Ramchandra Sahu v. Sm. Safeli Ghose — 1964 DIGILAW 168 (PAT)

Judgment Anant Singh, J. 1. By the judgment, dated the 25th January, 1960, of the 1st Additional District Judge Darbhanga, the sole applicant, Dr. Radha Prasanna Ghosh, was granted Letters of Administration in respect of the estate of one late Mr. J. G. V. Gurner of Samastipur, and opposite party No. 7, Ramchandra Sahu, has filed this appeal against the judgment. The following facts are admitted. Mr. Gurner was a British born Christian European subject of India and he died on the 12th June, 1942, leaving behind him two daughters from his second wife, who were made opposite party Nos. 5 and 6 and four grandchildren from his first wife on her daughters side. They were made opposite party Nos. 1 to 4. Mr. Gurner left a house within Samastipur Municipality situated on survey plot Nos. 1S2, 183 and 184. 2. Opposite Party Nos. 5 and 6 obtained succession certificate with regard to the moveable properties of Mr. Gurner and took possession of the house. On the 15th December, 1945, opposite party Nos. 5 and 6 executed a sale deed In respect of the entire house along with the land on which it stood in favour of opposite party No. 7 for a consideration of Rs. 20,000/-. On the 10th February, 1947, opposite party No. 1 as guardian for opposite party No. 2 as also for self and opposite party Nos. 3 and 4 executed a sale deed in respect of their one-third share in the house including the land on which it stood in favour of the applicant for a consideration of Rs. 4,000/-. 3. In 1947 the applicant filed partition Suit No. 35 for partition of his one-third share in the house. The suit was decreed on the 30th November, 1948. There was first Appeal No. 25 of 1949 filed in this Court by opposite party No. 7 and it was disposed of by a Division Bench of this Court by the judgment dated the 12th March, 1958. In this appeal the decree in favour of the applicant was upheld with a modification, reducing the applicants share to one-fourth from onethird, as it was held that opposite party No. 1 could not validly transfer the share of minor opposite party No. 2 and the transfer to the extent of her share, namely, one-twelfth, was invalid. 4. In this appeal the decree in favour of the applicant was upheld with a modification, reducing the applicants share to one-fourth from onethird, as it was held that opposite party No. 1 could not validly transfer the share of minor opposite party No. 2 and the transfer to the extent of her share, namely, one-twelfth, was invalid. 4. There was an objection taken on behalf of the appellant in that appeal that in view of the provisions of Sec.212 of the Indian Succession Act, the suit of the plaintiff was not maintainable in absence of Letters of Administration and this court, in the said appeal, held that the decree, nevertheless could be passed as was passed, but it was observed that the decree "will not be executable until Letters of Administration have been obtained in respect of the immovable properties left by Mr. J. G. Gurner". 5. The applicant accordingly applied for Letters of Administration, making parties all the heirs of Mr. Gurner, being opposite party Nos. 1 to 6, and opposite party No. 7, the purchaser from opposite party Nos. 5 and 6. It was stated in paragraph 9 of the application that after the Judgment and decree of the High Court, the applicant approached all the heirs of late Mr. J. G. V. Gurner by notices sent by registered post, requesting them to apply for Letters of Administration, but they paid no heed to those notices because they had parted with their interest in the property. It was for that reason that the applicant filed the petition for grant of Letters of Administration. 6. The application was contested by opposite party No. 7 alone. Opposite party No. 5, however, appeared and filed her rejoinder on the 2nd September, 1958, objecting to the application of the applicant. She maintained therein that after she and opposite party No. 6 transferred the whole house with the land in favour of opposite party No. 7, other heirs of late Mr. Gurner had no right to make any transfer and it was also averred that they were in fact not his legal heirs. It was also mentioned in her rejoinder petition that the applicants claim for grant of Letters of Administration in respect of one-third share was illegal since his decree was for one-fourth only. It was urged that the applicants petition be rejected. It was also mentioned in her rejoinder petition that the applicants claim for grant of Letters of Administration in respect of one-third share was illegal since his decree was for one-fourth only. It was urged that the applicants petition be rejected. After filing the re-;cindcr, opposite party No. 5 never appeared to contest the application. It was, as I have already indicated above, contested by opposite party No. 7 alone. 7. The main contention of opposite party No. 7 was that the applicant had no locus standi to make the application for grant of Letters of Administration and, therefore, it was not maintainable. The objection was overruled and Letters of Administration were ordered to be granted to the applicant. No cost, however, was allowed to the applicant and the applicant has also filed a cross-appeal in that connection, but the cross-appeal was not pressed. 8. It appears that before Letters of Administration were granted, the applicant filed a petition on the 9th August, 1958, reporting the death of minor opposite party No. 2, Miss Lorna Hilda OBrion, with a prayer that her name should be expunged. Accordingly by Order No. 11, dated the 9th August, 1958, her name was expunged. The Letters of Administration were ultimately granted, as aforesaid, by the judgment under appeal. 9. The decree was put in execution and by Order No. 45, dated the 2nd May, 1960, read with Order No. 54, dated the 29th June, 1960, the applicant was made -to deposit security in respect of one-third share in the house including the one-twelfth. share of the deceased minor opposite party No. 2. 10. During the pendency of the appeal, the applicant died and his heirs, respondents l(a) to l(d), have been substituted. 11. The moot question that has been canvassed before me on behalf of the appellant by learned counsel, Mr. Srivastava. is that the applicant was not competent to make an application for grant of Letters of Administration and that the order of the learned Additional District Judge is wrong. The next point urged is that In any event the applicant could not be appointed the administrator in respect of the share of deceased minor opposite party No. 2 since his interest was adverse Mr. The next point urged is that In any event the applicant could not be appointed the administrator in respect of the share of deceased minor opposite party No. 2 since his interest was adverse Mr. Srivastava took me to the provisions of Sections 218, 219, 241, 243, 263 and 254 of the Indian Succession Act in support of his contention that the applicant was not competent to make the application. The provisions of Sec.254 alone are relevant for the provisions of other sections on their very face are not applicable and I need not quote those sections. In brief, I may Indicate that the provisions of Sections 218 and 219 do not apply to European Christians. The circumstances in which Letters of Administration are granted under Sections 241, 243 and 253 are not attracted; Sec.254 is as follows: "(1) When a person has died intestate, or leaving a will of which there is no executor willing and competent to act or where the executor is, at the time of the death of such person, resident out of the State, and it appears to the Court to be necessary or convenient to appoint some person to administer the estate or any part thereof, other than the person who in ordinary circumstances would be entitled to a grant of administration, the Court may, in its discretion, having regard to consanguinity, amount of Interest, the safety of the estate and probability that it will be properly administered, appoint such person as it thinks fit to be administrator. (2) In every such case letters of administration may be limited or not as the Court thinks fit." 12. The argument of learned counsel for the appellant is that the applicant was not in any way related to the deceased but he was only a purchaser from some of his heirs. According to his contention, only the heirs or persons having any consanguinity or interest in the estate of the deceased could apply for Letters of Administration. He conceded that Letters of Administration could be granted even to a stranger provided due regard is given to the claims of persons having consanguinity to the deceased or amount of interest in the property and the safety of the estate. He conceded that Letters of Administration could be granted even to a stranger provided due regard is given to the claims of persons having consanguinity to the deceased or amount of interest in the property and the safety of the estate. He relied on the decision in Bhagwati Kuer V/s. Ramsakhi Kuer, 1 Pat LT 304: (AIR 1920 Pat 197), wherein the principle governing the grant of Letters of Administration to a person other than the one duly entitled to has been enunciated. The same view has also been repeated in Annopurna Dasi v. Kallayani Dasi, ILR 21 Cal 164 at p. 168 and Sivadass V/s. Surendra Nath, AIR 1925 Cal 178. It was pointed out in the Patna case that the learned District Judge had no power "to pass over a person, who was entitled to Letters of Administration, on the ground that it would be more satisfactory to grant administration to another". It was also observed that: "No doubt grant of administration is purely discretionary, but still the discretion must be exercised in accordance with rules formulated and acted upon for many years in our courts. The main object of the grant being the protection and benefit ef the estate, the Court has a discretion to refuse the grant to a person, having the largest interest, If it considers that in his hands the estate will suffer Irretrievable loss and damage. But, in my view, the Court has no discretion to refuse the grant to a person, having the largest interest in the estate, merely on the ground that it would be more satisfactory to make the grant to another person." His Lordship then illustrated: "It is one thing to say I refuse the grant to A because I consider that in As hands the estate will suffer loss and damage and quite another thing to say, I refuse the grant to A because I consider It more satisfactory to make the grant to B." I need not quote from the observation in the other cases since they are practically similar as the Patna case, 1 Pat LT 304: (AIR 1920 Pat 197). 13. I must point out that the question for the purpose of this case is merely academic for, in this case, no preferential person came to make any claim for the grant of Letters of Administration to himself or herself. 13. I must point out that the question for the purpose of this case is merely academic for, in this case, no preferential person came to make any claim for the grant of Letters of Administration to himself or herself. All the heirs of late Mr. Gurner were parties to the proceeding. They did not choose to put any preferential claim to the grant of Letters of Administration, not even opposite party No. 5, as I have already indicated above, claimed any such right to herself. She only objected that Letters of Administration should not be granted to the applicant, because he did not acquire any valid title. The applicant was indeed a stranger, in the sense, that he did not bear any consanguinity to the deceased and he was only a purchaser from two of his heirs but surely, he acquired an amount of interest" in the property. He is thus clearly interested in it and, therefore, there could be no bar to the grant of Letters of Administration to him. The power under Sec.254 is discretionary and in the circumstances of this case, I do not think that the learned Additional District Judge exercised his discretion wrongly. Opposite Party No. 7 is also a purchaser like the applicant and, I wonder, if he himself has any locus standi to object to the grant of Letters of Administration, particularly when the applicant applied for the grant of Letters of Administration in pursuance to the order of this Court in the appeal, above referred to. It is true that there was no specific order made in that appeal that it was the applicant who would apply for Letters of Administration but the implication was obviously so, inasmuch as the decree was confirmed in the applicants favour only with a modification regarding his share. Since the decree was passed in his favour and an observation was made that the decree would not be executable "until letters of administration have been obtained", obviously meaning, obtained by the plaintiff decree-holder. After the heirs of late Mr. Gurner had parted with their interest in the house and Mr. Gurner having no other property, these persons would not be interested in taking Letters of Administration, and in this view of the matter, it might well be assumed that they refused to apply for such Letters of Administration. After the heirs of late Mr. Gurner had parted with their interest in the house and Mr. Gurner having no other property, these persons would not be interested in taking Letters of Administration, and in this view of the matter, it might well be assumed that they refused to apply for such Letters of Administration. The applicant In his application had made an averment to that effect and although, the same was denied on behalf of opposite party No. 7, it was never denied by any one of the heirs of late Mr. Gurner. In a situation like this, the only course left open to the applicant was to himself apply for Letters of Administration, and, as I have said, his action was in pursuance to the order of this Court in the aforesaid appeal. The decision in that appeal is final and on the interpretation I have put on it, it is not open to the appellant to question the maintainability of the application made by the applicant for the grant of Letters of Administration. 14. A question is raised that the applicant is not competent to administer the estate of the deceased minor opposite party No. 2 since his interest was adverse, Inasmuch as, at one stage, the applicant was trying to assert his right even in respect of the minors share. But that situation no longer exists, once the sale of the minors share in favour of the applicant has been declared to be invalid The applicant and, now his heirs, would administer the share of the deceased minor opposite party No. 2 to the benefit of her heirs under the directions of the Court and there would be no prejudice. Besides, it will be open to the heirs of the deceased minor opposite party No. 2 to challenge the administration by the heirs of the applicant at any stage on the ground of waste or otherwise. The substituted heirs of the applicant, it may be made-clear here, would administer their share in the house and the land to the extent of one-fourth only-and they would administer the remaining one twelfth on behalf of the heirs of deceased minor opposite party No. 2. 15. There is no merit in the appeal and it is accordingly dismissed with costs of this Court. The cross-appeal is also dismissed without cost.