1. This is a petition purporting to bo filed under Section 28, Administrator-General's Act of 1913.
2. The facts are: Sri. T. Rangaswami Chettiar died at Madras on 29-6-1933. He left a will dated 1-5-1933 disposing of six immovable properties in Madras valued at Rs. 24,800/-. Under this willno executor was appointed. The testator left surviving himself his daughter Gyanambal, the petitioner herein, and a grand-daughter Swarnambal, and no other kith or kin. By the said will this Rangaswami Chettiar bequeathed a life estate in the income from the said properties to his daughter Gyanambal and a similar life estate to his granddaughter Swarnambal and the remainder for the children born to that Swarnambal. In case Swarnambal died without issue, male or female, the properties were to go in equal shares to certain charities. This contingency is extremely unlikely to happen as this Swarnambal had already four minor children, and their father Thirunavukarasy Chettiar, the guardian of the person and properties of the said minors, having been appointed as such by this Court in O.P. 268 of 1945.
After the death of the testator, Gyanambal and her husband Nataraja Chettiar took possession of the estate and both were managing the estate without probating the will, notwithstanding it not being an exempted will. Later, however, disputes arose between them and on application No. 1694 of 1939 by Gyanambal in O.P. 242 of 1939 this Court by its order dated 17-8-1939 directed the Administrator-General under Sections 10 and 11, Administrator-General's Act, 1913, to take possession of the estate of the deceased and apply for Letters of Administration upon funds being available. It may he noticed here that this Gyanambal handed over to the Administrator-General the title deeds ofi three properties, viz., a house in Conjeevaram and three shops in Poonamallee and premises No. 3 Thandavamurthi Chetti Street, Park Town, Madras,
3. The history of the management by the Administrator-General can be briefly summarised: on account of the fact that the will has not been probated and that Letters of Administration have not been obtained, the. Administrator-General could not take possession of the properties situated outside the City of Madras, viz., the properties at Conjeevaram and Foonamalle. The gross annual income of the estate taken possession of by the Administrator-General came to Rs. 2,052/-. After the payment of taxes and other administrative charges, the income is payable to Gyanambal according to the will. The Administrator-General has been paying her Rs. 60/- per month and Gyanambal has been keeping the family house, premises No. 6, Vengu Chetti Lane, Park Town, Madras, free of rent and taxes and has been letting out portions in the family bouse given to her for residence and enjoying the rents derived therefrom. The present accumulated income of the estate is about Rs. 500/-. In these circumstances, the Administrator-General applied for Letters of Administration in O.P. 51' of 1954 and obtained Letters of Administration with the copy of the will annexed on 29-4-1954. The succession duty of Rs. 1,700/- required therefor was advanced out of the Administrator-General's Reserve Fund and this amount has to be recouped now by selling one of the houses. The Administrator-General has also started proceedings for taking possession of the Conjeevaram and Poonamalle properties. In fact, the Administrator-General has given notice to Gyanambal to state her objections, if any, for selling the house at Conjeevaram for that purpose. It is in these circumstances that Gyanambal has filed this petition,
4. This petitioner, prays that the Administrator-General be directed to transfer the properties of the testator to her and hand over the title deeds and assets with an account and claims house bearing door No. 1 Kotharampalayam, Conjeevaram, and bazars bearing Nos. 746, 879 and 880, Poonamallee and premises No. 3, Thandavamurthi Chetti Street, as her own properties and not those of the testator and rests the reliefs asked for by her on the ground that the Administrator-General has not been prudently managing the properties and that the administration was unduly costly, and that the Administrator-General has set up an adverse claim in regard to the three properties concerning which she had handed over the title deeds only for the purpose of safe custody. She adds that the beneficiaries under the will are prepared to support her claim for her managing the estate.
5. The reply of the Administrator-Gen era! is that far from imprudently managing the properties, the Administrator-General, after taking possession of the estate, has put into good order the dilapidated houses and saved the properties from the reckless mortgaging and raising of loans by this Gyanambal contrary to the provisions of the will, coupled with various acts of devastation, that the houses are fetching fair and maximum possible rents, that the three properties were purchased out of the funds of the deceased, that the earlier correspondence between the Administrator-General & the petitioner Gyanambal and her husband Nataraja Chettiar extracts of which have been filed, would clearly demonstrate it and that Letters of Administration could not be taken out earlier owing to the non-co-operative attitude of Gyanambal and want of funds and that this application is nothing more than a counterblast to the steps being taken by the Administrator-General to liquidate the succession duty advanced out of the Administrator-General's Reserve Fund and take possession of the Conjeevaram and Poonamallee properties.
6. The point for determination is whether this petition under Section 28, Administrator-General's Act is competent, and, in order to do so we must examine the scope of tho Administrator-General's powers, and, also the scope of Section 28 of the Act.
7. At this stage it is interesting to trace the history of the office of the Administrator-General to comprehend the scope of his powers, for which I am indebted to the only known publication on the subject namely Kinney, Administrator-General of Bengal's Law Relating to Administrators-General and Official Trustees in India (Thacker Spink and Co., Calcutta, 1915) of which an up-to-date edition is long overdue.
8. This office so to speak grew out of the Mercantile and Trading Communities formed in the days of the East India Company, whose interests were safeguarded by the Charter establishing the Supreme Court of Judicature at Fort William in Bengal dated 26-3-1774, Its functions have been developed and regulated on lines which experience has shown to be necessary; and its history is an illustration of the adaptation and modification to suit local circumstances, of those principles which underlie the law of trusts, and also the law affecting the administration of the estates of deceased persons.
9. Under the aforesaid Charter, the Supreme Court was empowered to exercise such ecclesiastical jurisdiction in Bengal, Bihar and Orissa, over British subjects as was exercised in the diocese of London, and the said Court was authorised to--
1. Grant probate of last will of British subjects;
2. Commit letters of administration in cases of intestacy, or in cases where no executor had been named, or where, when named, he did not appear after having been cited;
3. To sequester the estates of deceased persons;
4. To allow and reject accounts;
5. To reserve power on the appearance of an Executor and to grant probate on his appearing;
6. To grant administration to lawful next-of-kin, and if no such person was residing within, the jurisdiction, or being cited, did not appear, then to grant administration to a creditor, and if no creditor appeared, then to the person who should be thought proper.
10. Rules were framed dealing with above matters (vide Rules 1 and 2 under heading Probate, and Rules 1 to 12 under heading Administration, Smoult and Ryan on Rules and Orders of the Supreme Court).
11. The next point to devote attention to is the power of the Ecclesiastical Registrar. The estates which were dealt with by him may be taken to have come under 3 heads:
1. Estates of 'intestates to which he was entitled to by right to administer;
2. Estates of which he had been appointed Executor, or where he had been requested to act under a power of attorney;
3. Estates of Hindus and Mahomedans to which administration was granted at the request of persons interested.
12. The first Statute which dealt with the powers of the said Ecclesiastical Registrar was 59 and 40 Geo. III, C. 79.
13. In order to understand the position oft the Registrar under this Statute, one must read Section 21 thereof, which recites that great inconvenience had been felt in regard to the practice of granting Letters of Administration where the next-of-kin or creditors did not apply, to persons calling themselves friends, it was enacted that as from 1-3-1801 whenever any British subject died in the Presidencies of Fort William, Fort St. George and Bombay, or territories subordinate thereto, and if no next-of-kin or creditor, should apply then a grant should go to the Registrar,
14. It became necessary to further develop this law, and by Stat, 55 Geo. III, C. 84, it was enacted that as the previous Act did not provide for executors, administrators or persons not resident who might appoint attorneys and it was doubtful if the Registrar had not a prior right to a grant, it was provided that an Attorney empowered should have a prior right (see Sections 2, 3 and 4).
15. By Section 5 of the same Act provision was also made for the Registrar to keep proper accounts. There was no such restriction imposed upon private Executor or Administrators.
16. The precautions which were provided were not apparently sufficient to guard against frauds.
Very gross irregularities were discovered in respect of estates under the charge of T. E. M. Turton, the then Registrar, with the result that an order was passed by the Government in 1848, appointing a Committee to enquire into the working of the office, and the report was presented in January 1849 which clearly showed an abuse of powers.
17. The Government of India, in view of what had transpired, deemed it advisable to introduce special legislation, and it was resolved that a public official should be appointed who should be given powers to protect the property of persons dying, and where no steps were taken by the next-of-kin or where they were absent from British India. It was also deemed advisable to give such official powers to deal with the estates of persons who had left wills in cases where executors took no steps, or the beneficiaries were out of British India.
18. A careful consideration of the matter resulted in the passing of Act 7 of 1849, which was the first Administrator-General's Act.
19. The above Act of 1849 abolished the office of the Ecclesiastical Registrar, and his duties as such Registrar, were made over to the Master of the Supreme Court. The estates which were vested in him passed to the Administrators-General.
20. The Act provided that the Administrator-General was to be appointed by Government and that such Administrator-General was to give security. Provisions were also made with regard to audit of his accounts.
21. The Act was confined in its operation, to the Presidency of Fort William. Experience however showed that it was necessary to extend the law, with the result that by an Act passed in 1850 (Act 2, 1850) the Act of 1849 was extended to Bombay and Madras. But the Administrators-General of these Presidencies, were not to cease to hold the office of Ecclesiastical Registrars and by Section 4 the Administrators-General were strictly prohibited from trading.
22. The above Acts of 1849 and 1850 remained in force until the year 1855, when it was deemed necessary to pass a further Act dealing with the office which repealed the Acts aforesaid.
23. This Act remained in force till the year 1867 when a further Act was passed in relation to the office, being Act 24 of 1867, and which made various changes in the then existing law, the most important of which may be summarised as follows:
I. The jurisdiction of each Administrator-General was defined.
II. It prohibited the Administrator-General from holding the appointment of Ecclesiastical Registrar.
III. It prohibited the officers holding any other post without the sanction of Government.
IV. It allowed the officers to be also appointed Official Trustee.
V. It was declared an offence to trade. VI. Power was given to appoint a deputy.
24. This Act was amended by Act 19 of 1869 and Act 5 of 1870 remained in force until the year 1874 when a further Act was introduced and passed being Act 2 of 1874.
25. This Act since 1874 underwent various amendments and modifications by the following Acts:
(a) Act 1 of 1879; (b) Act 9 of 1881; (c) Act 2 of 1890; (d) Act 7 of 1901 and (e) Act 5 of 1902.
26. By the last of the aforesaid Acts the offices were so to speak created Government offices and it would perhaps be advisable to summarise the provisions as follows:
(a) Provision for payment by fixed salary.
(b) Appointment of a Deputy.
(c) Government took over the. civil liabilities.
(d) Commission earned was to be credited to Government.
(e) Power was given to High Courts to give directions as to management etc.
(f) Amendment of Section 256, Indian Succession Act, as to exempting Attorneys of absent executors from giving security bonds.
27. Various representations had from time to time been made to the Government on certain provisions of the Act of 1874 which required reconsideration. After due consideration of the matter, the Government of India in the year 1910 placed Mr. Sanders Slater, the Administrator-General and Official Trustee of Bombay, on deputation, to report upon the whole question. After consideration of the report, and also opinions of local Governments, and other officials, the Government of India introduced a new measure, the Act of 1913.
28. The general principles governing the powers, duties and liabilities of an Administrator-General may be classified under the following heads:
29. The Administrator-General and his Deputy or Deputies are under the Act wholetime officers of the Government, and are therefore subject to the complete control of the 'Government' as defined by the Act.
30. (Powers): The Administrator-General can act as--
(a) Executor, .
(b) Administrator with will annexed.
(c) Administrator as in case of intestacy.
(d) Take charge under the order of Court.
(c) Limited Administrator, including Administrator 'pendente Site'.
(f) Administrator of Military Estates under Regimental Debts Act.
31. As to point (a) where a testator appoints an Administrator-General executor of his will, it is always advisable to inform that official of such appointment, and send him a copy of the will, together with a memorandum of assets belonging to the testator at the time.
32. As to points (b) and (c). This may be subdivided into two heads (a) where the Administrator-General moves at the request of beneficiaries or next-of-kin, (b) where he moves under Sections 9 and 10 of the Act, As to Section 9 that section does not apply to estates of exempted persons and refers chiefly to those cases where a report is received under Section 54 from District Judges. As to cases under Section 10: This applies to estates of all persons and the provisions thereof can be brought into operation on the application of any person interested.
33. As to point (d) this refers to those cases where a temporary order is necessary for the proper protection and preservation of an estate (see Section 11),
34. As to point (e) attention is directed to the definition of the terms, Letters of Administration and Section 8.
35. As to point (f) attention is directed to the provision of Sections 15 to 17 of the Act.
36. (Power to accept transfer): Under the Act any private Executor or .Administrator can transfer an estate to the Administrator-General and no order of the Court is necessary (Section 25).
37. (Certificate): The above is an important power vested in the Administrator-General; and has so to speak been extended by the present Act. So long as the assets in the Presidency do not exceed Rs. 1000/- in value the certificate can issue, and in calculating such assets, money deposited in Government Savings Bank or any Provident Fund subject to the Provident Funds Act, 1897, is excluded.
Section 31 shows to whom certificates can be granted and attention is directed to that section and notes thereunder
Certificates can also issue to creditors in the circumstances set out in Section 32.
Certificate-holders are vested with the powers of an Administrator in regard to the assets disclosed ia such certificate (Section 34).
38. (Power to take charge): The power is also of importance and enables the Administrator-General to deal with the estate without a grant, but the assets must be under Rs. 1000/- in value.
The Act also now gives power to deal with estates of exempted persons where the assets are situate within the jurisdiction of High Courts or within any area as notified by the Government in this behalf.
39. (Administration bond): No security is necessary for the Administrator-General, and estates thus administered by him are not called upon to pay any surety-fees.
40. (Liabilities): The Administrator-General is subject to the same liabilities as an ordinary executor or administrator, but under this Act, the revenues of the. Government of India are liable to make good any loss sustained by mat-administration when proved. It follows from this that all estates now vested in the Administrator-General are what one may term 'State Aided' which confers, if it were needed, an additional protection to the public.
Attention is also directed to the point when Government is sought to be made liable before an action is brought, notice under Section 80, Civil P.C. is necessary.
(41) (Fees): The fees are now no longer payable to tile offices holding the post but to the. Government. Now such fees are the same as were provided by Act 2 of 1874.
The fees have been fixed by rule, as in England, and the fees at present payable are those which are set out in the rules.
Attention is directed to those rules and scale of fees, especially to that rule which allows of a remission being made in certain cases.
These fees can be changed from time to time to meet the circumstances. This is the method which is adopted in England.
42. (Audit);, In addition to the protection afforded to the public by what may be termed 'State Aid' the Government have provided for the regularAudit of the accounts of the Administrator-General and for a full report to be forwarded to the Government upon such audit (Sections 44 and 45).
Very full powers have also been given to the Auditors in regard to the examination of persons, etc., in course of such audit (Section 46).
43. (Accounts): The Administrators-General are liable to render accounts to beneficiaries and persons interested in the Administration of estates subject to such conditions and restrictions as may be prescribed (Section 49).
44. This Act has been amended by Acts 10 of 1914; 21 of 1922; 32 of 1926; 10 of 1927; 32 of 1940. It has been adapted by A. O. It has been repealed in part by Acts 5 of 1917 and 12 of 1927.
45. The cognate Acts and Provisions are:
1. Charitable Endowments Act, 6 of 1890, Sections 5, 6, 8 and 10.
2. Colonial Probates Act of 1892 (Sections 5 and 56 Vict. Clause 6),
3. Domicile Act of 1861 (24 and 25 Vict. Clause 121), Section 4.
4. Indian Securities Act, 1860 (23 and 24 Vict. , Clause 5), Section1.
5. Legal Representatives' Suits Act, 12 of 1855 (in Torts).
6. Mortgaged Estates Administration Act, 23 of 1855.
7. Presidency Towns Insolvency Act, 3 of 1909 Part III.
8. Succession Act, 39 of 1925, Part IX. 8. Trustees Act, 27 of 1866 (Power of the High Court), Sections 3, 7, 20, 24 to 29, 34, 43, 48, 51 to 53.
10. Trustees and Mortgagees' Towers Act,--28 of 1860 (Powers of Executors and Administrators), Sections 25 to 28, 38, 40 to 43 and 45. (46) The relevant case law can be summarised as follows:
. Section 7: Where a universal legatee under as will has taken no steps to take out Letters of Administration, the Administrator-General may step in and get the letters: -- 'Ram Kali v. Administrator-General, U.P : AIR1943All356 . Letters can be issued to the Administrator-General even in respect of estate of exempted persons (ibid).
Section 8: Suction 8 must be read so as to mean that the Administrator-General will have a right to apply for Letters of Administration in preference to creditors or legatees other than universal legatees or friends of the deceased in any Court other than a High Court. In a High Court he has preference under Section 7 over everybody except the next-of-kin. Where the widow, the universal legatee takes no steps to take out Letters of Administration, it is open to the Administrator-General to step in and apply for Letters of Administration and there is nothing in the Succession Act which can affect the rights of the Administrator-General (ibid).
Section 10: Possession not to be taken by the Administrator-General without previous order of Court: -- 'Nritya Gopal v. Administrator-General of Bengal', 10 CWN 241 (B). As to when the title of the Administrator-General accrues generally and as to the circumstances in which title of Administrator-General relates back to date of death of deceased, see -- 'Lalchand Ramdayal v. Gumtibai', 8 Bom HC 140 (C). As to when Administrator-General can be directed to apply for administration, see -- 'In the Goods of Girdar Das Vallaba Das', 1 Mad HCR 234 (D). (Mere possibility of debts being barred by limitation, not always sufficient ground -- case under the old Act).
Section 11. 'Succession' in Section 11 should not be read as meaning intestate succession only; --'In the Goods of Pasupati Mukerjee', AIR 1920 Cal 876 (E). When the Administrator-General is appointed executor of a will he can obtain an order to take possession of the assets under Section 11 before applying for probate (ibid), Pending grant of Letters of Administration, the Administrator-General cannot make payment to prejudice of estate: -- 'In the Goods of Hari Das Dutt',' 11 Cal WN 193 (F). As to right of Administrator-General to reimburse himself for costs, see -- 'Amir Jan v. L. W. J. Rivett Carnio', 10 Bom 350 (G),
Section 24: The estate vests in Administrator-General on grant of Letters of Administration. An Administration cannot be treated as closed until every act necessary for its completion has been done. Thus, where in order to realise his commission the Administrator-General sold an item of immovable property which had been previously sold by the son of the deceased on attaining majority, it was held that the sale by the son was a nullity: -- 'Alwar Chetty v. Chidambara Mudaly', AIR 1915 Mad 110 (H). Where the Letters of Administration have been granted, he can exercise his ordinary powers as Administrator-General and dispose of immovable property without the consent of the Court (ibid). There is no provision of law by which an insolvent's estate in respect of which Letters of Administration have been granted to the Administrator-General, can be administered under the insolvency law. An Administrator-General in such cases can claim no higher rights than the deceased himself and he has not the rights of either the trustee or Official Assignee in insolvency: --'Navajee v. Administrator-General of Madras', AIR 1914 Mad 281 (I). Sanction of the Government under Section 197, Civil P.C., is not necessary for the institution of a prosecution against the Administrator-General: --'Corporation of Calcutta v. Administrator-General of Bengal', 30 Cal 927 (J).
Section 25: Executors of Hindu testator can validly transfer by deed the whole estate vested in them to the Administrator-General: -- 'Administrator-General of Bengal v. Premlal', 22 Ind App 107 (K).
47. Bearing these sections and decisions in our mind if we examine the facts of this case, we find that the correct procedure has been followed in taking over the administration of the estate and applying for Letters of Administration and seeking to get possession of the properties situated outside the city of Madras and taking steps to reimburse the costs incurred by the Administrator-General and that great advantages have been conferred on the estate by the Administrator-General managing it and that this administration has not been completed, It will be remembered that the administration of this estate was taken over on the very application of this applicant and under orders of Court. The title deeds for the properties have been handed over by this applicant and the Administrator- General has been putting the properties in good order and been giving a handsome maintenance amount to this applicant. In fact the Administrator-General has had to protect the estate not so much from third parties but from the effects of the administration of the applicant and her husband. This management is being audited every year and the maximum income is being collected. The Administrator-General has finally taken up Letters of Administration which this applicant neglected to do and for the costs incurred by him he is seeking to dispose of one of the properties in Kancheepuram, least valuable to the estate. The administration has not been completed. In fact this is not the ground on which the application is rested.
48. In these circumstances, this application is sought to be rested under Section 28 of the Act and. I am. asked to give directions to the Administrator-General to wind up the management and hand over the estate to the applicant with an account and surplus fund which he might have on hand. Can this be done under Section 28 of the Act?
49. The scope of Section 28 has been laid down in -- 'In the Goods of Samuel Marie Brercton', 7. Bom 381 (L). -In this case, the point was whether the Administrator-General of Bombay could pay over the balance in his hands to the Administrator to the estate in England and the Court held that the question being of some difficulty involving questions which might seriously affect the rights of the parties 'inter se', it was not a question such as' was contemplated by Section 43, Trustees and Mortgagees Act, nor one which the Court could give any opinion on an 'ex parte' application. (Note; this was before Act 2 of 1890 which brought in Section 41-A to Act 2 of 1874 and Section 26-A, Succession Act).
In -- 'Guran Das v. Administrator-General, Punjab', AIR 1928 Lah 514 (M), it was held that the High Court could not advise on disputed points of law and fact under Section 28 but only on questions of management of the estate. In : AIR1943All358 , the argument was that if an adjournment were given an affidavit would be obtained from the other persons interested in the will and that therefore there would be no justification for the Administrator-General to administer the estate. The argument in this case was more or less similar to the one here, viz., that this applicant had obtained an affidavit from her daughter, the next life estate holder and on behalf of the grandchildren as their guardian' and who are the remaindermen, and that there is no justification for the Administrator-General to continue to administer the estate. This argument was repelled by the Allahabad High Court pointing out that the original apprehension of the estate being wasted away which brought in the Administrator-General into the picture had not ceased to exist and that if the applicant were to obtain possession and waste away the estate, the persons who stood ultimately to benefit would have no redress. The learned Judges remarked:
''Prima facie' it appears that the widow could have no other assets from which the original applicants (descendants and ultimate beneficiaries) could recover any amount which the widow had chosen to spend. In these circumstances, it seems to me that there is justification for the appointment of the Administrator-General to administer the estate. Doubtless this will give rise to someexpenditure but the widow can scarcely complain because she took no-steps to take out Letters of Administration herself..........'
In addition- to these three cases under the Administrator-General's Act, on account of the fact that this Section 28 is analogous to Section 43 of the Trustees and Mortgagees Act and Section 34, Indian Trusts Act, 1882, and Section 302, Indian Succession Act and an Originating Summons of this Court, the case law thereunder indicating the scope of these provisions may also, be considered. In a leading decision of this Court in -- 'Akkayya v. Lakshmamma', AIR 1028 Mad 356 (N), Devadoss J. dealing with the scope of Section 302 has examined therein the relevant English and Indian decisions in --- 'In re Lorenz's Settlement', (1861) 62 ER 433 (O), -- 'Conway v. Fenton', (1829) 40 Ch D 512 (P), -- 7 Bom 381 (L). I have subsequently examined in -- 'Ramamurthy v. Attur Co-operative Society', : AIR1955Mad417 (Q), the scope of Section 302, Indian Succession Act. I have also examined the scope of Section 34, Indian Trusts Act and referred to decisions similarly delimiting its scope like in -- 'In Re: Muhammad Hashim Gazdar', AIR 1945 Sind 81 (II): -- 'In the 'matter of Moosaji Amiji Valiji', AIR 1938 Sind 182 (S); -- 'Narendra Nath De v. Promilabala Dassi', : AIR1926Cal1225 (T); --'Desoitza v. Daphtary', : AIR1924Bom252 (U). In -- 'Nagaiathnammal v- Veeraraghawan', : AIR1954Mad1008 (V), I have examined the scope of an Originating Summons under Order 45 of the Rules of the High Court of Judicature at Madras on its original juris diction.
50. The analysis of this case-law is that the questions on which the Court has advised the trustees or persons beneficially interested, related strictly to undisputed matters of management such as questions of advancement, maintenance, changes of investments, sale of a house, compromise and taking proceedings. But disputed points of law or fact or questions of detailed difficulty or importance have never been included.
51. It will be seen, therefore, that the directions contemplated under Section 28 would not include the winding up of administration and handing over of the estate by the Administrator-General who has obtained Letters of Administration and whose administration has not yet been completed. A person who seeks to avoid such a grant can do so only by an application under Section 263 showing a just cause defined by the explanation to Section 263 and exemplified by the illustrations appended thereto or by a regular civil suit or review under Order 47, Rule (I), Civil P.C. or an application under Section 151, Civil P.C.
52. This application is plainly incompetent andis dismissed with costs.