1. This petition has been placed before this Bench on a reference made by one of us, (Ramaswami J.) "for deciding authoritatively whether letters of administration with the will annexed should be for the entire estate under the will or for a specific portion or part thereof." The petitioner is one T.K. Parthasarathi Naidu, the son's son of T. Parthasarathi Naidu. The latter owned a half share in house No. 9, Sydoji Lane, Triplicane, Madras, his brother, Balayya, being entitled to the other moiety in that property. Jt would appear that those two brothers owned this property as their self-acquisition and not as a joint family property, and so, both of them joined in the execution of a will dated 29-5-1919, which they got registered. Under that will, both the brothers dealt with their respective half share in the property, and we are only concerned with the will in so far as it relates to the disposition of T. Parthasarathi Naidu, the grandfather of the petitioner. He died in November, 1919, while his brother, Balayya, died in April, 1926. Parthasarathi Naidu left three sons; but he completely excluded the eldest son from the bequest, as he had separated from the family after executing a release deed. The disposition, therefore, was in favour of the other two sons and their descendants. So far as the petitioner was concerned, he was given a moiety of the grandfather's half share subject to the life interest in favour of his parents, the other moiety having been bequathed to the youngest son, Sriramuhi's sons, Santhanagopal and Kothandapani; that is to say, under the will, the petitioner would be a beneficiary to the extent of an undivided 1/4th share of the house property. By the said will, three persons were appointed executors, of whom two died and the third had signed a letter of renunciation, which has been filed into Court.
In this petition, therefore, the petitioner prays for permission to prove the will in common form and that letters of administration with a copy of the will annexed may be granted to him, limited to the undivided 1/4th share which he got under the will. In this connection, it may be necessary to take note of a provision in the will which directed that if the testators died without discharging the debts which they might incur thereafter, the executors were to effect a sale of the house-property and discharge the debts, and with the balance, purchase another property or advance the same on a mortgage and make the income available for the legatees. In these circumstances, the question was raised whether the petitioner was entitled to the letters of administration in respect of his share of the property. Ramaswami J., who made this reference, found that there was a conflict of opinion on that question not only in the other High Courts, but also in our court, and felt that there should be an authoritative decision by a Bench of this court.
2. On this reference, we feel indebted to Sri K. Viraswami, Assistant Government Pleader, who took us through the relevant sections of the Indian Succession Act as well as the decisions of the various High Courts and also the. English law bearing on this question. The answer to the question propounded in the. order of reference must be found only in chaps. 1 and 2 of Part IX, Indian Succession Act (Act 39 of 1925), for, the introductory Section 217 prescribed, that save as otherwise provided by the Act or by any other law for the time being in force, all grants of probate and letters of administration shall be made or carried out in accordance with the provisions of Part IX. Before examining the relevant sections of those two chapters, it may be necessary to remember the. principle-embodied in Section 211 of the Act that 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. That is to say, that section makes it clear that the executor or the administrator shall be the legal representative of the deceased for all purposes and in respect of all the properties of the deceased person -- In Willams on Executors and Administrators, 13th Edn., at p. 1, we find this passage:
"To appoint an executor' says Swinburne, 'is to place one in the stead of the testator who may enter to the testator's goods of chattels, and who hath action against the testator's debtors, and who may dispose of the same goods and chattels, towards the payment of the testator's debts and performance of his will."
Likewise, the learned author at pp. 152 and 153 of that book traces the origin of administrators, being officers appointed by the "ordinary" from the next and most lawful friends of the deceased person intestate to administer his property.
3. Such being the general principle, we now proceed to examine the relevant sections of Chaps. I and II of Part IX, Indian Succession Act and see if there is anything to justify the grant of probate or letters of administration for portions of the estate of the deceased. Chapter I begins with Section 218, which provides that if the deceased had died intestate, 'administration of his estate may be granted to any person', who, according to the rules for the distribution of the estate, would be entitled to the whole or any part of such deceased's estate. That section, in our view, indicates that if administration is granted to any such person, it must be of his estate as a whole, and not in fractions; that is to say, that section contemplates the administration of the estate as one integer, whether the person to whom the administration may be granted is entitled to the whole or any part of such estate. Clause 2 of that section provides that when several of such persons apply for such administration, it shall be in the discretion of the court to grant it to any one or more of them. In our view, it would not be proper to interpret the words "more of them" as meaning that the estate may be broken up into fragments and each fragment entrusted to one of such persons, for, as we said, Clause I clearly contemplates the administration of the estate as one unit, so that those words can have reference to letters of administration being granted jointly to more than one person. Section 218 and the following sections up to 221 relate to the case where the deceased died intestate.
Sections 222 to 231 deal with the case of the deceased leaving a will appointing an executor; and probate shall be granted only to an executor appointed by the will. We do not find anything in those sections entitling an executor to apply for probate for part of an estate. Sections 232 to 236 deal with a case where the deceased had made a will, but not appointed an executor or an executor appointed under the will is incapable or refuses to act or died before the testator or before he proved the will, or, having proved the will, he died before he had administered all the estate of the deceased. In such cases, Section 232 provides that a universal or residuary legatee may be admitted to prove the will and letters of administration with the will annexed may be granted to him of the whole estate or of so much thereof as may be unadministered. It will be noticed that this Section contemplates letters of administration being granted in respect of the whole estate or in respect of the whole of the un-administered portion of the estate. It will also be noticed that it is not confined only to a universal legatee; and even in the case of a residuary legatee, the administration contemplated by the section is of the whole estate or of the whole of the un-administered portion of the estate.
Section 234 provides for the case where there is no executor and no residuary legatee, or he declines or is incapable to act; and in such case, the person entitled to the administration of the estate of the deceased if he had died intestate or any other legatee having a beneficial interest, or even a creditor may be admitted to prove the will and letters of administration may be granted to him accordingly. This section read in conjunction with Section 232 clearly indicates that in a case where there is no executor and no residuary legatee, then, any other legatee may obtain letters of administration for the whole of the estate or so much thereof as may be unadministered.
4. Thus, an examination of the relevant sections of Chap. I only confirms the general principle that normally the executor or the administrator represents the whole estate of the deceased, and if the executor, if any, appointed under the will were to apply for probate, or, in the absence of an executor, if any other person entitled to apply should apply for letters of administration, then, it should be for the whole of the estate, and not for a fraction of it or in respect of a specific property in which alone the particular legatee might be interested.
5. Chapter II of Part IX embodies several sections dealing with limited grants, that is, (1) grants limited in duration, (2) grants for the use and benefit of others having right, and (3) grants for the special purposes. It will be seen that there is no section dealing specifically with grants in respect of a portion of the estate or a particular item of property. However, there are four sections, namely, 254 to 257, in that Chapter, which throw light on that question and which constitute the exception to the general rule we have stated above. Section 254 contemplates a case where a person had died intestate or leaving a will of which there is no executor willing and competent to act, or where the executor is at the time of the death of such person, resident out of the province; and in such a case, if it appears to the court to be necessary and convenient to appoint some person to administer the estate or any part thereof, other than the person who, in ordinary circumstances, would be entitled to a grant of administration, the court may, in its discretion, appoint such person as it thinks fit to be administrator.
This is in the nature of a special provision enabling a court in its discretion to appoint any person as an administrator; and in such a case, the administration may relate to the whole of the estate or any part thereof; and Clause 2 of that section provides that in such cases, letters of administration may be limited or not as the court thinks fit. In other words, if the facts of a particular case fall within the ambit of Section 254, then it may be open to the court to grant letters of administration in regard to any part of the estate. Having laid down that exception, we find that the legislature has put into the chapter the succeeding Sections 255 and 256, providing that whenever the nature of the case requires that an exception be made, probate of a will or letters of administration shall be granted subject to such exception. We consider that those two sections embody a rule of exception sufficiently comprehensive to take in even the exception contained in the earlier Section 254. The exception based upon the requirement of the nature of the case seems to be wide enough to cover the exception under Section 254. The succeeding Section 257 is only ancillary to Sections 255 and 256 inasmuch as it provides that whenever a grant with exception has been made, the person entitled to probate or the administration of the remainder of the deceased's estate may take a grant of the rest of the deceased's estate.
6. These are all the sections to which our particular attention was invited by the learned Assistant Government Pleader; and on the examination of those sections, we consider the general rule to be that an application for probate or letters of administration must ordinarily be in reference to the whole of the estate; but, where the nature of the case requires that an exception be made, then, the probate or letters of administration may be granted subject to such exception. As an illustration of such exception, we find the' following at p. 21 of Williams on Executors and Administrations:
"Thus the testator may make A his executor for his plate and household stuff, B for his sheep and chattel and C for his real estate or any part thereof. So, a person may be made executor for one particular thing only and no more. The same will may contain the appointment of one executor for general, and another for limited purposes."
The learned author observes thus at p. 135;
"If there are several executors appointed with distinct powers, as one for one part of the estate, arid another for all other purposes, probate is usually granted to the latter, if he is the first to apply, save and except that Special purpose of specific part of the estate. If it is the limited executor that applies first, he will obtain his limited grant and the other may take probate 'caeterorum'."
Under the English practice as at present administered, there can be no difficulty so far as this question is concerned, for, it is expressly provided by Section 155(1), Judicature Act of 1925 that;
"Probate or administration in respect of the real estate of a deceased person, 'or any part thereof', may be granted either separately or together with probate or administration of his personal estate, and may also he granted in respect of real estate only where there is no personal estate, or in respect of a trust estate only, and a grant of letters of administration to real estate may be limited in any way the court thinks proper."
The comment on that section made by the learned author at p. 241 is that the grant of administration limited to certain specific property is exceptional and should not be made unless a strong reason is given, adopting the language of Sir Cresswell in -- 'In the Goods of Willam Watts', (I860) 164 ER 850 (A). In the course of arguments, the learned Judge remarked:
"It is very inconvenient having divers representatives for different parts of the properly."
In the English law, grants "save and except" are a form of limited grants, and in regard to such grants, this is what we find in Tristram and Coote's Probate Practice, 19th Edn., at pp. 283 to 295: "Probate of a will, or letters of administration with the will annexed, will be granted, save and except in particular fund, when necessary."
"If a testator appoint one executor for a special purpose or in respect to a specific fund only, and another executor for all other purposes, the latter may take probate, save and except that purpose or. fund."
"The probate or administration following upon a grant 'save and except' as mentioned above is caeterorum; it is granted for that part of the estate, or for that purpose, which was excluded from the scope of the grant 'save and except' to which it is complementary".
* * *
"If the deceased has made a will and appointed an executor for a specific purpose, or for a specific fund or property only, and has died intestate in all. other respects, the persons entitled to the undisposed of residuary estate, after the executor has taken a limited probate of the will, arc entitled to administration with will of the rest of the deceased's estate".
For instances of such limited grants, reference may be made to 'In the Goods of Baldwin' 1903 P. 61 (B), and to 'In the estate of Mortifee, Decd.', 1948 P. 274 (C).
7. Now turning to the decisions of Indian courts, we have the earliest decision of the Calcutta High Court reported 'In the Goods of Ram Chand Seal', 5 Cal 2 (D), where an application was made for limited letters of administration of a Hindu who died intestate, leaving considerable immoveable properties in Calcutta which had passed to the applicants as heirs: and the deceased had left certain Government securities and shares in limited companies; and the petitioners asked for letters of administration being granted to them to negotiate and deal with the Companies' shares. Pontifex, J., was very definite in his view:
"If Hindus take out letters of administration at all, they must take out general letters. I cannot grant you letters of administration limited as " you wish",
though he gave no reasons; nor did he recognise any exceptions to that rule. The matter was considered by a Full Bench of the same High court where the facts were similar; and Garth, C.J., who delivered the judgment in 'In the Goods of Grish Chunder Mittar', 6 Cal 483 (E), said:
"We think it quite clear that, in this case, and as a rule in all cases, general letters of administration of a Hindu's estate must be taken out for the irnmoveable as well as the moveable property, and that duty must be paid upon the value of the whole. Limited administration can only be granted under special circumstance".
In -- Mt. Girija Bala v. Manindra Lal', AIR 1927 Cal G54 (F), a testator divided his properties into five schedules and granted the 5th schedule property to his nephew; and in 1915, a grant of letters was made to him limited to properties comprised in that schedule. The applicants claiming . title to the other properties prayed for grant of letters of administration with the will annexed in regard to the properties comprised in the other schedules. Rankin C.J., recognised that the only power to grant letters of administration with the will annexed limited to certain specific items is the power conferred by Section 42, Probate and Administration Act, now Section 255, Indian Succession Act. He also thought that there having been a grant under that Section in respect of the 5th schedule property, any application for grant of letters to the estate would come under Section 44, correspodning to the present Section 257. Having said that, on the question now under consideration he expressed himself in rather strong language when he said:
"If there is one thing which requires to be stopped peremptorily, it is the idea that different people are going to get individual grant of letters of administration limited to the particular property which they happen to claim and that is a course which seems to have been adopted as the correct course in the District Court at Chittagong, so far as this estate is concerned. For myself, I protest against it entirely. The only application that I should be prepared, in the absence of extraordinary strong facts, to entertain would be an application under Section 44 for a grant of letters of administration to the rest of the testator's estate".
In 'In the Goods of Sew Prasad Saraf', (G), the
question arose whether in the case of a joint Mitakshara Hindu family, where the shares of a joint stock company are held by the 'karta'' of the family in his name, letters of administration limited to the said shares can be granted to the next 'karta' of the family. It was pointed out that in regard to such shares, the position was that on the death of the 'karta' the title to the shares vis-a-vis the company did not pass by survivorship and the exceptions in cases of a Hindu dying intestate, occurring in Sections 211(2) and 212(2), Succession' Act, would not therefore apply to such cases. After an examination of several decisions, Their Lordships reached the conclusion that:
"Where shares in a joint stock company belonging to an undivided family governed by the Mitakshara school of Hindu law stand in the name of the 'karta' of the family, letters of administration limited to the shares can be granted to the legal representatives in the event of the 'karta' dying intestate, and in particular, to the next 'karta' of the family".
This decision does not necessarily conflict with the decisions in 5 Cal 2 (D) and 6 Cal 483 (E), referred to above, for, in the last mentioned two cases, it does not appear that the family was a Mitakshara joint Hindu family. With respect, we agree with the decision in (G), as the circumstances of that case would fall
within the exception of Sections 235 arid 256, Succession Act.
8. The other High Courts also have adopted more or less the same view. The earliest decision of the Bombay High court, so far as we know, is reported in 'In re Thaker Madhavji Dharamsi', 6 Bom 460 (H). In that case, the applicant was the only son and universal legatee of a Hindu testator who died leaving a large amount of properties, both movable and immoveable, all of which were his self-acquired properties. The applicant sought probate limited to certain specified outstanding debts and shares in joint stock companies. Westropp, C. J., refused probate and observed:
"There appears, to be no provision in the Succession Act which, authorises the Court to grant probate limited to part of the estate in cases where under Section 179 the whole estate is vested in the executor. It has been contended that this can be done in the present case under Section 236, but we do not think this section in any way applicable. By the will, the testator's property is given without reservation, to his son who is the applicant, and no circumstance has been brought to our notice which would justify us in holding (in the words of the section) that 'the nature of the case requires' any limitation to the probate. It has been suggested that there is no obligation upon the applicant to take out the probate at all; that, as sole heir of his father, the whole property devolves upon him, even though the will should never be authenticated by the court; and that it is a hardship under these circumstances to require him to take out a general probate and to pay duty upon the whole estate when he needs probate only in order to enable him to deal with a small fraction of the testator's property. It may be a hard case, but we do not think that that circumstance brings, it within the provisions of Section 226".
Section 226 referred to therein corresponded to the present Section
255. The same view was expressed by Marten, C.J., in -- 'Abdul Gafur V. Jayarabi', AIR 1929 Bom 456 (I);
"For instance, I have never heard that probate should be granted to two executors to the extent of half to each, or letters of administration to the extent of a quarter to each of our persons. That, to my mind, is entirely wrong. Executors Or administrators or holders of certificates are all in the nature of quasi trustees in a fiduciary position and what the beneficial interest of any of them may be in the property or estate ought to form no operative part of the order granting them administration".
In the Lahore High Court, the view prevailed at one time that there was nothing in the Act prohibiting the grant of letters of administration for part of the property only. (Abdul Raoof, J. 'Gurbachan v. Satwant Kaur', AIR 1925 Lah 493 (J)). But that view was departed from in 'Satpal Ram v. Collector of Multan', AIR 1931 Lab 310 (K), where Their Lordships observed at p. 312:
"In these circumstances, it seems to the that the intention of the legislature was to lay down as a general, rule that a grant of probate should be made for the whole estate of a deceased person. It may be that in certain circumstances the Court would be justified in limiting the grant to a specific portion of the estate, as apparently was done in the Bombay case cited but in order to justify that, it seems clear that the circumstance must be special ones".
The other learned Judges of the same High Court in -- 'Sardar Singh v. Teja Singh', AIR 19.46 Lah 277 (L), overruled the views of Abdul Raoof, J., and tersely stated:
"On principle, apart from the provisions of Section 232. also it is quite clear that a person who is appointed to administer the estate of a deceased must administer the entire estate".
In the Sind Judicial Commissioner's Court two learned Judges in -- 'Bhai Khubchand v. Smt. Motibai', AIR 1936 Sind 150 (M), repelled the argument that because there was no express direction in the Indian Succession Act that grants shall apply to all property, the petitioner can apply for the administration of just so much of the property as suits his purpose, and held that court-fee must be paid on all the property, as Schedule 3, Court-fees Act contemplates a full declaration of all properties. Similar view prevails also in the Oudh Chief Court, as appears from -- 'Amrit Rao v. Sangam Lal', AIR 1043 Oudh 151 (N), where it was held that the circumstances of the case did not fall within the exception under Section 255.
9. So far as our High Court is concerned, Our attention has not been drawn to any reported decisions but from the records available on the Original Side of the High Court, the earliest instance of a limited grant is available in O. P. No. 120 of 1923 (Mad) (O). That related to the wilt left by the late Sir Srinivasa Ayyangar. He died at Madras on 1-7-1923, but leaving his last will and testament duly executed by him at Ootacamund on 2-8-1922. The testator left an only son, the second petitioner, who had become divided. The will provided only for three legacies in favour of (1) the testator's widow, Lady Srinivasa Ayyangar, (2) the first daughter of the deceased and her husband, the first petitioner, in trust for their sons, and (3) the second daughter of deceased. The will was silent as to the residue of the estate, and consequently it must have devolved upon the son, the second petitioner, as on intestate. The petitioners who were appointed executors under the will applied for probate only in respect of the three legacies which consisted of Government Promissory notes and shares of the . Imperial Bank of India Ltd. Kumaraswami Sastri, J., observed as follows and granted limited probate:
"Section 42 of the Probate and Administration Act provides for limited grants. The executors have no other duty under the will, but to pay the legacies. The will is a peculiar one, and having regard to its terms, I think this is a case for grant of probate limited to the Government securities and bank shares specified in the application.
"Probate will be granted accordingly".
10. It will be noticed that the learned Judge did not question the general principle, but brought the case under the exception provided by Section 42, Probate and Administration Act, corresponding to Section 255 of the Present Act. The question came up more directly for consideration before Krishnaswami Nayudu, J., in Diary No. 4149 in connection with the will of the late Diwan Bahadur T. Raghavayya. Under that will, the testator appointed two executors and bequeathed Ms properties to certain legatees, of whom the petitioner, his widow, was one. The executors had put the respective legatees in possession of the properties bequeathed, to them; that is to say, they had administered the estate of the deceased except in regard to the realisation of the amounts mentioned in the affidavit of assets. The petitioner alleged that as the executors had administered the estate, they had renounced their office by their letter addressed to the legatees. The result was that no petition for probate was filed by the executors, and the first petition before the Court was the petition by the widow asking for letters of administration for a portion of the estate, under Sections 232 and 254 did not apply and the petition could only be under Section 232(b), as the petitioner was a residuary legatee. The learned Judge did not, however, consider the applicability of Section 255. Treating it as a case falling under Section 232(b), he declined to grant limited administration unless the provisions of Section 191 read with Third schedule of the Court-fees Act were complied with, following the decision in AIR 1936 Sind 150 (M), referred to above. On another reference, Diary No. 8632, Chandra Reddi, J., observed:
"Without expressing any opinion as to whether Section 254, Indian Succession Act is applicable in this case or not, I think there are no special circumstances to warrant the grant of letters of administration limited to the beneficial interest conferred on the petitioner's husband under the will of her father-in-law. It is only under very special circumstances that even under Section 254 a limited grant will be made. Vide 6 Cal 483 (E)".
11. The examination of the cases, therefore, confirm the conclusion we reached on a consideration of the relevant section of the Indian Succession Act, namely, whether the deceased died intestate or died 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 Sections 254 to 257, a probate or administration limited to specific item of property or a fraction of the estate will be granted. The question 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 sthat question that the decisions differed.
12. In our opinion the facts of the present case do not attract any of those exceptions. We are not satisfied that the nature of the present case requires that an exception be made. On the other hand, we are confronted with the difficulty presented by a particular recital in the will that not only the half share of Parthasarathi Naidu, but the half share of his other brother also, that is, the whole of the house-property, is liable to be sold for the discharge of the debts of the testators, and the surplus, if any, utilised for the purchase of another house. We answer the reference accordingly.