Chacko Varkey v. Sheela Peter — 1990 DIGILAW 190 (KER)

Judgment :- Can a universal legatee be granted letters of administration in respect of a part of the estate left by the deceased is the question to be considered in this revision petition which arises from the order of District Judge. Ernakulam. who directed revision petitioner to pay court fee on the value of the whole estate. 2. One Varkey Saju was in the Middle-East and he was able to invest a large sum in NRE and other accounts. On his death his parents. widow and child have come into a fortune of more than 10 lakhs. As per the will one-third of the amount was bequeathed in favor of his parents. petitioners herein. The remaining two-third is bequeathed to his widow and child who are the respondents. Petitioners moved District Court. Ernakulam as per O.P. 71 of 1989 for letters of administration in respect of one-third of the amount. Respondents entered caveat and the petition was treated as original suit. An issue was raised regarding court fee and after hearing both sides the court below directed petitioners to pay court fee on the value of the whole estate. The correctness of that order is challenged in this revision. 3. The general rule as embodied in S.232 of the Indian Succession Act (hereinafter referred as act) is that letters of administration can be granted only in respect of the whole estate. There is no provision in the Act empowering a legatee to enable him to get a grant in respect of a portion of the estate. S.232 of the Act interalia provides that when the deceased has made a will but has not appointed an executor a universal or a residuary legatee may be admitted to prove the Will and letters of administration with the Will annexed maybe granted to him of the whole estate. or of so much thereof as may be unadministered. Without obtaining a probate of the Will or letters of administration with the Will or with an authenticated copy of the Will annexed thereto no right as executor or legatee can be established in any court of justice as per the provision in S.213 of the Act. This provision is subject to some exceptions with which we are not concerned in this revision since the parties are Christians to which S.213(1) of the Act apply. 4. This provision is subject to some exceptions with which we are not concerned in this revision since the parties are Christians to which S.213(1) of the Act apply. 4. The application for letters of administration has to be preferred under S.278 by means of a petition which among other things shall contain the details of the amount of assets which are likely to come to the petitioners' hands. In order to safeguard the interests of the legatees other than the person who requests for a grant' of letters of administration provision has been made in S.291 of the Act for execution of a bond to the District Judge with one or more surety or sureties. That is necessary since the person to whom letters of administration is granted will be entitled to collect all amounts due to the estate and administer the estate of the deceased on behalf of all the legatees. These provisions contained in the Act would suggest that ordinarily letters of administration are to be granted in respect of the whole of the estate. But in appropriate cases court has jurisdiction to limit the grant to a part of the estate. The relevant sections which empower the court to limit the grant to a part of the estate are Ss.255 and 257. The sections read: 255. Probate or administration. with will annexed. subject to exception:-Whenever the nature of the case requires that an exception be made. probate of a Will or letters of administration with the Will annexed. shall be granted subject to such exception. 257. Probate or administration of rest:-- whenever a grant with exception of probate. or 4 of letters of administration. with or without the will annexed. has been made. the person entitled to probate or administration of the remainder of the deceased's estate may take a grant or probate or letters of administration. as the case may be. of the rest of the deceased's estate. There is also indication in S.232 itself to suggest that there can be a grant in respect of a part of the estate but that can only be in respect of the estate which remains unadministered. 5. The Madras High Court had considered this matter in detail in the decision in In re T.K. Parthasarathi Naidu (AIR 1955 Madras 411). There is also indication in S.232 itself to suggest that there can be a grant in respect of a part of the estate but that can only be in respect of the estate which remains unadministered. 5. The Madras High Court had considered this matter in detail in the decision in In re T.K. Parthasarathi Naidu (AIR 1955 Madras 411). After an exhaustive study of the various provisions of the Act and the possible exceptions contemplated thereunder it was held that the probate or the letters of administration with or without the will annexed must as a general rule. relate to all the properties. that is. the entire estate of the deceased. and that only in exceptional cases falling under Ss.254 to 257. a probate or administration limited to specific item of property or a fraction of the estate will be granted. The question whether a particular case would fall under those exceptions would depend upon the facts and circumstances of each case. It was observed that it is impossible to prepare a catalogue of cases which would fall within those exceptions. 6. The Andhra Pradesh High Court is also of the same opinion. In the decision in Vrandavanla Goverdhanlal Pitti and another v. Smt. Kamala Bai Goverdhanla and others (AIR 1970 A.P. 109) it was held: "There is no section in the Succession Act dealing specifically with grants in respect of a portion of the estate of a particular item of property. It is. therefore. clear that where a probate of a Will is applied for it must be of the entire estate which. under the Will. vests in the executor. unless of course the Court grants it subject to an exception. The general rule is that a probate should be granted in respect of the entire estate of the deceased because under S.211. the entire estate of the deceased vests in the executor appointed by the will. It is only in special circumstances that a probate in respect of a portion of the property can be justified." 7. The High Court of Sind in the ruling reported in AIR 1936 Sind 150 (Bhai Khubchand v. Smt. Motilbaf) has held that the administration of an estate within the meaning of S.232 means administration under the authority of the court. The High Court of Sind in the ruling reported in AIR 1936 Sind 150 (Bhai Khubchand v. Smt. Motilbaf) has held that the administration of an estate within the meaning of S.232 means administration under the authority of the court. It was also held that where none of the estate in respect of which letters of administration are applied for is administered it is necessary for the petitioner to apply for a grant in relation to the whole estate. and that a petitioner can under S.232 apply for the administration of just so much of the property as suits his purpose. 8. Reference can also be made to the decision in AIR 1946 Lahore 277 Sardar Singh and another v. Teja Singh and others. The Lahore High Court is of the view that a person who is appointed to administer the estate of a deceased must administer the entire estate and a suit for administration where it omits to include the whole of the estate of the deceased is liable to be thrown out on that ground alone. 9. The position therefore is that the claim for letters of administration has to be made in respect of the entire estate whereas it can be limited to a part of the estate in special circumstances covered by the Ss.254 to 257 and regarding the that part unadministered estate contemplated in S.232 itself. After a survey of the decisions. some which are quoted in paragraph 3 of the judgment in 1974 KLT 865 this court has held that inappropriate cases letters of administration can be granted in respect of a part of an estate. What those exceptions are had not been enumerated and as observed in Parthasarathi Naidu's case (supra) it-is impossible to prepare a catalogue of those cases. That will depend upon the facts and circumstances of each case. 10. It has to be seen whether this is one of the exceptions contemplated under the Act. According to me it is not. The learned counsel for the revision petitioners would point out that petitioners are concerned only with one-third of the amount and that a large amount will have to be paid towards court fee in case letters of administration is requested for in respect of the whole estate. That is no reason why petitioners should be allowed to claim letter of administration in respect of a part of the estate. That is no reason why petitioners should be allowed to claim letter of administration in respect of a part of the estate. It is also pointed out that petitioners have only a life interest over the amount bequeathed and that the ultimate disposition is in favor of respondents. This reason also does not appeal to me since the administrator is a legal representative for all purposes and all the property of the deceased person vests in him as such by virtue of S.211 of the Act. When a request for letter of administration is made by one of the legatees he must therefore seek the entire relief to which he is entitled on the cause of action namely to obtain letters of administration in respect of the whole estate. Except in cases covered by S.232 (c) that is when the executor dies after having proved the Will but before he has administered all the estate of the deceased and except in cases stipulated under S.254 to 257 of the Act an application must cover the en tire estate of the deceased. Revision petitioners have no case that letters of administration is requested in respect of unadministered portion of the estate. S.232 (c) is therefore not attracted. That provision is not applicable since that relates to administration of an estate of the deceased who had executed a Will wherein he has appointed an executor. None of the exceptions namely. Ss.254 to 257 is also attracted in the present case. The court below was therefore right in directing revision petitioners to pay court fee for the value of the whole estate. No illegality or irregularity has been committed warranting interference in revision. In the result the revision is dismissed. but without costs.