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S. Venkatarama Iyer Vs. Sundarambal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberO.C.J. Testamentary and Intestate Jurisdiction No. 9 of 1939
Judge
Reported inAIR1940Bom400; (1940)42BOMLR912
AppellantS. Venkatarama Iyer
RespondentSundarambal
Excerpt:
.....boyee (1920) i.l.r. 43 mad. 728 and ma nu v. ma gun (1924) i.l.r. 2 ran. 388, referred to. - - venkatarama iyer was called, and he deposed to the writing having been signed by the deceased in his presence and in the presence of the second attesting witness who has also put his signature as an attesting witness, though it cannot be clearly deciphered. it is enough under section 68 of the indian evidence act if one of the attesting witnesses is called to prove a document which requires in law to be attested by two or more witnesses, and i am satisfied on the evidence given by s. i am satisfied that this writing was a will made by the deceased in 1932 and was properly executed and attested as his last will. an executor according to the tenor like an executor expressly named may be an..........him having effect throughout the province of bombay and for the use and benefit of v. venkatarama iyer limited until he shall obtain probate of the will of the deceased from this court.2. the petition is made under the terms of section 241 of the indian succession act by which it is provided that when any executor is absent from; the province in which application is made, and there is no executor within the province willing to act, letters of administration, with the will annexed, may be granted to the attorney or agent of the absent executor, for the use and benefit of his principal limited until he shall obtain probate or letters of administration granted to himself. under this section letters of administration can be granted to an attorney or agent of the executor only when the.....
Judgment:

B.J. Wadia J.

1. The petitioner, S. Venkatarama Iyer, is the duly constituted attorney of v. Venkatarsima Iyer who claims to be the executor by implication of a testamentary writing in the nature of a will which was executed at Madras in or about September, 1932, by one K. Raja Gopalan in respect of the amount lying to his credit with ' The Officers & Staff Provident Fund of the Indian and Malayan Offices of C. C. Wakefield & Co., Ltd.' The deceased K. Raja Gopalan was until his death an employee in the service of C. C. Wakefield & Co., Ltd., and the amount standing to his credit at his death was Rs. 5,952-15-6 according to the letter of the Manager of C. C. Wakefield,& Co., Ltd., dated June 8, 1938, and addressed to v. Venkatarama Iyer. The petitioner prays that letters of administration with the said will annexed limited to the amount standing to the credit of the deceased in the said fund be granted to him having effect throughout the Province of Bombay and for the use and benefit of v. Venkatarama Iyer limited until he shall obtain probate of the will of the deceased from this Court.

2. The petition is made under the terms of Section 241 of the Indian Succession Act by which it is provided that when any executor is absent from; the Province in which application is made, and there is no executor within the Province willing to act, letters of administration, with the will annexed, may be granted to the attorney or agent of the absent executor, for the use and benefit of his principal limited until he shall obtain probate or letters of administration granted to himself. Under this Section letters of administration can be granted to an attorney or agent of the executor only when the executor is absent from the Province. It is necessary, however, that the attorney applying for letters of administration should be within the jurisdiction of the Court. Section 242 has no application to this case. It provides that when any person to whom, if present, letters of administration, with the will annexed, might be granted, is absent from the Province, letters of administration, with the will annexed, may be granted to his attorney or agent, limited as mentioned in Section 241. That Section applies when any person who is entitled to administration in case of intestacy, or a universal or residuary legatee, or the representative of a residuary legatee, or a legatee with beneficial interest, or a creditor of the deceased is absent. In the absence of any one of these letters of administration with the will annexed may be granted to his attorney or agent limited as mentioned in Section 241. It is also provided by Rule 628 of the High Court Rules that an application for letters of administration with the will annexed inter alia may be made by a constituted attorney of a person residing out of the Province, provided that such constituted attorney resides within the Province and that such application is made through an attorney of this Court. It is in evidence before me that the executor mentioned in the writing, v. Venkatarama Iyer, is residing outside the Province of Bombay, and that his constituted attorney, the petitioner, is in Bombay, and it is the constituted attorney who has made this application under Section 241. So long as any grant made under the Section is subsisting, the administrator under this Section is the legal representative of the deceased and has all the powers of an ordinary administrator.

3. According to Rule 9 of the Provident Fund Rules of the employees in India of C. C. Wakefield & Co., Ltd., each employee of the company upon becoming a member of the Provident Fund mentioned in Rule No. 1 is required to furnish to the company a declaration in form A signed by himself as a will of limited operation in the presence of two witnesses, stating the manner in which he wishes the money at the credit of his account in the Fund to be disposed of in the event of his death whilst in the service of the company. The form A which is a Form of Declaration has been filled in by the deceased who was a member of the Provident Fund, and according to that form he declared that in the event of his death his minor nephew v. Pitchai named in the first column should be entitled, to receive payment of the whole amount that would be standing to his credit in the Officers & Staff Provident Fund of the Indian and Malayan Offices of C. C. Wakefield & Co., Ltd. He has also declared that he has made this his will so far as regards such deposit only, and he requests that the amount payable to his minor nephew be paid to v. Venkatarama Iyer who is described in column 5 of the Declaration as the person to whom the minor's share is to be paid on behalf of the minor. v. Venkatararna Iyer was the brother-in-law of the deceased, and the father of the minor. It is also provided in the form that the will should be signed by two attesting witnesses in the presence of each other and in the presence of the testator. The deceased has signed the will declaring that he was married at the date when he made the declaration, and the form was received by the company about September 8, 1932:. The amount, which, as I have said before, came to Rs. 5,952-15-6, is by this; declaration wholly given to the minor nephew of the deceased. The declaration has been put in as exhibit B.

4. The deceased left two widows, one of whom is the caveatrix to this petition. In her affidavit in support of her caveat she contends that this document is not the last will and testament of the deceased but that it is only a declaration for the purposes of the Provident Fund Rules of the company. She also contends that it has not been properly executed and attested, and that. v. Venkatarama Iyer on whose behalf the petition is made is not the executor of the alleged will either by specific mention or by implication. She further contended in paragraph 6 of her affidavit that the writing alleged to be the will of the deceased was executed at the instance and under the influence of v. Venkatarama Iyer and S. Venkatarama Iyer with the intention of profiting themselves and with the deliberate intention of defeating the rights of the widows. This contention was abandoned at the hearing. It is clear, however, that neither v. Venkatarama Iyer nor S. Venkatarama Iyer takes any personal profit under the will.

5. Several issues were raised on behalf of the defendant. The first issue is whether this writing is the last will and testament of the deceased K. Raja Gopalan. A will is denned in Section 2(h) of the Indian Succession Act as the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. It has been held that no technical words are necessary for a will and that the form of a wilt is immaterial. It is enough if the document embodies the legal declaration of the intention of the testator with respect to his property or any portion of his property which he desires to be carried into effect after his death. The question, therefore, is whether the writing containing the declaration, exhibit B, is a legal declaration of the intention of the deceased K. Raja Gopalan with respect to the amount standing to his credit with the Fund which he desired to be carried into effect after his death. The mere use of the word ' will' in the declaration cannot make it a will if it does not amount to a testamentary disposition, just as the absence of the word cannot make it any the less a will if there is a testamentary disposition of property. What is necessary is that the will must make a disposition of the testator's property and the declaration regarding the disposition must be in accordance with the provisions of the law. An unprivileged will can only be made in accordance with the provisions of Section 63 of the Indian Succession Act. One of the essential characteristics of a will is that it must be revocable during the lifetime of the testator, for its irrevocability would be inconsistent with its being a will. It was conceded in argument by the defendant's counsel that this declaration was not irrevocable, and that it was open to the deceased to have changed his mind and made another declaration on another form if he so desired with the consent of the company. There is no doubt that this disposition of the amount standing to his credit was to take effect after his death, for the declaration says so in so many words. The writing has been signed by the deceased and the signature of the deceased has been attested by S. Venkatarama Iyer, one of the two attesting witnesses whose signatures appear on the writing. S. Venkatarama Iyer was called, and he deposed to the writing having been signed by the deceased in his presence and in the presence of the second attesting witness who has also put his signature as an attesting witness, though it cannot be clearly deciphered. S. Venkatarama Iyer was, however, sure that it was signed by the second attesting witness, that the deceased signed in the presence of them both, and that both of them attested the signature of the deceased in the presence of each other. It is enough under Section 68 of the Indian Evidence Act if one of the attesting witnesses is called to prove a document which requires in law to be attested by two or more witnesses, and I am satisfied on the evidence given by S. Venkatarama Iyer that the writing was duly signed and executed and attested by the deceased in or about September, 1932. Moreover, it has been held in Nona Tawker v. Bhavcmi Boyee 1920 I.L.R. 43 Mad. 728 that if a person depositing money with a fund rilled in a form provided by the fund, and intended another person as the person entitled to receive the money after his death, the form amounted to a will if made in the town of Madras, provided it was duly executed and attested as a will and probate obtained. Such a writing contained in the form is held to be in the nature of a testamentary instrument and must be proved to have been duly executed. This case was followed in Ma Nu v. Ma Gun (1924) I.L.R. 2 Ran. 388 in which it was held that the testamentary disposition was invalid as the subscriber was a Burman Buddhist, but that otherwise a testamentary disposition of that nature would be valid if duly signed and attested by two witnesses. I am satisfied that this writing was a will made by the deceased in 1932 and was properly executed and attested as his last will.

6. The next issue is whether v. Venkatarama Iyer is the properly appointed executor of the said will. The appointment of an executor under Section 222 of the Indian Succession Act may be either expressed or by necessary implication. An executor by necessary implication is also sometimes called an executor according to the tenor of the will. The appointment of such; an executor is a question of construction for the Court. An executor according to the tenor like an executor expressly named may be an executor for a limited purpose. Under Section 248 of the Act if an executor is appointed for any limited purpose specified in the will, the probate shall be limited to that purpose, and if he should appoint an attorney or agent to take administration on his behalf, the letters of administration, with the will annexed, shall be limited accordingly. If therefore an appointment, whether expressly or by implication, was made for a limited purpose, the grant of letters of administration with the will annexed to the attorney shall also be limited accordingly. It was argued that v. Venkatarama Iyer was only empowered under the will to receive the amount standing to the credit of the deceased on behalf of the minor, that there was no indication in the will, that the deceased meant him. to pay the funeral ex-' penses, debts and legacies of the deceased also, and that therefore he could not in law be considered an executor by implication. It is not necessary, in my opinion, when an executor is appointed for any limited purpose specified in the will, that there should be an express direction that he should also carry out all the general duties of an executor. But in this case the petitioner has made his statement on oath that as the attorney of v. Venkatarama Iyer he will faithfully administer the property and credits of the deceased and in any way concerning his will for the use and benefit of the executor and limited until he shall obtain probate, paying such lawful claims as he knows of so far as the assets would extend, and that he would exhibit a full and free inventory of the property and credits in the Court and render a true account of his administration to the Court. In my opinion this writing is a will only as regards the moneys standing to the credit of the deceased. It is, therefore, a will for a limited purposse, and the person who is to receive the money on behalf of the minor is an executor by implication, but for that limited purpose only.

7. It was further argued on behalf of the defendant that the petition was not competent, as the power-of-attorney under which the petitioner acted was defective. The power-of-attorney has been put in as exhibit A and was deposed to by S. Venkatarama Iyer in whose favour it was given. Counsel contended that it was not given to the attorney by v. Venkatarama Iyer as the executor of the will but as the natural father and guardian of his minor son v. Pitchai. That, however, is only a description of the father. Under Clause 3 the attorney is empowered to carry on and conduct all proceedings regarding the withdrawal of the Provident Fund amount of the deceased in Messrs. C.C. Wakefield & Co., Ltd., Bombay, which has been gifted by the deceased to the minor son of v. Venkatarama Iyer. Under Clause 6, which is the general clausse, the attorney is empowered to do all acts, deeds, matters and things as may be necessary to give effect to the terms of the power-of-attorney, one of them being to carry on and conduct all proceedings regarding the withdrawal of the amount. The power-of-attorney is general and would empower the petitioner to apply to this Court under Section 241 of the Act. I may mention here that in the correspondence thai: passed between v. Venkatararna Iyer and the Company the Company by their letter of July 5, 1938, agreed to pay the amount on production of letters of administration with this will annexed, and the petitioner has made this application on behalf of his principal v. Venkata-rama Iyer.

8. My findings on the issues are as follows:-

(1) Yes.

(2) Yes.

(3.) Executor by implication according to the tenor for a limited purpose.

(4) Caveat dismissed. Letters of administration with the will annexed to issue to the petitioner as prayed.

9. Petitioner's costs to come out of the amount which is the subject-matter of the will, taxed as between attorney and client. Defendant to bear her own costs.


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