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In Re: Yeshvantibai Eknath Vijaykar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1929)31BOMLR999; 122Ind.Cas.135
AppellantIn Re: Yeshvantibai Eknath Vijaykar
Excerpt:
.....deceased's estate. although the court has a discretion, under sub-section (2) of section 218, to grant administration to one or more persons, it at all times prefers a sole administrator to a joint administrator. it is only when the circumstances are sufficiently strong that it will be induced to exercise its discretion in favour of a joint grant.;under the indian succession act a person who is a minor is not entitled to a grant of administration. nor can an application be maintained, under section 246 of the act, by a guardian durante minore aelate for the use and benefit of the minors who are not solely entitled to the estate of the intestate. - - the court at all times prefers a sole administrator to a joint administrator, and it is only when the circumstances are sufficiently..........are two objections raised to the petition. the first is that the petitioner is applying for a joint grant.4. section 218(1) of the indian succession act 1925 runs as follows:-if the deceased has died intestate and was a hindu, muhammadan, buddhist sikh or jaina or an exempted person, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part deceased's estate.5. sub-clause (2) states:-when several such persons apply for such administration, it shall be in the discretion of the court to grant it to any one or more of them.6. this section shows that in the first instance the grant is to be made to one person who is entitled to some part of.....
Judgment:

Rangekar, J.

1. This is an application by the widow of one Eknath Dwarkanath Vijayakar, on behalf of the minor sons of the deceased, for being appointed as guardian for the purpose of applying jointly with another son of the deceased, namely, Motiram, and for letters of administration of the property and credits of the deceased for the use and benefit of the said minors and limited during the period of the minority of the elder of them.

2. The deceased died leaving behind him the petitioner as his widow, Motiram, a son by his pre-deceased wife and who is of age, and two sons, Madhav and Vishnu, being the sons of the petitioner both of whom are minors, and two minor daughters.

3. There are two objections raised to the petition. The first is that the petitioner is applying for a joint grant.

4. Section 218(1) of the Indian Succession Act 1925 runs as follows:-

If the deceased has died intestate and was a Hindu, Muhammadan, Buddhist Sikh or Jaina or an exempted person, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any Part deceased's estate.

5. Sub-clause (2) states:-

When several such persons apply for such administration, it shall be in the discretion of the Court to grant it to any one or more of them.

6. This section shows that in the first instance the grant is to be made to one person who is entitled to some part of the deceased's estate. Under Sub-clause (2) it is undoubtedly true that the Court has a discretion to grant administration to any one or more of the persons entitled to any part of the deceased's estate. The Court at all times prefers a sole administrator to a joint administrator, and it is only when the circumstances are sufficiently strong that it will be induced to exercise its discretion in favour of a joint grant.

7. It is argued that in England joint administration may be granted with the consent of all the parties. No doubt, that is true as appears from some of the old decisions, but in the Goods of Richardson (1871) L.R. 2 P & D. 244 it was held that in the case of next-of-kin and a person interested in distribution of the estate the consent of all persons interested is not a sufficient ground for departing from the general rules as to grants of administration. The rule that as far as possible joint grants should not be made has been acted upon by the Courts for centuries. It is a sound rule, and a departure from it would introduce laxity which might lead to dangerous consequences.

8. In the Goods of Richardson the deceased died intestate leaving a widow and several minor children by a former wife. During his life-time he had been assisted in his business by his brother. On the other hand, his widow to whom he had been married but a short time was entirely unacquainted with its management. These circumstances were held not sufficient to authorize the Court to grant joint administration to the widow and to the brother as guardian of the minor children.

9. The position here seems to me to be much the same. The ground on which administration is sought in this case is set out in para. 8 of the petition. In that paragraph the petitioner says that immediately after the death of the deceased the said Motiram Eknath removed and took charge of all the papers belonging to the deceased, and that she has no knowledge as to what the estate consisted of. The fact that Motiram has consented to the joint administration sought by the petitioner shows that Motiram is not in any way acting adversely to the petitioner or the minors or the estate. The older decisions in England show that unlees special circumstances are shown to exist necessitating a joint grant the Court would always follow the practice and refuse to make a joint grant. I do not think, therefore, that I would be justified in departing from the usual practice followed by this Court as to joint grants.

10. The second objection seems to me to be more fatal. Section 217 of the Indian Succession Act of 1925 lays down :-

Save as otherwise provided by this Act or by any other law for the time being in force, all grants of probate and letters of administration with the will annexed and the administration of the assets of the deceased in cases of intestate succession shall be made or carried out, as the case may be, in accordance with the provisions of this Part' (IX of the Act).

11. Section 236 States:-

Letters of administration cannot be granted to any person who is a minor or is of unsound mind.

Therefore, under the Indian Succession Act, a person who is a minor is not entitled to a grant of administration. The present application is for an administration durante minore atate by the petitioner as guardian for the use and benefit of the minors until the elder of them attains majority. This application can only be made under Article 246, Indian Succession Act. Under that section, before such a grant can be made it must be shown that the minor or minors for whose benefit the grant is to be sought are solely entitled to the estate of the intestate. In this case, the two minors on whose behalf and for whose benefit the present application is made are not solely entitled to the estate of the deceased. They as well as the said Motiram who is of age are entitled to the estate in equal shares subject of course to the maintenance of the petitioner and provisions for marriage of the petitioner's two minor daughters. This section is quite clear and is binding on me. I am unable, therefore, to see how the present application can be granted having regard to the clear and unambiguous provisions of Section 246. It is undoubtedly true that in England- 'where there are several next of kin, some of whom are minors and some of full age, although it is the practice to grant administration to those of full age in preference to the guardian of the minors, yet the guardian of the minors may be preferred, if the interest of the minor preponderates over that of the major next of kin.' (Mortimer on Probate Practice, p. 369, citing Cartright's case, 1 Freem 258).

12. Where there is a clear provision made by the Indian Succession Act, I am not at liberty to follow the practice or the rules in force in England. Rule 609 of the rules on the Original Side, I can only refer to the English practice and follow it if there is no rule laid down in the Indian Succession Act. There being a clear provision of law binding on me I am unable to follow the English practice.

13. There is no question in this case as to any danger to the minors' interests as, according to the practice of this Court, a justifying surety would be taken from the person who applies for letters of administration to the estate of the deceased person in which the minors are interested.

14. In the result, the application must be rejected.


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