1. Subbu Chetti, a native inhabitant of the Presidency town of Madras, obtained an advance from the Bank of Madras upon the security of the deposit of certain Government promissory notes. He died on the 1st of December 1882 without leaving a son or guardian or any undivided coparcener or other male heir, but leaving one widow only, the plaintiff in this suit, and two infant daughters. The debts he owed were trifling and have been paid. He was a man very well known in Madras, where he spent his life, and at his death was dubash of Arbuthnot & Co. He had not any assets, effects or property outside Madras town. His widow, the plaintiff, is a daughter of Mr. Ramasami Chetti, one of the Vice-Presidents of the Madras Municipality. By letter of the 18th December 1882 to Madras Bank, Ramasami Chetti informed them of the death of the deceased, and by letter of the 19th of December 1882, the Secretary to the Bank replied.
2. By letter of the 24th January 1883, Ramasami Chetti, on behalf of the plaintiff, requested the Bank to sell the securities and close the accounts and hold the balance after payment of the debt for disposal afterwards.
3. By letter of the 27th of January 1883 to Ramasami Chetti, the Secretary to the Bank informs him that the securities have been sold and the debt paid, and that Rs. 1,707-5-11 remain in hand.
4. By letter of the 19th of February 1883, Ramasami Chetti writes to the Bank that deceased died intestate leaving the plaintiff, his only widow, and without leaving any son, and stating that he was advised that letters of administration were not necessary to enable her to give a discharge to the Bank for the money, but offering an indemnity by him against any claim by any other person.
5. By letter of the 20th February 1883, to Ramasami Chetti, the Bank Secretary asked for copy of any opinion which stated that letters of administration were not necessary.
6. By letter of the 9th of March 1883 Ramasami Chetti replied, sending the Secretary the first volume of the Madras High Court Reports (see p. 60).
7. By letter of the 13th March 1883 to Ramasami Chetti, the Secretary of the Bank replied that the Bank solicitor advised that letters of administration were necessary.
8. By letter of the 16th July 1883, addressed to Subbu Chetti at the house of Ramasami Chetti, the Secretary enclosed the account showing the balance due.
9. There is no dispute as to the amount in the hands of the Bank to the credit of Subbu Chetti's account.
10. The plaintiff has not obtained administration to the effects of the deceased. This suit was filed in the Small Cause Court to recover from the Bank the sum admitted to be in their hands.
11. The question in the suit is whether the plaintiff, who has not obtained administration, can compel the defendants to pay the money to her. The Act of the Governor-General in Council (XXVII of 1860, Section 2) provides, no debtor of any deceased person shall be compelled in any Court to pay his debt to any person claiming to be entitled to the effects of any deceased person or any part thereof, except on the production of a certificate to be obtained in the manner hereinafter mentioned or of a probate or letters of administration, unless the Court shall be of opinion that payment of the debt is withheld from fraudulent or vexatious motives and not from any reasonable doubt as to the party entitled.
12. Mr. Branson for plaintiff contends that this act does not apply to the Presidency town or to the cases of natives in the town. The substance of his argument is that in all charters of jurisdiction from the date of the first charter down to the charter establishing the Supreme Court, the rights of the natives to be governed in all matters of succession to property were reserved to them. That on the death of a native, his representatives were entitled to the succession, including recovery of debts due, without any obligation on their part to take out letters of administration which were unknown to the Hindu common law. He admitted that when natives died possessed of effects within Presidency towns the Supreme Court granted probate or administration in many cases to natives applying therefor, while in some cases the Supreme Court refused to do so. He contended that, although European British subjects could not sue for or recover from debtors to the estate of deceased persons without probate or administration, yet that such obligations did not apply to natives. Without questioning these contentions it is to be recollected that, in 1841, Act XX of 1841 was passed by the Governor-General in Council.
13. The preamble to that Act states that it is expedient to provide greater security for persons paying to the representatives of deceased Hindus, Muhammadans and others not usually designated as British subjects, debts which are payable in respect of the estates of such deceased persons, and to facilitate the collection of such debts by removing all doubts as to the legal title to demand and receive the same.
14. Section 1 is exactly the same as Section 2 of Act XXVII of 1860, before quoted.
15. Sections 2-8 provided for granting certificates to collect debts due to deceased persons, and that debtors paying thereunder should be thereby indemnified.
16. Section 9 expressly refers to probate and administration granted with regard to property of Hindus, Muhammadans and others not usually called British subjects, and that no certificate granted after probate or administration should be valid if there were assets of the deceased within the local jurisdiction of the Court granting the probate or administration.
17. Section XV provides that the Act is not to extend to the property of persons usually called British subjects.
18. The Amendment Acts of 1842 and 1854 do not affect the question.
19. Act XXVII of 1860 is in the above respects the same as the Act of 1841. The numbers of the sections are different.
20. That Act of 1841 made a material change as regards Hindus, Muhammadans and others not usually called British subjects, in respect of the collection of debts due to deceased persons of such so-called non-British subjects.
21. The Act did not extend to the property of British subjects, but it clearly provided for the issuing of probate and letters of administration in respect of assets of Hindus, Muhammadans, etc. There was at that time no Court in the country authorized to issue probate or administration except the Supreme Court which had only original local jurisdiction in the town of Madras.
22. Section 9 makes the grant of probate or administration when there were assets of deceased within the local jurisdiction good as against any subsequent certificate. If the Act of 1841 did not apply to Hindus and in the Presidency towns, then they would be the only parts of the country where the security to debtors contemplated by the Act could not be given, as no certificate could be given by the Presidency Courts. The Act is to provide security for persons paying to the representatives of Hindus, etc., debts due to their estates and to facilitate collections by removing all doubts to the legal title to demand and receive the same.
23. Section 2 provides that the Zilla or District Court, within the jurisdiction of which any part of the property of the deceased may be found, shall have authority to grant a certificate under the Act.
24. Now here the rule is laid down as regards Hindus, etc., that no debtor shall be compelled in any Court of Law to pay his debt to any one claiming it as part of the effects of a deceased person, except on production of certificate or of probate or letters of administration. That is the general rule; now comes the exception, which is in the same sentence, viz., unless the Court shall be of opinion that payment is withheld from fraudulent or vexatious motives and not from any reasonable doubt as to the party entitled.
25. The Act XXVII of 1860 repeals the Act of 1841 and amending Act and re-enacts the provisions of the same Act and creates further provisions to accomplish the object of both Acts. The heading and the preamble of each Act are the same.
26. Sections 2, 13,1 232 of the Act of 1860 are the same as Sections 1, 9, 15 of the former Act. Then Section 18 of the Act of 1860 contains a new provision, viz., that probates and letters of administration granted by any Supreme Court of Judicature in cases where assets were at the death within local limits shall have the effect of probate and letters of administration granted in respect of the property of British subjects but for the purpose of the recovery of the debts only and the security of the debtors paying the same except so far as in the Act provided.
27. The above observations on the Act of 1841 also apply to the Act of 1860.
28. There can be in my judgment no doubt that both Acts (excluding the sections relating to the power to grant certificates) which is confined to the District Courts, applied to the Presidency towns and to the Hindus, Muhammadans and others who at the time that Act was passed were not usually designated by the term British subjects.
29. In In re Kirustnappa Mudali's Will 1 M.H.C.R. 56 on the Original Side of this Court, the question was whether the executor of a Hindu who died in Madras, where the executor lived, could be cited to bring in a Will. In giving judgment, Sir C. Scotland refers to the Act as applying in Madras.
30. The case, P. Ramakrishna Mudali v. Soobraya Gramini 6 Mad. 262 raised the point; but neither Mr. Justice HOLLOWAY nor I had any doubt that the Act did apply to the Presidency towns. The case, Chunder Coomar Roy v. Gocool Chunder Bhuttacharjee I.L.R. 6 Cal. 370 was an appeal from the Original Side. One point was whether a Hindu could sue for a debt due to his father without taking out administration? Then it was assumed by both sides in argument that the Act applied to the Presidency town of Calcutta. Mr. Branson contended as part of his general argument that a Hindu in Madras could not in 1860 be compelled by citation or otherwise to bring in a Will in order to have it proved in solemn form. He referred to In re Kirustnappa Mudali's Will 1 M.H.C.R. 56. The law is now altered by the Hindu Wills Act, 1870, embodying Part XXXI of the Succession Act. But the objection really does not affect the present case, which depends on the Act XXVII of 1860.
31. Mr. Branson also contends that there was no reasonable ground of doubt as to the party entitled, and that the refusal by the defendants to pay the plaintiff' was from vexatious motives. Upon the admitted facts as above stated it is suggested by the Advocate-General that it is difficult to say that there was not a reasonable doubt, as the deceased might, without the knowledge of the plaintiff or Ramasami Chetti, have had another wife and a son by her, or might have adopted a son, and he referred to Act V of 1880. There is certainly always uncertainty and doubt about accepting a title from a Hindu as he may be apparently an absolute owner, and no other member of his family may be known to exist or to be undivided from him, and yet such Hindu may be really either only acting for others as well as for himself. In the case of a deceased Hindu intestate when the question is the right to succession, the doubt and uncertainty is increased. But though the Act contemplates such doubts and intended to provide against them, yet, whether in any given case there is a reasonable doubt 'as to the party entitled,' must depend upon the facts of each case so far as they can be ascertained: whether the facts of any case, after due inquiry, have been really ascertained is still open to doubt. However, the Act contemplates not a speculative or possible doubt, but a reasonable doubt so far as facts are ascertainable after due inquiry from faithworthy persons, either members or connections of the deceased, or from others. Upon the admitted facts of this case 1 am bound to say that, in my opinion, there was no reasonable doubt as to the party entitled, viz., the plaintiff.
32. But this conclusion does not decide the question in this case, as I am bound to hold on the construction of the Act that the absence of reasonable doubt alone as to the party entitled does not justify or authorize the plaintiff to sue for the debt without taking out administration.
33. The case in 6, Madras Jurist, p. 263, contains an expression of opinion by Mr. Justice HOLLOWAY opposed to my view. He is reported to have said, 'I think that in the case of a Hindu it is necessary to determine whether there is such reasonable doubt, and if there is not, the objection ought not to prevail. If there is, it must prevail by the words of the Act.'
34. I did not coincide in that opinion, though it was not necessary to say so expressly. The case went off without any definite answer to the Reference, as there was no statement therein whether there was reasonable doubt or not. Our opinion was expressed, but there was no judgment of the Court.
35. In the memorandum which I wrote I followed the words of the Act which couples by the conjunction 'and' the fraudulent or vexatious motive, with absence of reasonable doubt, and I referred to the case In re Kirustnappa Mudali's Will l M.H.C.R. 59 where Sir C. Scotland quotes the Act with the conjunction 'and' as supporting my view.
36. As already mentioned no definite answer was then given to the Reference, as there was no finding whether there was reasonable doubt. That case cannot, therefore, be relied on as binding authority on the question. The report is erroneous, so far as it reports my opinion, as if I changed the conjunction 'and,' into 'or.'
37. No doubt there are very many cases principally arising on the construction of wills where the disjunctive 'or' is construed to mean the conjunctive 'and '. Also there are cases where 'and' has been changed into 'or.' As observed by Jarman on Wills (vol. I, p. 505, ed. iv), words are used orally without due regard to their respective import, and it is not surprising that inaccuracy should have found its way into wills. Such changes, however, only take place when it is apparent that the testator has used the wrong word and when it is apparent what is the right word.
38. Wills are often in artificially framed, documents hurriedly prepared; therefore, the Courts are often called to rectify blunders of this nature.
39. In deeds also the words may be changed where it is in furtherance of the clear intention of the parties. But in no case has it been done except when the intention of the parties was clear.
40. As to statutes also, when the intention of the Legislature can be collected from the statute itself, words may be modified, altered or supplied so as to obviate any repugnancy to, or inconsistency with, such intention, Quin v. O'Keeffe 10 Ir. C.L.R. 393
41. The intention of the Legislature must be ascertained from the words of a statute, and not from any general inferences to be drawn from the nature of the objects dealt with by the statute, Fordyce v. Bridges 1 H.L. Cal. 1.
42. Statutes should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are of themselves precise and unambiguous, then no more can be necessary than to expound these words in their natural sense. The words themselves do not declare the intention of the Legislature, The Sussex Peerage Case 11 C. & F. 86.
43. The language is to be construed according to its grammatical sense, Smith v. Bell 10 M. & W. 378.
44. Applying the above rules, where is there in the statute any intention to be found that the absence of reasonable doubt alone brings the case within the exception in Clause 2? Where is the clear intention to be found that 'and' in the words 'fraudulent or vexatious motives and not from any reasonable cause' should be read 'or '? What error, inconsistency, or repugnancy is apparent which requires the 'and' to be changed to 'or '? Take the whole statute together (which is the proper course), or take the words of Section 2 alone, or with any other sections, what reason is there to impute mistake in the language used? The Act repeals the very same language in Section 2 that was enacted 19 years previously in the Act of 1841. Is this merely accidental, a mistake carried on for years and repealed and re-enacted, or is it the result of deliberate intention? Plainly it is the latter. It would have been most simple for the Legislature to have used 'or' instead of 'and,' but this was not done. The disjunctive 'or' was used by the Legislature 'fraudulent or vexatious motives,' and immediately follows the conjunction 'and.' The word 'and' must, therefore, be expounded in its natural conjunctive sense. Mr. Branson says there will be inconsistency and repugnancy in so holding, because, on this view, the whole of the exceptions might as well be omitted from Section 2. I am unable to assent to this proposition. There may be many cases where the motives of the debtor may be fraudulent or vexatious; but if there is a reasonable doubt, then the exception does not arise. There may be other cases where though there may not be a reasonable doubt, there may be no fraudulent or vexatious motives. These cases are provided for by the construction I feel bound to adopt. Why then should the exception providing for them be treated as if it did not exist? In the former case the debtor is protected against paying over again, where there is a reasonable doubt even though his motives are fraudulent or vexatious. He is entitled to a discharge from a person whose title is undoubted, i.e., the administrator. In the latter case, the Act entitles the debtor to a discharge from an administrator, as his motives for refusal were not fraudulent or vexatious, though there was no reasonable doubt. Without the conjunction, I do dot see how the exception could be practically worked out. Suppose the exception in the disjunctive 'fraudulent or vexatious motives or absence of reasonable doubt.' If there was a finding that the debt was withheld from fraudulent or vexatious motives, but there was reasonable doubt, then both parties would claim to have come within the exception, one finding entitling the plaintiff to succeed and the other finding entitling the defendant to succeed. If again there was a finding for the defendant that the defendant did not act from fraudulent or vexatious motives, and a finding for plaintiff that there was no reasonable doubt, the judgment on the finding would be for the plaintiff.
45. Assuming that the decision should follow in these cases, on the finding as to the absence or existence of reasonable doubt, then the reference in Section 2 as to existence or non-existence of fraudulent or vexatious motives would be utterly useless and immaterial. The Legislature then would be held to have introduced the reference to motives for no purpose whatever, and the words fraudulent or vexatious motives might be struck out of Section 2. The exception would be then read thus: Unless the Court is of opinion that the debt was withheld from a reasonable doubt as to the party entitled.' It is impossible in my judgment to arrive at such a conclusion.
46. Another question in the case is whether the defendant in refusing to pay the plaintiff acted from fraudulent or vexatious motives. The onus of proving the existence of such motives lay on the plaintiff. If the suit was one in this Court, the plaintiff would be bound in his plaint to allege that the defendant so acted. The exception in Section 2 is in the same sentence that enjoins the necessity for the letters of administration to the party claiming. According to the ordinary rule the plaintiff should in his plaint bring himself within the exception. At all events, even in this country, the plaintiff, to get rid of the difficulty of not having letters of administration, should give evidence of facts from which such motives could properly be inferred. The letters above stated and demand of the debt and the facts above admitted are the only evidence in the case. Fraudulent motive was not suggested, but it was argued that as a man's motives can only be judged by his acts, that I should find the defendant acted from vexatious motives, because the plaintiff' was vexed and troubled by defendant's act. The act of withholding the debt may have caused vexation to the plaintiff'. It may have irritated and troubled or disquieted her, which is open to doubt however, as Mr. Ramasami Chetti knew well the money would be paid if plaintiff took out letters of administration, and most probably ho so informed the plaintiff. But whether plaintiff was vexed is not the fact I have to find. The words of the Act are not 'acted so as to cause vexation' or 'vexatiously.' The words are ' from vexatious motives.' There is no evidence whatever from which I could conclude that the defendants acted from any motive except to protect the Bank from the possible danger of having to pay the money again if they did not get a receipt or discharge from a legal representative of the deceased duly authorized under letters of administration. I believe that this was their sole motive. The first letter of their Secretary referred to the necessity for letters of administration, and I believe that they acted solely with the motive of protecting the Bank and not with any vexatious motives. The acts and conduct of parties may either prove or disprove vexation according to the circumstances of each case. In this case there is no evidence that the Secretary or any of the Directors of the Bank had any acquaintance with the plaintiff. The circumstances are that the money in question, and no doubt very much larger sums, are in the charge of the Bank on behalf of shareholders and depositors in whose interests the Directors and Secretary act. It is their duty to see that any moneys they pay out are, paid to the parties legally and rightfully entitled thereto, and to obtain proper receipts and discharges therefor. The Directors do not individually own such moneys, but are mere trustees. They have large claims to pay constantly to representatives of deceased shareholders and depositors. If any such payments are made to persons not properly qualified to give discharges, the interests of the shareholders and possibly of the depositors may suffer. The Probate and Administration Act of 1880 applies to Hindus in Madras town. Section 4--All property of deceased vests in executors (save property of deceased that passes by survivorship). Section 14 provides that letters of administration give to the administrator all rights belonging to the deceased as if the letters of administration were granted at the moment after his death.
47. Section 23--Administration may be granted to any persons entitled under the rules for administration to any part of the estate of the deceased, and if no such person applies, administration may he granted to a creditor. I think that since that Act the defendants, whether acting on the advice of their solicitor or not, might reasonably consider that the protection of the Bank from an administrator who might become such after payment by them, required them to insist that the person claiming the debt should obtain administration. In this case the plaintiff would be entitled to administration, and I cannot think that in requiring administration to be taken out, the defendants acted with the motive of putting her to the expense of administration. Though it is not necessary to say that the defendants would not be safe in paying the plaintiff without administration, still I think that the doubt influenced their motives. The refusal by the defendants of Mr. Ramasami's offer of indemnity does not induce me to believe the motives of defendants were vexatious. The defendants had a right to a valid discharge, and were not bound to accept the offer. Mr. Branson argued that, as there was no reasonable doubt, the motives of the defendants for not paying plaintiff must be held to have been vexatious. This view is supported by the opinion of Mr. Justice HOLLOWAY (in which I did not concur) to which he alluded. Though I must distrust my judgment when it differs from Mr. Justice HOLLOWAY, yet I am bound to act on it. But his opinion is directly opposed to the decision of the High Court of Calcutta. In its construction of the Act I agree. I have already pointed out that, if the plaintiff could bring himself within the exception on the sole ground of the absence of reasonable doubt, then the reference to the motives would be useless. I am of opinion that, though there was no reasonable doubt as to the party entitled, yet that the defendants acted without any fraudulent or vexatious motives in withholding payment for the plaintiff, and that the case is not within the exception in Section 2. The plaintiff not having taken out administration, is not now in a condition to compel the defendants to pay her the money sued for.
48. In a case from the mofussil it was held that the certificate was not necessary to give a right to institute a suit, but that it should be produced before a decree or order can be passed, except the Court are of opinion, etc. (which do not apply here). If the plaintiff had now letters of administration, I would, following the decision of this Court, make a decree for her; but as she has not, I am bound to dismiss this suit with costs.
1 Certificate in respect of property of deceased Hindus, Mahomedans, & c., void after the grant of probate or letters. [Section 13: With regard to the property of a deceased Hindu, Mahomedan or other person not usually designated by the term 'British Subject,' no certificate in respect of any such property shall be valid if made after a probate or letters of administration granted in respect of the same, provided assets belonging to the deceased were at the time of his death within the local jurisdiction of the Court granting the probate or letters of administration.]
2 Acts not to apply to British subjects.
[Section 23: Nothing in this Act contained shall be held to extend to the property of any person usually designated as a British subject.]