9911796707
TMI Blog1938 (9) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... Jugal Kishore died and on May 5, 1938 the present application was filed. It is to be observed that the widow of Mr. Jugal Kishore, Mst. Dularna Bibi is already in the array of opposite parties and the prayer in so far as it concerns her is that a note be made that she is also the legal representative of Mr. Jugal Kishore. As to the two sons Nawal Kishore and Kamal Kishore it is prayed that their names should be brought upon the record as opposite parties as two of the personal representatives of the late Mr. Jugal Kishore. The opposite parties have objected and contend that in proceedings under section 235 of the Indian Companies Act no such substitution can be effected. section 235(1) of the Indian Companies Act under which the misfeasance proceedings were instituted is in these terms: "Where, in the course of winding up a company it appears that any person who has taken part in the formation or promotion of the company, or any past or present director, manager or liquidator, or any officer of the company has misapplied or retained or become liable or accountable for any money or property of the company or been guilty of any misfeasance or breach of trust in relation to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company, did not apply as against the executors of a deceased director. The learned Vice-Chancellor pointed out that in that section the Court was authorised to compel payment of any moneys which upon investigation should be found to be payable by any person to whom the section was intended to apply. He was of opinion that with regard to executors or administrators who are on the list of contributories as representing the estate of a deceased-share-holder, the Court in the winding up could not compel them, to pay anything which was payable by the estate of the deceased. The Court winding up the Company had no power to administer the estate of the deceased and all that it could do was to make an order directing payment to be made out of the deceased's estate and so in effect declare the Official Liquidator to be a creditor of the deceased. He was of opinion that the use of the phrase 'compel him to pay' led irresistibly to the conclusion that the section was not intended to apply to the case of executors or administrators of a deceased person because it was clear that they could not be compelled to pay in the winding-up. This case was expressly approved by Selwyn, L.J., in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a single Judge in Lahore. I find it difficult, to accept such a view. The phrase 'special proceeding is an extremely wide one and there is nothing in the section to suggest that it must be a proceeding analogous to a suit, but even if such a construction has in be given to the phrase 'special proceeding' I would be prepared to hold that misfeasance proceedings ate proceedings in the nature of a suit. In my view the term 'special proceeding' is a certainly wide enough to cover a summary proceeding under section 235 of the Indian Companies Act. In my judgment, however, the present applicants can obtain no assistance whatsoever from the provisions of section 306 of the Indian Succession Act. In terms that section only gives the right to continue proceedings against an executor or administrator of the deceased defendant or opposite party. The section does not give a right to continue proceedings against heirs is representing an estate. section 306 of the Indian Succession Act is the second section in Chapter VI which is headed "Of the powers of an executor or administrator". The terms "executors or administrators" are defined in section 2 of the Act. By section 2( a ) of the Suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f, and; it may be said, therefore, that the case does not, fall within the section. The present appellants, however, are willing to take out letters of administration, and think we should be taking too narrow a view of the situation, if we were to shut them out altogether from further continuing, the action." In short, the view, of the Full Bench, of, the Calcutta High Court, was that the present section 396 of the Indian Succession Act applied in terms only to executors and administrators and that before the proceeding could continue the heirs of a deceased plaintiff would have to take out letters of administration. With great respect to the view, expressed, by the learned, Judges of the Lahore High Court, I am unable, to accept the contention that section 306 of the Indian Succession Act applies not only to executors and administrators but also to heirs representing the estate. I am, therefore bound to hold that the official Liquidators have no right under. section 306 of, the Indian, Succession Act to continue the proceedings. Even if section, 306 of the Indian, Succession, Apt applied to heirs, representing, the estate, I, would still be inclined to hold that, the present o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
