JUDGMENT
1. This is a suit by the plaintiffs as assignees of the administration bond executed by defendants 1 to 4 and one M. Subbaraya Chetti in connexion with the grant of Letters of Administration by this Court to defendant 1 to the estate of, her deceased husband, Kandaswami Chettys. The plaint sets out that Kandaswami Chetti died issue less on or about 18th December 1898 leaving defendant 1, his widow and legal representative; that defendant 1 obtained Letters of Administration to the estate of her husband on 24th November 1899, having executed an administration bond dated 12th and 17th October 1899; that defendants 2, 3 and 4 and one M. Subbararaya Chetti joined in the execution of the necessary administration bonds as sureties; that by the terms of the administration bond defendant 1 bound herself to pay Rs. 1,43,873-10-7, defendants 2, 3 and 4 to pay Rs. 2,25,000, and Mallappa Subbaraya Chetti (whose legal representatives are defendants 5 and 6) to pay Rs. 88,000 to the Registrar of the High Court or his assignees in case defendant 1 did not administer the estate properly, that defendant 1 took possession as administratrix of her husband's estate of properties to the value of Rs. 1,70,000, but failed to administer it according to law; that she committed various acts of maladministration and waste and mismanaged the properties, that in Original Suit No. 218 of 1908 defendant 1 was found guilty of waste and mismanagement and a receiver was appointed, that by an order of this Court dated 5th November 1912 the administration bond executed by defendants 1 to 4 and M. Subbaraya Chetti was directed to be assigned to the plaintiffs herein, the nearest reversioners, to enable them to sue for the benefit of all parspns interested in the estate; and that the plaintiffs are consequently entitled to an account of defendant 1's administration of the estate of her husband on the footing of wilful default and to a decree against the sureties in respect of any sums that may be found to be due by reason of such default.
2. Defendant 1 filed a written statement denying any maladministration or waste or that any maladministration or waste was found by the Court in Civil Suit No. 218 of 1908. She also pleads that the suit is barred by limitation; that it is res judicata by reason of the decision in Civil Suit No. 218 of 1908; that the present relief asked for ought to have been asked for in that suit. She states that, as administration was over when she paid all the debt due by the estate and paid the residua over to herself as the next heir lawfully entitled to get it and since everything intended to be dona to administer. She estate was done before 1902, the suit is barred by limitation, and that assuming any waste to have been committed it would not be in the course of administration so as to entitle the plaintiffs to any relief. Defendants 2 to 6 filed written statements denying any waste or maladministration and containing similar allegations. The other defendants filed written statements containing similar allegations. The following issues were settled:
1. Was defendant 1 guilty of the acts of waste and maladministration alleged in paras. 5, 6 and 7 of the plaint?
2. Are the sureties liable for acts of waste, if any, after the filing of the inventory and payment of the debts?
3. Is the suit barred by limitation?
4. Is the suit barred by Civil Suit No. 19 of 1902 and Original Side Appeal No. 2 of 1904?
5. To what relief are the plaintiffs entitled?
3. Issue 2.—Kandaswami Chetti, the husband of defendant 1, died issueless on 18th December 1898 and Letters of Administration were granted to his estate to defendant 1. The grant is marked 1 in this suit. A schedule is annexed giving a list of properties moveable, immovable and out standings. The usual administration bond was executed by defendant 1, and defendants 2 to 4 and M. Subbaraya Chetti, uncle of defendants 5 and 6. The terms of the bond were as follows:
“The condition of this obligation is such that if the above bounden Ami Sannyasi Ragammal the administratrix of the property and credits of Ami Cundasawmy Chettiar, late of Madras but now deceased, ado make a true inventory of the said property and oredits which have or shall come to the possession or knowledge of the said Ami Sannyasi Ragammal administratrix or to the possession of any other person for her and the same so made to exhibit into the said High Court within six months from the date of the grant of administration to the said Ami. Sannyasi Ragammal and within a year from the said grant of adminisiration do make and render a true account thereof; and further the said property and oredits of the deceased do well and truly administer according to law, and all the rest and residue of the said property and credits, which shall be found remaining upon the said administration account, she the said Arni Sannyasi Ragammal, do deliver and pay unto such person or persons as shall be lawfully entitled thereto, then this obligation to be void and of no effect, or else to remain in full force and virtue.”
4. It is clear the liability under the administration bond is confined only to such acts of waste and mismanagement as can be attributable to defendant 1 as administratrix and not to any such acts attributable to her as the widow in possession of her husband's estate under Hindu law after administration was over. In the present case defendant 1 was both administratrix and heir and the question is, when she ceased to be the administratrix and became clothed with the larger powers of heir. I am of opinion treat as soon as the duties imposed on her by the Probate and Administration Act were complied with the administration of the estate was over and any subsequent acts of waste or mismanagement would be by her as widow which, though giving the reversioner certain right, could not be covered by the terms of the administration bond. It is argued by Mr. Venkatasubbarao for plaintiff that a Hindu widow is bound to preserve the estate for the benefit of the reversioner and that consequently when a widow takes out Letters of Administration the estate is handed over within the meaning of the administration bond “to such person or persons as shall be lawfully entitled thereto,” only when it comes into the possession of the next full male owner. I do not think there is any authority for this proposition. A widow is as much the heir of an intestate as any male successor and she represents; the estate just as fully as any other person. The fact that her powers of disposal are—curtailed will nonetheless make her the person to whom the administrator, if he were a third party, would be bound to deliver the estate as directed both by law and the administration bond.
5. Under the terms of the administration; bond defendant 1 as administratrix had to do the following: (1) to file an account and inventory showing assets and liabilities; (2) to file an account showing the assets which came into her hands and the manner in which they have been applied and disposed of; (3) to administer the estate property, and (4) to pay the residue to the person entitled.
6. The duties of an administrator are set out in Ch. 7, Probate and Administration Act and the condition in the bond to administer the estate properly must be taken to mean that the duties imposed on an administrator by the Act should be performed. As soon as the administrator has performed these duties the administration must be deemed to be at an end and when the person entitled to the estate is the executor or administrator himself subsequent possession and act are attributable to him not as administrator but as heir. It is no doubt true that an executor or administrator cannot divest himself of liability in respect of any claim or duty arising out of the duties imposed upon him by law as such executor or administrator by handing over the estate to the heir but this does not affect the question as to the period when the executor or administrator must be deemed to have duly administered the estate, and if he is the heir, to have clothed himself with the larger powers of heir. As pointed out by Fletcher Moulton, L.J, in Solomon v. Attenborough(1), while no one can put a time limit to the office of executor or say that he has ceased to be executor because he has passed his accounts and though some claim might turn up which would find and not recreate him executor that has nothing to do with the rights and liabilities created by the handing over of the estate to the rightful heir after the inventory and accounts have been filed and the statutory obligations as to collection of outstanding and payment of debts have been discharged. The position of a Hindu widow who takes out Letters of Administration was considered in In the goods of Nursing Chunder Bysaeh(2), and it was held that when there are no debts and legacies to be paid and the administration is at an end the widow who obtained Letters of Administration is in possession of the estate not as administratrix but as the widow and heiress. I am of opinion that as soon as defendant 1 did the acts required to be done by law as administratrix, such as the filing of an inventory and account, payment of debts payable by the estate of the deceased, etc., the liability of defendant 1 and the sureties under the administration bond ceased and that any subsequent acts should be attributed to her as heir and not as administratrix but as a widow in possession as heir.
Issue 3.—It is not disputed that a suit to enforce a bond subject to a condition should he instituted within three years from the poriod when the condition is broken. The present case falls under Article 68, Sch. 2, Limitation Act. In cases where the bond contains successive covenants each breach gives a separate cause of action but the date of the last breach is the starting point of limitation in a suit on the bond when the bond is conditioned on the performance of several acts and the obligation to pay is enforceable till the last of the conditions is fulfilled.
7. In the present case Kandaswami Chatty the person to whose estate Letters of Administration were granted to defendant 1 died on 18th December 1898. Letters of Administration were granted on 24th November 1899, the administration bond was signed by defendant 1 on 12th October 1899 and by the other sureties on 17th October 1899. Inventory and accounts were filed on 11th February 1901. In November 1901 Subbaraya Chetty one of the sureties applied to be discharged but his application was rejected. He filed Original Suit No. 19 of 1903 praying to be discharged. In his plaint, Ex. B-6, he alleged that administration of the estate was complete with the exception that five individuals referred to in para. 21 of the plaint had not been paid. Defendant 1 filed a written statement (Ex. B-7) alleging that the surety had caused loss to the estate by mismanaging the same and that all the debts due by the estate had been paid except certain legacies due under the will of one Kuppu Chetty to whose will Kandaswami Chetty, her husband, had taken out probate. This suit was dismissed. So far as the breaches complained of in the plaint are concarned it is admitted that no breach can be established which is within three years prior to suit except non-payment of the legacies due to the legatees under Kuppu Chetty's will, one of whom Venkatasiva Chetty alias Murugesa Chetty filed Original Suit No. 345 of 1911 on the file of the City civil Court and got a decree for the legacy due to him under Kuppu Chetty's will. It is conceded that unless the payment of the legacies payable under the will of Kuppu Chetty can be treated as part of the administration of the estate of Kandaswami Chetty there would be no breach within three years before suit. All the breaches of duty now complained of were alleged in Original Suit No. 218 of 1908 by the present plaintiffs who then sued as reversioners and it follows that the terms of the bond were broken and the bond) became payable three years before suit.
8. It was argued by the plaintiff's vakil that payment of the legacies payable under the will of Kuppu Chetty was part of the duties of defendant 1 as administratrix of Kandaswami Chetty's estate and that as they were not paid till within three years before the present suit, it must be taken that administration continued till then and that there was a continuing breach of duty till the legacies were paid.
9. Kuppu Chatty died leaving a will (probate of which has been marked as Ex. A) bequeathing the residue of his estate to Kandasawmi Chetty (defendant 1's husband) who obtained probate. The will gave a few small legacies. These were of Rs. 500 each to his brother's sons with a direction to pay them with interest at 6 per cent when they attained 18 years. Another was a sum of Rs. 500 to be paid to Kanniammall at any time after she demands “after she begets a child.” The will provides that Kandaswami Chatty “shall from the whole of his property take out and set apart the legacies” and left the whole of the residue to Kandasami Chetty.
10. There is no evidence as to what Kandaswami Chetty did but it is conceded that he died without paying the legacies. The case is now where an executor dies without having fully administered the estate. It is clear that under the law as it stands in India the administrator of an executor is not a derivative executor and that on the death of an executor or administrator without having fully administered the estate the duty of carrying on the administration of that estate will not devolve upon the deceased executor or administrator's personal representative but on a person appointed for the purpose under Sections 19 and 45 of the Probate and Administration Act (corresponding to Section 196 of the Succession Act). I need only refer to De Souza v. Secy of State(3) and the observations of Mookerjee, J., (at p. 403) in Baroda Prasad Banerjee v. Gajendra Nath Banerjee(4). In Narasimmulu v. Gulam Hussain Sait(5), it was held that the word “may” in Section 54 of the Probate and Administration Act means “shall” and that unless Letters of Administration de bonis non are taken out the estate of a testator is not represented on the death of the executor with probate.
11. If Ragamtnal, defendant 1, did not represent the estate of Kuppu Chetty it was not any part of her duty to pay the legacies payable under Kuppu Chetty's will and so payment of legacies which Kandaswami Chetty was bound to pay as executor would not come within the scope of administration of his private and personal estate.
12. It is argued that Kandaswami Chetty's estate became liable to pay the legacies as he was an express trustee under the will of Kuppu Chetty. There is nothing in the will constituting him a trustee for the legatees, and unless the will creates a trust the executor will not be an express trustee but will simply be an executor. In Royal General Theatrical Fund Association v. Kydd. In re Lacy(6) it was held that executors were not express trustees merely by virtue of the office in the absence of any trusts imposed upon them by terms of the will: Dacre v. Patrickson(7). In re Davis, Evans v. Moore(8), Rowe, In re, Jacobs v. Hind(9), lay down the same rule. Several cases have been cited by the plaintiffs' vakil, but they are also cases where the executor was constituted trustee by the terms of the will and where he became one by express declaration on his part or by his acts from which the law implied the creation of a trust which did not exist before.
13. It is also argued that Kandaswami Chetti who was the residuary legatee must be presumed to have assented to the legacies payable by the will of Kuppu Chetti and that consequently he became personally liable and that the assent made him a trustee or at least a debtor so as to make the payment part of the duty of his administratrix. Mere assent to a legacy does not convert an executor into a trustee unless he has separated the fund and set it apart: In re Barker, Buxton v. Campbell(10). It does not transfer the liability from the estate of the deceased and fasten it on to that of the executor so as to make it a debt payable by his executor or administratrix in the usual course of administration. The following observations of Kekewich, J. in Rowe, In re, Jacobs v. Hind, are in point:
“I am not disposed to think, without direct authority, that an executor, by assenting to a legacy, mikes himself, a trustee of that legacy. What he does do is this: he makes himself liable to pay out of his own moneys; that is quite possible, but that does not make him a trustee or even a debtor.”
14. Even assuming that Kandaswami Chetti assented to the legacies payable under Kuppu Chetti's will the only consequence would be that in a suit for the legacy he could not plead want of assets and if he has reserved no assets he might be compelled to pay out of his pocket. I do not think that a mere contingent liability to pay as executor or administrator of another estate can be treated as a demand on his private estate so as to postpone the completion of the administration to his estate in case he dies without paying the legacies. No doubt Section 85 of the Probate and Administration Act makes demands and rights of suit of or against the deceased survive to and against an executor or administrator, but this does not necessarily prolong the period of administration beyond the payment of funeral and testamentary expenses and the debts and legacies payable by the deceased. The test is he there the executor or administrator can resist a suit by the heirs or beneficiaries for delivery to them of his state on the ground that the deceased was himself an administrator or executor of another estate and his estate might be called upon at some future date to meet some possible demand. When Kandaswami Chetti died he was executor of Kuppu Chetti's estate and there is no evidence that he did anything to constitute himself a trustee or to make himself personally liable to pay the legacies as a debt. The legacy still remained a legacy and the rights of the legatees were to proceed against the estate of Kuppu Chetty though they had the right to proceed against Kandaswami Chetti's estate if there was any and the assets of Kuppu Chetti were thereby made insufficient to pay the legacies. Under these circumstances I do not think the payment of the legacies due under Kuppu Chetti's will was any part of the duties of the administratrix of Kandaswami Chetti's estate.
15. It is, no doubt, true that both defendant 1 and Subbaraya Chetti, one of deceased sureties, thought that the administratrix of Kandaswami Chetti was bound to pay the legacies under Kuppu Chetti's will, but an idea of liability based on the erroneous view of law that an administratrix of an executor represents the original estate will not affect the rights and liabilities of the sureties under an administration bond or extend the period of limitation.
16. As it was conceded during the argument that subsequent to 1908 there were no debts of Kandaswami Chetti to be paid or assets to be realized if the legacies payable under Kuppu Chetti's will are excluded I am of opinion that defendant 1 as administratrix became functus officio and that at least from 1908 she should be treated as being in possession as heir. This view is strengthened by the fact that the present plaintiffs filed Original Suit No. 218 of 1908 as reversioners against defendant 1 as a widow in possession as heir under Hindu law and got a receiver appointed. The cause of action on the administration bond arose at least prior to 1909 and the suit is, in my opinion, barred by limitation.
Issue 4.—The present suit is brought by plaintiffs as assignees of an administration bond while they were suing as reversioners under Hindu law in the previous proceedings. It is difficult to see how the decision in those proceedings can be res judicata. This issue was not argued or pressed.
Issue 5.—Though not raised by the issues Mr. G. Krishnasamy Aiyaj who appeared for defendant 5 contended that the administration bond was void as it was executed in favour of the Registrar of the High Court and not in favour of the Judges of the High Court as required by Section 78 of the Probate and Administration Act. His argument is that as the section requires the bond to be given to the Judge, the High Court had no power to make rules contrary to the express provisions of the Probate and Administration Act. Reference was made to Debendra Nath Datt v. Administrator General of Bengal(11), where it is stated in the judgment of the Chief Justice that the administration bond was at one time in the name of the Registrar and subsequently taken in the name of the Chief Justice as it was thought that the Registrar was not the proper person. It is unnecessary to consider this point as it is clear that it is not open to the sureties, on the faith of whose bond the estate was ordered to, be administered by defendant 1, to dispute the validity of the bond. It was open to the High Court apart from the provisions of the Probate and Administration Act to make an order conditional on security being given and in the present case it is not disputed that the grant would not have been made if the sureties did not sign the bond sued on. It does not lie in the mouth of the sureties to say that the High Court had no power to take the bond in the form in which it was taken.
17. As I have found issues 2 and 3 in favour of the defendants it is unnecessary to decide issue 1. The suit fails and is dismissed. The bond was assigned to the plaintiff by an order of the High Court and in Civil Suit No. 218 of 1908 a receiver was appointed permanently on the ground that defendant 1 was mismanaging the estate as widow in possession of her husband's estate. I think this is a case where the costs of the plaintiff and the sureties, defendants 2 to 6, should be paid out of the estate. The receiver will pay their taxed costs.
S.N/R.K
18. Suit dismissed.