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Hormasji Shapurji Mistry Vs. Dhanbai Barjorji Cooper - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 56 of 1928 and Suit No. 1476 of 1928
Judge
Reported in(1929)31BOMLR511
AppellantHormasji Shapurji Mistry
RespondentDhanbai Barjorji Cooper
Excerpt:
originating summons - will-representation of estate of deceased person-addition of party - probate or letters of administration to the estate of deceased to be taken out before decree is drawn up-construction of will- beneficiaries, representation of-representation-practice and procedure.;on an originating summons, the court has jurisdiction, notwithstanding section 213 of the indian succession act 1925, to add a party as representing the estate of a deceased claimant, provided he undertakes to take out probate or letters of administration prior to any formal decree being drawn up after the hearing of the matter.;in re richerson : scales v. heyhoe (no. 2) [1893] 3 ch. 146, followed.;in an originating summons for construction of a will, the beneficiaries or next-of-kin should be separately..........that she had not at the date of the order on the summons clothed herself with her right as legal personal representative of her grandmother, sarah scales, the testator's sole next of kin; but it is the ordinary practice of the court to allow the person entitled to take out representation to be added as a party; and in the event of its being shewn that the deceased's estate is entitled to some interest, the order does not go till letters of administration have been taken out.that is a cage on an originating summons, and it must be distinguished from cases of ordinary actions to enforce rights, where a different procedure may be adopted. thus, in daniell's chancery practice, 7th edn., vol. i, pp. 351, 352, it clearly appears that in the chancery division an action may proceed provided.....
Judgment:

Amberson Marten, Kt., C.J.

1. This is an application by one Bai Navajbai, the widow of Sorabji Hormusji Engineer, asking to be added as a party to this suit, which is now under appeal from the judgment of Mr. Justice Rangnekar on an originating summons. The learned Judge held that there was an intestacy under the will or part of the will of Edulji Shapurji Mistri, and the applicant claims that on that finding she, under certain other wills, takes a portion of the estate as on an intestacy, Consequently, she contends that she is interested in upholding the judgment of the learned Judge.

2. We are told that in the Court below there was nobody to represent the next-of-kin or those interested in arguing for an intestacy, and that the trustees of the will of the deceased Edulji represented their position. The proper procedure is that trustees should not argue on behalf of beneficiaries or nest-of-kin apart from exceptional cases, e. g,, if a class of unborn children are interested. Therefore, there are good grounds for asking Dhanbai that somebody beneficially interested in contending for an intestacy should be before the Court. On the merits, therefore, this is an application which should be granted.

3. We have, however, felt a difficulty by reason of the fact that the applicant has not taken out probate to her own husband's will, nor to the other will under which her deceased husband claims. The question, therefore, has arisen whether, having regard to Section 213 of the Indian Succession Act, we should at the present juncture add the applicant, as a party in the absence of probate or letters of administration.

4. When the case carne before us on January 28, we were referred to the decision of the Privy Council in Chandra Kishore Roy v. Prasanna Kumari Dasi 13 Bom. L.R. 67, where their Lordships held that provided probate or letters of administration were taken out before the decree, the suit was in order. That case, however, does not show that it was in order to have the matter argued and decided at the trial provided the formal decree was not issued until after probate has been obtained. But, since the former hearing, the Bench has referred to certain English authorities which are in point, because our procedure in Bombay in originating summonses is taken directly from the Chancery Division, Thus in In re Richerson: Scales v. Heyhoe (No. 2) [1893] 3 Ch. 146 I find Mr. Justice Chitty saying (p. 149) :-

The question is whether the Plaintiff is bound be the order made on the summons. It is true that she had not at the date of the order on the summons clothed herself with her right as legal personal representative of her grandmother, Sarah Scales, the testator's sole next of kin; but it is the ordinary practice of the Court to allow the person entitled to take out representation to be added as a party; and in the event of its being shewn that the deceased's estate is entitled to some interest, the order does not go till letters of administration have been taken out.

That is a cage on an originating summons, and it must be distinguished from cases of ordinary actions to enforce rights, where a different procedure may be adopted. Thus, in Daniell's Chancery Practice, 7th Edn., Vol. I, pp. 351, 352, it clearly appears that in the Chancery Division an action may proceed provided probate or letters of administration are produced at the hearing. And further on, it is stated that in actions against either an executor or administrator de eon tort it is necessary to have a duly constituted legal personal representative before the Court in Tarn v. Commercial Bank of Sydney (1884) 12 Q.B.D. 194 it was Dhahbai pointed out that in the King's Bench Division the Court may C.J. stay proceedings in an action by executors until they have obtained probate.

5. There is, however, another procedure available both in the Chancery Division and in the Probate Division as exemplified in In re Oakes: Oakes v. Poroheron [1917] 1 Ch. 230 where the Court pending the appointment of a legal personal representative appointed a receiver of the deceased's estate until after a representative should be constituted. In re Wenge [1911] W.N. 129 is another instance of Such an order.

6. I may also refer to a rule of Court, which apparently we do not have here8 but which I know, from my personal experience, was made use of in England. That is Order XVI, Rule 46, in the Rules of the Supreme Court, which provides that if in any matter it appears to the Judge that any deceased person who was interested in the matter in question has no legal personal representative, the Judge may proceed in the absence of any person representing the estate of the deceased person, or may appoint some person to represent his estate for all the purposes of the matter or other proceeding, and the order so made shall bind the estate of the deceased person in the same manner in every respect as if a duly constituted legal personal representative of the deceased had been a party to the matter, or proceeding.

7. I mention the above authorities to show that we are not deciding that in all cases parties may proceed to the trial and defer taking out administration or probate, until after the result of the trial is known. The present is a case on an originating summons, and following In re Richerson we think we have jurisdiction, notwithstanding Section 213 of the Indian Succession Act, to add the present applicant as representing the estate of these two deceased and as representing those interested in contending for an intestacy of the estate of Edulji. She will be added as a party at her own risk as to costs, and on her undertaking to take out probate or letters of administration prior to any formal decree being drawn up after the hearing of the appeal. What we intend is no formal decree of the appellate Court should be issued after any judgment in her favour until probate or administration has been taken out.

8. The costs of the present application of all parties will be costs in the appeal.


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