P. Jaganmohan Reddy, C.J.
1. The Office Note in S. R. No. 34717 of 1967 had initially sought orders on the questions (1) whether the O-P. was maintainable in view of the fact that the petitioners seek probate fro a part of the property left by the deceased and not for the entire estate? (2) Whether the Advocates for the petitioners may be directed to file an English translation of the will by a competent authority duly verified as laid down by S. 277 of the Indian Succession Act, (3) Whether the advocate may be directed to file a valuation of the estate of the deceased ink duplicate as per Section 52 of the Court Fees Act and mention the Court Fee payable thereon. Our learned brother, Narasimham, J., directed that the probate fee should be levied under the proviso to Section 53(2) of the Andhra pradesh Court Fees and Suits Valuation Act, 1956 in respect of immoveable properties situated at Bombay for which probate is compulsory under Section 57(b) of the Indian Succession Act and that a translation of the will be obtained in compliance with Section 277 of the Indian Succession Act as the government Pleader had stated that this is necessary to know which are the immoveable properties in Bombay.
Thereafter the Office resubmitted a further note regarding the maintain abililty of the petition about which there were no orders. In the note, the view of the office was that there was no provision in the Indian Succession Act for the grant of a limited probate when the entire estate vested in the executor, that a limited probate is not contemplated by the Act except where the will itself reserves the interests of the executors and that Sections 254 - 257 which deal with limited probate in special circumstances were clearly inapplicable to the instant case. In support of this, the office note also cited several decisions. Our learned brother, after, hearing the arguments of the counsel, thought that as this matter was of sufficient importance and that there is as yet no ruling of the Court, it may be decided by a bench as to whether probate duty is payable on apart of the estate of the testator Sri Goverdhanlal Bansilal, even if the case does not fall under the exceptions to sections 254 - 257 of the Indian Succession Act.
2. Before us, Shri G. Balaparameswari Rao, the learned advocate for the executors, contends that no probate need to obtained of a will except in cases mentioned in Section 57 of the Indian Succession Act; and at any rate only a limited court-fee of Rs. 25 is payable under the Court-fee Act and if a caveat is entered that O. P. will be registered as a suit and the Court-fee payable is on half of the value of the estate devised under the will less the Court-fee already paid. In so far as probate duty is concerned, that is a matter which has to be decided after probate is granted depending on the value of the estate either on the date of the death of the testator if the petition is within one year; or on the date of the application if it is after a year. The learned government Pleader has supported the office note and relied on the cases cited by it for the proposition that no probate of a part of a will can be obtained unless the Court, in cases which provide for exception, grants in respect of a part of the property bequeathed under the will. It appears to us that the provisions of Chapter II of part IX Sections 237 - 260 which deal with grants limited in duration are only applicable to limited grants and exceptions. Of these, Section 255 allows a limited probate in special circumstances of which the following are some examples.
(i) When the testator makes a grant for a limited purpose.
(ii) when the testator appoints several executors for different purposes.
(iii) When a part of the will is invalid on the ground of fraud; and
(iv) when the will is damaged or mutilated.
From this it is sought to be contended that the grant of a general probate is the rule and a limited probate an exception. Shri G. Balaparameswari Rao's contention, as already noticed, is that the cases cited in the Office note are all cases which deal with probate proceedings within the territories which on the first day of September, 1870 were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay and which are subject to the provisions of Sections 57(a) and (b) of the Indian Succession Act. It is his submission that in these territories the obtaining of a probate is compulsory. As such, a probate of a will situated outside those territories has to be obtaining in respect of immoveable properties situated within those territories. Otherwise there is no necessity for an executor or executors to obtain probate of the will at all. If so, in respect of properties not situated within the territories specified in Section 57(a), partial probate also can be taken.
At any rate, in so far as immovebale properties situated within the territories which were subject to Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay are concerned obtaining probate of a will is compulsory. For an appreciation of these contentions, it is necessary to read the provisions of Section 57, 211 and 213 of the Indian Succession Act which are in the following terms:
'57. The provisions of this part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply---
(a) to all wills and codicil made by any Hindu, Buddhist , Sikh or Jain, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
(b) to all such wills and codicils made outside those territories and limits so far as relate to immoveable property situate within the territories or limits; and
(c) to all wills and codicil made by any Hindu, Buddhist, Sikh and Jain on or after the first day of January 1927 to which those provisions are not applied by clauses (a) and (b):
Provided that marriage shall not revoke any such will or codicil.'
211. (1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.
(2) When the deceased was a Hindu, Mohammadan, Buddhist, Sikh, Jain or Parsi or an exempted person, nothing herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed by survivorship to some to her person.'
213 (1) 'No right as executor or legatee can establish in any court of justice, lees a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.
(2) This section shall not apply in the case of wills made by Muhammadans, and shall only apply--
(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jain where such wills are of the classes specified in clauses (a) and (b) of Section 57; and
(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, where such wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immoveable property situate within those limits'.
A reading of these provisions would show that Sections 59 to 190 with the modifications specified in Schedule III will be applicable to all wills specified in Section 57 Clauses (a) to (c). It may be noted that the provisions of Section 57 and the application of Section 55 to 190 with modifications has nothing to do with the obtaining of a probate of a part or of the whole of the will or codicil of a Hindu testator. it would appear that originally the classification in clauses (a) and (b) of Section 57 was taken from the Hindu wills Act XXI of 1865 (now repealed). To those classes of will and codicils that Act applied. Certain sections of the Indian Succession Act, 1865 (as amended by Act XXI of 1870) corresponding to the sections set out in Schedule III of the Indian Succession Act 1925 were made applicable to all wills and codicils specified in clauses (a) and (b) of Section 57 wherever executed. The sections specified in Schedule III of the Indian Succession Act as modified therein are applicable to the execution, revocation, alteration, revival, construction of wills, making of bequests and of legacies, their nature and validity, payment of liabilities in respect of specific and general bequests.
A prima facie reading of Section 57 and the consideration of the application of the provisions of Section 59 to 190 would show that they have noting to do with the obtaining of a probate in respect of a part or the whole of property. This matter is dealt with in section 211 and 213; and as we have noted earlier, the provisions in Chapter II of Part IX viz., Sections 237 to 260 would apply. Under Section 211, the property of a testator vests in an executor immediately upon the testator vests in an executor immediately upon the testator's death unlike kin the case of an administrator who derives his title wholly from the Court from the date of the grant of the Letters of Administration from which time alone the property vests in him. See Antonio Cruz Gonozolves v. Makis Boopalarayan, (1911) ILR 34 Mad 395. An executor, therefore, is competent to deal with the property and to demand and obtain amounts in respect of debts or recover his property without obtaining a probate. We are assuming for this purpose that the executor has accepted the office or has dealt with the property of the deceased in such a way as would imply his acceptance.
Under Section 213, where an executor has to establish his right as an executor or legatee in a Court, he cannot do so without obtaining a probate. but there is nothing to prevent an executor from dealing with the property of the deceased (e.g., collecting assets, selling any property to pay debts, etc.) without obtaining probate because, as we said earlier, under section 211, the executor is the legal representative of the deceased for all purposes, and all the property vests in him as such, so that the grant of probate is knot a condition precedent to such acts. But these provisions however do not indicate that when an executor intends to obtain a probate of a will, he could only obtain probate of a part of a will at his choice. The general rule is that a probate should be granted in respect of the entire estate of the deceased because under section 211, the entire estate of the deceased vests in the executor appointed by the will. It is only in special circumstances that a probate in respect of a portion of the property can be justified. Section 255 provides that whenever the nature of the case requires that an exception be made, probate of a will, or letters of administration with the will annexed, shall be granted subject of such exception.
In re T. K. Parthasarathi Naidu, : AIR1955Mad411 it was held that under the Succession Act the positions that whether the deceased dies intestate or dies leaving a will appointing or without appointing executors, the probate or the letters of administration with or without the will annexed must, as a general rule, relate to all the properties, that is, the entire estate of the deceased under the will, and that only in exceptional cases falling under Section 254 to 257, probate or administration limited to specific item of property or a fraction of the estate will be granted. Of course, in granting the probate of a will, a Court can exclude portions of a will by striking out or omitting such portions of it are proved to have been instead without the testator's knowledge, or prepared without his instructions or introduced through fraud or inadvertence. These exceptions have been stated in the several provisions to which reference has already been made by us. under Section 257, whenever a grant with exception of probate, or of letters of administration with or without the will annexed, has been made the person entitled to probate or administration of the remainder of the deceased's estate may take a grant of probate or letters of administration, as the case may be, of the rest of the deceased's estate.
It , therefore, clear that where a probate of a will is applied for, it must be of the entire estate which, under the will vests in the executor, unless of course the Courts grants it subject to an exception.
3. Sri Balaparameswari Rao Relies on a Division bench decision of the Madras high Court in Namberumal v. Veeraperumal, AIR 1930 Mad 956 for the contrary postiton. In that case the suit was for administration of the estate of the deceased Appaswami Pillai and fro the recovery of the balance of legacy of Rs. 15,000 with further interest, and of a sum of Rs. 15,000 due on a promissory note with further in test. The facts of the case were that one Appaswami pillai executed a will (ex. A-5) on 11th August, 1915 under which he devised tow items of his property to Srinivasa pillai, son-in-law of his elder brother, and all the rest of his properties in favour of his nephew, the 1st defendant, Veeraperuman Pillai. On 19th October, 1920, he addressed a letter (Ex. A-6) containing testamentary dispositions. Three days after the execution of Ex. A-6 i.e., on 22nd October, 1920, he and the executor (Ist defendant) had executed a promissory note (Ex. A-1) for Rs. 15, 000) in favour of Aparanji Ammal with interest at 4% per annum. The testator died on 4th October, 1921 and on 21st December, 1921, the executor (1st Defendant) applied for a probate of the will (Ex. A-5) and of Ex. A-8. A caveat was entered by the brother of the Ist defendant (executor) but probate was ordered.
There was an appeal and in the appeal there was a compromise under which the 1st defendant promised to pay Rs. 50,000 to his brother (the appellant therein) and the later withdrew his appeal. Soon after the withdrawal, the 1st defendant applied for a loan of Rs. 2.5 lakhs to defendant No. 4 and Ex. A-3 was the deed of mortgage. It recites the purpose as follows: (1) Rs. 20,015 due with respect to two mortgage deeds of 1921 executed by the testator (2) Rupees 41,600 due to the Secretary of the Sri Madhaya Mohanji Temple. (3) Rs. 15,000 directed to be paid to Aparanji Ammal and certain amounts due from the 1st defendant and his son to certain persons which were his private and personal debts amounting to Rs. 1,43,000. The suit was dismissed for the legacy, but a decree was passed for the balance of the money due on the promissory note after crediting the admitted payment towards the promissory note, the decree being executable against the assets, if any, of the deceased Appaswami Pillai in the hands of 1st defendant and also against the 1st defendant personally.
In appeal several questions were raised, one of which was whether Ex. A-6 should be called a will or codicil and whether the plaintiff's claim cannot be established without a probate being taken out. The letter (Ex. A-6) written by Appaswami Pillai to the 1st defendant from his residence near the Guindy Race Course, Guindy, outside the original side jurisdiction of the Madras High Court, is as follows:
'If I should depart this life you will pay to my beloved second wife M. Aoaranji Ammal the sum of Rs. 15,000 and you will take the whole of my property both moveable and immoveable I am possessed of.'
As to which or any of those two documents viz., Exs. A-5 and A-6 requires probate Ramesam, J. after referring to the law contained in Section 57 and 213 of the Indian Succession Act of 1925 observed at p. 959: 'When we remember that Section 57 is re-enactment of the Hindu Wills Act of 1870 Section 57(1) shows that in the case of wills executed outside Madras, probate must be taken of them only in so far as they relate to immovebale properties situated within Madras. Ex. A-6 was written at Guindy that is outside Madras, and, though part of it relates to immoveable property situated within Madras, so far as the legacy of Rs. 15,000 given to Aparanji Ammal is concerned, that disposition does not relate to immovable property within Madras. To that extent Part 6, Succession Act, does not apply to the will and therefore no probate has to be taken'. Dealing with the argument of the learned counsel for the respondent that probate must be taken for the whole of EX. A-6, the learned Judge observed: 'If this contention is correct, sub-clause (b) would have been worded 'to all wills and codicils made outside those territories containing any dispositions of immoveable property situated within those limits''. Cornish J. in a separate judgment, after giving the history of the legislation agreed with Ramesam, J., that the plaintiff's claim to the pecuniary legacy under the codicil was maintainable without a probate.
In so far as the liability under the pronote is concerned, both the learned Judges held that the note was executed by the testator and his executor, the latter being under no obligation of any sort to Aparanji Ammal for the payment of the legacy, and the testator did not intend her to have both the legacy and the amount covered by the pronote. In this view, the bench held that the legacy is recoverable without obtaining a probate. It may be noted that this decision was rendered in accordance with the law as is exited prior to the amendment of S. 57 by the addition of clause (c) in 1927 which applied the provisions of Schedule III to the wills of Hindus wherever executed. We May observe that probate is the only legal evidence of a will in any question respecting a right to property under the will and the classification of wills and codicils in Section 57(1) clauses (a) and (b) before the amendment might have to be treated as separate instruments for the purpose of the application of Section 213(1) and the other relevant sections of the Indian Succession Act.
A will or codicil, as we have seen, comes within clause (a) and is governed by the applied sections of the Indian Succession Act but a will or a codicil made outside the prescribed limits concern within clasuse (b) and is governed by those sections. As Cornish, J. observed in AIR 1930 Mad 956 at p. 962: 'the plain meaning of these words is that in respect of a will or of a codicil coming within clause (b) of Sec. 213(1) applies only to the extent of the will or codicil disposing of immovable property within the prescribed limits, but does not otherwise apply to the instrument. There is nothing very strange in such an exception being made when it is remembered that in England formerly the Court of Probate had no jurisdiction to authenticate a will so far as it related to real estate and that the probate was no evidence at all of the validity or contents of a will as to such property'. The question in that case was not whether the 1st defendant should apply for a probate of the entire property or for only a part of it. It was only whether the legatee could recover the amount without obtaining a probate. Ramesam, J., at page 959 said that he was clearly of opinion 'in so far as the plaintiff has go to establish a right to the legacy of Rs. 15,000 no probate need be taken of Ex. A-6 whether we regard it as separate or independent will or whether it be regarded as a codicial supplementary to the will Ex. A-5. In either case, to the extent that the plaintiff's right to the legacy is sought to be established, o probate need to taken of it.'
The learned Judge further observed; 'It must be remembered that defendant 1 actually entered upon his duties as executor, applied for probate and got an order in his favour, but for some reasons did not actually take out a probate. He would now be stopped from saying that he is not under any obligation as executor; vide Muniswami Chetti v. Maruthammal, (1911) ILR 34 Mad 211 which applies the principal of Srinivasa Moorthy kv. Venkata vArada Aiyangar, (1911), ILR 34 Mad 257.'
4. This decision, in our view, does not throw any light, nor is it an authority for the proposition contended for by Sri Balaparamesawari Rao that partial probate of a will can be obtained at the choice of the executor. As we said earlier, there is no section in the Succession Act dealing specifically with grants in respect of a portion of the estate of a particular items of property. Chapter II of Part IX dealing with limited grants for the use and benefit of others having right, and grants for the special purposes. The decisions which have been referred to in the office note cannot be distinguished, as attempted by Sri Balaparameswari Rao, on the ground that those cases relate to wills executed in Bengal or within the ordinary original jurisdiction of the High Courts of Bombay and Madras or in respect of moveable properties situated within those territories. The principle laid down therein as a general rule that probate of a will should be applied for the whole of the estate, is not applicable to wills executed or properties situated outside whose limits except in respect of immoveable properties situated within those limits.
There is no warrant for this contention. In the Goods of Grish Chunder Mittar, (1881) 6 Cal 483 = 7 Cal LR 593, Mt. Gkirija Bala v. Manindra La, AIR 1927 Cal 654 and In the Goods of Sewprasad Saraf, : AIR1954Cal444 are case which are an authority for the proposition that, as a rule, in all cases the probate or the letters of administration must be taken for the entire estate, both of moveable as well as immoveable properties, and that the duty must be paid upon the value of the whole, l except in cases where limited administration is granted under special circumstances. The decisions of the Bombay High Court in In re Tahker Madhavji Dharamsi, (1881) ILR 6 bom 460 and Abdul Gafur v. Jayarabi, AIR 1929 Bom 456, are also to the same effect. Apart from these, the Lahore High Court, though initially in Gurbachan v. Satwant Kaur, AIR 1925 Lah 493, had taken the view that there was nothing in the Act prohibiting the grant of letters of administration for part of the property, that view was departed from in Satpal Ram v. Collector of Multan, AIR 1931 Lah 310 and in Sardar Singh v. Teja Singh, AIR 1946 Lah 277. As already stated, the decsion in : AIR1955Mad411 , is also in line with the decisions cited above.
Parthasarathi Naidu's case, : AIR1955Mad411 , it may be mentioned, dealt with a situation prior to 1927 inasmuch as the brothers who were each owner of half of a share in the property, the elder of which Parathasathi Naidu died in November , 1919 while his brother, Balakyya, died in April, 1926. parthasarathi Nadiu died leaving three sons of whom he had completely excluded the eldest son from the bequest as he had separated from the family after executing a release deed. This disposition was in favour of the other two sons and their descendants. So far as the petitioner therein was concerned, he was given a moiety of the grandfather's share subject to the life in test in favour of his parents, the other moiety having been bequeathed to the younger son, Sriramulus sons, Santhanagopal and Kothandapani, that is to say under the will the petitioner would be a beneficiary to the extent of an undivided 1/4 the share of the house property. by the said will, three persons were appointed executors, of whom two died and the third had signed alter of renunciation which had been filed into Court. The petitioner prayed for permission to prove the will in common form and for the issue of letters of administration with a copy of the will annexed by limiting it to the undivided 1/4th share which he got under the will.
Ramaswami Gounder, J., delivering the judgment of the bench considered the decisions of the Bombay and Calcutta High Courts and also those of Sind and certain unreported decisions on the original side of the Madras High Court and held that there was no justification fro granting any exception. The learned Judge observed at page 416;
'The examination of the cases, therefore, confirms the conclusion we reached on a c consideration of the relevant section of the Indian Succession Act, namely, whether the deceased died intestate or dies leaving a will appointing or without appointing executors, the probate or the letters of administration with or without the will annexed, must, as a general rule, relate to all the properties that is, the entire estate of the deceased, and that only in exceptional cases falling under Section 254 - 257, a probate or administration limited to specific item of property or a fraction of estate will be granted. The questiion whether a particular case would fall under those exceptions would depend upon the facts and circumstances of that case. It is impossible, and we do not propose to make any attempt to prepare a catalogue of cases which would fall within those exceptions. it was only on that question that the decision differed.'
5. We are therefore of opinion that probate of the entire will must be applied for, unless there are any facts justifying the prayer, fro an exception. We do not think at this stage the question of what probate duty is payable would arise. That will be a matter which can only be determined after the probate is granted. In so for as court-fee is concerned, as long as the proceedings are still at the stage of an O. P. the proper court-fee of Rs. 25 is to be paid under clause (k) (I) or Article II of Schedule II of the Andhra Court-Fees and Skuits Valuation Act. If there is a caveat, then the O. P. will be registered as a suit and then the petitioners will have to pay on half the scale of fee prescribed in Article 1 of Schedule II of the Court-fees Act on the market value of the estate less the fee already paid on the application viz., Rs. 25.
6. The learned Advocate prays that if the probate duty is payable at the end and since he has paid kit, the amount May be returned to him, as he would be losing interest. This would logically follow from our decision. But however, it is not for us to grant the prayer. he may make an application before our learned brother for the refund. In view of what we have stated, the petitioners will have to amend their petition. The matter may now be placed before the Honorable Judge dealing with probate matters.
7. Order accordingly.