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P.H. Alphonso Vs. C.F. De Costa and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberMisc. Appeal No. 47 of 1959
Judge
Reported inAIR1964Kant187; AIR1964Mys187; (1963)1MysLJ596
ActsSuccession Act, 1925 - Sections 211, 263 and 307(2); Probate and Administration Act, 1881 - Sections 50
AppellantP.H. Alphonso
RespondentC.F. De Costa and ors.
Appellant AdvocateV.K. Govindarajulu, Adv.
Respondent AdvocateS.G. Sundaraswamy, Adv.
Excerpt:
.....court is empowered to consider the correctness or otherwise of the procedure adopted by the officers of a public authority in arriving at the decision though not so much with the decision itself. - clause (d) provides for revocation where the grant has become useless and inoperative white clause (c) deals with the conduct of the grantee) who has failed wilfully and without reasonable cause to exhibit the interjectory and the accounts......are instances of circumstances i which may supervene the grant and when proved, will i render the grant useless and inoperative.in sris chandra v. bhabha tarini devi air 1923 cal 695, it was affirmed that mal-administration by an administrator was not a 'just cause' for the revocation of the grant as the grant does not become 'useless and inoperative so long as the grantee continues to be capable of acting. this was a case under section 263 clause (d) of the explanation. tha allegation in that case against the administrator for revocation of the grant was that the estate had been fully administered and that the grant had therefore become useless and inoperative. in rejecting the application, it was laid down by the division bench-'it seems to me that ft would be straining the meaning of.....
Judgment:

T.K. Tukol, J.

1. The appellant filed Miscellaneous Case No. 78 of 1953 in the Court of the District Judge, Civil Station, Bangalore, for revocation of the probate granted to the first respondent on 1-8-1953 in respect of the will and codicil executed by the petitioner's mother Mrs. Florence Emellia Alphanso on the ground that the executor (Respondent No. 1) had sold the only immovable property comprising the estate fraudulently and collusively for a nominal sum of Rs. 20,400/- though in, fact the property was worth more than Rs. 30,000/-. Respondent No. 2 is the purchaser of the property. The respondents 1 and 2 questioned the maintainability of the application alleging that the ground mentioned in the petition for the revocation of the grant did not all within the scope of Section 263 of the Indian Succession Act, 1925. The learned District Judge upheld the contention of the two respondents and dismissed the application with costs.

2. The sole point raised by Sri Govindaraju en behalf of the appellant for our consideration is whether the ground mentioned in the petition would fall within Clause (d) of the explanation to Section 263 of the Succession Act 1925 (hereinafter called the Act). It is not disputed that respondent No. 1 has sold the immovable property bearing No. 8, Bride Street Civil Station, Bangalore, as executor, to respondent No. 2 for a sum of Rs. 20,400/- under a registered sale deed. The first two respondents have denied the allegation of fraud and collusion.

For the purpose of the decision of the technical point it has been assumed by the Court below that the alienation of the property by the executor was fraudulent and collusive. So, in substance, the point for consideration would be whether the probate can be revoked on the ground that the executor has alienated the property fraudulently and collusively. Section 263 of the Act lays down that the grant of probate or letters of administration may be revoked or annulled for just cause. The explanation to that Section reads as follows:

'Explanation:. Just cause shall be deemed to exist where -

(a) the proceedings to obtain the grant were detective in substance,- or

(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or

(c) the grant was obtained .by means of an untrue-allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or

(d) the grant has become useless and inoperative through circumstances; or

(e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.'

It has not been disputed that the explanation is exhaustive as to the scope of 'Just cause' contemplated by Section 263 of the Act. It is sufficient to mention that this High Court, following the decision of the Calcutta High Court in Annoda Prasad v. Kali Krishna, ILR 24 Cal 95, has held in K.N. Srinivasan v. C.Krishna Iyenger AIR 1957 Mys 74, that the explanation is exhaustive. It would be evident that Clause (a) of the explanation deals with substantial procedural defects in the obtaining the grant while Clauses (b) and (c) deal with the conduct of the! party in obtaining the grant of a probate either by falsely suggesting or suppressing from the Court something material to the case or by making an untrue allegation of fact which is legally essential to justify the grant of a probate. Clause (d) provides for revocation where the grant has become useless and inoperative white Clause (c) deals with the conduct of the grantee) who has failed wilfully and without reasonable cause to exhibit the interjectory and the accounts.

The allegations made in the petition do not refer to the conduct of then executor in obtaining the probate but to his conduct in the administration of the property. It will be obvious from the provisions contained in Chapter 6 of the Act that an executor is competent to exercise the powers of disposal of the property of the deceased vested in him under Section 211 of the Act either wholly or in part in such manner as he may think fit. This power is subject to the provisions of Sub-section (2) of Section 307 and Clause (iii) of Sub-section (2) provides that disposal of the property by an executor in contravention of the provisions contained in Clause (i) or Clause (ii) shall be voidable at the instance of any other person interested in the property. It would be therefore apparent from the provisions contained In Section 307 that any alienation which is made by an executor in exercise of the powers vested in him bylaw is voidable at the instance of a person interested in the property on his showing that the alienation was in contravention of any of the provisions mentioned in Sub-section (2).

3. It is in the light of these provisions that we have to ascertain whether the fraudulent and collusive alienation as alleged by the petition attracts the application of Clause (d) of the explanation to Section 263, so as to conclude that 'the grant has become useless or inoperative through circumstance'. The explanation is followed by eight illustrations elucidating the scope of the clauses of the explanation. Briefly, the substance of the illustrations would go to show that the grant of a probate may be revoked if it is found that the Court which had granted it had no jurisdiction, that the grant was made without the necessary parties on record or on the basis of a forged or revoked will or that the person obtaining the grant claimed a status which had been subsequently discovered to be false, or a later will or codicil revoking or adding to the appointment of the executors under the will, had been discovered.

The 8th illustration which throws some light on the point at issue reads 'that the person to whom a probate was or the letters of administration' were granted has subsequently become of unsound mind'. Naturally Clause (d) contemplates circumstances on account of which the grant has become useless, i.e., cannot be used by the grantee and has therefore become ineffective. Since the proper administration of the estate and the interest of the parties beneficially entitled is the main concern of the Court, the clause can be invoked in such cases where the administrator has become 'incapable of acting by reason of insanity or ill health'. In the Estate of Galbraith, (1951) 2 All E R 470, the probate was revoked on the ground that the two surviving executors were unable to perform the duties by reason of advanced age and physical and mental infirmity.

4. Section 263 of the Act corresponds to Section 50 of the Probate and Administration Act (Act No. 5 of 1831) and the explanation of the words 'just cause' under the two sections is also identical. In ILR 24 Cal 95 the respondent Kali Krishna filed a petition under Section 50 of that Act for the removal of the executor on the ground of Matter's misconduct and mismanagement of the estate, it was contended that such a person was not a fit and proper person to retain the management of the estate. Reliance was placed on Clause (4) of the explanation which read as follows:

'that' the grant has become useless and inoperative through circumstances'.

Their Lordships held that they were unable to say that mismanagement of the executor came within Clause (4) of 'Section 50 of the Act. In Gour Chandra Das v. Sarat Sundari Oassi, ILR 40 Cal 50, the words 'becomes useless and inoperative' occurring in explanation 4 to Section 50 of that Act were interpreted as implying 'the discovery of something which if known at the date of the grant would have bean a ground for refusing it'. This is also the view that was taken by the Bombay High Court in Bal Gangadhar Tilak v. Sakwarbai, ILR 26 Bom 792. This interpretation appears to restrict the meaning of the wards to circumstances which existed prior to the grant but were discovered subsequently.

In our opinion the words 'has become useless and inoperative' have reference also to circumstances which I supervene the grant. This view finds support from a subsequent decision of the Calcutta High Court in Surendra Nath Pramanlk v. Amrit Lal Pal AIR 1920 Cal 534 (2) in which the order appealed against' was one of cancellation of the probate on the refusal of the executors to comply with the order of fresh security. While observing that the explanation of the expression 'just cause' was exhaustive, their Lordships referred to certain decisions of the British Courts in which the grant had been revoked on the ground that 'the administrator was convicted of a criminal offence and sentenced to a term of imprisonment', 'where the administrator had disappeared', 'where the administrator had become a lunatic' and 'where the administrator left the country or absconded or could not be traced or expressed a desire to withdraw'.

In this connection, mention may also be) made of a recent decision of the Supreme Court in Viswanatnan v. Abdul Wazid : [1963]3SCR22 , in which their Lordships upheld the revocation of the grant of a probate on the ground that it had become infructuous 'because of a decision in a suit relating to title to property affected thereby'. In that case the probate had been granted to the executors subject to the result of the appeal to the Privy Council against the order of the Resident's Court at Mysore. The appeal was decided in favour of the widow of the testator and the widow applied for revocation of the probate granted by the Madras High Court on the ground, that the will of the testator was inoperative in so far as it purported to dispose of the immovable property of the joint family of himself and his sons. It was conceded before their Lordships that the probate could be revoked in exercise of the powers under Section 263 Explanation (d) of the Act. These are instances of circumstances I which may supervene the grant and when proved, will I render the grant useless and inoperative.

In Sris Chandra v. Bhabha Tarini Devi AIR 1923 Cal 695, it was affirmed that mal-administration by an administrator was not a 'just cause' for the revocation of the grant as the grant does not become 'useless and inoperative so long as the grantee continues to be capable of acting. This was a case under Section 263 Clause (d) of the explanation. Tha allegation in that case against the administrator for revocation of the grant was that the estate had been fully administered and that the grant had therefore become useless and inoperative. In rejecting the application, it was laid down by the Division Bench-

'It seems to me that ft would be straining the meaning of the expression 'useless and inoperative' if It is said that a grant becomes useless when the administrator has nothing more to do than to distribute the legacies to the several legatees. The illustration as to how a grant becomes useless and inoperative is given in illustration (viii), Section 263. It seems to me that the clause contemplates that there* is art administrator who, however, under certain circumstances, is incapable of acting so that the estate is practically without an administrator; and it does not mean that there is an administrator but Pie is wilfully withholding the legacies payable under the will. That would be mal-administration by the administrator, but it has been held that mal-administration by an administrator is not a just cause for revocation of the grant; see the case of ILR 24 Cal 95.'

5. We are therefore of the opinion that sale of Immovable property of the testator for a lower price, which, if true, might amount to mal-administration by or misconduct of the executor, cannot be a ground for holding that the grant had 'become useless and Inoperative'. The executor had died during the pendency of the proceedings. Therefore prima facie the application has become infructuous. But it is said that we should retrospectively revoke the probate. Such a prayer is obviously untenable.

Reference has been made already to the provisions contained in Chapter VI of the Indian Succession Act, 1925, which deal with the powers of an executor who has obtained a probate. The executor is competent to enter into contracts on behalf of the estate and possesses power to dispose of the property of the deceased vested in him in such manner as he thinks fit. We have also referred to the liability of the executor to be sued by a person interested in the property and intending to avoid the alienations made by him. The contracts entered into and the alienations made by an administrator are valid until they are set aside by a competent court at the instance of persons interested in the property. A retrospective re-vocation is not therefore contemplated by law. Any order of revocation passed under Section 263 of the Act must take effect from the date of the application made for the purpose.

6. It was submitted to us at the hearing that the amount realized by the sale of the property had been deposited in the Bank. This means that there is yet work to be done by the administrator in regard to the distribution or disposal of the amount realized by him by sale of the property. So the circumstances appearing in the case do not disclose any 'just cause' for the revocation of the grant made to respondent No. 1. We accordingly confirm the order passed by the trial Court and dismiss the appeal with costs.

7. Appeal dismissed.


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