Haripada Saha v. Gobinda chandra Saha — 1947 DIGILAW 73 (CAL)

JUDGMENT Mukherjea, J. - This appeal is on behalf of the Defendants, and is directed against a judgment of the District Judge of Murshidabad, dated the 4th December, 1944, by which he granted letters of administration with a copy of the will annexed to the Plaintiffs Respondents. The material facts lie within a short compass and may be stated as follows: The testator, one Rampada Saha, died on the 12th March, 1944, leaving behind him a registered will executed on the 23rd May, 1938. He had no issue, and all his properties, movable and immovable, were given in absolute right to his wife Subasini Dasi. Subasini was appointed the sole executrix under the Will. On the 4th April, 1944, Subasini presented an application for probate of the Will in the Court of the District Delegate at Berhampore. and this application was registered as Probate Case No. 38 of 1944. Only six days after this application was filed, Subasini died, and three persons who are Respondents to this appeal made an application before the District Delegate praying for permission to continue the proceeding as substituted heirs in place of Subasini, and they prayed that letters of administration with a copy of the Will annexed might be granted to them. Two of these Petitioners purported to be the stridhan heirs of Subasini, being her brothers, while the third claimed to be an executor under an Will alleged to be executed by the lady. This application for substitution was allowed by the District Delegate on the 20th May, 1944. 2. On the 24th June, 1944, caveat were entered by Haripada Saha and Abhoypada Saha who are the Appellants before us and who are the cousins and next reversioners of the testator, and they intimated that they would oppose the grant. On this objection being raised, the proceeding became converted into a contentious one, and the District Delegate returned the application to the Respondents with a direction to present it before the District Judge of Berhampore. 3. The petition was filed in the Court of the District Judge of Berhampore on the 6th July, 1944, as an application for letters of administration with a copy of the Will annexed, and it was registered as Case No. 45 of 1944. Haripada and Abhoypada filed written statements on the 25th August, 1944, and the contentions which they raised were of a two-fold character. Haripada and Abhoypada filed written statements on the 25th August, 1944, and the contentions which they raised were of a two-fold character. In the first place, it was averred that the Will was an unnatural one which was procured by improper influence exercised by the testator's wife and brother-in-law; and in the second place, it was contended that the applicants were not competent in law to obtain letters of administration with a copy of the Will annexed. The learned District Judge by his judgment, dated the 4th December, 1944, overruled both these contentions, and granted letters of administration with a copy of the Will annexed to two of the Petitioners, the third having abandoned his claim in the meantime. Both the objectors have now come up on appeal to this Court. 4. Mr., Mitter appearing on behalf of the objectors Appellants has raised two points in support of the appeal. His first contention is that the Respondents' application for continuing the proceeding as substituted heirs of Subasini and for amendment of the application for probate by substituting a prayer for letters of administration with a copy of the Will annexed in place of the prayer for probate was not maintainable in law. The second point raised is that under sec. 233 of the Indian Succession Act, the Respondents are not the persons to whom letters of administration could be legally granted. 5. New, so far as the first point is concerned, the decision in Sarat Chandra Banerjee v. Nani Mohan Bauerjee ILR (1909) Cal. 799 is undoubtedly in favour of the Appellants. In that case, 1 larrington, J., held that on the death of the sole executor pending the hearing of the probate suit, the right to sue does not survive in favour of his legal representative. It was pointed out that the expression "the right to sue" as used in Or. 22 of the CPC means the right to bring a suit asserting a right to the same relief which the deceased Plaintiff asserted at the time of his death. The executor's right to probate was a personal right derived not from an order of the Court but from appointment made by the testator himself, whereas the right claimed by his heirs was a distinct right altogether, vis., the right to be appointed by the Court to administer the assets of the deceased. The executor's right to probate was a personal right derived not from an order of the Court but from appointment made by the testator himself, whereas the right claimed by his heirs was a distinct right altogether, vis., the right to be appointed by the Court to administer the assets of the deceased. In our opinion, this decision is quite correct, and the proper thing for the Plaintiffs to do in the present case was not to apply to continue the proceedings as substituted heirs of Subasini, but to put in a fresh application praying for letters of administration with a copy of the Will annexed as heirs and personal representatives of the deceased sole legatee. It appears, however, that the order granting the Respondents' application for substitution was an ex parte order made by the District Delegate on the 20th May, 1944. It was certainly open to the District Delegate to reject the petition for substitution and ask the Plaintiffs to make a fresh application for letters of administration in their own right. It appears that in the petition filed by the Defendants before the District Delegate this point was not taken, and it was merely intimated that the objectors would oppose the grant of letters of administration with a copy of the Will annexed. When the proceedings started afresh before the District Judge, the application was treated as one for letters of administration with a copy of the Will annexed, and it was registered as such. The Defendants in their written statement averred only In general terms that the Plaintiffs were not entitled to grant, but no specific objection was taken challenging the propriety of the order for substitution made by the District Delegate. The question of the application being defective, it seems, was raised only at the end of the suit when the arguments were being heard. Had the point been raised earlier, the whole thing could obviously have been regularised, and the defect cured by the filing of a fresh application fur letters of administration. The question of the application being defective, it seems, was raised only at the end of the suit when the arguments were being heard. Had the point been raised earlier, the whole thing could obviously have been regularised, and the defect cured by the filing of a fresh application fur letters of administration. We rind from the records that an application was in fact filed on the 24th November, 1944, wherein the Respondents prayed that to obviate all dispute and ambiguity, the prayer clause in the petition might be amended and that the Petitioners might be declared to be entitled to letters of administration with a copy of the Will annexed-either as heirs of Subasini or independently in their own right. Unfortunately, no order was passed on this petition, and the learned District Judge took the objection to be a technical one, and overruled it. In our opinion, this application should have been granted, and it is not too late to grant it even now. When in substance, the application for substitution was treated as one for letters of administration with a copy of the Will annexed on the basis of the Respondents' own rights to the property left by the testator as heirs of Subasini, it would, we think, be sacrificing justice to mere technicality, if we are to set aside the entire proceeding at the present stage, and direct the Plaintiffs to proceed afresh. There is undoubtedly a technical defect, but it is not a defect which has in any way affected the merits of the case or the jurisdiction of the Court. In substance the application of the Plaintiffs contain all the particulars which are necessary for a proper petition for letters of administration with a copy of the Will annexed, as heirs of the heirs of the sole legatee and we think that we can ignore the defective portion of it, and treat it as one made by the Plaintiffs in their own right. We overrule, therefore, the first contention which his been put forward by Mr. Mitter. 6. As regards the second point, Mr. Mitter's contention seems to be that under sec. 233 of the Indian Succession Act, the heirs of an universal legatee as Subasini was in the present case are not entitled to come in and apply for letters of administration with a copy of the Will annexed. Now, secs. Mitter. 6. As regards the second point, Mr. Mitter's contention seems to be that under sec. 233 of the Indian Succession Act, the heirs of an universal legatee as Subasini was in the present case are not entitled to come in and apply for letters of administration with a copy of the Will annexed. Now, secs. 231 to 235 of the Indian Succession Act lay down the provisions relating to grant of letters of administration with a copy of the Will annexed, and they follow closely the provisions of the English law on the subject which proceed on the maxim that administration follows the right of property. Sec. 232 of the Indian Succession Act practically reproduces the English law according to which the residuary legatee is preferred to the next of kin in the matter of granting letters of administration cum testamento annexo where no executor has been appointed in the Will, or the executor is incapable of acting, or refuses to act, or dies before applying for probate or completing the administration. The English Courts throughout act on the principle that as the residuary legatee has the greatest interest in the assets of the deceased, he is the most eligible person to have the letters of administration, and certainly is entitled to preference over the next-of-kin who obviously has no interest in the estate when the deceased left a Will. Sec. 233 of the Indian Succession Act deals with the right of the personal representative of the residuary legatee and following the English law, the section lays down that the personal representatives of a deceased legatee can claim the right of administration cum testamento annexo as the residuary legatee himself provided that the later had beneficial interest in the property. So far as the residuary legatee is concerned, it is not necessary to entitle him to letters of administration under sec. 232 that he should have beneficial interest in the property, but as regards his legal representatives, the principle of English law which has been adopted by our legislature is that it is only when the personal representatives have vested in them the beneficial interest which the residuary legatee himself had, then and then only they are entitled to letters of administration to the estate of the deceased. So far, we think, there is no room for controversy. Mr. Mitter, however, contends that in sec. So far, we think, there is no room for controversy. Mr. Mitter, however, contends that in sec. 232 of the Indian Succession Act, the Indian Legislature has spoken of both the residuary legatee as well as the universal legatee, whereas in sec. 233, the expression "universal legatee" has been omitted altogether, and the section is confined to residuary legatee alone. Mr. Mitter's argument is that Subasini was a universal legatee, and not a residuary legatee. Sec. 233 of the Indian Succession Act would be of no assistance to her heirs and personal representatives. The contention, though plausible at first sight, seems to us to be of no substance. The right to administration is given to the residuary legatee because to him is given the residue of the testator's estate after the debts and legacies are paid off. The residuary legatee becomes the sole legatee if no other legacy is provided for in the Will of the testator, and he is to get the whole residue after the debts, funeral expenses and other legitimate charges are paid off. Sec. 102 of the Indian Succession Act speaks of the way in which a residuary legatee can be consisted and the illustrations appended to the section which are all taken from decided English cases make it perfectly clear that in order to constitute a person a residuary legatee, it is not necessary that there should be other legatees besides him. It is enough if he is given the residue of the estate after the debts and funeral expenses are paid off. Illustration (ii) which is attached to the section has been taken verbatim from Boys v. Morgan My. & Cr. 661 (1838) (affirming the decision of the Original Court in Boys v. Morgan (1838) 9 Sim. 289. In that case, the testator concluded his Will as follows: I guess there will be found sufficient in my banker's hands to discharge all my debts, which I desire Mrs. S.M. to do and keep the residue for her own use. 7. It was held that Mrs. E.M. was a residuary legatee and was entitled to the residue of the entire personal estate. In our opinion, having regard to the Illustration (ii) to sec. 102 of the Indian Succession Act referred to above, Subasini, in the case before us could very well be treated as a residuary legatee. 7. It was held that Mrs. E.M. was a residuary legatee and was entitled to the residue of the entire personal estate. In our opinion, having regard to the Illustration (ii) to sec. 102 of the Indian Succession Act referred to above, Subasini, in the case before us could very well be treated as a residuary legatee. She is the sole legatee undoubtedly, but nonetheless, she is the residuary legatee, and consequently, there is no bar to her heirs and personal representatives coming in and applying for letters of administration with a copy of the Will annexed, under sec. 233 of the Indian Succession Act. We think that the legislature used both the expressions "universal legatee " and " residuary legatee " in sees. 232 and 235 of the Act only for the purpose of making it clear that the universal legatee will have the same rights as the residuary legatee in regard to obtaining letters of administration to the estate of the deceased and was not to be classed as an ordinary legatee which has been dealt with in sec. 234 of the Act. 8. Mr. Mitter has drawn our attention to, in this connection, a decision of the Patna High Court in Kamla Prasad and Another Vs. Murli Manohar, AIR 1926 Patna 356 , Das, J., in course of. delivering his judgment, expressed the opinion that the applicants for letters of administration in that case were not entitled to come under sec. 233 of the Indian Succession Act inasmuch as they were the representatives not of the residuary legatee but of the universal legatee. The decision itself did not rest entirely upon that ground. As a matter of act, another and a more cogent reason put forward by the learned Judge was that the applicant had put it out of his power to make the application by challenging the genuineness of the Will itself; and later on in the judgment, the learned Judge expressed the opinion that even if the claim was based on sec. 21 of the Probate and Administration Act (corresponding to sec. 233 of the Indian Succession Act) the claim had not been substantiated. We do not think that it is a considered pronouncement on this matter. 21 of the Probate and Administration Act (corresponding to sec. 233 of the Indian Succession Act) the claim had not been substantiated. We do not think that it is a considered pronouncement on this matter. In any event, we would like to point out that in another and more recent pronouncement of the Patna High Court in Musummat Phenki v. Musammat Manhi ILR (1929) Pat. 698, the heirs of the sole legatee were held entitled to letters of administration under sec. 233 of the Indian Succession Act without any question being raised as to their competency. The result, therefore, is that we affirm the judgment of the Court below and dismiss this appeal. We make no order as to costs in this Court. Chunder, J. I agree.