1. This case raises a question of some interest. The question propounded is:
Whether, when a will has been proved and deposited in a competent Court in Scotland, letters of administration, with a copy of the authenticated copy of the wm>annexed, may be granted to the attorney of absent executor under Section 228 or Section 241, Succession Act.
2. The facts can be stated shortly. Alexander James Milne died in Scotland on 6th April 1947, leaving property both in India and in the United Kingdom. By his will dated 29th March 1946 he appointed Allan Hay his executor, and that gentleman in due course obtained confirmation of the will in the Sheriff Court of Aberdeen, Kincardine and Banff at Aberdeen, on 18th June 1947. The executor them appointed Adwaita Nath Sil, a partner in the well known firm of Sandersons and Morgans, Solicitors of Calcutta, as his attorney for the purpose of applying to the proper Court in India for letters of administration with an authenticated copy of the will annexed; and the attorney has now applied to this Court for a grant. His application purports to be made under Section 228, Succession Act, and it is clear that if the grant is made under that section the petitioner will have to execute an administration bond with one or more sureties in accordance with the provisions of Section 291 of the Act. To this the petitioner objects, and be asks for leave to convert his petition into one under Section 241 of the Act.
3. In 1905 a Bench of this Court in In the goods of William Ashton ('05) 1905 A.W.N. 251, expressed the opinion that in circumstances such as the present a grant of letters of administration with a copy of the authenticated copy of the will annexed could be made to the attorney of the absent executor under Section 180 of Act 10[x] of 1865 (which corresponds to Section 228 of the present Act), and for some years after that decision it was the invariable practice of this Court to make the grant under that section and for the administrator so appointed to execute an administration bond. In recent years, the practice has not been uniform, and our attention has been drawn to a number of instances in which, in like circumstances, the grant appears to have been made under Section 241. It is the practice in Madras, and it appears to be that in Calcutta and Bombay, for the grant to be made under the latter section : In re Wilfred Hazell : AIR1940Mad680 .
4. Section 228 is to be found in Chap. 1 of part IX of the Act. That chapter contains general provisions with regard to the great of probate and letters of administration, and Section 228 provides that:
228. When a will has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the Province, whether within or beyond the limits of His Majesty's dominion, and a properly authenticated copy of the will is produced, letters of administration may be granted with a copy of such copy annexed.
Section 241 forms part of chap. II which makes provision for limited grants, and it provides that:
241. 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 use and benefit of his principal, limited until he shall obtain probate or letters of administration granted to himself.
5. It is apparent that there is some difficulty in the application of either section to the case which we have to consider, for Section 228 does not make provision for the grant of administration to an agent or attorney, and Section 241 assumes production by the attorney of the original will; but looking at the scheme of the Act it appears to me that if either section is applicable the more appropriate is Section 228. The two sections are in my opinion intended to apply in very different circumstances, the former where the will has been proved abroad and the latter where it has not been proved at all; and accordingly a Court in India will, when acting under Section 228, grant administration without further proof of the will, whereas on a petition under Section 241 the will has to be established and its authenticity may be disputed.
6. In the goods of William Ashton ('05) 1905 A.W.N. 251 application was for letters of administration with an authenticated copy of the will annexed, the original will having been lodged in the Court in England which had granted probate. This Court held that a grant could not be made under Section 212 of Act 10[x] of 1865 (which corresponds to Section 241 of the present Act) as the original will was not available, but it indicated that it would have been disposed to make a grant under Section 180 of that Act (corresponding to Section 228 of the present Act,) had the power of attorney in favour of the petitioner been couched in terms wide enough to permit him to make an application under that section. The Court appears to have been satisfied or at least to have assumed that under g Section 228 a grant could be made to the attorney of the absent executor. The decision in the Madras case In re Wilfred Hazell : AIR1940Mad680 . was in part based on the admission by counsel that Section 228 did not permit an application being made by an agent The facts in that case were on all fours with those in the present case, but the Madras Court held that a grant of letters of administration with a copy of the will annexed should be made to the attorney under Section 241. Sir Lionel Leach C.J., pointed out 'that since 1865 it had been the practice of the Madras High Court in such circumstances to grant letters of administration with a copy of the will annexed without requiring security to be furnished, and Krishnaswami Ayangar J., stated that but for the uniform practice of the Court he would have been inclined to agree with the opinion of Somayya J., from whose decision the appeal had been filed, and of this Court in In the goods of William Ashton ('05) 1905 A.W.N. 251, that the appropriate section was Section 228. In view however of the long standing practice of the Court and in the absence, in the view of the Court, of any other appropriate section, the conclusion was reached that the grant should issue under Section 241.
7. Now Part 9, Indian Succession Act reproduces the provisions of the Probate and Administration Act, 1881 which were based on English law. The matters it deals are mainly those of procedure : see Bhagwan Kuer v. Jogendra Chandra Bose ('03) 30 I.A. 249, and its provisions are therefore to be interpreted liberally if the result would otherwise be to cause inconvenience and hardship.
8. There never has been any question of the right of the attorney of an executor who has proved a will in a foreign Court to obtain from an Indian Court a grant of letters of administration with a copy of the will annexed: the only question is the section under which the grant should be made. In the present case it is not suggested that any section other than Section 228 or Section 241 can apply. In the Presidency High Courts there is practice of long standing that such grants are made under the latter section, but in this Court there is no such practice.
9. The provisions of Section 241 were not in my opinion, intended to apply, nor are they appropriate, to the case in which a grant of probate has already been obtained in another Court. The section which is applicable in such cases is Section 228; and in the absence therefrom of any provision to the contrary I am of opinion that under that section the Court may grant letters of administration, with a copy of the authenticated copy of the will annexed, to the agent or attorney of the executor, and I would answer the question propounded accordingly.
Harish Chandra, J.
10. On a perusal of Sections 228 and 241, Succession Act it is clear that the former is the more appropriate section to apply to the facts of the present case. Section 241 applies when the original will is produced and has to be proved and is meant for cases in which the grant asked for is of a temporary nature and the executor expects to obtain probate or letters of administration granted to himself as soon as he is able to make an application personally. The only difficulty in the way of applying Section 228 is that letters of administration have been asked for not by the executor who is residing outside India but by his attorney. There seems to be nothing in Section 228 or other relevant provisions of the Succession Act which may be taken as prohibiting expressly or by necessary implication the grant of letters of administration to an attorney in cases covered by Section 228. The Madras High Court did not consider this aspect of the matter and assumed that Section 228 did not permit an application being made by an agent and this was apparently the main reason why that Court, following the long standing practice of that Court, held that Section 241 and not Section 228 applied to cases of this kind. I accordingly agree with my learned brother Mootham that, in the circumstances mentioned in the question which has been propounded, letters of administration with a copy of the authenticated copy of the will annexed may be granted to the attorney of the absent executor under Section 228 and not Section 241, Succession Act.
Bind Basni Prasad, J.
11. I agree and have to add nothing.