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Mir Ibrahim Alikhan and ors. Vs. Ziaulnissa Ladli Begam Saheb and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1888)ILR12Bom150
AppellantMir Ibrahim Alikhan and ors.
RespondentZiaulnissa Ladli Begam Saheb and ors.
Excerpt:
certificate under act xx vii of 1860 - regulation viii of 1827, section 9--jurisdiction to grant certificate of administration--foreigners residing abroad. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on..........however, were, no doubt, bound in some way to establish their representative character, and the certificate sought, under act xxvii of 1860, was not taken out.2. while act xxvii of 1860 has regard to the person, regulation viii of 1827, on the other hand, looks simply to the locality of the assets as the ground of the court's jurisdiction to grant a certificate of administration. it is unskilfully worded, but the intention of section 9 seems to be that; when there are assets within a zilla, and the circumstances exist which are specified in the section, a certificate of administration may be granted. under this section it has been held that there must be a separate certificate for each zilla where property has to be administered, and the mere presence of property seems enough to found.....
Judgment:

West, J.

1. The necessity for a certificate under Act XXVII of 1860 in this case is not clearly established. Section 3 of the Act seems to contemplate the issue of a certificate under it only for the estate of a British subject, either resident within the district where a certificate is sought, or else having no fixed place of residence. Here, the deceased Mir Bakar Ali was a sardar of Baroda, resident there, where also he died. The representation of such a person would properly be sought in the country he belonged to, and the constituted representative would then sue, or empower some one to sue, in the British Courts. The Act does not make provision for the administration of the effects of a foreigner domiciled abroad. The plaintiffs, however, were, no doubt, bound in some way to establish their representative character, and the certificate sought, under Act XXVII of 1860, was not taken out.

2. While Act XXVII of 1860 has regard to the person, Regulation VIII of 1827, on the other hand, looks simply to the locality of the assets as the ground of the Court's jurisdiction to grant a certificate of administration. It is unskilfully worded, but the intention of Section 9 seems to be that; when there are assets within a zilla, and the circumstances exist which are specified in the section, a certificate of administration may be granted. Under this section it has been held that there must be a separate certificate for each zilla where property has to be administered, and the mere presence of property seems enough to found the jurisdiction. The authority given to the administrator under Section 9, as no other provision is made on the subject, must be understood to be the same as under Section 7.

3. The certificate in the present case was after Mir Bakar Ali's death granted to Mr. Lely. He gave notice, as administrator, to the now defendants to pay the debt claimed in this suit to him as administrator. He has never, it is admitted, been relieved of his office as administrator by the Court, as contemplated in the section under which he was appointed. His status subsists still, and while it subsists, no one else can represent the estate. The appointment of an administrator excludes other representatives so long as it endures. The plaintiff's, therefore, were incompetent to bring the present suit. There is strong reason to suppose that they have been met by accounts that have been unfairly tampered with,-a fault for which the defendants are at least civilly answerable. We confirm the decree of the Subordinate Judge in this sense, that we dismiss the suit as incompetently brought, but we direct that the parties respectively are to bear their own costs throughout.


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