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1971 DIGILAW 316 (KAR)

TADIMALLA SUBBA RAO v. STATE

1971-10-22

VENKATACHALAIAH

body1971
( 1 ) THE above petition has been filed for the grant of letters of administration with copies of the authenticated copies of the will and two codicils annexed thereto in respect of the estate of a certain John Hunter alexander, hereinafter referred to as the testator'. The petitioner is sri Tadimalla Subba Rao, who happens to be the holder of a Power of attorney of the Executors and Trustees, entitled to administer the estate, who are not residing in India. After the petition was received by the court it was duly advertised in a local daily. No objections have been received from any body for the issue of letters of administration as prayed for. ( 2 ) BRIEFLY stated the facts of the case are these: The testator was ordinarily residing at Chickamagalur in the State of Mysore. He was a planter by profession owning properties in India and Scotland. While he was in scotland, the testator made a will on November 16, 1955, and signed the same in the presence of two witnesses, namely, Mr. David Smith and miss Laura Cecilia Young, who duly attested it. By that will he appointed james Miller and Robert Fair-weather Alexander as the Trustees to act as executors of the will empowering them or the survivor of them or the heir of the last survivor of them to administer the estate as per directions contained in the will. Later at Bangalore on November 1, 1961, he executed a codicil tc the aforesaid will and another codicil at Kirriemuir, Scotland on May 6, 1964. The testator died at Chickamagalur on June 2, 1970. ( 3 ) JAMES Miller one of the executors having predeceased the testator, robert Fairweather Alexander, the surviving Trustee and executor under the will assumed the office of the executor and appointed Mrs. Euphemila margaret Miller and David Smith to act along with him as the Trustees and Executors of the will and codicils of the testator in exercise of the powers conferred on him by the said documents by executing a deed dt. July 16, 1970 at Kirriemuir, Scotland. Thereafter the will and the two codicils were duly proved along with the document of July 16, 1970 by which Mrs. July 16, 1970 at Kirriemuir, Scotland. Thereafter the will and the two codicils were duly proved along with the document of July 16, 1970 by which Mrs. Millar and Smith were appointed as Co-trustees and Co-executors before the Commissariot of Edinburgh, Scotland and the confirmation (probate) of the will and the codicils was granted on October 2, 1970. The certified extract of the confirmation and the certified copies of the will and the codicils and the deed appointing co-trustees and co-exe-cutors are produced before this Court. Pursuant to the said grant, an Inventory of the Heritable Estate of the value of 83,379 in England and scotland which belonged to the testator was filed before the Commissariat of edinburgh which committed the same to the possession of the Trustees and. the Executors by the certificate dt. October 6, 1970 issued by the Depute commissary Clerk. The certified extract of the said Inventory is also produced before the Court. Because the Trustees and Executors who were all residents of Scotland did not find it convenient to go to India for the purpose of obtaining the necessary letters of administration and to administer the properties of the testator which were in India, they appointed sri T. Subba Rao, the petitioner herein and Sri M. K. Viswanath, an advocate of Bangalore Bar to act as their lawful Attorneys jointly and severally in connection with the obtaining of the letters of administration and the administration of the properties belonging to the estate of the testator which were in India by a Power of Attorney dt. October 1, 1970 executed before J. K. Shepherd, a Notary Public at Kirriemuir, Scotland. ( 4 ) THE said Power of Attorney is produced before this Court. Pursuant to the said Power of Attorney, the petitioner herein has filed the above petition for the grant of letters of administration with the copies of the authenticated copies of the will and codicils annexed in respect of the estate of the testator in India. The necessary certificate issued under S. 57 of the Estate Duty Act by the Controller of Estate Duty, Mangalore, is also produced. The net value of the estate in India as stated to be es. 5. 41,321-16 in Annexure 'a' attached to the petition. ( 5 ) THE petitioner has filed the above petition under Ss. The necessary certificate issued under S. 57 of the Estate Duty Act by the Controller of Estate Duty, Mangalore, is also produced. The net value of the estate in India as stated to be es. 5. 41,321-16 in Annexure 'a' attached to the petition. ( 5 ) THE petitioner has filed the above petition under Ss. 228, 241, 278 and 300 of the Indian Succession Act (hereinafter referred to as the Act ). S. 278 of the Act deals with the particulars which an application for letters of administration should contain and S. 300 confers jurisdiction on the high Court also to issue letters of administration. But the real question is whether the present case falls under S. 228 or S. 241 of the Act one of the points of difference between the two sections being that whereas when the grant is made under S. 241, no administration bond and sureties can be insisted upon under S. 291, when the grant is made under S. 228 the provisions of S. 291 would be attracted. S. 228 of the Act which is found in Chapter I of Part IX of the Act entitled ' Of Grant of Probate and letters of Administration reads as follows:" 228 Administration, with copy annexed, of authenticated copy of will proved abroad: when a will has been proved and deposited in a (Joint of Competent jurisdiction situated beyond the limits of the Gtate, whether within or beyond the limits of India and a properly authenticated copy of the will be produced, letters of administration may be granted with a copy of such copy annexed. " ( 6 ) SEC. 241 is found in Chapter II of Part IX of the Act dealing with Limited grants. Ss. 241 to 247 deal with such of those 'limited grants' which are made for the use and benefit of others having right. S. 241 reads:" 241. Administration, with will annexed to Attorney of absent executor: when any executor is absent from the State in which application is made, and there is no executor within the State willing to act letters of administration, with the will annexed, may be granted to the attorney or agent of the absent executor, for the use and benefit of his principal, limited, until he shall obtain probate or letters of administration granted to himself. " ( 7 ) IN this case it is shown that the will and the codicils have been proved and deposited with a competent Court in Scotland and properly authenticated copies ot the will and the codicils have been produced along with the petition praying that the letters o administration may be granted with the copies oi the same annexed. S. 228 of the Act which authorises the grant of letters of administration under these circumstances, does not prohibit the issue of letters of administration under it to an Attorney. But S. 241 of the Act deals with an entirely different set of circumstances. ( 8 ) IT deals with a case where the executor is absent from the State in which the applicatoin is made and there is no executor willing to act within the state. Further S. 276 of the Act insists upon the original will and the codicils, if any, to be produced before the Court by the Attorney or agent who could make the application for the benefit of his principal for the issue of letters of administration with the will and codicils, if any, annexed until his principal i. e. the executor obtains probate or letters of administration to himself. On a perusal of S. 241 of the Act it is clear that the said section is not applicable to this case because (i) grant prayed for is not of limited nature; (ii) the original will and codicils are not produced before the Court; and (iii) the will and the codicils have already been proved before another Court of competent jurisdiction and no attempt is made to prove them again before this Court. I am, therefore, of the opinion that the grant of letters of administration can be made only under s. 228 of the Act in this case and not under S. 241 of the Act. My view is fortified by the decision of the Full Bench of the Allahabad High Court in Adwait Nath Sil In the goods of Alexander James Milne late of Aberdeen, scotland, AIR. 1948 All. 351, FB. . In that case also the facts were similar. The testator alexander James Milne died possessed of properties in India and Scotland. My view is fortified by the decision of the Full Bench of the Allahabad High Court in Adwait Nath Sil In the goods of Alexander James Milne late of Aberdeen, scotland, AIR. 1948 All. 351, FB. . In that case also the facts were similar. The testator alexander James Milne died possessed of properties in India and Scotland. ( 9 ) BY his will he appointed one Allan Hay as the executor who obtained confirmation of the will in the Sheriff Court of Aberdeen, Kincardine and banif at Aberdeen. The executor then appointed Adwait Nath Sil as his attorney for the purpose of obtaining letters of administration from the competent Court in India with the copy of the will annexed. The question before the Court in that case was whether S. 228 or S. 241 would apply to the case. Dealing with the said question Mootham, J: with whom the other two learned Judges agreed observed as follows:"it is apparent that there is some difficulty in the application of either section to the case which we have to consider, for S. 228 does not make provision for the grant of administration to an agent or attorney, and S. 241 assumes production by the Attorney of the original will; but looking at the scheme of the Act it appears to me that if either section is applicable the more appropriate is S. 228. The two sections are in my opinion intended to apply to very different circumstances, the former where the will has been proved abroad and the latter where it has not been proved at all; and accordingly a Court in india will when acting under S. 228, grant administration without further proof of the will, whereas on a petition under S. 241 the will has to be established and its authenticity may be disputed. " ( 10 ) WITH great respect to the learned Judges of the Madras High Court who decided the case in re Laurence Claude Levach in the matter of the will of lina Dairimple Hay, AIR. 1954 Mad. 898, FB. I find it difficult to agree with their view that s. 241 which deals with a case of a limited grant is also applicable to a case like the present one. 1954 Mad. 898, FB. I find it difficult to agree with their view that s. 241 which deals with a case of a limited grant is also applicable to a case like the present one. ( 11 ) IN the result, I allow the above petition and direct that letters of administration with the copies of the authenticated copies of the will dt. November 16, 1955 and codicils dt. November 1, 1961 and May 6, 1964 of john Hunter Alexander be issued to the petitioner on his furnishing an administration bond with one surety to the satisfaction of the Registrar of this Court as required by the provisions of S. 291 of the Act read, with rule 17 of the Rules governing Probate and Administration Matters 1964. Inventory to be filed within six months and accounts to be filed within one year. --- *** --- .