In Re: A. S. Allan v. . — 1946 DIGILAW 238 (CAL)

JUDGMENT Lodge, J. - The facts giving rise to the present application are as follows:-- Alexander Allan of 5, Mantacute Gardens, Bridge Road, Tunbridge Wells, England died at that address on the 4th February, 1945, leaving a Will by which he appointed Lloyds Bank, Limited, London, and his wife Elsie Olive Allan executors. His estate consisted of property in England and also property and credits within the province of Bengal. Probate of the Will was granted by the High Court of Justice in England to Lloyds Bank, Limited, London, and to Elsie Olive Allan on 11th August 1945. The present Petitioner is Lloyds Bank, Limited, Calcutta, being a branch of Lloyds Bank, Limited, London. 2. The Petitioner produced a sealed and certified copy of the Will, issued out of and under the seal of the Principal Probate Registry of the High Court of Justice in England and applied on 23rd January, 1946, for letters of administration with a copy of the said authenticated copy of the Will. 3. On this application, an office note was written for consideration of the Presiding Judge, and in that note the opinion was expressed that application should be made for probate and not for letters of administration. It was ordered that the matter be argued before the Court. 4. On 15th March, 1946, Gentle, J., gave judgment on an application entitled, In the goods of George Phillips Shetton, deceased Unreported Decided on 15-3-1946 and in view of that judgment, the present application was filed by Lloyds Bank, Limited again praying for letters of administration with a copy of the authenticated copy of the Will. 5. The matter came up before Majumdar, J., who expressed the opinion that the matter should be heard by a Bench of two Judges. 6. On behalf of the applicant it was now argued that according to the practice of this Court, probate of the Will and not letters of administration should be granted, and leave has been asked to amend the petition if necessary and to make a prayer for the grant of probate. The question before us is whether probate or letters of administration should be granted. It may be noted that the application has not been opposed. 7. The question before us is whether probate or letters of administration should be granted. It may be noted that the application has not been opposed. 7. It has been argued before us that the invariable practice in this Court, until recent years, was to grant probate in circumstances similar to the present, and the legality of the practice has rarely been questioned. 8. Reference was made to the following cases: In the goods of Arthur Forbes deceased (1), In the goods of Sidney Thomas Mathison deceased (2),./n the goods of F.J. Maitland King deceased (3), In the goods of George Phillips Sheiton deceased (4) and In the goods of John Byron deceased (5). 9. The application entitled "In the goods of Arthus Forbes deceased Unreported, Decided on 12-5-1920 and 26-5-1920" was an application for probate. As in the present case, probate had been granted by the High Court of Justice in England, and an authenticated copy of the Will under the seal of the Principal Registry of the High Court of Justice in England was filed with the application in this Court. The application together with an office note thereon was placed before Rankin, J. In the office note the opinion was expressed that probate could not be granted and that letters of administration should be issued. At first Rankin, J., agreed with the office note. The question then arose whether security should be dispensed with. After further consideration Rankin, J., revised his original order and directed that probate be granted. 10. The next case cited before us was that entitled. "In the goods of Sidney Thomas Mathison Unreported. Appeal from Original Order No. 20 of 1945. Decided on 19-4-1945." That was an application for letters of administration under sec. 241 of the Indian Succession Act. The application was rejected by Das, J., but that decision was reversed in appeal by Derbyshire, C.J. and Gentle, J. 11. The question for consideration in that case was whether under sec. 276 of the Indian Succession Act, the Will itself and not a copy must be filed with an application for probate or letters of administration except in the cases mentioned in secs. 237, 238 and 239 of the Act. 12. Derbyshire, C.J., expressed the opinion that secs. 237, 238 and 239 were not applicable in circumstances similar to the present. Gentle, J., expressed no opinion on this point. 237, 238 and 239 of the Act. 12. Derbyshire, C.J., expressed the opinion that secs. 237, 238 and 239 were not applicable in circumstances similar to the present. Gentle, J., expressed no opinion on this point. But the Court of Appeal held that sec. 276 was not exhaustive and that letters of administration could be granted with a copy of the authenticated copy, and that there was sufficient compliance with the provisions of sec. 276 where an authenticated copy of a Will, of which probate had been granted by the High Court of Justice in England, was filed with the application. In our opinion this decision is binding on us. 13. The application entitled "In the goods of F.J. Maitland King Unreported. Decided on 27-9-1945" came before Chakravartti, J., and the question argued was whether Lloyds Bank, Ltd., Calcutta, (in exactly similar circumstances to the present) was entitled to probate, Chakravartti, J., considered two questions, viz.: 1. Is the executor applying for probate within the jurisdiction of this Court? and 2. Is the application in order seeing that the original Will has not been filed therewith as required by sec. 276 of the Indian Succession Act? 14. With regard to the first of these questions Chakravartti, J., held that if Lloyds Bank, Ltd., Calcutta, was a branch of Lloyds Bank, Salisbury, then because in law a branch of a Company and the Company itself are one and the same, at least for purposes of probate, the executor named in the Will was within the jurisdiction of this Court. With regard to the second question Chakravartti, J., followed the decision of the Appellate Court in Mathison's case Unreported. Appeal from Original Order No. 20 of 1945. Decided on 19-4-1945. Accordingly Chakravartti, J., held that probate should be granted. 15. In the application entitled "In the goods of Geoege Phillips Shelton deceased" Unreported Decided on 15-3-1946, Gentle, J., held that probate could not be granted upon a copy of the Will and further that sec. 228 of the Indian Succession Act was applicable. No reference was made in the judgment to the appellate decision in Mathison's case Unreported. Appeal from Original Order No. 20 of 1945. 228 of the Indian Succession Act was applicable. No reference was made in the judgment to the appellate decision in Mathison's case Unreported. Appeal from Original Order No. 20 of 1945. Decided on 19-4-1945 which must apply equally to grants of probate and of letters of administration; and Gentle, J., held on the facts of the case that the executor appointed by the Will was not within the jurisdiction of this Court. 16. In the application entitled "In the goods of John Byron deceased" Unreported. Decided on 11-3-1946 and 9-4-1946 no reasons were given for the order but Gentle, J., in that case directed that the application be, amended and that prayer be made for letters of administration. 17. These are all the relevant decisions of this Court to which our attention has been drawn. It is clear that if the executor appointed by the Will is within the jurisdiction of this Court and he applies with the original Will, he is entitled to grant of probate. 18. The appellate decision in Mathison's case Unreported. Appeal from Original Order No. 20 of 1945. Decided on 19-4-1945 lays down that there is sufficient compliance with the provisions of sec. 276 if an authenticated copy of a Will, of which probate has been granted in England be filed. It follows that if the other conditions are fulfilled probate can be granted upon such an authenticated copy of the Will. 19. If the decision in Mathison's case Unreported. Appeal from Original Order No. 20 of 1945. Decided on 19-4-1945 had been otherwise and if the matter were res integra we should have been inclined to hold that sec. 239 of the Indian Succession Act was applicable and that a limited grant of probate could be granted under that section even though it was realised that the limit specified in the grant would never in fact be reached. 20. The decision of Chakravartti, J., in Maitland King's case Unreported. Decided on 27-9-1945 shows that "the branch of a Company and the Company itself are one and the same at least for purposes of probate" and no argument has been placed before us suggesting that that is not a correct statement of the law. 21. 20. The decision of Chakravartti, J., in Maitland King's case Unreported. Decided on 27-9-1945 shows that "the branch of a Company and the Company itself are one and the same at least for purposes of probate" and no argument has been placed before us suggesting that that is not a correct statement of the law. 21. It follows, therefore, that the applicant, in the present case being a branch of the Company named in the Will as executor, is the executor named in the Will and is within the jurisdiction of this Court. In these circumstances the applicant is entitled in our opinion to grant of probate. Permission to amend the petition is accordingly granted and when made, probate will be granted to the applicant. 22. Permission is given to amend the application before this order is drawn up and let probate issue before this order is drawn up. Costs allowed as between attorney and client. Ellis, J. I agree.