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1967 DIGILAW 52 (PAT)

Ram Parikha Rai v. Sheo Pujan Rai

1967-07-17

N.L.UNTWALIA

body1967
Judgment N.L.Untwalia, J. 1. This application in revision is directed against an order dated 23-7-1965 of the court below dismissing the petitioners application under Sec.263 of the Indian Succession Act hereinafter called the Act, on the ground that the application for revocation of the Letters of Administration granted to the Opposite Party was premature and hence not maintainable. The relevant facts as stated in the order under revision are these. There was one Most. Tapeshwari, wife of Inderjit Rai, who died issueless on 13th February, 1957. But before her death she is said to have executed a will in favour of Sheo Pujan Rai, opposite party in the civil revision, on 1-4-1955. Sheo Pujan Rai filed an application on 16-12-59 for the grant of the Probate of the will. This was registered as Probate case No. 82 of 59. On 25-1-1961, as it appears. Probate was not granted but Letters of Administration were granted in the terms- "Let the Letters of Administration be granted to the applicant with copy of the will annexed on his executing a bond of Rs. 14,000/-." The draft security bond was not filed and in the meantime Revocation case No. 26 of 1961 was filed by the petitioner on 28-4-1961 with a prayer to revoke the Letters of Administration granted to Sheo Pujan Rai, for the reasons and on the grounds mentioned in the petition. 2. Accepting the contention raised on behalf of the opposite party at this stage that an application for revocation is only maintainable after the Letters of Administration had actually been issued to the applicant and that the grant of the Letters of Administration is not complete by merely passing an order for the grant, but it is complete only when the Letters of Administration are actually handed over to the applicant, and hence the petition filed prior to the furnishing of the security bond and handing over the Letters of Administration is not maintainable, the court below has held that the application filed by the petitioner is premature and not maintainable. 3. In my judgment, the court below has committed an error of jurisdiction in dismissing the petition filed by the petitioner under Sec.263 of the Act on the ground it has been done. 3. In my judgment, the court below has committed an error of jurisdiction in dismissing the petition filed by the petitioner under Sec.263 of the Act on the ground it has been done. Chapter I of Part IX of the Act providing for the grant of Probate and Letters of Administration in Sections 218 to 236 of the Act, does not make any distinction between an order for grant of Probate or Letters of Administration and the, actual grant in the sense of handing over the Probate or the Letters of Administration. The main and the substantial thing in the grant is an order granting the Probate or Letters of Administration. The actual grant or handing over of the Probate or Letters of Administration which follows under Sec.289 or 290 of the Act is consequential to the order of grant. The security bond is asked for under Sec.291 of the Act but that by itself does not make the order of grant or the grant itself conditional upon the furnishing of the security bond. Of course the Letters of Administration to the estate of the deceased person shall not be granted under the seal of the court in accordance with Sec.290 of the Act untill and unless - the security bond is furnished. The administrator will not be able to administer the estate of the deceased unless and until he is armed with the sealed Letters of Administration. 4. Sec.263 of the Act provides that the grant of Probate or Letters of Administration may be revoked or annulled for just cause as enumerated in the various clauses of the explanation appended to the said section. What is meant and sought to be revoked under the said provision of law is grant of Probate or the Letters of Administration, that means order of grant of Probate or Letters of Administration, as the case may be, and not the actual grant in the sense of handing over the Probate of the will or Letters of Administration under the seal of the court. 5. The only decision, on the basis of which the court below was persuaded to take the view in favour of the opposite party, is one of the Bombay High Court in Jamsetji Nassarwanji V/s. Hiarjibhai Navroji Anklesaria. (1913) 39 Ind Cas 406 (Bom). No other case could be cited at the Bar, even in this Court. 5. The only decision, on the basis of which the court below was persuaded to take the view in favour of the opposite party, is one of the Bombay High Court in Jamsetji Nassarwanji V/s. Hiarjibhai Navroji Anklesaria. (1913) 39 Ind Cas 406 (Bom). No other case could be cited at the Bar, even in this Court. In the Bombay case a suit was filed by the plaintiff praying that the first two defendants and the third defendant as administrators of the estate of the deceased be directed to render all the account of all the assets of the deceased. After the death of the deceased, his widow Maneckbai acted as executrix according to the tenor of the will executed by the deceased, and acted as such until her death in the year 1905. This fact created difficulties in getting the relief in the suit; hence the plaintiff applied after the institution of this suit to the District. Judge, Mr. Tyabji, for an order to revoke the Probate which was supposed to have been granted to Manickbai in 1895 of the Will of Naoroji. In 1895 an order had been passed by the court that Probate should issue to Maneckbai as executrix of the will of Naoroji Maneckbai never took out Probate. Therefore no Probate ever was issued. Nonetheless the District Judge was induced to make the order to revoke the order of Probate made on March the 7th. 1895. In that situation it was observed by a Bench of the Bombay High Court :- - "There was no such grant in existence and if Mr. Tyabji under the terms of Sec.234 had a jurisdiction on the grounds stated to him to revoke the Probate which, we think, is extremely doubtful, he certainly had no jurisdiction to purport to revoke a Probate which had never been issued, quite apart from the fact that Letters of Administration to the same estate had already been granted by him and that person who, he supposed had obtained Probate, was already dead." The observations must be confined to the facts of that particular case. A stray observation that Mr. Tvabji, District Judge, had no jurisdiction to purport to revoke a Probate, which had never been issued, seems to have been made per incurium. No section of the previous Act which was in force then was referred to in support of this observation. A stray observation that Mr. Tvabji, District Judge, had no jurisdiction to purport to revoke a Probate, which had never been issued, seems to have been made per incurium. No section of the previous Act which was in force then was referred to in support of this observation. With greatest respect I venture to differ from that observation, and my considered view is that the grant of Probate or Letters of Administration can be revoked under Sec.263 of the Act, even though the Probate or the Letters of Administration has or have not been actually issued under the seal of the court. As I have said above, what is sought to be revoked, is the order granting the Probate or the Letters of Administration. It may well be that under certain circumstances only the actual issuance of Probate or Letters of Administration is sought to be or liable to be revoked. But that is no ground for taking the view that an application filed shortly after the order granting Letters of Administration for revoking it is premature and not maintainable. 6 In the result, I allow the application in revision, set aside the order of the court below and direct it to proceed with the disposal of Revocation case No. 26 of 1961 in accordance with law. I shall make no order as to costs.