Gomez v. Gomez — 1955 DIGILAW 34 (KER)

Judgment :- 1. The appellant applied for the grant of letters of administration with a copy of the Will annexed in respect of the estate of his mother's father John George Gomez who died at Anjengo on 25.2.1927. The application was originally made to the Subordinate Judge, Tinnevelly, within whose jurisdiction Anjengo was at that time but consequent on the transfer of the territory to this State, the application was transferred to the District Court of Trivandrum where it was numbered as Probate Petition No. 5 of 1950. John George Gomez left surviving him, his widow Mrs. Joanesa Gomez who died on 6.6.1936, two sons George John Gomez and Walter J. Gomez and three daughters Mary D'Silva who died on 18.10.1936, Margaret Gomez and Jessie Fernandez. The appellant is a son of Margaret Gomez. It was alleged by the petitioner that of the two executors appointed under the Will viz. Joseph Gomez and J.C. Pereira, the former was dead and the latter was unwilling to act as executor, that Joanesa Gomez and Simon T. Gomez who were to act as executors in case the two persons named above found it inconvenient to do so were both dead, that the petitioner was a legatee under the Will, that letters of administration should be granted to him in that capacity and that the assets that were likely to come to his hands were the properties described as items Nos.1 to 4 in Schedule A to the Will. The original Will was said to be missing and an authenticated copy obtained from the office of the Sub-Registrar of Anjengo where the original was registered was produced along with the petition. The petition was opposed in the court below and here by the 5th respondent to whom items Nos.1 to 4 in Schedule A had been sold by the petitioner's mother Margaret Gomez, to discharge the decree debt which was obtained on the mortgage mentioned in the Will, for the realisation of which, these properties had been sold in court sale. He contended that the District Court of Trivandrum had no jurisdiction to entertain the petition. The allegation that John George Gomez had left a Will of which Ext. A was produced as a copy was denied. He contended that the District Court of Trivandrum had no jurisdiction to entertain the petition. The allegation that John George Gomez had left a Will of which Ext. A was produced as a copy was denied. It was also contended that the petitioner was not entitled to the grant of letters of administration, that the assets were not correctly stated in the petition, that the assets described in the schedule annexed to the petition belonged to him, that the original Will was not produced because the same was destroyed by the testator with intent to revoke the same, that the long delay in making the application was a ground for dismissing the petition and that all the formalities of law had not been complied with. The court below refused to grant letters of administration holding that the execution of the Will was not satisfactorily proved, that one of the witnesses to the Will did not sign the same, that the Will must have been revoked, that there was no estate to be administered, that the petition was defective in as much as it was for the grant of letters of administration for a part only of the assets of the testator and that the petition was an attempt to get by indirect means a declaration of the petitioner's title from the probate court for the purpose of a civil suit pending between the parties. 2. The circumstances in which the petition was filed may also be stated. After the testator's death a suit for recovery of the amount under the simple mortgage mentioned as the first item of debt in Schedule B to the Will was filed as O.S. No. 5 of 1936 of the Anjengo Munsiff's Court and a decree was obtained. Ext. A is copy of the plaint. The properties described as items Nos.1 and 2 in the petition which were items Nos. 1 to 4 in Ext. A were sold in court sale for a portion of the decree amount on 18.6.1943. Ext. F is copy of a petition dated 8.10.1942 filed by Margaret Gomez for postponing the sale. On 12.7.1943 Jessie Fernandez one of the daughters of the testator filed an application for setting aside the ex-parte decree in the case and another for setting aside the sale. Exts. II and III are copies of the said petitions. Ext. F is copy of a petition dated 8.10.1942 filed by Margaret Gomez for postponing the sale. On 12.7.1943 Jessie Fernandez one of the daughters of the testator filed an application for setting aside the ex-parte decree in the case and another for setting aside the sale. Exts. II and III are copies of the said petitions. While these petitions were pending, Margaret Gomez sold these properties to the 5th respondent under Ext. B dated 17.7.1943, directing him to pay the auction amount and commission and to discharge the decree debt. The amount was duly paid, the sale was set aside and the decree was satisfied as seen from Ext. IV. The appellant when he came of age instituted a suit, O.S. No. 64 of 1943 in the court of the Subordinate Judge of Tinnevelly which was later transferred to the District Court of Trivandrum as O.S. No. 102 of 1950. This suit is now pending on the file of the Subordinate Judge of Attingal as O.S. No.46 of 1954 and is one for recovery of the properties sold. The 5th respondent had raised a contention in that suit that the plaintiff was not entitled to maintain the suit as the executors had not obtained probate of the Will. Since one of the executors was dead and the other declined to act, the appellant filed the petition for the grant of letters of administration to enable him to meet this contention in the original suit. It may be stated that the appellant cannot get a decree in the civil suit without obtaining letters of administration even if he is otherwise entitled to succeed. 3. The main ground on which the grant was opposed before us was that the appellant was not entitled to letters of administration under S. 234 of the Indian Succession Act. It was contended that he was not "a legatee having a beneficial interest". The terms of the Will have to be examined for deciding this question. The testator owned 9 items of immoveable property which were described in Schedule A to the Will. Of these items, 1, 2 and 6 together with the buildings thereon were bequeathed to his wife with a direction to discharge his debts. The terms of the Will have to be examined for deciding this question. The testator owned 9 items of immoveable property which were described in Schedule A to the Will. Of these items, 1, 2 and 6 together with the buildings thereon were bequeathed to his wife with a direction to discharge his debts. It was stated in Clause.(2) that the testator had got his sons educated so that they were earning good income, that his daughters other than Margaret Gomez had been given dowry at the time of marriage and that Margaret Gomez alone was not given any dowry. It was therefore declared that Margaret, her husband Simon T. Gomez and their children were to have a greater share of the assets than the others. Items 3 and 4 in Schedule A were then demised to Margaret and her husband with the provision that they were to take the income but that they were not to alienate the properties, the power of alienation being vested in their children. Items Nos. 6, 7, 8 and 9 were bequeathed absolutely to Margaret and her husband. The effect of these clauses is to give a beneficial interest to the petitioner who is one of the sons of Margaret and Simon T. Gomez and prima facie he has a right to administer the estate. Learned counsel for the 5th respondent relied on the decision of the Supreme Court in Raj Bairang Bahadur Singh v. Thakursin Bakhtrai Kuer (A.I.R. 1953 S.C. 7) and contended that as the appellant who was not born on the date of the testator's death the gift to him as a person not in existence on that date would be void. The decision cited cannot apply to the facts of this case. Under S. 113 of the Indian Succession Act, the bequest to a person not in existence at the time of the testator's death is void unless it comprises the whole of the remaining interest of the testator in the thing bequeathed. The decision cited cannot apply to the facts of this case. Under S. 113 of the Indian Succession Act, the bequest to a person not in existence at the time of the testator's death is void unless it comprises the whole of the remaining interest of the testator in the thing bequeathed. The bequest in favour of persons not in existence at the time of the testator's death was only a life estate in the case cited above and it was on account of this that it was held that the bequest of a life estate to the person who was alive on the date of the testator's death alone was valid and that it was invalid in respect of the rest. In our opinion the present case is one governed by the exception to S. 112 of the Indian Succession Act. We must, however, make it clear that we come to this conclusion only for the purpose of the present enquiry and not for deciding the question of title to the properties. 4. The court below considered at some length the question whether the Will was executed by John George Gomez and whether it was validly attested by two witnesses as required by law. It has to be stated that such a contention was not raised in the court below. The averment in paragraph 11 of the objections filed by the 5th respondent was only this: "All the formalities of law have not been complied with. The petition is also defective". It is difficult to construe this as a denial of the execution of a valid Will. The Will in question was duly registered during the life time of the testator and counsel for the respondent did not dispute its genuineness. The objection was based on the fact that the authenticated copy of Ext. A did not show that J. Johnson Pereira one of the attestors signed the document. The words ""oO}h Csoe" in Ext. A have reference only to the fact that the document did not bear any stamp. Other authenticated copies of documents such as Exts. B and C issued from the same Sub-Registrar's Office show that the word "oO}h" is used to denote the stamp and not the signature. J. Johnson Pereira signed the document as attesting witness at the time of the registration also. His signature was copied in Ext. Other authenticated copies of documents such as Exts. B and C issued from the same Sub-Registrar's Office show that the word "oO}h" is used to denote the stamp and not the signature. J. Johnson Pereira signed the document as attesting witness at the time of the registration also. His signature was copied in Ext. A. What is seen in Ext. A is that after writing the name of the attestor in Malayalam his name is reproduced in English. The only possible inference is that the signature of J. Johnson Pereira was merely copied in preparing the copy, Ext. A. It was also contended that even when due execution of the Will was not disputed, formal proof regarding the same was necessary. Such proof is furnished by the testimony of Pw.1, one of the executors mentioned in the Will. He stated that the testator and the two attestors could see each other putting their signature to Ext. A. It must therefore be held that the requirements of S. 63 of the Indian Succession Act have been complied with. 5. The court below deduced from the non-production of Ext. A that the Will must have been revoked by the testator after it was executed and registered. The original of Ext. A was registered only 15 days before the death of the testator. The burden of proving revocation is on the party who sets up the plea and in order that the loss of a Will may raise a presumption of revocation, it must be proved that the Will was not in existence at the time of the testator's death. The facts proved in this case lead to the opposite conclusion. There is evidence that the Will was acted upon by the legatees as well as by others. Ext. C dated 18.5.1927 is copy of a sale deed executed by the widow and the property sold is item No. 6 in Schedule A. She traced her title to the Will and mentioned the registration number of the same in Ext. C. This deed was attested by the two persons mentioned as executors as well as by her eldest son and Simon T. Gomez. The fact that the executors under the Will attested this document cannot be a mere coincidence. Similarly there is reference to the Will in Ext. E executed by Simon T. Gomez on 18.11.1929 and in Ext. C. This deed was attested by the two persons mentioned as executors as well as by her eldest son and Simon T. Gomez. The fact that the executors under the Will attested this document cannot be a mere coincidence. Similarly there is reference to the Will in Ext. E executed by Simon T. Gomez on 18.11.1929 and in Ext. K dated 28.4.1946 and Ext. L dated 10.7.1933 executed by Margaret Gomez. The fact that the legatees obtained patta for the respective properties obtained by them under the Will also shows that the Will was acted upon. Ext. D is copy of the plaint in O.S. No.5 of 1938 of the Munsiff's Court of Anjengo. The Will is specifically referred to in paragraph 10 of Ext. D. These cannot be explained consistently with a case of revocation of the Will. The absence of specific reference to the Will in Exts. F, II, III, IV and V cannot lead to the inference that the Will must have been revoked. The finding of the court below regarding revocation is only a surmise based on insufficient evidence and the same cannot be upheld. 6. Another ground for refusing letters of administration was the long delay in making the application. This is an irrelevant consideration as observed by Muthuswami Iyer, J. in Gnanamuthu Upadesi v. Vana Kopipillai Madan (I.L.R.17 Mad. 379). "Long delay in making an application for probate or letters of administration with the Will annexed is no doubt a circumstance which may be property taken into account in determining the question of the genuineness of the Will but that is the only purpose for which it is relevant". This view was followed by the High Court of Calcutta in Durganada Bera v. Atul Chandra Bera and others (A.I.R. 1937 Cal. 595). 7. It was further held by the court below that there was no estate to be administered and that the application was an indirect attempt to get a declaration of title from the probate court in respect of the properties involved in the civil suit. The decisions of the Calcutta High Court such as those reported in 3 Calcutta Weekly Notes 635,9 Cal. L.J.116 and 17 Cal. Law Journal 66 cited by the learned counsel for the respondent are not in point. These were distinguished in Durgananda Bera v. Atul chandra Bera and others (A.I.R. 1937 Cal. The decisions of the Calcutta High Court such as those reported in 3 Calcutta Weekly Notes 635,9 Cal. L.J.116 and 17 Cal. Law Journal 66 cited by the learned counsel for the respondent are not in point. These were distinguished in Durgananda Bera v. Atul chandra Bera and others (A.I.R. 1937 Cal. 595) on the ground that these decisions related either to cases of intestacy or to cases in which applications were made, years after the grant of probate or letters of administration for permission to sell some of the properties. Adwaiti Chandra Mondal v. Krishnadhan Sarkar (21 Cal.W.Notes 1129) is another case of testamentary succession in which the same High Court declined to follow the principle laid down in 3 Cal. Weekly Notes 636, 2 Cal. Law Journal 116 and 17 Cal. Law journal 66. As observed by Henderson, J. in Durganada Bera v. Atul Chandra Bera: "On an intestacy, letters of administration are an expensive luxury. In the case of a Will, they are an absolute necessity and until probate is taken out or letters of administration granted, effect cannot be given to the terms of the Will". 8. As regards the argument that the application is a transparent device to secure from the probate court a decision upon a disputed question of title to the properties, it is difficult to see how a decision in the probate court can at all operate to help the parties one way or the other in a contested title suit. The grant of probate or letters of administration is decisive only of the genuineness of the Will and the right of the person to whom the grant is made to represent the estate. It is impossible to say, therefore, that the grant of probate or letters of administration with a copy of the Will annexed would be at all a bar to the determination of any question of title or to a suit for construction of the Will. The fact that third parties may have acquired rights in the properties can be no ground for refusing probate or letters of administration as the one cannot prejudice or be prejudiced by the other. 9. Only one more point remains to be considered and that is whether the petition is defective being one for grant of letters of administration in respect of a party only of the estate. 9. Only one more point remains to be considered and that is whether the petition is defective being one for grant of letters of administration in respect of a party only of the estate. The respondent relied on the decision in Sardar Singh and another v. Taja Sahu and others (A.I.R. 1945 Lah. 277). It was held that except in a case where the estate had been partially administered before the application for grant of letters of administration was made, the application must cover the entire estate of the deceased. In the present case items Nos. 5, 7, 8 and 9 had been bequeathed to Margaret Gomez and her husband absolutely and they took possession of the same on the death of the testator. Items Nos. 1, 2 and 6 were bequeathed to widow with a direction that she was to discharge the mortgage debt. In the event of her failure to pay the debt it was provided that Margaret Gomez and others could recover damages, if any, from the properties allotted to her. Of these three items, item No. 6 had been alienated by the widow as early as 18.5.1927. The petitioner, therefore, stated that the properties that were likely to come into his hands were items Nos.1 to 4 in the Will. In these circumstances nothing remains to be done in respect of items Nos. 5 to 9 and the omission to include properties other than items Nos.1 to 4 cannot entail dismissal of the petition. 10. The findings of the court below on all the material points must, therefore, be reversed and the decision set aside. We, therefore, allow the appeal with costs throughout and declare that the petitioner is entitled to the grant of letters of administration as prayed for. The court below is directed to grant to the petitioner letters of administration with the authenticated copy of the Will annexed in respect of the assets shown in the petition. Allowed.