BAIDYANATH SEIN Vs. RAJENDRANATH SEIN

JUDGEMENT

(1.) In my opinion this appeal must be allowed. It appears that the testator died on 14th December 1928. He left a will dated 11tb, October 1928 appointing his son the present appellant to be the executor to his estate. Various people entered caveats and on 16th January 1929 before the testator had been dead more than a month, certain of his grandsons started a suit for partition of the estate left by him on the basis that the grandfather had died intestate. On that footing, and at that time, the Official Receiver was appointed the receiver. The main charges at that time against the present appellant were that he was collecting the moveables, that he was insisting upon collecting papers and doing the very things which he was bound and entitled to do if, in fact, he was the executor. Still caveats were entered by the grandsons and, on 24 January 1929, in this partition suit, on the basis of intestacy, a receiver was appointed. The matters went on and on 21 November 1929, an order was made that probate should issue to the present appellant, as executor of his father's will. That order having been made on 21 November the executor found that he had no money wherewith to pay the probate duty or anything else and on 16 December 1929, he brought the present application humbly submitting that, as his father had appointed him executor, he should be allowed to begin to act as such. For reasons which do not appeal to me at all the learned Judge has refused to make the necessary order, and the only grounds that can be seen from the affidavits are a repetition of the various charges which are ludicrous on the basis that this man is, in fact, the executor. The charges are that he wrongfully and fraudulently took possession of the properties of the testator the very thing which it was his duty to do-that he is maintaining such wrongful possession and retaining the income of the estate and so on and so forth. It appears to me that the rest of the family may be very much chagrined at this particular person being put in charge of the testator's properties by the testator's will; but a mere exhibition of bad temper and levelling foolish charges against the man whom the father has appointed ought not to be allowed to prevent the father's nominee from becoming the executor in the ordinary way. If, after he has taken charge of the estate, it can be shown that he is in any way causing waste to the estate no doubt the parties will have ample remedy. There seems to be nothing however against the executor. In my opinion, this appeal must be allowed and the Receiver must be discharged. The receiver must pass his accounts and make over possession of the property to the appellant forthwith.

(2.) As regards the question whether there is a right of appeal under the Letters Patent from an order refusing to discharge a receiver in the circumstances skated, I have no doubt at all that there is such a right of appeal and that such an order is a judgment under the Letters Patent.

(3.) Both sets of respondents will be personally liable to pay the costs of the appellant in this appeal as well as before the learned Judge. C.C. Ghose, J.