Ramchandra Ramratan vs Ramgopal Onkarji and Others

Chaturvedi, J.—This is an appeal from probate proceedings. The facts are that one Shrinarayan Jaideo died on 10-11-1949 leaving no issue. -It transpired that on 20-8-1949 he had executed a will by which he made a bequest in favour of five persons Sitaram, Ramgopal, Ramkishan, Ramchandra and Hungarian for the management of the charity to provide for the distribution of alms and food to poor persons and for certain purposes of religious nature. Out of these five trustees, Ramkishan, Sitaram and Ramchandra applied for the probate of the last will left by Shrinarayan Jaidco.

The remaining two trustees did not join first; but it appears they joined later on. Meanwhile, one Raghunathdas had obtained possession of the documents of valuable securities and other movable property belonging to the testator. The trustees protested and with the consent of Raghunathdas and the trustees, the properties and the valuable securities etc. were placed in a safe the keys of which were entrusted to one (sic) for safe custody. The trustees, after applying for probate, put in an application for the appointment of a receiver for realisation of the outstanding.

After some time, Mr. Thakkar was appointed receiver and came in possession of the property of the deceased. In the probate proceedings Raghunathdas had contested on the ground that the deceased had donated all his property to him after the execution of the will. The District Judge held that Raghunathdas had no title and the will was proved. An order for granting of the probate was made in favour of the trustees appointed in the will. The executors then applied for handing over the property to them, but the District Judge passed an order that the property be returned to Raghunathdas.

An appeal against this order came before a Division Bench of this Court. The appeal was allowed and it was directed that the properties mentioned in the will be handed over to the trustees in whose favour an order granting the probate had been made.

The probate certificate has not yet been granted, for, the District Judge has laid down two conditions: the first, that the trustees must pay court fee from their own pockets, and secondly, that they must furnish securities to the extent of Rs. 98,167/13/-, The trustees made an application that the property being in the possession of the receiver, the court-fees must be paid from the estate left by the deceased. This contention has been rejected by the Court below and the first point in this appeal, is about the court-fees.

Now, it has been held in Deputy Commissioner of Lucknow v. Kali Charan 8 Ind Cas 695 (Oudh) (A), that Section 19I(1), Court-fees Act (corresponding to Section 24(1), Court-fees Act) is no bar to the hearing of the Applicant previous to the deposit of the court-fees. It is true that court-fee has to be paid. The simple question before us is whether it should be paid out of the estate of the deceased. Now from the facts narrated above, it will be clear that the interest taken by the Appellant under the will is not a beneficial interest, but it is merely the interest of a trustee.

If a trustee''s costs can be directed to be paid:from the estate of the deceased, certainly court fees on probate proceedings or necessary expenses in connection with an appeal therefrom can also be directed to be paid from his estate. In Cotterell v. Stratton (1872) 8 Ch. A 295 (B). the claim of trustees for costs was put on the same footing as that of mortgagees. In that case Lord Selborne observed:

The right of a mortgagee in a suit for redemption or foreclosure to his general costs of suit, unless he has forfeited them by some improper defence, or other misconduct, is well established, and does not rest upon the exercise of that discretion of the Court, which in litigious causes is generally not subject to review.

The contract between the mortgagor and mortgagee, as it is understood in this Court, makes the morrtgage a security not only for principal find interest, and such ordinary charges and expenses as are usually provided for by the instrument creating the security, but also for the costs properly incident to a suit for foreclosure or redemption.

In like manner the contract between the author of a trust and his trustees, entitles the trustees as between themselves and their cestuis que trust, to receive out of the trust estate all their proper costs incident to the execution of the trust. Those rights resting substantially upon contract can only be lost or curtailed by such inequitable conduct on the part of a mortgagee or trustee as may amount to a volation or culpable neglect of his duty under the contract. Any departure from these principles in the general course of the administration of justice in this Court would tend to destroy, or at least very materially to shake and impair the security of mortgage transactions and the safety of trustees.

In fact, such a departure instead of being beneficial to those who may have, occasion to borrow money on security or to repose confidence as to property in their friends- or neighbours, would, in the result, throw the former class of persons into the hands of those who indemnify themselves-against extraordinary risks by extraordinary exactions, and would deprive the latter class of the assistance of all who cannot afford, or are not inclined, to, bestow upon the affairs of other persons their money as well as their trouble and time.

These, observations were adopted by Jessel, M.R. in Turner v. Hancock (1882) 20 Ch. D. 303. (C) who, quoting the above, added:

It is not the course of the Court in modern times to discourage persons from becoming trustees by inflicting costs upon them if they have done their duty, or even if they have committed an innocent breach of trust.

The rule of the English law on the point has been succintly summarised at pages 127-128 of Williams on "Executors and Administrators" (Vol. l-13th edn.) in the following words:

Prima facie an executor who successfully propounds a will is entitled to have costs as between solicitor and client out of the testator''s estate. His right, resting substantially upon contract, can only be lost or curtailed by such inequitable conduct on his part as may amount to violation or culpable neglect of his duty under the contract. Persons named executors who have failed to establish the will naming them have no contractual or quasi-contractual rights to costs out of the testator''s estate.

The Indian law on the point is not different. It was held in Dayabhai Tapidas v. Damodardas Tapidas ILR 21 Bom 75 (D), that the fund primarily, liable to the costs of probate was the residuary estate. In Upendra Nath v. Bhupendro Nath 21 Cal WN 280 : AIR 1916 Cal 110 (E), it was laid down that in a suit for the construction of a will and for the administration of the estate left by the testator, the costs, in the absence of grounds established in favour of a departure should ordinarily be paid out of the estate.

Mr. Barjatia, learned Counsel for the Appellant, places reliance on Htin Gyaw v. Po sein Gyi AIR 1928 Rang 89 (F), for the proposition that grant of administration pendente lite requires'' court-fee but the person in whose favour the full, grant is subsequently ordered is, on termination of proceedings, entitled to such grant free of payment. No authority has been quoted in this case except an extract from Kinney''s Law relating to Estate Duty in India.

No other ruling in support of this proposition has been cited, and we do hot think it will be proper for us to go to this extent. But the proposition, is well established that the costs of an executor who successfully propounds a will must be paid out of the testator''s estate." We, therefore, think that the Appellant is entitled to get his costs, including court fees from the estate of the deceased which is as yet in the possession of the receiver.

Clearly, the District Judge''s order in this respect was wrong. Obviously, he has not gone through the provisions of Section 211(1), Succession Act, which state that:

The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such". The executor represents the estate (and can collect the assets or sell property) even before he had taken out probate, for the executor derives his title from the will, and not from the probate-. He can, therefore, dispose of the property of the testator without taking probate (See cases cited at page 270 of B.B. Mitra''s Indian Succession Act 1956 edition). The grant of probate does not give the executor his title; it makes his title certain. Hewson v. Shelley (1914) 2 Ch. 13 (G). Even without obtaining the probate he may do most things that appertain to his office; thus, he may take possession of the testator''s property, he may pay or take releases oil debts owing from the estate he may receive or release debts which are owing to it. For all these he Is entitled to get his expenses from the testator''s estate. In the present case, the learned District Judge seems to have fallen in error in disallowing the expenses of appeal against the decree passed in Civil Suit No. 7 of 1050 against the testator''s property. These expenses, ''in our opinion, must be allowed from the testator''s estate.

The next point urged in this appeal is about security to the extent of Rs. 98,167/13/- demanded by the learned District Judge. u/s 291(1), Succession Act, the ordering of security to be furnished by the executor on the grant of the probate Is purely a discretionary mailer with the Court. The Court has power, if it so desires, to issue probate without any security at all Zubaida Khatoon v. Mohamed Zakaria AIR 1938 Rang 67 (H). Where the discretion is exercised in a reasonable and judicial manner, the appellate court will not interfere with it unless very strong reasons are shown to persuade the Court that the result is incorrect.

Such securities are taken with a view to secure the proper administration of the estate of the deceased. It is contended before us in this case that the value of the property of the deceased testator has'''' considerably dwindled down. Both the houses Nos. 28 and 49 have gone out of the hands of the ''Receiver'' all the cash amounts and other valuables Shave been attached and auctioned; and all the proceeds have been taken away by one Motilal in penalization of his decree in execution case No. 49 of 1953.

Thus It will appear that very small property belonging to the deceased is left with the receiver now. The receiver in his written statement before us admits the correctness of these facts. Besides, the suits that are pending in Civil Courts and that had been decreed, the only property left in the stands of the receiver amounts to Rs. 800/- only. He also points out that a cash balance of Rs. 2377-3-0 is lying in the Court. He values the suits pending as well as those decreed at 20244-2-0. The learned District Judge never applied his mind to these facts. In our opinion he should consider all these facts and should see what can be the valuation'' of the property that may be actually handed over by the receiver to the executors and what security should be demanded from the executors for the due administration of the estate.

Security in such cases is required only to guard against malpractices and that amount should be deemed-sufficient which may afford reasonable protection against malpractices which require time to be carried out. The learned District Judge should also consider the trust re posed in the executors by the testator in his will. Fresh valuation of property which comes in possession of the executors should also govern the amount of court-fees to believed on the grant of'' a certificate of probate.

For reasons stated above, we allow the appeal on the first two points and order that the pro- bate fee should be paid from the testator''s estate and the expenses of appeal against the decree passed in Civil Suit No. 7 of 1950 should also be paid to'' the executors from that estate. As regards the amount of security and the amount of court-fees. We send the case back for disposal according to law in the light of the observations made above.

Shinde, C.J.

I agree