The Judgment of the Court was as follows:—

This appeal has been preferred from a decree dismissing a suit for administration. The facts necessary to be stated are the following:

One Gokul Krishna Das the testator had at the time of his death a 4-annas share in certain moveable and immoveable properties, the remaining 12 tnnas share therein belonging in equal shares to his brother Jadu Nath Das who was the Defendant No. 1 in the suit, the Defendants Nos. 3 and 4, and the Defendant No. 5. Gokul Krishna executed a Will on the 12th April 1912 and died on the 19th April 1912. In between these dates, on the 15th April 1912, he executed a codicil. He left a widow Gokul Mohini and two daughters Achinta Mohini Dasi and Balakdasi Dasi of whom the former died on the 5th November 1919, and the latter on the 4th December 1919. The Defendant No. 2 is the husband of Balakdasi. On the 11th April 1924, Balakdasi instituted the suit out of which this appeal has arisen. Originally the suit was instituted against the first five Defendants but subsequently five other Defendants were added on the objection of the Defendant No. 1, and the Defendants Nos. 3 to 5. The added Defendants are persons who are interested in certain businesses in which it was alleged that Gokul Krishna had a share.

The Will recited in paragraph 1 that the testator's family had properties and businesses, etc., in which the testator had a 4-annas share, and provided thus:— “Out of the total 16 annas share, my 4 annas share shall after my death come into possession and enjoyment of my widow Gokul Mohini Dasi. After her death my widowed daughters Achinta Mohini Dasi and Balak Dasi shall equally come into possession and enjoyment of the said 4-annas share left by me. On the death of my widowed daughter Achinta Bala Dasi, my daughter Srimati Balak Dasi shall come into possession and enjoyment of the properties left by me. On her death, her son born of her womb shall become the owner of the properties and residing at Malihati shall go on holding] an enjoying the same. If he does not reside at Malihati he shall not become the owner of the properties. If there be more than one son, then should only one of them reside there, my gadi will be maintained. If none of my daughter's sons come to reside here then my brother and brother's sons shall be the owners. God forbid, if during the lifetime of Achintamoni, my daughter Balak Dasi and the son born of her womb be not alive, my first daughter Srimati Achinta Mohini Dasi shall become the owner in possession. On her death my heirs in the paternal line shall be owners in possession according to shares.” In paragraph 2 the Brother Jadu Nath Das was appointed executor. In para. 3 it was enjoined that Jadu Nath Das shall duly perform certain pujas and other ceremonies and religious observances. In paragraph 4 it was provided that the profits derived at the end of the year after management of the estate should be kept with the common estate and improvements and additions to landed properties should be made out of the same and that the heirs and legatees should be owners in possession of the added properties as well in accordance with the provision of paragraph 1. The remaining paragraphs are immaterial now. By the Codicil the testator appointed a second executor, namely, the Defendant No. 2, directed Rs. 2,000 to be paid out of his estate for the marriage of Balakdasi's daughter and further provided,— “My heirs and legatees shall be entitled to withdraw, if they so like, the amount of profits that may be left in my share every year after management of my estate.”

About a year after Gokul Krishna's death the Defendant No. 1 applied for probate. The Defendant No. 2 appeared in the proceedings and objected to the grant of probate on the ground that the Defendant No. 1 had purposely omitted to mention some of the testator's properties with a view to conceal them. This ground was considered insufficient for refusal of probate and on the 4th July 1913, the District Judge ordered probate to issue jointly to the two Defendants. Neither of the two however paid the duty or took any further steps, but it is an admitted fact that the Defendant No. 2 did not meddle with the estate while the Defendant No. 1 acted as executor. We hear of no dispute till after the widow Gokul Mohini's death, or rather the death of Achinta Mohini which took place just a month later, when Balak Dasi thought of getting into possession of the estate with the result that disturbances followed and criminal proceedings arose. Eventually on the 30th January 1923, Balak Dasi applied for cancellation of the order which the District Judge had made on the 4th July 1913, for issue of probate. This application was opposed by the Defendant No. 1 but not by her husband the Defendant No. 2. On the 16th March 1923, the order for issue of probate to the Defendant No. 1 was cancelled by the District Judge. The Defendant No. 2 then stepped in and on payment of the duty on the 6th April 1923, obtained probate on the 12th April 1923. Two appeals arose out of these orders. These appeals eventually terminated on the 2nd August 1923, in a compromise on certain conditions. By this compromise the Defendant No. 1 undertook to file accounts and inventories by certain dates and it was agreed on that condition that probate would be granted jointly to both the Defendants. The compromise did not produce a change of hearts and the proceedings that followed amply show that the parties had again fallen out. The accounts and inventory were filed though not within the time stipulated for, but the explanation of the delay was accepted as satisfactory. Objections were filed in opposition by Balak Dasi and the Defendant No. 2, on which fresh accounts and inventories were filed by the Defendant No. 1. Ultimately on the 5th July 1924, the District Judge passed the following order: “The Court accepts the inventory and accounts filed by Jadu Nath Das without examining their correctness or otherwise. Let joint probate be granted as agreed on by the parties in their solenama before the Hon'ble High Court.” The Chapter did not close here because evidently the two executors were not willing to cooperate with each other even to the extent of using jointly the probate that was granted and there was a contest as to who should be entrusted with the original and who should take a copy. Eventually on the 15th July 1924 the District Judge got over the difficulty by making an order that the joint probate should be made over to the pleader for the Defendant No. 2, and the Defendant No. 1 might take out a certified copy if he felt any inconvenience in using the probate made over to his colleague. Soon after the compromise aforesaid Balakbala Dasi and the Defendant No. 2 seem to have thought that they had made a bad bargain by it and while the dispute as to accounts and inventory was going on in the Court of the District Judge, Balakdasi on the 11th April 1924 instituted the present suit.

The substantial allegations on which the Plaintiff rested her case were contained in paragraph 7 of the plaint and consisted of the usual charges of misappropriation, devastation and dishonest conversion of the testator's estate and wrongful withholding of legacies and accounts. The Subordinate Judge has dismissed the suit on the merits and also on the ground that it was premature and without a cause of action.

The plaint as framed is open to serious criticism and at one stage of the hearing of the appeal we suggested to the Plaintiff that it would perhaps be more to her advantage to withdraw with liberty for a fresh suit, but unwillingness was expressed on her behalf to adopt that course, in view of the fact that the Plaintiff's right to the legacy accrued so far back as 1919 and the present suit was instituted nearly six years ago and much time, trouble and expense have already been incurred. We heard the parties in full and considered the case in all its aspects and now proceed to express our views. But before doing so it would be better to summarize in a few words what are the matters in dispute on which decision is called for.

The prayers in the plaint are loosely worded and lie in a scattered form. Put roundly they are for taking an account of the testator's properties and for their due administration in accordance with the terms of the testator's Will and Codicil, for a personal decree against the Defendant No. 1 to the extent of his liabilities that may be found, and a decree for possession in respect of the testator's one-fourth share in the moveable and immoveable properties. There are six schedules of uroperties annexed to the plaint:— (Ka) immoveable properties; (kha) moveable properties; (ga) a money-lending business; (gha) a business in oil, called in the evidence the Darmahata business; (una) a landed property; and (cha) another newly opened business called in the evidence the Kidderpore business. The Plaintiff's case was that nothing had been paid by the Defendant No. 1 either to Gokul Mohini or to Achinta Mohini or to herself and not even the sum of Rs. 2,000 which had been directed to be paid for the marriage of her daughter. Her case further was that the Defendant No. 1 had sold the landed property (una) and with the money, obtained by the sale opened the business (cha). The Plaintiff filed two petitions for amendment of her plaint and by those petitions alleged that Dags 64 to 75 of Schedule (ka) were not the testator's properties but were subsequently acquired by the Defendant No. 1 out of the income of the testator's estate that came into his hands and also gave a list of some further properties which she alleged were similarly purchased.

In the trial of the suit there was a good deal of confusion. Evidence was adduced at random on both sides, neither the parties nor the Court keeping in view the distinction between the two stages that the Code contemplates in a suit for account and administration. (See Or. 20, r. 13, C.P.C, and the forms of decrees in Appendix D). Strictly speaking at the preliminary stage the only finding on which the suit could be dismissed was that there was no cause of action for the suit and the suit was premature but the Subordinate Judge has dealt with the merits as well. The first thing that we have to consider is whether the view of the Subordinate Judge on the preliminary question is correct. If it is correct then there is an end of the present suit; if not, then having regard to the fact that the parties have chosen to invite the Court's decision on various questions that arose and there being no complaint that any evidence was shut out, we must record our findings on such of those questions which may be dealt with at this stage.

On the question of maintainability of the suit, some arguments have been addressed to us on the footing of the Defendant No. 1 having been an executor de son tort. These arguments need not be considered as the Defendant No. 1 is an executor, in fact the only executor, nominated in the Will. He can not properly be called an executor de son tort who is a wrongdoer, but an executor who acted before probate [Rogers v. Frank (1) and Sykes v. Sykes (2)]. The Defendant No. 1 has admitted in so many words that he has been in possession and has acted since the testator's death as executor. The order passed by the District Judge in 1913 for issue of probate was not availed of by the Defendant No. 1 and it was not until after the institution of the suit that the Defendant No. 1 took out probate, and taking the view most favourable to him he was an executor acting all these years before probate. It has been contended before us that even before an executor has obtained probate, if in fact he has acted, an action for administration lies against him and in support of this contention reference has been made to the case of Meerza Kuratul-Ain Bahadur v. L.P.D Broughton (3). That was a case in which the executor named in a Will had applied for probate and on caveat being entered the application was set down as a contentious cause and the executor was appointed administrator pendente lite. It was a case in which the Plaintiffs admittedly had a two-thirds share in the estate even if there was a Will, and it was held that they could maintain a suit for administration against the administrator pendente lite. In support of this position reliance was placed in that case on Tichborne v. Tichborne (4) and In the goods of Evans (5) and the form of decree for administration against an administrator pendente lite given in Seton's Judgments and Orders, Vol. II. That was not a case in which a suit for administration was held maintainable against an executor. The true position seems to be that an action for general administration is not maintainable against an executor acting before probate [see per Lord Romilly in Cary v. Hills (6)]. An action for an account however was allowed by Lord Hardwick while a suit was pending in the Ecclesiastical Court, on the ground that Court had no way of securing the effects, in the meantime [Phipps v. Steward (7)], though this reason is no longer of any weight for the Probate Court has for some considerable time had the power of appointing an administrator pendente lite, and of course since the Judicature Act the Probate Division of the High Court has the power of appointing a receiver. Similarly it was held, that an action for discovery would lie against an executor before probate, or during the litigation of the Will, such discovery being for the benefit of all persons interested therein and necessary for the preservation of the estate [Dulwich College v. Johnson (8)], but since the passing of the Judicature Acts, as the Probate Division of the High Court has all the powers necessary to secure the testator's assets, all actions for the sole purpose of obtaining discovery have become rare. A bill for administration was allowed by Lord Lyndhurst [Blewitt v. Blewitt (9). See also Ambler v. Lindsay (10)]. On the other hand such actions have not infrequently been disallowed, it being held that in such cases the function of the Court is limited to granting protection to the estate [Baron de Feuchers v. Dawes (11)], even though the Defendant had possessed himself of part of the personal estate [Cary v. Hills ]. It will thus be seen that the practice can hardly be called settled. One thing however is clear and that is this that an executor who has acted may be cited to take probate [In the goods of Lister (12) and In the goods of Coates (13)] and be peremptorily ordered to do so [Mordaunt v. Clarke (14)]. He cannot discharge himself from his liability to account as executor by renouncing and paying his receipts to the executors who have proved [Read v. Truelove (15), see also the observations of Best, J., in Douglas v. Forrest (16)]. It seems to be an admitted feature in the present case that even after the Defendant No. 1 obtained probate in 1924 and till now the Plaintiff has not obtained her legacy and that little or nothing has been done in the shape of real administration of the testator's estate under the Will, in so far at least as the Plaintiff is concerned. Though it is a general rule that a Court of Appeal should not take into consideration anything that may have happened subsequent to the institution of the suit or at any rate after the termination of the proceedings of the trial Court, there are cases in which this rule may and should be departed from. [See Ramratan Sahu v. Bishnu Chand ]. One justifiable reason for such departure is where it will shorten litigation and best attain the ends of justice by preserving the rights of both parties. The Subordinate Judge was of opinion that the Plaintiff had failed to prove that there was waste, devastation or misappropriation but these are not necessary for a suit for account and administration [Khetramani Dasi v. Dhirendra Nath Roy (18)]. The Subordinate Judge moreover was of the view that until the Plaintiff had examined the account which the Defendant No. 1 had filed before the District Judge she had no cause for the action; but the accounts before the two Courts are for different purposes and the filing of accounts in the nature of accounts pendente lite in the Court of Probate would not bar the present suit [Kshitish Chandra Acharjya v. Osmond Beeby (19)]

In consonance with the view ex-tressed above, we hold that a, suit for administration was maintainable on the facts and in the circumstances of the present case, specially for the purpose of discovery. In our judgment it was necessary on the case stated in the pleadings of the parties before the Court, to construe the Will and to determine the assets regarding some of which there was serious dispute: one party alleging that some of the properties mentioned in the plaint are included in the assets of the estate sought to be administered, while the other denied it. In the matter of accounts also, in the events that have happened since the institution of the suit regard being had to the fact that the executor named in the Will has taken out probate, and has filed inventory and accounts,—justice of the case requires that the Plaintiff should not be driven to another suit, and that a preliminary decree for accounts should be made, in this suit covering the whole period of the management of the estate by the executor, from the date of the testator's death, to which the executor's possession as such relates.

There are several questions on which the Subordinate Judge has recorded his conclusions and we propose to express our views on them now.

One of these questions depends upon the construction of the Will and the Codicil, namely, whether the Plaintiff as legatee is entitled to possession of the properties. It appears from the Will that the testator was very keen about his gadi being maintained because he made it a condition precedent for his daughter's son or sons in order to be the owner or owners in possession that he or they should reside at his native village. But this does not indicate that it could not be the testator's intention that the Plaintiff may not enjoy the properties for her life living with her husband elsewhere. Cl. (4) of the Codicil, in our opinion, embodies only an enabling provision and does not take away from what was said about enjoyment and possession on the part of the Plaintiff in the Will. The Subordinate Judge, in so far he has expressed himself in his judgment as being of the view that the Plaintiff by the terms of the Codicil, is precluded from taking possession of the properties, is in our judgment not right. At the same time we think it was the testator's intention that the Defendant No. 1 as brother of the testator would perform the pujas, ceremonies, etc., mentioned in paragraph S. of the Will as before; and consequently provision will have to be made for setting apart properties either absolutely or with a charge thereon for the said purpose.

The next question is whether the Plaintiff would be entitled in the present suit to anything that may be found to have been due to and not paid to her mother Gokul Mohini and sister Achinta Mohini. The Subordinate Judge was of opinion that the Plaintiff's claim on this head cannot be allowed and for two reasons; 1st that the suit has not been instituted by the Plaintiff as the heiress of her mother or sister; and 2nd that the surplus income accruing during their period belonged to them and was their Stridhan property. We are not prepared to agree with the learned Judge in this view. It was not a specific legacy that was payable to Gokul Mohini; she was to enjoy and possess the properties for her life. The surplus income, if it remained in the hands of the Defendant No. 1, was an accumulation to the estate left by the testator, and must come to the Plaintiff to be enjoyed by her subject to the directions in the Will. On the question as to whether the whole amount that fell due to those two ladies were, in point of fact, paid out to them, we express no opinion as the accounts have not yet been investigated.

Then as regards the businesses in Schedules (gha) and (cha): The whole of the evidence bearing on the Plaintiff's and the Defendant No. 1's contentions on this head have been placed before us and we must say in agreement with the Subordinate Judge that it has been sufficiently proved that as regards the Durmahata business it closed on the death of the testator and it was only for realization of the dues that the business was carried on for about a year in his name; and that on final adjustment of account, Rs. 5,343 and odd that was found due to the estate of the testator was withdrawn and paid to Gokul Mohini. There is very reliable evidence to that effect. As regards the Kidderpore business, we are satisfied that it was a new business bond fide started in the name of Madhu Sudan Rudra. The Defendant No. 2 has himself said that the said business was closed after the testator's death and the assets were distributed amongst the partners. The question as to whether the assets due to the testator's share was paid out to Gokul Mohini is a matter on which we express no opinion, and whether she received the amount or it remained with the Defendant No. 1 is a matter on which the Defendant No. 1 will have to satisfy the Court in the course of the accounts that will be taken. But the Plaintiff has failed to prove anything which would justify us in holding that she is entitled to any other relief. In our judgment, there is no reason why the added Defendants should be kept on the record any longer.

As regards the properties which the Plaintiff alleges were purchased by the Defendant No. 1 with monies belonging to her father's estate, the question will have to be decided on the accounts that will be taken and in the light of the evidence that may be adduced in respect thereto after the investigation into the accounts.

We therefore allow this, appeal, and setting aside the decree appealed from send the case back to the trial Court so that a preliminary decree be at once passed in the light of the conclusions recorded and observations made above. Thereafter the case will be dealt with in accordance with law.

In view of the peculiar circumstances of the case the costs of the Plaintiff and of the Defendants Nos. 1 and 3 to 5 of this Court and their costs as well as those of the Defendant No. 2 of the Court below will be costs in the cause and the question of apportionment thereof will be decided by the Court below at the time it passes the final decree. The Defendants Nos. 7 to 10 will be paid their costs in both the Courts, and such costs will come out of the testator's estate. The Defendant No. 6 did not appear in the suit or in the appeal, and no order for costs is made in his favour.

S.C.M