Skip to content


Katreddi Ramiah and anr. Vs. Kadiyala Venkata Subbamma and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported inAIR1926Mad434; 94Ind.Cas.83; (1926)50MLJ308
AppellantKatreddi Ramiah and anr.
RespondentKadiyala Venkata Subbamma and ors.
Cases ReferredGanapathi Aiyar v. Sivamalai Gomidan
Excerpt:
- - the argument put forward on their behalf was that, as the estate vested in the executrix from the date of the testator's death by virtue of the will, she could sell or mortgage his property to pay off his debts and could give the purchaser or mortgagee a good title. 116 which by referring to sections 4, 59 ami 90 of the probate, and administration act draws a distinction between executors under the act and other executors who fail to take out probate throws light on this debated question. 7. i am inclined to treat the 1st defendant as an executrix who has execeeded the limited authority given to her under the will as regards the disposal of immovable property and has failed to invest herself with the power that she might have got by taking out probate and applying to the court to.....orderspencer, j.1. m. subbanna executed a will on 22nd september, 1914, and died more than two years afterwards on 5th january, 1917, leaving no sons but a daughter, a daughter's son and a widow.2. he appointed his wife executrix of his will authorizing her to pay his debts out of the proceeds of 1,000 bags of paddy that he had in store in 1914, to recover sums owed to him by others, to sell a certain house and site, to carry out certain charitable and religious dispositions, to adopt a son and to manage the adopted son's one-third share of immoveable property till he attained majority, etc., and then follows a general clause: 'i authorize my wife to conduct all the remaining affairs in my stead?' respondent's vakil attempted to argue that 1st defendant was only an executrix for a limited.....
Judgment:
ORDER

Spencer, J.

1. M. Subbanna executed a will on 22nd September, 1914, and died more than two years afterwards on 5th January, 1917, leaving no sons but a daughter, a daughter's son and a widow.

2. He appointed his wife executrix of his will authorizing her to pay his debts out of the proceeds of 1,000 bags of paddy that he had in store in 1914, to recover sums owed to him by others, to sell a certain house and site, to carry out certain charitable and religious dispositions, to adopt a son and to manage the adopted son's one-third share of immoveable property till He attained majority, etc., and then follows a general clause: 'I authorize my wife to conduct all the remaining affairs in my stead?' Respondent's vakil attempted to argue that 1st defendant was only an executrix for a limited purpose (of Section 35 of Probate and Administration Act), and that the intention of the testator was to empower her to transact only those affairs which he specifically mentioned in the will, The use of the Telegu words (yavattu) and (tatimma) in this passage is to my mind consistent only with one meaning and that is that the testator intended his wife to be his general executrix. He provided in his will that his entire immoveable property (excluding certain purchases of land which he had dedicated to temple worship) should be divided into three shares, and one share given to his daughter's son (2nd plaintiff), one to his adopted son (16th defendant), and one to his widow (1st defendant) for life, and that after her death her share should be divided between his daughter's son and the son adopted by his widow. The genuineness of the will is not disputed. Owing to the lapse of time between the making of the will and the testator's death, and the expense of law suits which he engaged in during his life, the paddy mentioned in the will as a fund for discharging debts was not available to the executrix, and she consequently had to sell 23 acres 68 cents of wet land under Ex. 1 to the 2nd defendant for the purpose of paying certain promissory notes and decree debts left owing by her husband when he died in 1917, and she further entered into a mortgage in favour of the 15th defendant for a similar purpose during the pendency of the present suit, which was instituted by deceased's daughter and daughter's son to obtain possession of the properties allotted to them under a family settlement alleged to have been arranged 13 days after the testator's death, or in the alternative to recover their legacies under the will, unencumbered by the sale, leases and mortgages to 2nd, 3rd, 6th and 15th defendants, respectively, and mesne profits for two years. The Subordinate Judge found for the plaintiffs and accordingly granted them a preliminary decree subject to the condition of their paying to 1st defendant Rs. 1,946 as their share of the debts amounting to Rs. 5,000 for which the testator was liable at the date of his death. The purchaser and the mortgagee (defendants 2 and 15) from the widow appeal. The argument put forward on their behalf was that, as the estate vested in the executrix from the date of the testator's death by virtue of the will, she could sell or mortgage his property to pay off his debts and could give the purchaser or mortgagee a good title.

3. As the will, with which we are concerned, was not executed by a Hindu within the City of Madras and does not relate to immoveable property situate within this Court's Original Side jurisdiction, the Hindu Wills Act has no application to it, and conseqently it was not made imperative by Section 187 of the Succession Act that the executrix should take out probate in order to establish her right to deal with the deceased's estate. Section 179, which speaks of vesting, does not apply to the will of a Hindu, but Section 4, which is the corresponding provision of the Probate and Administration Act, applies. Section 12 of that Act states that probate of a will, when granted, establishes the will from the death of the testator and renders valid all intermediate acts of the executor as such, thus implying that they are not valid until probate is granted. I take this to mean that the executor of a Hindu will may do all acts which the will enjoins or permits him to do without any risk of having his authority to act qua executor questioned, but that if he exceeds his authority and does acts which the will does not expressly authorize him to do, such as the disposal of immoveable property requiring the permission of Court which can only be given under Section 90(2)', such acts are voidable at the instance of any person interested, unless and until the executor obtains probate or letters of administration and gets an order of Court to validate what he has done in the interval between the testator's death and the issue of probate or letters of administration. what acts an executor can under English Law do before obtaining probate are set out in Williams on Executors, Vol. I, at p. 213 to 215. They include the payment of debts owing by the deceased and the disposal of the testator's goods and chattels and real estate. An executor could always sell personalty in order to pay debts, and since 1897 he can sell, lease, or mortgage reality for that purpose (vide pages 693 to 704). His power of disposal is absolute, but as he cannot maintain an action before probate though he can be sued if he has intermeddled with the estate, it becomes necessary for probate or letters of administration (if he dies first) to be obtained in order to justify his actions as executor.

4. There appears to be some divergence of opinion between the Calcutta and Bombay High Courts in the view taken by them as to the position of the executor of a Hindu or Muham-madan will who does not take out probate, Mr. Justice Pugh in Calcutta regarding him as a mere manager for the purpose of paying the debts and distributing the estate Sakina Bibee v, Mahomed Ishak ILR (1910) Cal 839 and Mr. Justice Russell and Mr. Justice Marten in Bombay treating him as an executor in whom the estate vests by virtue of Section 4 of the Probate and Administration Act Narrondas Ramp v. Narrondas Ramp ILR (1907) 31 Bom. 418 and Sir Mahomed Yusuf v. Hargovandas Jivan ILR (1922) 47 Bom. 231.

5. So far back as 1878 Markby, J., in Prosunno Chunder Bhuttacharjee v. Kristo Chytunno Pal ILR (1878) Cal 342 and Kherodemoney Dossee v. Doorgamoney Dos see ILR (1878) Cal 455 held that the executor of a Hindu will did not represent the deceased by virtue of the will until he had obtained probate and the property did not vest in him by his mere appointment as executor in the will, and Maclean, C.J., in Sarat Chandra Banerjee v. Bhupendra Nath Bosn ILR (1897) Cal 103, expressed an opinion that the inclusion of the vesting section under the chapter relating to the grant of probate and letters of administration was an indication that the vesting followed from the grant of probate and that till then the executor held the property only as manager. There is also an observation of the Judicial Committee in The Administrator-General of Bengal v. Premlal Mullick (1895) ILR 22 Cal.788 (PC) that prior to the Hindu Wills Act (the case before them being one of a will made in 1889 by a Hindu resident of Calcutta City) the powers and functions of the executor of a Hindu estate were those of a manager rather than those of an executor of an English will, that he did not require probate and that probate if obtained would not have vested him with any title to the estate, either real or personal, which he administered. The decision of the same tribunal in Kurrutulain Bahadur v. Nuzbat-ud-dowla Abbas Hossein Khan ILR (1905) Cal.116 which by referring to Sections 4, 59 ami 90 of the Probate, and Administration Act draws a distinction between executors under the Act and other executors who fail to take out probate throws light on this debated question. The Courts of Madras, Bombay and Calcutta seem to be all agreed that the executor of a Hindu will made in the mofussil derives his title from the will and that he can perform any of the duties cast on him by the will without taking out probate vide Gana-pathi Aiyar v. Sivamalai Goundan ILR (1912) Mad.175 Balakrishnudu v. Narayanaswamy Chetty ILR (1912) Mad.175 Rajah Parthasarathy Appa Rao v. Rajah Venkatadri Appa Rao ILR (1922) Mad 190. Even the learned Judges who decided Sir Mahomed Yusuf v. Hargo-vandas Jivan ILR (1922) 47 Bom. 23 were agreed in thinking that an executor who did not take out probate would be subject to any restriction in the will as to the disposal of immovable property. Such a disposal as would interfere with the literal performance of the trusts imposed by the will on the executor in respect of the specific bequests of immoveable property would not be valid unless the executor obtained probate and obtained the directions of the Court under Section 90(2). The executor of a Hindu will has not in my opinion the general powers of an executor of an English will, as there is no section in the Probate and Administration Act giving an executor the wide powers conferred by Section 269 of the Succession Act. In Ganapathi Aiyar v. Siva-malai Goundan : (1922)43MLJ486 Sundara Aiyar and Sadasiva Aiyar, JJ., observed, 'we can see nothing in the Act as it stands to prevent the executor from acting as executor and exercising the powers given to him under the Act without obtaining probate.' My learned brother, whose judgment I have had the advantage of reading, apparently thinks that this observation goes too far and that an executor of a Hindu will in the mofussil has none of the powers of an executor under the Probate and Administration Act, unless he first takes out probate. This is in effect the Calcutta view. I would not go so far as to say that an executor appointed by will who does not take out probate is not an executor within the Act, as I think that Section 90, Clause (2), recognizes the existence of two classes of executors (1) those executors who get probate and obtain orders of Court for disposing of immoveable property and (2) those executors who do not do so and are restricted to the terms of the will. The section speaks of even the former class as having the property vested in them, although probate has not been granted to them.

6. As the 1st defendant by disposing of 23 acres 68 cents of wet land under Ex. 1 in favour of the 2nd defendant for a price of Rs. 4,500 disabled herself from carrying out the testator's wishes in their entirety as to the division of his immoveable property among his heirs in the manner set out in the will, and as she did not either before or after the sale validate her act by taking out probate and obtaining permission of the Court to dispose of the testator's immoveable property for discharging his debts, the learned Subordinate Judge was right in my opinion in declaring the sale-deed in favour of the 2nd defendant to be not valid and binding on the heirs under the will. Similarly the mortgage must also have been invalid so far as it interfered with their obtaining a distribution of their shares, but being executed pendente lite the plaintiffs were entitled to ignore it.

7. I am inclined to treat the 1st defendant as an executrix who has execeeded the limited authority given to her under the will as regards the disposal of immovable property and has failed to invest herself with the power that she might have got by taking out probate and applying to the Court to permit her to dispose of that property in a manner not authorised by the will.

8. Whether when the assets set apart under the will were not available for discharging the testator's debt, the 1st defendant, either as executrix without probate or as the manager or person in actual possession of the estate, would have power to sell any portion of it for the necessary purpose of discharging the deceased's debts and could give a good title to the purchaser is a question that has not been argued before us. As the determination of this question will largely depend on the answer to be given to the question of law formulated by my learned brother, I agree to the reference to a Full Bench in the terms proposed in his judgment.

9. Srinivasa Aiyangar, J.The main question that arises in this appeal is one of considerable difficulty and at the same time of great general importance. The difficulty of the question, has been immensely increased by the wide divergence in the views, with regard to the question, of the various High Courts in this country.

10. The daughter and the daughter's son of one Venkata-subbanna, the testator, instituted the suit from which this appeal has arisen. The 1st defendant is the widow of the testator and the 16th defendant is the son adopted by the 1stdefendant to her deceased husband, the testator, under a power given to her by his will. Defendants 2 to 15 may all be regarded as alienees claiming through the 1st defendant.

11. The plaintiff's claim was for having these alienations set aside and delivery over to the plaintiffs of certain lands alleged to have been agreed to be given to them under a family arrangement entered into by the 1st defendant, subsequent to the death of the testator, or, in the alternative, for a partition and delivery over to them of their shares in the estate of the deceased according to the terms of the will. On behalf of the contesting defendants, namely, defendants 1 to 15, it was inter alia pleaded that the 1st defendant was the executrix appointed by the testator and that as such she was entitled to sell and dispose of the property of the deceased testator and that therefore the alienations could not be set aside. The learned Subordinate Judge in the Court below found on a construction of the will that there was no appointment of the 1st defendant in the-will as general executrix either expressly or by necessary implication. On this finding the Lower Court set aside the alienations and holding that the family arrangement set up by the plaintiffs was not proved, gave a decree in their favour for their shares of the properties bequeathed to them under the will subject, however, to a direction that the plaintiffs should pay to the 1st defendant a fifth share of the total amount of the debts of the testator discharged by the 1st defendant.

12. The first question, therefore, that arises is whether there is in the will an appointment of the 1st defendant as executrix by necessary implication. The learned vakil for the appellants has addressed to us a lengthy argument to show that the Lower Court was wrong in holding that there was no such appointment. It seems to me that on a perusal of the entire will and all its various clauses there can be no doubt whatever of the appointment of the 1st defendant as executrix by the necessary implication. There is no other person to whom the execution of the will is confided. Wherever the testator thought there was anything to be done by way of carrying out his intentions, he has directed that the same should be done or carried out by the 1st defendant. Thus the debts due to him are directed to be recovered by her. It is she that is authorised to obtain proper documents in respect of lands purchased by him, but the sale-deeds for which had not been obtained by him during his lifetime, and she it is also that is directed to execute deeds of gifts and other documents in respect of certain grants made by him. She is also directed to sell certain properties and utilize the sale-proceeds for the purpose of certain charities. She is also the person that is directed to get the will registered within three months of his death. Over and above all these, there is about the end of the will the following sentence: ' I authorize my wife to conduct all other affairs in my stead. ' The other affairs referred to there should necessarily signify and include affairs other than those in respect of which he has given particular directions. It is impossible to regard this sentence as not amounting to a constitution of the 1st defendant as his legal representative and the authority to conduct all other affairs undoubtedly amounts to confiding the execution of the will to her within the meaning of the definition of 'executor'. It almost seems to me that even apart from this sentence, the intention may be clearly gathered that she was the person to whom it was the intention of the testator that the execution of the will should be confided. But this sentence amounts almost to an express appointment. The Lower Court was, therefore, clearly wrong in coming to the conclusion that the 1st defendant was not the general executrix appointed by the will. There was no reason whatever to suppose, as the Subordinate Court seems to have done, that the 1st defendant was appointed an executrix only for certain limited purposes.

13. The Lower Court having arrived at the conclusion that the 1st defendant was not the executrix at all, it became unnecessary for that Court to discuss the question whether if she were executrix what her powers were as such executrix to make the alienations sought to be set aside. This leads me to the consideration of the main question in this appeal, namely, whether an executor appointed by a will made in the moffussil of the Presidency has vested in him the estate of a testator and has all the powers of an executor as set out in the Probate and Administration Act even though such executor does not obtain probate of the will or whether his powers, unless he obtains*probate, are only those of a mere manager as held in respect of executors previous to the Probate and Administration Act. It was unnecessary for the learned Subordinate Judge in the Court below to consider this question because on his finding that the 1st defendant was not appointed as executrix at all, no such question arises for decision by him. As we have however found that there is an appointment of the 1st defendant as executrix if only by necessary implication, it has become necessary to determine the nature and extent of her powers over the estate of the deceased. If it should be found that even though no probate may be obtained by the executor the estate becomes vested in him from the moment of the death of the testator as indicated in Section 4 of the Probate and Administration Act and that he has all the powers of an executor as set out in that Act, then the tests to be applied for the purpose of determining whether or not the alienations made by him would be valid and binding would be entirely different to the tests applicable if the correct view should be that unless and until an executor obtains probate his powers are only those of a mere manager. The present appeal, it seems to me, cannot be properly determined without coming to a decision with regard to this main question. If ultimately the view should prevail that the Probate and Administration Act, is merely an enabling Act laying down the procedure for applications for probate and letters of administration and their grant and setting out the consequences that would follow on such grant being made or obtained and that therefore an executor of a will made in the moffussil, of the presidency has, till he obtains the probate, the powers only of a mere manager as though the Probate and Administration Act had not been passed, then in the view we have taken that the 1st defendant is the properly appointed executrix of the will the case will have to be remanded to the Lower Court for the purpose of determining the question what the powers are of such a mere manager with regard to the disposal of the pro-pert}' of the testator and whether having regard to the nature and extent of such power the particular alienations in this case were within or beyond such powers. If, however, the true view should be held to be that in the case of wills made in the moffussil the executors have whether they obtain probate or not, all the powers of the executors as set out in the Act, then the question of the validity of the alienations might require to be determined wth reference to the various sections of that Act and' the provisions of the will in question. I may at once state that the case of Ganapathi Aiyar v. Sivamalai Goundan (9), is a direct authority for the position contended for by the appellants with regard to the main question of the powers of an executor under the Probate and Administration Act. The learned Judges Sundara Aiyar and Sadasiva Aiyar, JJ., say at page 578 as follows: 'But we can see nothing in the Act as it stands to prevent the executor from acting as executor and exercising the powers given to him under the Act without obtaining probate.' The reasoning on which the learned Judges proceeded to arrive at that conclusion may be summed up as follows: _ (1) There is no provision in the probate and Administration Act which compels a person appointed as executor under a will to take out probate or letters of administration; whereas there is such a provision in the Indian Succession Act as incorporated in the Hindu Wills Act. (2) Under Section 4 of the Act, all the property of the deceased vests in the executor as such. (3) Neither the preamble nor the heading of Chapter II in the Act nor Section 12 requires that a different construction should be placed on Section 4. (4) Probate is not necessary to make a person an executor as his title as executor is derived under the will. (5) Probate is merely the authentic evidence of the will and not the source of the title of the executor. The learned Judges in coming to that conclusion followed the decisions of the Bombay High Court in the case of Shaik Moosa v. Shaik Essa ILR (1884) 8 Bom. 241 and the case of Mathura-das Lowji v. Goculdas Madhowji ILR (1886) 10 Bom. 468 The case of Sarat Chandra Banerjee v. Bhupendra Nath Bosu ILR (1897) C 103 was also cited to their Lordships but has been attempted to be distinguished on a ground which 1 shall advert to later. It may be convenient here to observe that the view of the Bombay High Court in the said two Bombay cases has been maintained in several recent decisions of that Court. In Narrondas Ramp v. Narrondat Ramji ILR (1907) 31 Bom. 418 Mr. Justice Russell merely follows the earlier Bombay view citing the earlier decisions. In the case of Sir Mahom,ed Yusuf v. Hargovandas Jivan ILR (1922) Bom. 231 two Judges of the Bombay High Court after considering a great deal of the case-law on the point reiterate the Bombay view and follow it. In the case of Narrondas Ramji v. Narrondas Ramji ILR (1907) 31 Bom. 418 Mr. Justice Russell referred to certain observations of Mr. Justice Markby in the case of Komollochun Dutta V. Nilruttun Mundle ILR (1878) C 360 Those observations are as follows: 'The property vests in the executor by virtue of the will, not of the probate. The will gives the property to the executor; the grant of probate is the method which the law specially provides for establishing the will.' That same learned Judge, Mr. Justice Markby, in the case of Prosunno Chnder Bhuttacharjee v. Kris to Chytunno Pal ILR (1878) C 342 states as follows at page 345: 'The executor does not represent the deceased by virtue of the will until he has obtained probate.' In the case of The Administrator-General of Bengal v. Premlal Mullick ILR (1895) C 788 their Lordships of the Judicial Committee state as follows: 'It is not disputed that the immediate effect of Act of 1870 vas to place a Hindu executor who was in a position, and chose to take advantage of its provisions, on precisely the same footing as the executor of an Anglo-Indian testator; in so far as concerns the taking out of probate and the vesting in him of the estate of the deceased. The will of the late Nundo Lal Mullick was executed in August, 1889, and his executors, therefore, on their obtaining probate, became immediately vested, by force of statute, with the whole estates which belonged to him at the time of his decease.' Though in that case their Lordships were not referring to the Probate and Administration Act, they were considering the terms of Section 179 of the Succession Act, which is identical with Section 4 of the Probate and Administration Act. In the case of Sarat Chandra Banerjee v. Bhupendra Naih Bosu ILR (1897) 25 C 103 Chief Justice Maclean and Justice Banerjee while holding that an executor under a Hindu will, before the Hindu Wills Act came into force, is not in the same position as an English executor under an English will, decide that the property does not vest in him, and that he holds it only as manager. The learned Judges referring to the preamble of the Act and the heading of Chap. II of the Act state as follows: 'Where the estate is unadministered, if any one desire to come in and prove the will and get the benefit of the Act in that sense, he may have the opportunity of doing so, and the effect would be that the estate from that time would vest in such executor under Section 4.' Again in the case of Sakina Bibee v. Mahomed 1shak ILR (1910) C 839 Mr. Justice Pugh concludes his discussion of the subject as follows: 'It appears to me that in the case of a non-probated will, if I may use the expression, the position must be as it was before the legislation, that is, the will is a gift from the testator to the legatees, and the executor is merely a manager to carry out the intentions of his testator In my judgment, therefore, the position of an executor who does not take probate is the same as that of a Hindu or Muhammadan executor before the Succession Act.'

14. In this conflict of view between the various Courts, I am personally inclined to consider that the view taken by the learned Judges in the Calcutta High Court is the Correct view. That view is, to my mind, really in accordance with the view of their Lordships of the Judicial Committee in the case of The Administrator-General of Bengal v. Premlal Mullick ILR (1895) C 788 Considering the question, however, not on the authorities but with reference to the Probate and Administration Act, it has to be noticed that the Act is called 'An Act to provide for the grant of Probates of Wills and Letters of Administration to the estates of certain deceased persons.' And the preamble runs as follows: 'Whereas it is expedient to provide for the grant of Probate of Wills and Letters of Administration to the estates of deceased persons in cases to which the Indian Succession Act of 1865 does not apply, etc.' It is significant that the object of the Act is not stated to be to legislate about wills or to codify or modify the law relating to wills. Section 4 of the Act is as follows: '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.' It is true that, reading the section by itself it would rather seem to indicate that on the death of the testator the executor becomes his legal representative for all purposes and that the property of the deceased person vests in him as such. But it must be remembered that this section refers also to an administrator, and it cannot possibly be pretended that there can be any administrator till letters of administration are obtained though the letters when obtained relate back to he date of the death of the intestate deceased. There is, therefore, no reason to suppose why, in the case of an executor, a similar result should not have been intended. It is, however, significant that Section 4 appears in Chapter II entitled 'Of grant of Probate and Letters of Administration.' This heading of the chapter, therefore, further strengthens the view that both the representative character and the vesting accrue only on probate being taken. Then, we have Section 12 which is as follows: 'Probate of a will when granted establishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such.' This makes the meaning of the legislature it seems to me, quite clear. It is only the probate of a will when granted that is said to establish the will from the death of the testator and renders valid all intermediate acts. The clear implication is that if the probate is not granted or obtained, the will is not established from the death of the testator and all intermediate acts of the testator will not be rendered valid. In Section 59, it is provided that probate or letters of administration shall have effect over all the property, moveable or immoveable, of the deceased throughout the Province in which the same is (or are) granted, and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property wihch belongs to him. The legislature after providing in Chapter V regarding the practice in granting and revoking probates and letters of administration proceeds in Chapter VI to-enumerate the powers of an executor or administrator. Section 90 of the Act runs as follows: ' (1) An executor or administrator has subject to the provisions of this section, power to dispose, as he thinks fit, of all or any of the property for the time being vested in him under Section 4. (2) The power of an executor to dispose of immoveable property so vested in him is subject to any restriction which may be imposed in this behalf by the will appointing him, unless probate has been granted to him and the Court which granted the probate permits him by an order in writing, notwithstanding the restriction, to dispose of any immoveable property specified in the order in a manner permitted by the order.' There is no doubt that the clause in sub-section (2) 'unless probate has been granted to him and the Court which granted the probate permits him by an order in writing, notwithstanding the restriction, to dispose of any immoveable property specified in the order in a manner permitted by the order' would seem to suggest that even in the absence of probate, the property vests in the executor and that he has power to dispose of immoveable property subject only to any restrictions which may be imposed in that behalf by the will. There is real difficulty in construing this clause consistently with the other parts of the Act,and for my part, I am inclined to think that it was a case of mere confused expression and that what the legislature meant to lay down was that if a person appointed executor by a will should wish to dispose of property contrary to the directions contained in the will, he should first obtain probate and then apply to the Court and obtain an order from it authorizing him to do so.

15. I am therefore of the opinion that the Probate and Administration Act is a mere enabling Act and that person desirous of obtaining the rights created by that Act should first proceed under the Act and clothe themselves with the right by obtaining either probate or letters of administration.

16. I am confirmed in this view all the more because I cannot possibly imagine that the legislature virtually altered the law of wills in the mofussal without expressly saying so or that the legislature meant to place an executor in the mofussal without probate practically for all purposes in the same position as an executor with probate in Presidency towns.

17. None of the learned Judges either of this Court or of the Bombay Court who have decided to the contrary have really given any satisfactory explanation either with regard to the preamble of the Act or the heading of Chapter II or the very clear terms of Section 12 In view, therefore, of the decision in the case of Ganapathi Aiyar v. Sivamalai Gomidan (1912) 36 NLJ 306 and the conflict of judicial opinion between the Bombay and the Calcutta High Courts in the same matter, 1 deem it necessary to refer to a Full Bench the question already propounded, namely, the main question in this appeal, 'whether an executor appointed by a will made in the mufassal of the Presidency has vested in him the estate of a testator and has all the powers of an executor as set out in the Probate and Administration Act even though such executor does not obtain probate of the will, or whether his powers, unless he obtains probate, are only those of a mere manager as held in respect of executors previous to the Probate and Administration Act.'

18. This Appeal coming on for hearing on Tuesday, and. Wednesday, the both and 11th days of February, 1925, in pursuance of the Order of Reference to a Full Bench, dated 13th November, 1924, upon perusing the Grounds, of Appeal, the judgment and decree of the Lower Court and the material papers in the case and the said Order of Reference to a Full Bench and upon hearing the arguments of Mr. A. Krishna-swami Aiyar, vakil for the appellants, and of Mr. Viyanna, vakil for the 16th respondent, and of Mr. G. Lakshmanna, vakil for the respondents 1 and 2, and of Mr. A. Satyanara-yana and Mr. P. Bapirazu. vakils for the 3rd respondent and Mr. Ch. Raghava Rao, vakil for the 7th respondent and the appellants having given up respondents Nos. 4, 8, 9, 13, and 14 and elected to proceed without than (vide order of Court, dated 25th August, 1921) and the other respondents Nos. 5, 6, 10, 11, 12 and 15 not appearing in person or by pleader and the case having stood over for consideration till this day the Court expressed the following

Phillips, J.

19. I agree.


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