Annaswami Iyer v. Janaki Ammal — 1950 DIGILAW 120 (KER)

Judgment :- 1. The appellant lodged a caveat in the matter of an application made under S.16 of the Probate and Administration Act II of 1105, by his deceased brother's widow before the District Court of Quilon to extend to the then State of Travancore the probate granted to her by the High Court of Madras in O.P. 271 of 1941. The widow, who is respondent 1 to this appeal, is the sole legatee under her husband's last will and testament and she is also appointed executor thereunder. Probate was granted to her with respect to that will by the Madras High Court on 27.11.1941 and the application giving rise to the present appeal was made to the lower court on 4.2.1949, but it was not until 28.9.1949 the appellant entered the caveat. Another caveator was Seethammal, the mother of the testator and the appellant. She is Respondent 2 to this appeal. The main opposition to the application was, however, by the Official Liquidator of the Travancore National and Quilon Bank Ltd., (in liquidation). That Bank was the testator's main creditor. The Court below overruled all opposition and allowed respondent 1's application. The Bank as also the mother accepted the decision, but the appellant has preferred this appeal against it. 2. In the caveat filed by the appellant it is stated inter alia that the will is not one executed with the free will and consent of the testator. But reading the caveat as a whole, it would appear that the main ground on which the application was sought to be resisted by the appellant was that the testator had no disposing power over any of the assets he purported to leave, that they belonged to a joint family which consisted of the testator (the manager thereof), the appellant, their mother Seethammal, respondent 1 and the wife and children of the appellant. The caveat also goes on to say that Respondent 1 was allowed to proceed with her application before the Madras High Court for probate without opposition as the result of some arrangement entered into between Respondent 1 on the one hand and the appellant and others on the other and that the opposition to the application in the court below was necessitated by respondent 1's unwillingness or refusal to carry out certain of the obligations undertaken by her while the proceedings before the Madras High Court was pending. It further shows that subsequent to the grant of probate by the Madras High Court a tripartite arrangement had been come to between the appellant, Respondent and the Official Liquidator of the Travancore National and Quilon Bank Ltd., to the effect that out of the testator's assets held by the Bank a sum of Rs. 25,000 should be given to the appellant in lieu of his claims. 3. The lower court's order is mostly taken up with the objection raised by the Official Liquidator of the Bank, but we are not concerned with them here in this appeal. The objections raised by the appellant and Respondent 2 are disposed of by the learned judge in one short paragraph which reads thus; "I also find no force in the contentions raised by Mr. Annaswamy and his mother that they had no knowledge of the will and that the assets scheduled to the petition are joint family properties for the reasons that Mr. Annaswamy, on his own admission, has been a consenting party to the issue of a probate by the High Court of Judicature, Madras and that there is not an iota of evidence to show that they are joint family properties." 4. In the appeal the appellant's learned Counsel raised two main contentions. Firstly it was argued the application could not have been granted unless the will was proved afresh in this jurisdiction, that is before the Court in which the application was made. What was urged was it was not enough that the propounder had proved the will before the Madras High Court which granted a probate to her. The second ground raised in the appeal was a repetition of the ground urged before the lower court that the testator had no disposing power over the assets proposed to be dealt with by the will and that they all belonged to the joint family of which he was the manager. 5. The latter point can easily be disposed of. It has been settled by a long line of decisions that it is not the province of a Probate Court to go into the question of title, with reference to the property which the will purports to dispose, or the validity of such disposition. In the case reported in Ramachandra v. Ramabai - AIR 1937 Bom. It has been settled by a long line of decisions that it is not the province of a Probate Court to go into the question of title, with reference to the property which the will purports to dispose, or the validity of such disposition. In the case reported in Ramachandra v. Ramabai - AIR 1937 Bom. 341 Broom field, J. has summarised the effect of the important decisions bearing on the point as follows at page 355 of the report: "The grant of probate to an executor does not confer upon him any title to property which the testator had no right to dispose of; Behary Lall Sandyal v. Juggo Mohan Gossain.1879 (4) Cal. 1. The Court is not justified in refusing probate because the testator had no power to dispose of some or even all of the property he purported to deal with; Barot Parshotam Kalu v. Bai Muli (1893) 18 Bom. 749. Probate is decisive only as to the genuineness of the will and of the right of the executor to represent the estate. It decides no question of the disposing power or the existence of disposable property; Bal Gangadhar Tilak v. Sakwarbai (1902) 26 Bom. 792. It is not the province of the Court in probate proceedings to go into question of title and it has long been the settled practice of this High Court in applications for probate or letters of administration not to enter into the question whether the deceased's property is joint or separate: Ochawaram Nanabhai v. Dolatram Jamietram (1904) 28 Bom. 644. Probate gives no efficacy to the provisions of the will; it is merely proof of its contents; Khaw Sin Tek v. Chuah Hooi Gnoh Neoh - 49 I.A. 37 (PC) AIR 1922 PC 212." 6. The judgment Sir Laurence Jenkins, C.J. delivered in Ochawaram Nanbhai v. Dolatram Jamietram (1904) 28 Bom. 644 is a short one and that can with advantage be quoted in this context: "The point urged on behalf of the appellant is that the deceased was, at the time of his death, joint in family and entitled only to joint property; so that Letters of Administration could not be granted, as though he had left separate property. 644 is a short one and that can with advantage be quoted in this context: "The point urged on behalf of the appellant is that the deceased was, at the time of his death, joint in family and entitled only to joint property; so that Letters of Administration could not be granted, as though he had left separate property. But in Bombay it has been repeatedly held that on applications for probate the court will not enter on a question as to the title to the property which the testator by his will purports to leave. Hormusji v. Bai Dhanbaiji (1887) 12 Bom. 164 and Barot Parshotam Kalu v. Bai Muli (1893) 18 Bom. 749 may be referred as illustrations in point. Nor is this doctrine peculiar to Bombay; the same view prevails in Calcutta and Allahabad; Behary Lall Sandyal v. Juggo Mohan Gossain (1878) 4 Cal. 1; Arunmoyi Dasi v. Mohendra Nath Wadadar (1893) 20 Cal. 888 and Birj Nath De. v. Chandur Mohan Banerji (1897) 19 All. 458. It is urged these cased do not touch the present, because here the Court is asked not to grant probate, but Letters of Administration. The petition, however, alleges property in the deceased, and the reasons operating to limit the scope of the inquiry, when probate is sought, are equally applicable to a petition for Letters of Administration. This was recognised by the Allahabad High Court in Birje Nath Des case (1897) 19 All. 458, and was actually decided in Raghu Nath Misser v. Mussamat Pate Koer - (1901) 6 Cal. W.N. 345. Nor does the matter rest there; for on inquiry from the Testamentary Registrar, Mr. Limji N. Banaji, an officer of very great experience, we learn that the invariable practice on the Original Side of this Court is, in applications for Letters of Administration, not to enter into the question whether deceased's property is joint or separate. This view it has been argued, is in conflict with the decision in Guracharya v. Svamirayacharya - (1879) 3 Bom. 431, but that case has no application. The grant in no way hurts or prejudices the caveator, for it is general in its terms, specifying no item of property and prejudging nothing to the detriment of the appellant. This view it has been argued, is in conflict with the decision in Guracharya v. Svamirayacharya - (1879) 3 Bom. 431, but that case has no application. The grant in no way hurts or prejudices the caveator, for it is general in its terms, specifying no item of property and prejudging nothing to the detriment of the appellant. It has been suggested that a grant of letters might involve peril to the appellant's interest, but this is not so, as on the grant of Letters adequate security is taken. The result then is Mr. Justice Russell's decree is confirmed with costs." 7. Among other cases which take the view that the question of title is foreign to the scope of an enquiry for the grant of a probate or letters of Administration may be cited the decision of Stone, C.J. and Puranik, J. in Abdul Rashid v. Minhazul Hasan A.I.R. 1938 Nag. 173. In fact no decision to the contrary was cited before us and the appellant's learned Counsel made only a faint attempt to sustain the appeal on this ground. The case reported in Chuppayya Moopanar v. Parvathi Ammal (1932) 22 Tr. L.J. 1047 takes the same view on this question and follows some of the cases cited above. 8. Now we shall take up the first point. S.16 of the Probate and Administration Act of Travancore is in these terms: "When a will has been proved and deposited in a court of competent jurisdiction situated beyond the limits of Travancore and a properly authenticated copy of the will is produced, letters of administration may be granted with a copy of such copy annexed". This section corresponds to S.5 of the now defunct Probate and Administration Act V of 1881 and S. 228 of the Indian Succession Act, 1925. While the appellant's Counsel contended that the fact a foreign Court had granted a probate does not dispense with the necessity of fresh proof of the will in this jurisdiction, the 1st respondent's learned Counsel took the other extreme position that the word "may" in the section should be interpreted to have the same meaning as the word "shall". While the appellant's Counsel contended that the fact a foreign Court had granted a probate does not dispense with the necessity of fresh proof of the will in this jurisdiction, the 1st respondent's learned Counsel took the other extreme position that the word "may" in the section should be interpreted to have the same meaning as the word "shall". It was therefore argued on behalf of Respondent 1 that when a Will with respect to which an application is made under the section was proved and deposited in a Court of competent jurisdiction situated beyond the limits of the State and a properly authenticated copy of the will was produced the grant mentioned in the section should automatically be made by the Court in this State. We are afraid we cannot countenance either view. It is no doubt an accepted rule of interpretation that though prima facie the word "may" is an enabling word under certain circumstances that word may have a compulsory force. From the context in which that word occurs in this section or from the scope and object of the section it is difficult to hold that the legislature has used the word in the sense of that compulsory meaning. Eminent Judges have interpreted the provision as an enabling one and we cannot find any justification for taking a different view. Relevant case law bearing on the point will presently be referred to. The decision in Ram Lal v. Chanan Dass A.I.R. 1938 Lahore 349 cited on behalf of the appellant no doubt states that with respect to an application under S. 228 of the Indian Succession Act a caveator is entitled to have questions such as the genuineness of the will or the disposing state of the testator's mind tried before effect is given by the Court to which the application is made. In this respect this decision which was given by a single Judge (Munro, J.) goes against a long catena of decisions of the High Courts in India. In this respect this decision which was given by a single Judge (Munro, J.) goes against a long catena of decisions of the High Courts in India. At the same time that decision, if we may say so with respect, strikes the correct note when it states: "The section is merely an enabling section and if the Court in this country considers that there is a question to be decided relating to the validity of the will, I think that the Court is bound to try that question before enabling the executor to act under the will in this country". In our opinion as the plain words of the section indicate the discretion is of the Court and a caveator cannot as of right claim to have the question of the genuineness of the will or other similar questions tried over again. 9. The earliest decision brought to our notice touching this point is one given by Sir Charles Farran, C.J. in Bhaurao Dadajirao v. Lakshmibai - (1895) I.L.R. 20 Bom. 607. The question did not directly arise in the case but in the course of the discussion whether a foreign will can be admitted to probate by a Court in Bombay will respect to the properties situated within the Presidency the learned Chief Justice observed in his judgment thus: 'If a foreign will has already been proved and deposited in a competent Court abroad, S.5 of the act, following the English Law, enables a Court in British India to grant letters of administration to the applicant with a properly authenticated copy of such will annexed, and thus to dispense with a necessity of proof of the original will (the italicising is ours); but where a foreign will have not been so proved, the judge will have himself to take evidence as to the due execution of the will " 10. The Calcutta High Court is of the same view. See Sushilabala Dassi v. Anukul Chandra Choudry (1917-1918) 22 Cal. W. Notes 713. The relevant observations are contained at page 718 of the report and read thus:- "I think the copy in this case that was produced before the Court was one on which the Court was entitled to act under S.5 of the Probate and Administration Act. See Sushilabala Dassi v. Anukul Chandra Choudry (1917-1918) 22 Cal. W. Notes 713. The relevant observations are contained at page 718 of the report and read thus:- "I think the copy in this case that was produced before the Court was one on which the Court was entitled to act under S.5 of the Probate and Administration Act. That being so, the court was entitled, if it thought fit, (the italicising is ours) to make the grant of letters of administration with the will annexed without any further evidence at all. It was a will recognised by the French Court and the lower court was entitled to act upon it." In Sukumar Banerji v. Rajeswari Debi - A.I.R. 1939 Cal. 237 Costello, J. made the following observations at page 240 of the report regarding the scope of the corresponding provision in S. 228 of the Indian Succession Act of 1925: "That Section lays down a procedure which is in accordance with the law in England, according to which probate granted by a foreign Court is not recognised as establishing the title of any person to the estate of the deceased lying within the jurisdiction of the English Courts. The English practice however is that where probate has been granted of a will in a foreign Court, which was the court of the testator's domicile the English Courts will follow the grant not merely with regard to the document admitted to probate but also with regard to the person to whom the probate is granted. "In such cases, if any part of the property is situate in England, the Court will grant the probate on any duly authenticated copy of the will in respect of which such grant was made by the foreign Court without any further proof. (the italicising is ours). The position is summarized in Halsbury's Laws of England, Vol. 14 p. 202, para, 331, in these words: "Where a person dies domiciled abroad, and it becomes necessary to prove his will in England, probate is granted of his will upon proof that the testator was domiciled in the country, in question, and that either the foreign Court has adopted his will as a valid testament or that his will is valid by the law of the country." 11. In the Patna High Court in Deputy Commissioner of Singhubhum v. Jagadish Chandra Deo - AIR 1921 Pat. In the Patna High Court in Deputy Commissioner of Singhubhum v. Jagadish Chandra Deo - AIR 1921 Pat. 206 the scope of the section (S.5 - Indian Succession Act 1881) came up for consideration with reference to the court-fee leviable on the Letters of Administration issued in that case. P.R. Das, J. who delivered the leading judgment in that case made inter alia the following observations: "In my view the grant made under S.5 is only an ancillary grant in order to give efficacy to the grant already made by another court of competent jurisdiction and the procedure laid down in S.5 is analogous to the procedure in England which enables the Probate Court in England to reseal Scotch, Irish or Colonial grants. Grant under S.5 is in no sense a grant of probate or letters of administration either with or without will annexed." (See page 209) Again at page 214 the learned judge has stated: "The grant under S.5 does not pretend to establish either the will or the representative character of the applicant. It is merely an ancillary grant, giving efficacy to a grant already made by the court on an application under S.62 of the Act. If we apply certain tests which are ordinarily applied to grants of probate or letters of administration it will be seen that a grant made under S.5 of the Probate and Administration Act does partake of the character of a grant made in an application under S.62 and S. 64 of the Act. Finally at page 215 the learned judge observed: "It seems to me that the jurisdiction conferred on a Court in India under S.5 of the Probate and Administration Act is analogues to that conferred on the courts in England, Scotland or Ireland by the resealing statutes to which I have referred. The court has no power, under S.5, either to grant probate or letters of administration with or without the will annexed. It has power only to grant letters of administration with a copy of a properly authenticated copy of the will annexed. The language employed by the legislature under S.5 is not accidental but is deliberate, and enables the court, "following the English Law" as Farran, C.J., said in Bhaurao Dadajirao v. Lakshmibai (1896) 20 Bom. It has power only to grant letters of administration with a copy of a properly authenticated copy of the will annexed. The language employed by the legislature under S.5 is not accidental but is deliberate, and enables the court, "following the English Law" as Farran, C.J., said in Bhaurao Dadajirao v. Lakshmibai (1896) 20 Bom. 607, "to dispense with the necessity of proof of the original will." "Is a Court then bound to grant administration under S.5 when an application is made for it? The word "may" indicates that there is some discretion in the court to refuse the grant." The learned judge then goes on to discuss the considerations which must weigh with the Court in making or refusing the grant under S.5. For our present purpose it is unnecessary to commit ourselves to the view that the discretion is only with respect to the cases mentioned by the learned Judge. The comment, Farren, C.J. made in ILR 20 Bom. 607 that analogy has no place in the case of a positive enactment like the Probate and Administration Act may not in our opinion be entirely out of place with reference to what Das, J. has said regarding the limited scope of the discretion vested in the Court under S. 5. 12. In the Full Bench decision of the Allahabad High Court reported as In re Adwait Nath Sill AIR 1948 All. 351 Mootham, J. (Harish Chandra and Bind Bashi Prasad, JJ. concurring) said that S. 228 of the Indian Succession Act, 1925 is entitled to be applied to a case where the will has been proved abroad and that a Court in India will, when acting under that section grant administration without further proof of the will. (the italicising is ours) 13. These cases while helpful to repel the appellants' argument strike equally against the contention that S.16 leaves no discretion on Courts in this State to refuse the grant asked for when the requirements of the section have been satisfied. In other words the contention that the word 'may' in the section should be read as 'shall' finds no support in decided cases. In passing it may be observed English Courts also exercise a discretion in following a foreign grant. See Williams on Executors Twelfth Edition page 243 of Vol. In other words the contention that the word 'may' in the section should be read as 'shall' finds no support in decided cases. In passing it may be observed English Courts also exercise a discretion in following a foreign grant. See Williams on Executors Twelfth Edition page 243 of Vol. I. There it is stated:- "The Probate Division, however, is not merely mechanically guided by the foreign grant, but exercises its own judgment and discretion." 14. To return to the appellant's argument, it was not contended the requirements of S.16 have not been complied with in this case. In the face of the authorities referred to above it is idle to contend that the lower court was bound to take evidence regarding the genuineness of the will before it proceeded to give effect to it in this State. That to all intents and purposes the appellant was a consenting party to the Madras High Court granting probate to Respondent 1 with respect to her deceased husband's will is clear from the caveat he filed before the lower Court. That circumstance and other facts mentioned therein and alluded to in paragraph 2 of this judgment make us think that the lower court was plainly right in exercising the jurisdiction vested in it under S.16 to give effect to the will without further proof than that the Madras High Court had issued to Respondent 1 a probate with reference to the identical will and the production of an authenticated copy of the same therefrom. If the appellant has any grievance he must seek his relief before the Madras High Court by way of revocation of the probate it granted to Respondent 1. The decision that Court made is a judgement in rem and in the circumstances disclosed binds him in the same way as he had opposed the grant there. See Venkitarathnam v. Satyavathi AIR 1924 Mad. 578 and Musammat Phekni v. Musammat Maniki - ILR 9 Pat. 698. 15. The two grounds raised in the appeal have therefore to be decided against the appellant and we so decide. There is however a technical error committed by the court below which was left unnoticed in the argument. S 16 authorises a Court to grant letters of administration with a copy of the authenticated copy of the will produced annexed and not to grant a probate. There is however a technical error committed by the court below which was left unnoticed in the argument. S 16 authorises a Court to grant letters of administration with a copy of the authenticated copy of the will produced annexed and not to grant a probate. What Respondent 1 applied for in the Court below and what that court has ordered is to grant a probate. This is a mistake and in modification of the lower court's order to grant a probate we direct that Court to issue letters of administration instead. In AIR 1938 Lah. 349 the primary Court dismissed the application on the ground that what was asked for was a probate and not letters of administration as contemplated by the section. The appellate Court took the view that the ground of the decision was based on the barest technicality and remitted the case back with leave to amend the application. Here in this case as no objection was taken either in this Court or in the Court below we have thought it unnecessary to allow time being wasted on a mere formal amendment and hence the direction to issue letters of administration. In the result the appeal fails and subject to the modification noticed above it will stand dismissed with costs. Appeal dismissed.