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1973 DIGILAW 209 (CAL)

SARAJUBALA DAS v. JYOTI KAMAL DAS

1973-07-18

CHANDRA NARAYAN LAIK

body1973
CHANDRA NARAYAN LAIK, J. ( 1 ) TWO Hon'ble Judges of this Court (The Hon'ble Mr. Justice Santosh Kumar Chakravarti and the Hon'ble Mr. Justice Salil Kumar Datta) have differed on a point of law. Consequently the following point:"whether an application for grant of Letters of Administration by a minor through his natural guardian is maintainable in law in view of Section 236 of the India Succession Act, 1925" has been referred to me for decision. The facts shortly are :- ( 2 ) ON July 2, 1954 Smt. Usharani Dasi, an inhabitant of Chadernagore, District Hooghly, purported to execute a Will in the form of a Notarial Deed. The Will inter alia provided that Jyotikamal (Respondent) then a minor (born on March 1, 1943), son of one of her daughters, would get her house including the garden etc. with certain conditions attached. Provisions were made by her for her youngest daughter Smt. Sampurna Das. Moneys were directed to be divided amongst the four daughters of Smt. Usharani including the said Smt. Sampurna. No provision was however made for her eldest daughter Smt. Saraju Bala, appellant herein. ( 3 ) ON August 24m 1957 the testatrix died. On September 1, 1958. Jyotikamal then a minor applied through his father and legal guardian Jamini Kanta for the grant of a Probate or Letters of Administration of the Estate of the deceased. Sarajubala filed a Caveat. Apart from the usual pleas of absence of due execution and attestation of the Will and that the Will was vitiated by undue influence, misrepresentation coercion and fraud, she also challenged the right of the minor plaintiff to get the Letters of Administration. ( 4 ) THE learned Second Additional District Judge, Hooghly, answered all the issued in favour of the minor plaintiff and held inter alia that Usharani had the testamentary capacity on the date of the execution of the Will, that the Will was duly executed by her and duly attested by the witnesses. The Will is not vitiated by undue influence, misrepresentation, coercion or fraud. It was also found that Usharani took the initiative herself to execute the Will dictated the Will herself and gave instructions. The Will is not vitiated by undue influence, misrepresentation, coercion or fraud. It was also found that Usharani took the initiative herself to execute the Will dictated the Will herself and gave instructions. It was further found that the disposition was not unnatural inasmuch as Sarajubala, the eldest daughter, appellant was provided for by a gift of property and the other daughters including Sampurna the imbecile, were provided for in the Will and that none except Sarajubala challenged the Will. He, however, dismissed the suit on February 4, 1960 on the following ground :-"the plaintiff is a minor and he is represented in this suit by his father the natural guardian. I find that no one was appointed as an executor in the Will. Under Sections 223 and 236 of the Indian Succession Act, probate or letters of administration cannot be granted to any person, who is a minor. Under Sec. 232 of the Act when no one has been appointed an executor in the Will letters of administration may be granted to the universal or residuary legatee; but it will appear from Sections 244 and 246 that letters of Administration cannot be granted to minors. Under certain circumstances, letters of Administration can be granted in such cases to the legal guardian or such other persons considered fit by court. In this case, the father of the minor plaintiff could have applied for being appointed a guardian for obtaining letters of Administration on behalf of his minor son. Such an application must be made to the District Judge. That has not been done. The ruling in (1907) 11 Cal WN 697 cannot be taken recourse to in this Court. I hold, therefore, that the plaintiff cannot be granted any probate or letters of Administration in this suit. The suit must therefore, fail. ORDER the suit is dismissed on contest but in the circumstances of the case no order is made as to cost. The decree will not, however, debar the legal guardian of the plaintiff from applying for letters of administration if so advised". * * * * * * * ( 5 ) BEING aggrieved by the said judgment and decree dated February 4, 1960, the instant appeal has been preferred in this Court on April 6, 1960 by the said Sarajubala. The decree will not, however, debar the legal guardian of the plaintiff from applying for letters of administration if so advised". * * * * * * * ( 5 ) BEING aggrieved by the said judgment and decree dated February 4, 1960, the instant appeal has been preferred in this Court on April 6, 1960 by the said Sarajubala. In spite of the fact of the dismissal of the suit, she challenged the findings of the trial Court on merits shortly noted before. ( 6 ) JAMINI Kanta the father and natural guardian of the minor Jyotikamal filed an application being Act VIII case No. 5 of 1960. On July 11, 1960 he was appointed certificated guardian of the person and property of the minor Jyotikamal. ( 7 ) ON August 5, 1960 Jyotikamal through his certificated guardian filed the cross-objection. ( 8 ) ON March 1, 1964 Jyotikamal attained majority. Applications were thereafter filed, moved and allowed to proceed with the appeal and the cross-objection. ( 9 ) THE appeal came up for hearing before the said two Hon'ble Judges, Justice Chakravarti in his judgment held that the appeal by the Caveator Sarajubala was not competent in spite of the other findings being made against her. The learned Judge observed:-"as a matter of fact Mr. Manindra Nath Ghosh, learned Advocate appearing on behalf of the appellant very fairly conceded this position and did not want to proceed with the appeal" there seemed reason for Mr. Ghosh to feel apprehensive of the outcome of appeal. ( 10 ) MR. Ranjit Kumar Banerjee learned Advocate appearing on behalf of the respondent cross-objector, however, proceeded with the cross-objection. Both the learned Judges took the view that Jyotikamal cannot be regarded as a sole executor or sole residuary legatee or the sole universal legatee. Chakravarti, J. after considering the provisions of the Indian Succession Act and specially Sections 232, 236, 244, 246, 253, 268 and 295 thereof and also the provisions of Order 32, Rule 1 of the Code of Civil Procedure however held inter alia that Section 236 of the Indian Succession Act is clear bar to a minor legatee applying for letters of Administration through his natural guardian, and an application by him would not be maintainable. Chakravarti, J. observed that the natural guardian would be an Executor by implication, and he might have applied for necessary Letters of Administration. Chakravarti, J. observed that the natural guardian would be an Executor by implication, and he might have applied for necessary Letters of Administration. Chakravarti, J. also observed that the certificated guardian would not be entitled to get Letters of Administration under Section 236 of the Act. In his opinion as an application by the natural guardian is not maintainable the proceedings were dead ab initio and the legal guardian cannot therefore also be given the Letters of Administration. He relied on the decision of the Patna High Court in the case of Babul Bhagawati Kuer v. Bahuria Ramsakhi Kuer, (AIR 1920 Pat 197 ). According to him subsequent events viz. that the fact of attainment of majority by Jyotikamal and the permission granted to him by this Court to proceed with the appeal and cross-objection, would not still entitle Jyotikamal as a major to the Letters of Administration "in this proceeding". ( 11 ) IN the result Justice Chakravarti dismissed both the appeal and the cross-objection. ( 12 ) JUSTICE Datta took a different view. He referred to Section 234 apart from other provisions of the Indian Succession Act. He distinguished the said Patna decision and referred to and discussed the following cases: In re Yeshvantibai, (AIR 1929 Bom 397); Arumilli v. Arumilli. (AIR 1931 Mad 343) In re: goods of Sewnarain Mohata, ( (1894) ILR 21 Cal 911 ). On the points as to whether the defect has been cured by the attainment of the majority of Jyotikamal the decision in the case of goods of Sreemutty Nerojini Debi (1907) 11 Cal WN 697 = ILR 34 Cal 706) was noticed. Justice Datta concluded :-"i am of opinion that the application filed by the minor legatee through his legal guardian for proof of Will and on such proof, for grant of the Letters of Administration to such person as the Court would deem fit, is maintainable in law. I am further of the opinion that Section 236 of the Act is not a bar to the making of such application by the minor, though it is bar to the grant being made to the minor". ( 13 ) IN the result the cross-objection was allowed by Justice Datta. ( 14 ) BECAUSE of the said tow differing judgments the point quoted in the first paragraph of this judgment has been referred to me for decision. ( 13 ) IN the result the cross-objection was allowed by Justice Datta. ( 14 ) BECAUSE of the said tow differing judgments the point quoted in the first paragraph of this judgment has been referred to me for decision. ( 15 ) THE point referred to above is in general terms. No particular of status is attached to such minor applicants. In other words, it is not stated as to whether the minor was or was not the sole executor or the sole universal or residuary legatee in the Will. ( 16 ) MY decision on both the points viz. , as referred to above and also in cases where the minor was neither the sole Executor nor the sole universal or residuary legatee would be the same and be in the affirmative. On the view most favourable to the appellant, of the facts disclosed in the case, it is no misuse of language to say that the judgment of Justice Datta seems to me to be a better opinion. On the other it would be a mistake to agree with the observations made by Justice Chakravarti to the effect the that the contention that Section 236 of the Indian Succession Act is confined only to the grant of Letters of Administration is a pure sophistry. I would not be slow to differ from his sharp observation. It contains a dark hint. What is more there, heavy emphasis is laid by him only on the form of language of Section 236 and he asked us not to look beyond the bare bones of the same. It is, with due respect, a case of over simplification. ( 17 ) I have considered the provisions of the Indian Succession Act and particularly the sections referred to in the judgments of both the Hon'ble Judges. I have also considered the decisions referred to in both the judgments. Some of the English Texts on the subject were also consulted such as Trustam and Coote's Probate Practice 22nd Edn. Mortimer on Probate Law and Practice, Williams on Wills 3rd Edn. , Jarman on Wills 8th Edn. , Theobold on Wills, Ingpen on Executors, Williams on Executors and Administrators, Miller on Irish Probate Practice but they are not of mush help to the decision at issue. Two sides however have drawn justifiable satisfaction from their respective arguments and I have followed them with close attention. , Jarman on Wills 8th Edn. , Theobold on Wills, Ingpen on Executors, Williams on Executors and Administrators, Miller on Irish Probate Practice but they are not of mush help to the decision at issue. Two sides however have drawn justifiable satisfaction from their respective arguments and I have followed them with close attention. ( 18 ) I am not unmindful of the principles that minority is legal incapacity and that both the Executor and the Administrator. Who would hold the property belonging to the infant or minor, would be trustees. But in deciding such questions it would be better to remind us about and to condition our mind to accept the following principles: (A)the provision in the Indian Succession Act as to person who are entitled to Letters of Administration is not so stringent as that of probate. (b)the welfare of the infant or the minor is a paramount consideration and the Court should always lean in favour of safeguarding the interests of the minors. (c)in the matter of administration it ought to follow the interest and a minor may have a large interest in the Estate as in this case. (d)the property may be in jeopardy: it may be perishable or otherwise; (e)there is no bar in the Act, to other disqualified persons except persons of unsound mind and no bar about the appointment of minor as an execution, (f)the bar by necessary implication is not to be favoured. (g)the language in the Act should not be too strained and in doubtful cases the Letters of Administration may be granted, and lastly. (h)in the matte of Letters of Administration the Court has discretion unlike that in the Probate. ( 19 ) IF we apply these principles to the facts in the instant case. the answer on the point under reference cannot but be plainest possible yes. ( 20 ) THERE remains however for brief mention that though the controversy is not wholly barren. I am not called upon to pronounce any opinion on the following arguments indulged by the learned Advocates of both sides in full-blooded justification. The arguments are long-simmering and are likely to surface with their impact on the result of the appeal but they are not sufficient to give us the historical distance of the point of law referred. 1. I am not called upon to pronounce any opinion on the following arguments indulged by the learned Advocates of both sides in full-blooded justification. The arguments are long-simmering and are likely to surface with their impact on the result of the appeal but they are not sufficient to give us the historical distance of the point of law referred. 1. WHETHER the question has become more or less academic because another application has already been filed for probate before the Court of the District Judge, Hooghly and the minor Jyotikamal has attained majority pending the hearing of the appeal. 2. When this Court has allowed the minor to proceed with the appeal and the cross-objection as a major, after he has attained majority, the question does no longer arise. Rather the appellant is estopped from raising the question and the Court is precluded from going into the question again. 3. When the minor Jyotikamal's father Jamini Kanta had been appointed a certificated guardian by a competent Court and whether the cross-objection filed by such a guardian cured the defect, if any. 4. Whether the application has been made under Section 234 of the Act and whether the grant should be made under Section 254 thereof. ( 21 ) THE Reference is thus disposed of. Let the records be placed before the Hon'ble Chief Justice for appropriate orders. Reference answered in the affirmative. Appeal disposed of.