Jenkins, C.J:— This is an Appeal from a judgment of Chaudhuri, J., in a suit brought against Mr. Osmond Beeby, a former Administrator pendente lite of the estate of Dakshina Mohan Roy, for a refund of remuneration alleged to have been retained by him in excess of what was his due.
The order appointing the Defendant to be Administrator pendente lite provided for his remuneration by the allowance of “a commission of two per cent on the assets that will come into his hands.”
Dakshina Mohan Roy at the time of his death was indebted to the Bank of Bengal, the National Bank of India, and the Comptoir National D' Escompte De Paris. Against this indebtedness each bank held Government securities, the total value of which was Rs. 6,40,942-8-10. The indebtedness to the several banks was discharged out of the sale-proceeds of the Government securities with the result that a balance of Rs. 29,215-4-5 only came to the hands of the Administrator pendente lite. He has, however, retained a commission of 2 per cent on the Rs. 6,40,942-8-10. To this exception is taken by the Plaintiffs in this suit.
What we therefore have to decide is, whether this sum, representing the full value of the Government securities, can be regarded as assets of the deceased that came into the hands of the Administrator pendente lite. Chaudhuri, J., held that there was a pledge to each of the banks and that the banks were entitled to possession of these securities and had possession of them as pledgees. There is no ground of appeal directed against this finding, and I think we ought to accept it as correct.
There is no evidence as to how these securities were endorsed, but this at least is certain, that there is no suggestion that they were endorsed by Mr. Beeby.
At the same time we know they were sold and transferred by the banks, so that it is conceded they must either have been endorsed in blank or endorsed to the several banks. In either case each bank, as to the securities held by it, would be a holder for value at any rate to the extent of the sum for which it had a lien. To borrow the phraseology of English law, by the delivery of the securities so endorsed there passed a legal and not a mere equitable interest. [See per Lord Ellenborough in Scott v. Franklin]. How then can it be said that these securities to the extent of the amount for which each bank had a lien, were assets of the deceased which came to the hands of the Administrator pendente lite?
For Mr. Beeby it is argued that though his claim could not have been sustained had the securities been mortgaged, still as the banks were only pledgees the same difficulty does not arise; for that under those sections of the Contract Act which relate to pledges the property in the securities did not pass to the banks. In the circumstances it is contended, the sales of the securities must be deemed to have been made by the several banks as agents for Mr. Beeby. But can it be fairly said that the banks sold as the agents of Mr. Beeby?
True it is that the brokers by whom the sales were effected were the firm nominated by Mr. Beeby, and under the provisions of the Contract Act the banks were not entitled to sell at the time when the sales were effected. But I cannot think that the banks in selling as they did were acting as the agents of the Administrator pendente lite.
Moreover, the banks were not only pledgees, they were also holders for value of these negotiable instruments with the consequent rights that belong to that position; and in the circumstances I am unable to hold that so much of the sale-proceeds as the several banks applied to the discharge of the debts due to them, were within the description of assets that came into the hands of the Administrator pendente lite.
But then it is said that the present Plaintiffs are estopped. These Plaintiffs are a purdanashin lady and a minor. The lady succeeded to a widow's limited interest at the deceased's death, and the minor, by surrender of all previous limited interests to him as the next male reversioner on the 16th August, 1905, then became and now is, the full owner of the deceased's estate. What is charged against the Plaintiffs is that the accounts of the Administrator pendente lite were passed, and that the Plaintiff, Sreemutty Sindhubala Debi, with full knowledge of their contents, including the charge of this commission, through her agent and attorney raised no objection though she had full notice. And in this connection reliance is placed on a conversation alleged to have passed between Mr. Beeby and the attorney in the Bar Library when the attorney expressed an opinion that Mr. Beeby was justified in making this charge. But I fail to see how any estoppel arose. When the procedure followed on the passing of accounts is borne in mind, it would be dangerous to hold that this alone would suffice for the purpose of forming the basis of an estoppel, nor can the Plaintiffs be bound by this casual conversation. But apart from that, how can it be said that the conditions prescribed by sec. 115 of the Evidence Act have been established? Even if it be assumed that the Plaintiffs represented that the charge was rightly made, still it had to be observed that the accounts represented the 6 lakhs as having been received by Mr. Beeby And had that been the fact, then he would have been entitled to the commission shown in the accounts as retained by him.
Nor can I see what act was induced by the Plaintiffs; his appropriation of the amount of the commission was before the passing of the accounts, as also was his departure for England.
But if the Plaintiffs are not estopped, are they debarred by laches or acquiescence from enforcing their claim? I think not. This is not a case of opening a settled account so much as enforcing a claim against a fiduciary agent on the ground that it has been discovered that he has retained more of the estate than he was entitled to under the order authorising his remuneration.
The defence of laches cannot prevail when, as here, a statutory period of limitation is prescribed. Nor can acquiescence be imputed to the Plaintiffs, for though Mr. Beeby's accounts as passed showed the retention of the amounts now sought to be recovered, still these accounts represented the 6 lakhs odd, on which the commission was calculated, as received by him.
There is no evidence to show that the Plaintiffs actually knew the facts as represented in the accounts to be incorrect, or that they did not rely on that representation, and the inference therefore is that they did so rely. [Redgrave v. Hurd].
In saying this, I do not forget the aleged conversation with Mr. Bhupendra Nath Bose in the Bar Library.
The broad facts are these, if my view of the extent of Mr. Beeby's right to commission is correct; an Administrator pendente lite has retained as his remuneration more than he was entitled to claim: his accounts, contrary to the fact, represented receipts by him entitling him to the commission retained by him and a suit is now brought against him to recover that amount within the time allowed by law.
I hold no answer has been shewn, and I therefore would not disturb Mr. Justice Chaudhuri's decision on this part of the case.
Then three points have been raised by way of cross-objection. First, it is said that the Administrator has charged commission on the basis of the deceased being entitled to a ¼th share in the family property, whereas his share was only 1/5th. I am not prepared to dissent from the view taken by Chaudhuri, J. The share was originally ¼th, and I think it may fairly be said that this share came into Mr. Beeby's hands, though it was liable to be reduced to 1/5th and was in fact so reduced.
The next objection is that Mr. Beeby received commission on the sale-proceeds of a part of the Ghosal property, though he had previously received commission on the entirety of that property. Chaudhuri, J., has not dealt with this point under the impression that it was not seriously urged. But Mr. Chakravarti assures us that this was not so. If commission was taken on the whole of the properly, I do not think commission could be again taken on the sale-proceeds of a part of the property. As this is what happened, the objection must succeed.
The third objection raises the question whether commission is to be charged on the gross or only on the net collections.
The gross collections were made on behalf of those entitled, of whom Mr. Beeby as Administrator pendente lite was one. I therefore think we ought not: to disturb Mr. Justice Chaudhuri's decision on this point.
The result then is that, in my opinion, the decree of the learned Judge should be varied by increasing the sum of Rs. 12,234-8-9 thereby decreed to Rs. 12,763-6-9 by the addition thereto of the sum of Rs. 528-14-1, the commission on the proceeds of sale of a part of the Ghosal property.
Woodroffe, J.:— I agree.
Decree varied.