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1970 DIGILAW 96 (PAT)

NATHUNI THAKUR v. MANBHANNA KUER.

1970-05-14

S.N.P.SINGH, S.SARWAR ALI

body1970
JUDGMENT This appeal arises out of an application filed by the appellant under Section 263 of the Indian Succession Act herein-after to be called "the Act," for revocation of the grant of letters of administration to Mostt. Manbharna Kuer, the respondent. 2. The relevant facts, which are not in dispute, may be briefly stated as follows. One Jaipragas Rai of village Bara had executed a Will dated the 30th of April, 1922. He died on the 15th of Kartik, 1340 Fasli leaving extensive properties all covered by the Will. Under the terms of the will Somaro Kuer, the widow of the testator and Mosst. Manbharna Kuer, the widow of his nephew, were given only a life interest in the properties left by the testator. After the death of the two widows, aforesaid, Nathuni Thakur, the Bhagina of the testator, would get four annas share in the properties of the deceased and the remaining twelve annas would go to a deity installed by the testator in village Bara of which the appellant and his heirs and legal representative are to be the Mota-wallis. Somaro Kuer being dead, the letters of administration were granted to Mosst. Manbharna Kuer, the respondent, on the 20th of September, 1939, She is admittedly in possession of the properties covered by the Will since then. 3. On the 31st of May, 1962, Natbuni Thakur filed the application under Section 263 of the Act for revocation of the grant of letters of administration to the respondent on the following two grounds, namely, (1) that the respondent has failed to furnish accounts or inventory within six months of the grant of letters of administration as ordered by the Court, and (2) that she has been mismanaging the properties and has wasted them in several ways to the detriment of the interest of the appellant and the deity, who are the absolute legatees under the Will Mosst. Manbhama Kuer filed a petition of objection in reply to the application filed by Nathuni Thakur under Section 263 of the Act. In that petition she alleged that Nathuni Thakur had been looking after the affairs and administration of the properties since the letters of administration were granted to her. Manbhama Kuer filed a petition of objection in reply to the application filed by Nathuni Thakur under Section 263 of the Act. In that petition she alleged that Nathuni Thakur had been looking after the affairs and administration of the properties since the letters of administration were granted to her. She also made an allegation to the effect that Nathuni Thakur filed the petition for revocation of the letters of administration because she is keeping in her house her husband's sister Dulhin Batma who was married to Sidh Nath Rai of village, Ujiar in the district of Batma, along with her two sons and they are helping her and looking after her comforts. Two witnesses were examined on behalf of the petitioner (appellant) and four witnesses were examined on behalf of the objector (the respondent). Some documents were also filed on behalf of each party. On the question of the failure by the respondent to submit accounts and inventory within the time given by the Court, the learned Additional District Judge bas taken the view that the objection must be deemed to have been waived as such a grievance was made after a lapse of more than twenty years from the date of the grant of letters of administration. On the question of mismanagement, he recorded his finding in these words : "The evidence and the other circumstances leave no room for doubt that the opposite party who is an old woman aged about 60 years is not in a position to manage the vast properties in which she has been given only a life interest under the terms of the Will. It is also possible that she has been dealing with the properties in a manner prejudicial to the petitioner and the deity who become the absolute owners on her death." In spite of the above finding he rejected the application of the appellant on the ground that it is not maintainable. 4. Mr. Kailash Roy appearing for the appellant did not press the appeal on the first ground, namely, failure on the part of the respondent to submit accounts and inventory within the time granted by the Court. On the second ground he railed twofold submissions. In the first place, he submitted that the enumeration of the circumstance. 4. Mr. Kailash Roy appearing for the appellant did not press the appeal on the first ground, namely, failure on the part of the respondent to submit accounts and inventory within the time granted by the Court. On the second ground he railed twofold submissions. In the first place, he submitted that the enumeration of the circumstance. in the Explanation to Section 263, which would make out a 'just cause' for the revocation of the letter of administration, is not exhaustive and as such the mismanagement and wasting bf the properties under the Will to the detriment of the absolute legatees under the will may be held to be a 'just cause' for the revocation of the grant. Alternatively, he contended that in view of the clear finding of the learned Additional District Judge that the respondent, who is an old woman aged about 60 years, is not in a position to manage the vast properties in which she has only a life interest under the terms of the Will, the instant case comes within Clause (d) of the Explanation to section 263 of the Act. 5. Mr. Roy did not cite a single authority in support of his proposition that the enumeration of the circumstances in the Explanation to Section 263, which would make out a 'just cause', is merely illustrative and not exhaustive. On the contrary, most of the High Courts have held that the words 'just cause' enumerated ill the Explanation to Section' 263 are exhaustive the earliest case which has been brought to our notice on this point is the case of (1) Annoda Prasad Chatterjee V. Kalikrishna Chatterjee and others (I. L. R. 24 Calcutta 95). In that case the scope of Section 50 of the Probate and At ministration Act, which is equivalent• to Section 263 of the Act, was considered and it was held that the words 'just cause' as explained in Section 50 are exhaustive and not illustrative. The decision in that case was followed by the Bombay High Court in the case of (2) Bal Gangadhar Tilak V. Sakwarbai (I. L. R. 26 Bombay, 792). The decision in that case was followed by the Bombay High Court in the case of (2) Bal Gangadhar Tilak V. Sakwarbai (I. L. R. 26 Bombay, 792). In the cases of (3) Sris Chandra Choudhary V. Bhaba Tarini Devi (A. I. R. 1928 Calcutta 695), (4) T. Arumuga Mudoliar, In re (A.I.R. 1955 Madras 622), (5) Promode Kumar Roy V. Sephalika Dutta (A.I.R. 1957 Calcutta 631), (6) K. N. Srinivasan V. C. Krishna lyengar and others (A.I.R. 1957 Mysore 74) and (7) In re Sureman Singh and another (A.I.R. 1969 Patna 183) the same view has been taken. It must, therefore be held to be a well-settled law that the enumeration of the circumstances in the Explanation to Section 263 of the Act, which would make out a just cause, is exhaustive and an applicant for revocation must in order to succeed bring his case within one of the different Clauses (a) to (e) of that Explanation to that Section. I may state here that Mr. Roy advanced an argument to the effect that in none of the cases any valid reasoning has been given for putting such a restricted meaning to the expression 'just cause' occurring in Section 263 of the Act and as such they are not binding on us. I do not find any substance in this contention. Some very cogent reasoning have been given in the earliest case reported in I.L.R. 24 Calcutta 95 and in the other cases the decision reported in I.L.R. 24 Calcutta 95 bas been followed. It is, therefore, not possible to hold that the view expressed in the cases, referred to above, is without any valid reasoning. I may further add that Mr. Kailash Roy could not give any persuasive reasoning for holding otherwise and giving a wider interpretation to the expression 'just cause' occurring in Section 263 of the Act. I, therefore, do not find any substance in the first contention which has been raised by Mr. Roy. 6. Now I will consider the alternative submission of Mr. Roy. As provided under Clause (d) of the Explanation to Section 263, 'just cause' shall be deemed to exist where "the grant has become useless and inoperative through circumstances". One of the illustrations given in the section, namely illustration (viii), is regarding a person, who bas become of unsound mind subsequent to the grant of a probate or letters of administration. As provided under Clause (d) of the Explanation to Section 263, 'just cause' shall be deemed to exist where "the grant has become useless and inoperative through circumstances". One of the illustrations given in the section, namely illustration (viii), is regarding a person, who bas become of unsound mind subsequent to the grant of a probate or letters of administration. Mr. Roy relying upon illustration (viii) submitted that the instant case is covered by Clause (d) of the Explanation to Section 263. According to Mr. Roy, the finding in the instant case that the respondent due to her old age is not in a position to manage the vast properties amounts to a finding that she is physically and mentally unfit to manage the properties. It is difficult to accept this contention of learned counsel. where is no evidence on the record to show that the respondent is of unsound mind. The evidence on the record only shows that the respondent being an old Purdahnashin lady cannot manage the properties all by herself and as such she has been taking help from others including Nathuni Thakur, the appellant. It is significant to note that in the petition filed by Nathuni Thakur no allegation that the respondent is mentally or physically incapable of managing the properties has been made. The main allegation is that of mismanagement and wastage of properties by alienation etc., as contained in Paragraphs 8 and 9 of the petition. It is, therefore, not possible to hold that the instant case comes within the mischief of Clause (d) to the Explanation of Section 263 of the Act. The finding of the learned Additional District Judge in substance amounts to a finding that the respondent is not managing the vast properties satisfactorily and there is the possibility that has been dealing with the properties in a manner which is prejudicial to the interest of the appellant and the deity. One of the allegations made against the respondent at the bearing of the case was that she had been getting Shikmi entries created in respect of Kasht lands in the name of Raghupat Prasad during the recent survey. The respondent admitted in her cross-examination that in the revisional survey Raghupat Prasad claimed Borne of the disputed lands as his Shikmi and she also admitted before the survey officer the claim made by him. It appears, however, from the order-sheet (Ext. The respondent admitted in her cross-examination that in the revisional survey Raghupat Prasad claimed Borne of the disputed lands as his Shikmi and she also admitted before the survey officer the claim made by him. It appears, however, from the order-sheet (Ext. l/b) that the claim of Raghupat was disallowed on the objection filed by Nathuni Thakur. This is the only instance where the respondent has acted against the ultimate interest of the appellant and the deity. No other instance was brought to our notice to show that the respondents tried to dispose of the properties or to create an interest in the properties which might adversely affect the appellant and the deity. In his evidence the appellant has stated that the lady received Rs. 5000/- as compensation after the vesting of the state in the State of Bihar and she received Rs. 44,000/- to Rs. 45,000/- as rehan money. He, however, could not give the details of the rehan bonds which bad been redeemed. The respondent in her evidence, however, denied having misappropriated the amount paid to her as compensation money. In absence of any reliable material on the record to show that she had wasted the money, it is difficult to hold that she has actually wasted the amount which she received as compensation. The only thing, therefore, which bas been established on the evidence is that she is not managing the properties properly and that she made an attempt to get the name of Raghupat entered as a Shikmidar in respect of some of the properties under the will but she failed due to the objection of Nathuni Thakur. Mr. J. C. Singh, learned counsel appearing for the respondent, rightly contended that the conduct of the lady in getting the name of Raghupat recorded as Shikmidar during the last survey cannot be taken into consideration in view of the fact that the application for the revocation of the grant is not founded on any such allegation. Apart from that, her attempt bas proved abortive because of the objection of appellant Nathuni Thakur. 7. Apart from that, her attempt bas proved abortive because of the objection of appellant Nathuni Thakur. 7. In the case of (1) Annoda Prasad Chatterjee V. Kalikrishna Chatterjee and others (I.L.R. 24 Calcutta 95) it was held that mismanagement of properties by the executor of an estate is not a ‘just cause' for revocating the probate under Clause (4) of Section 50, corresponding to Clause (d) of the Explanation to Section 263. In the case of (3) Sris Chandra Choudhury V. Bhaba Tarjni Devi (A.I.R. 1928 Calcutta 695) it was held that wilful withholding by the administrator of the legacies payable under the Will would be maladministration but maladministration is not just cause for revocation of the grant. In that case it was observed as follows: "The illustration as to how a grant becomes useless and inoperative is giver: in illustration (viii) Section 263. It seems to me that the clause contemplates that there is an administrator who, however under certain circumstance, is incapable of acting so that the estate is practically without an administrator; and it does not mean that there is an administrator but he is wilfully withholding the legacies payable under the Will." The above observation made in that case also goes against the contention of Mr. Roy that mismanagement of the properties due to old age comes within the mischief of Clause (1) to the Explanation of Section 263. Mr. Roy placed some reliance on a decision in the case of (8) Surendra Nath Pramanik V. Amrita Lal Pal Chaudhuri and others (A.I.R. 1920 Calcutta 584)" In that case it was held that Clause (4) docs not only apply to cases where the circumstances which have made the grant useless and inoperative were in existence at the date of the grant but it applies also to cases where the circumstances contemplated had happened since the date of the grant. In that case a number of English decisions were referred and it was observed as follows: "The real object which the Court must always keep in view is the due and proper administration of the estate and the protection of the interests of the parties beneficially entitled thereto." Mr. Roy relying on the above observation submitted that in the instant case also in the interest of the appellant and the deity the letters of administration granted to the respondent should be revoked. Roy relying on the above observation submitted that in the instant case also in the interest of the appellant and the deity the letters of administration granted to the respondent should be revoked. It is not possible to accept this submission as there is no material on the record to show that the respondent bad sold or otherwise dealt with the corpus of the properties under the Will to the detriment of the interest of appellant and the deity. It may be stated here again that an attempt to create Shikmi interest in a portion of the properties had already proved abortive. As the respondent has a life interest in the properties covered by the Will the interest of the appellant or the deity is not adversely affected if she utilises the income derived from the properties under the Will in any way she likes or even if she wastes the same. 8. As both the contentions raised by Mr. Roy fail, this appeal is dismissed. But in the circumstances there will be no order as to costs. SARWAR ALI, J. I agree. Appeal dismissed.