Skip to content


R. Venkiteswaran Vs. A. Krishna Rao - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 471 of 1961
Judge
Reported inAIR1965Ker166
ActsSucession Act, 1925 - Sections 263
AppellantR. Venkiteswaran
RespondentA. Krishna Rao
Appellant Advocate S. Bhoothalinga Iyer, Adv.
Respondent Advocate T.S. Venkiteswara Iyer, Adv.
DispositionPetition allowed
Cases ReferredKama Naidu v. Rangayya Naidu
Excerpt:
.....to carry on the proceedings, having in effect by representation through the executor been a party to the proceedings from the outset. if he failed at any stage of the proceedings in his duty, any one of the others whom no represented might intervene to continue the proceedings. the petitioner was himself interested in the revocation of the letters of administration aa manakki herself was, and if at any stage of the proceedings manakki failed to discharge her representative duty, the petitioner could have himself come on record and carried on the proceedings, it so, manakki's dropping out of the proceedings by death cannot make any difference in the right of the petitioner to come on record and continue the proceedings......of them were descendants of a common great grand mother, filed an application for revolting the letters of administration granted to the respondent, pending that application manakki died and the petitioner applied for substituting him as the legal representative of manakki and permitting to continue the application for revocation of the letters of administration. this petition was dismissed by the district court and the petitioner has come up in revision. 2. the learned district judge has taken the view that the right to apply for letters of administration was a personal right and the right to apply for revocation of the same was also a personal right, which did not survive after the death of the applicant, so that the legal representative of the applicant could not be substituted in.....
Judgment:
ORDER

T.C. Raghavan, J.

1. The Civil Revision Petition raises a short but interesting question under the Indian succession Act. A person by name Bappu Yemuni of the Devadasi community died and on the strength of a wilt left by her the respondents obtained letters of administration from the District Court of Ernakutam. Another person by name Manakki, claiming to be a relation of the deceased on the ground that both of them were descendants of a common great grand mother, filed an application for revolting the letters of administration granted to the respondent, Pending that application Manakki died and the petitioner applied for substituting him as the legal representative of Manakki and permitting to continue the application for revocation of the letters of administration. This petition was dismissed by the District Court and the petitioner has come up in revision.

2. The learned District Judge has taken the view that the right to apply for letters of administration was a personal right and the right to apply for revocation of the same was also a personal right, which did not survive after the death of the applicant, so that the legal representative of the applicant could not be substituted in the application, He has considered two decisions of the Calcutta High Court ana another of the Patna High Court. The Calcutta decisions are Barat Chandra Banerjee v. Nani Mohan, ILR B6 Cal 799 and Haribhusan Datta v. Manmatha Nath Datta, ILR, 45 Cat 862: (AIR 1919 Cal 197), in the first of these decisions Harington, J. held in a case, where the sole executor who applied for the grant of probate died pending the application and his widow and legal representative applied to have her name substituted, that tho application should be refused as the right to sue had not survived. In the second case Greaves, J, held that the right to grant of administration was a personal right derived from the Court and therefore if on the death of the testatrix the residuary legatee under her will, obtained a grant of administration to her estate, his title would have been derived from the Court and would not devolve on his heir. The third case is the Division Bench ruling of the Patna High Court in Mt. Phekni v. Mt. Manki, AIR 1930 Pat 618. In that case the sola legatee under a will, whose application for grant of letters of administration was rejected, appealed from the order, but died during the pendency of the appeal; and the heir of that sole legatee was allowed to be substituted in his place for the purpose of carrying on the litigation and obtaining a linal adjudication as to whether the will waa genuine or not. in this last case Fazi Ali, J. distinguished the Calcutta decision in ILK 36 Cal 799 on the ground that in that case the executor applied for probate and under Section 222 of the Indian Succession Act probate could be granted only to the executor appointed under the will. The learned Judge also observed that the provision for the issue of letters of administration was not so stringent under Sections 232 and 233 of the Succession Act. Fazi Ali, J. held further that in the case before him the person sought to be substituted had himself an interest under the will and was competent to obtain letters of administration and waa therefore entitled to get himself substituted to proceed with the application.

3. My attention has been drawn to two more decisions, one of the Calcutta High Court again and the other of the Madras High Court, The Calcutta decision is Chandramani Malty v. Bipin Behari, AIR 1932 Cal 206, where the donees from a legatee and executor were allowed to be substituted as legal representatives. The Madras decision is the is the Division Bench ruling in Kama Naidu v. Rangayya Naidu, AIR 1933 Mad 114, which is a fairly enlightening decision on the question. In that case the learned Judges held that an executor who prayed for probate prayed in form for something which could be granted to no one else, but the essence of the proceedings was that he sought to establish a will not for himself, but as the representative of those who took benefits under it; and if he failed in his duty, any of those whom he represented might intervene to carry on the proceedings, having in effect by representation through the executor been a party to the proceedings from the outset. Their Lordships made it clear that a testator (Executor?) who applied for probate was not doing it for himself, but was applying as the representative of all those who took benefits under the will, though it might be said that, in form, he was asking for something, which could be granted to him and nobody else. If he failed at any stage of the proceedings in his duty, any one of the others whom no represented might intervene to continue the proceedings. In fact, each one of those interested persons was already in the proceedings, having been represented through the executor. Therefore, if un executor dropped out of the proceedings through death, any of those persons whom he represented might get himself substituted and carry on the proceedings.

4. In the case before me the application by Manakid was for revoking the letters of administration and that application she filed claiming that she was a relation of the deceased and thus entitled to the property left by her. The learned District Judge also realises that if Manakki died without initiating the proceedings, me petitioner could have filed the application for revocation; so that, the application filed by Manakki was not for herself alone, but was as a representative of the relations of Manakki. The petitioner was himself interested in the revocation of the letters of administration aa Manakki herself was, and if at any stage of the proceedings ManaKKi failed to discharge her representative duty, the petitioner could have himself come on record and carried on the proceedings, it so, Manakki's dropping out of the proceedings by death cannot make any difference in the right of the petitioner to come on record and continue the proceedings. The right which Manakki sought to exercise for revoking the letters of administration, though in one sense a personal right, was really a right to which the petitioner was also interested and he should have been allowed, to be substituted and to carry on the proceedings.

5. The Civil Revision Petition is therefore allowed and the petition for substitution is also allowed. The respondent will pay the costs of the petitioner In this Court and the parties will bear their respective costs before the lower court.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //