Jogendronath Bharati vs Ram Chunder Bharati

Pigot and Macpherson, JJ.—It is difficult to conjecture why this appeal has been brought and fought as it has been. The objection taken in appeal is that the order has gone in favour of allowing the present mohunt, who is the natural son, and as mohunt the representative, of the deceased mohunt, to take out execution of a decree for costs in favour of the deceased, who contested the probate case in which these costs were incurred by the present appellant; and it is contended that under the fourth section of the Certificate Act this order ought not to have been made, inasmuch as neither probate nor certificate nor letters of administration have been granted to the applicant.

The answer is that these costs were not costs, due by the debtor to a person as part of the effects of a deceased person; they were in truth costs due to the math as having been incurred in proceedings carried on behalf of the muth, although in the name of the deceased mohunt. We think that the justice of that contention, and that the truth of it may be properly inferred from all the proceedings, is clear. It is confirmed, if it wants confirmation, by the explicit statement to that effect in the written statement of the judgment-debtor, that the money due under the decree was not due to Pancham personally, but that the money due under the decree belonged to the Asthan, and therefore the case does not come within Section 4, and the appeal must be dismissed with costs.