Full Judgment
Biswas, J.
1. The order made by the learned Subordinate Judge in this case cannot be supported. It is conceded on behalf of the respondent that the proper order to make in this appeal would be to give a direction, as was done in Raj Narain Mookerjee v. Ful Kumari Debi (1902) 29 Cal 68, that there should be an enquiry by the learned Subordinate Judge as to the allegations of maladministration made against the administratrix. We are not prepared to assent to the proposition that a surety to an administration bond has an absolute right to get a discharge from his bond for the asking. There are observations no doubt in the case of Raj Narain Mookerjee referred to above which may be supposed to support the view that such a surety bond is in the nature of a continuing guarantee, and, in that view, is subject to the provisions of Section 130, Contract Act. It was not necessary however for the purposes of that case to decide this point, and, speaking for myself, I am not prepared to accept that as laying down a correct proposition of law. There is abundant authority the other way; and among other cases, reference may be made to the decisions in Subroya Chetty v. Ragammall (1905) 28 Mad 161 and Kandhya Lal v. Manki (1909) 31 All 56. The view expressed in the Madras and Allahabad decisions is in accord with the rule which is established in the English Courts, founded on the decision in (1866) LR 1 P 76.4 It is thus summarized in Williams on Executors, Vol. 1, page 437 (Edn. 11): 'The Court will not discharge the original sureties to an administration bond and allow other sureties to be substituted for them.'
2. It is not necessary however to pursue the matter further, as it is accepted on both sides in this case that there must be an enquiry as to the alleged maladministration. If the charges are established, then it would be a matter for the learned Subordinate Judge to consider whether the surety ought to be granted a discharge as prayed for. The correct rule, in our opinion, which ought to govern a matter of this kind, is that which is laid down in National Guarantee and Suretyship Association v. Prayag. Deb Banerji : AIR1932 All262 . Just as it is not correct to state that a surety may claim an absolute right to obtain a discharge, neither is it correct to hold, on the other hand, that the Court is powerless to grant relief in a suitable case. The matter is to be considered on the facts and circumstances of each case by the Court, and the Court may make such orders thereafter as the facts and circumstances may call for. The order of the learned Subordinate Judge is accordingly set aside and the matter remanded, to him for an investigation on the lines indicated above. Costs of this appeal will abide the result: the hearing fee being assessed at five gold mohurs.
Costello, J.
3. I agree.