petition was not served on the person most interested in that application, I hold also for the same reasons that the said order of March 28, 1945, is, so far as it was made u/s 43 of the Trustees and Mortgagees Powers Act, to be without jurisdiction and liable to be set aside. I accordingly set aside that order of March 28, 1945, in so far as it was purported to be made under the Indian Trusts Act and the Trustees and Mortgagees Powers Act. 58. In so far as the said order of March 28, 1945, was an order u/s 302 of the Indian Succession Act, I hold that it can be set aside and discharged on the ground of (a) want of notice to the Applicant, (b) misrepresentation of facts and unfair conduct on the part of the executors and also (c) being beyond the jurisdiction and powers conferred by Section 302 of the Indian Succession Act. 59. In my judgment, the ex parte order u/s 302 of the Indian Succession Act of March 28, 1945, cannot, in any event, be res judicata or binding on the Applicant for the reasons which I have already given. I am of the view that, in any event and even without setting aside the order formally, I am entitled to issue both general and special directions on the executors now u/s 302 of the Indian Succession Act, upon hearing both the executors and the sole residuary legatee, being the only person interested in the estate, that payments purporting to have been made under order dated March 28, 1945, be re-opened and the propriety and the amounts of such payments be reported upon by the Referee and finally determined by the Court at the time of passing of the final decree in the said administration suit. The learned Advocate-General has submitted that, as both the executors and the sole residuary legatee are before me in this application, I may treat this application as an application in the said administration suit and finally determine the question of legality of the acts of the executors under the order of March 28, 1945. 60. I do not consider that will be the proper and advisable course, although the suggestion is a very practical one. The reason why I do not propose to do so is that I do not think such a course is permitted under the powers and jurisdictions u/s 302 of the Indian Succession Act and because this is an application in the Testamentary Jurisdiction of this Court. Besides, on the finding that the executors' acts under order dated March 28, 1945, were unjustified and illegal, the residuary legatee might be entitled to certain reliefs, which I consider will be more appropriate to be granted by the administration suit (where further materials and evidence may be available) than by this application. 61. I will indicate the principles on which the executors will account before the Referee and I direct the executors to account, not on the footing that the order of March 28, 1945, protects them or their expenditures of money under the said order from the scrutiny or examination of the Applicant before the Referee. The directions I give to the executors are: (i) The executors in their accounts before the Referee will not proceed on the assumption that expenditure incurred under para, (i) of the order set out above are justified and sanctioned. (ii) The executors will so account before the Referee that he receives every facility and is enabled to enquire and report as to the specific persons and their individual names on whose accounts and for what periods such expenses have been incurred and whether such expenses on account of each person have been excessive or not, the legality of an allowance for such expenses for each of such persons and the question of consequential reliefs remaining to be decided by the Court at the time of passing of the final decree in the administration suit. (iii) That all sums of money which the executor Pravash Chandra Mallik has drawn in his capacity as Chief Manager in excess of Rs. (iii) That all sums of money which the executor Pravash Chandra Mallik has drawn in his capacity as Chief Manager in excess of Rs. 500 per month under para, (ii) of the order set out above should be accounted for, so as to enable the Referee to make a report of the total amount so drawn in excess out of the estate by the said executor. As to the legality of such excess drawing and as to what relief the Applicant will get on account of such excess drawing will be finally determined at the time of the passing of final decree in the administration suit. 62. I, therefore, issue u/s 302, Indian Succession Act, both general and special directions on the said executors to submit true complete and detailed accounts on affidavit under the heads (i), (ii) and (iii) as indicated above so as to enable the Referee to make his report accordingly. 63. That part of the order relating to the purchases of Metiaburuz property and to costs of that application is maintained, as the Applicant is prepared to accept that part of the order. 64. I make an order accordingly and the Respondents should pay the costs of this application. Certified for two counsel.