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Sumitrabai N. Nadkarni Vs. Vishweshwar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberFirst Appeal No. 240 of 1942
Judge
Reported inAIR1946Bom109; (1945)47BOMLR980
AppellantSumitrabai N. Nadkarni
RespondentVishweshwar
DispositionAppeal dismissed
Excerpt:
indian succession act (xxxix of 1925), section 214 - limited grant-debts-probate limited to collection of debts.;under section 214 of the indian succession act, 1925, it is not open to a party to obtain probate of a will limited to the collection of debts.;in re haji ismail haji abdullah (1880) i.l.r. 6 bom. 452, explained. - .....by the charter constituting the high court. that charter was construed to empower the court to grant representation only in respect of the estates of british subjects. in order to enable hindus to obtain such representation, the hindu wills act was passed. there was no law permitting such general grant in the case of mahomedans. in order, however, to enable debtors to get effective discharge in the case of other communities, whom the existing statute did not cover, the legislature had enacted act xx of 1841. section 14 of that act enabled the grant of probate and letters of administration, but for the purpose of recovery of debts only and the security of debtor paying the same, except in so far as the act provided. the section was repeated as section 18 in act xxvii of 1860. in in re.....
Judgment:

Harilal Kania Ag. C.J.

1. This is a first appeal from the judgment of the District Judge at Karwar in Miscellaneous Application No. 18 of 1941. The short point argued before us is whether under the Indian Succession Act of 1925 it is open to a party to obtain -probate of a will, limited to the collection of certain debts. It was argued by Mr. Manerikar that in In re Haji Ismail Haji Abdulla I.L.R (1880) Bom. 452 a limited probate of that kind was granted to a Cutchi Memon under Section 18 of Act XXVII of 1860. He argued that Act VII of 1889 (the Succession Certificate Act) was enacted thereafter, and it contained a provision similar to what is now found in Section 214 of the Indian Succession Act. Following that line of reasoning it was contended that, as the present Act is an Act to consolidate the law applicable to intestate and testamentary succession in British India, decisions which were based on the construction of the previous section, although found in another Act of the Legislature, were equally binding. He argued, therefore, that as probate was granted in In re Haji Ismail Haji Abdulla, it is still open to a party to apply for probate for the limited purpose of collection of debts.

2. In our view, this argument is unsound. A careful reading of the case relied upon shows the following: In 1878, when the succession in that case opened and shortly after which the application was made, the Court was governed in the matter of granting general representation by the Charter constituting the High Court. That Charter was construed to empower the Court to grant representation only in respect of the estates of British subjects. In order to enable Hindus to obtain such representation, the Hindu Wills Act was passed. There was no law permitting such general grant in the case of Mahomedans. In order, however, to enable debtors to get effective discharge in the case of other communities, whom the existing statute did not cover, the Legislature had enacted Act XX of 1841. Section 14 of that Act enabled the grant of probate and letters of administration, but for the purpose of recovery of debts only and the security of debtor paying the same, except in so far as the Act provided. The section was repeated as Section 18 in Act XXVII of 1860. In In re Haji Ismail Haji Abdulla the parties were Cutchi Memons and it was held that the provisions of the Hindu Wills Act did not apply to Cutchi Memons. The Court, therefore, had no option but to act under Section 18 of Act XXVII of 1860. That section in terms mentioned that all probates or letters of administration granted by the Supreme Court of Judicature under that section were limited to the purpose of recovery of debts only, etc. Therefore, the decision came to be given on the existing law at the time. In our opinion, the law as it now stands has completely changed. The present Succession Act permits members of all communities to apply for a complete representation, and the affect of the grant of probate or letters of administration is that the executor or administrator, as the case may be, completely represents the estate of the deceased. Where limited grants are permitted specific provision is found in the Succession Act. It is not open to the Court or any. party to add to that list of limited grants. The Succession Act is a consolidating Act in respect of all matters of succession and inheritance and the procedure in respect of the grant of representation. The contention of the appellant, therefore, that under Section 214 of the Indian Succession Act, as it now stands, it is open to a party to apply for probate limited to the collection of debts or to the Court to issue such a grant, is untenable. The appeal, therefore, fails and is dismissed with costs.


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