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Antony Cruz Gonzolves Vs. Makis Boopalrayan - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in(1911)ILR34Mad395
AppellantAntony Cruz Gonzolves
RespondentMakis Boopalrayan
Excerpt:
succession act x of 1865, sections 190, 191, 239 - act vii of 1901--grant of letters does not vest property of deceased in the administrator as from the date of death--heirs of intestate native christian entitled to deal with their share until grant of letters. - .....upon the mortgage in 1901 and purchased the property. the second defendant the widow, obtained letters of administration in january 1905, and sold the property to the plaintiff. the courts below upheld the sale to the first defendant to the extent of the one-third share of defendants nos 3 and 4, and gave a decree to the plaintiff for two-thirds of the suit property. the plaintiff has preferred this second appeal. sections 190 and 239 of the succession act have by act vii of 1901 been made inapplicable to native christians. section 179 provides that the executor or administrator of a deceased parson is his legal representative far all purposes and all the property of the deceased person vests in him as such. an executor is defined as a person to whom the execution of the last will of.....
Judgment:

1. One Machado, a Native Christian, died in 1885 leaving a widow, the second defendant, two sons, the third and fourth defendants and two daughters, Defendants Nos. 3 and 4 hypothecated the suit property in 1891 to the first defendant. The first defendant instituted a suit upon the mortgage in 1901 and purchased the property. The second defendant the widow, obtained letters of administration in January 1905, and sold the property to the plaintiff. The Courts below upheld the sale to the first defendant to the extent of the one-third share of defendants Nos 3 and 4, and gave a decree to the plaintiff for two-thirds of the suit property. The plaintiff has preferred this second appeal. Sections 190 and 239 of the Succession Act have by Act VII of 1901 been made inapplicable to Native Christians. Section 179 provides that the executor or administrator of a deceased parson is his legal representative far all purposes and all the property of the deceased person vests in him as such. An executor is defined as a person to whom the execution of the last will of a deceased person is by the testator's appointment confided. So property of the testator vests in the exeutor on the death of the testator at once irrespective of probate. But an administrator is a person appointed by competent authority to administer the estate of a deceased person; so until he is appointed by Court the property of the deceased cannot vest in him. But Section 191 enacts that once letters of administration are granted, they entitle the administrator to all the rights of the intestate as effectually as if the administration had been granted at the moment after his death. The sons were entitled to a third share and when no administrator was appointed they were entitled to deal with it, The decree on the mortgage and the sale were subsequent to the repeal of Section 190 as regards Native Christians and were therefore valid to the extent of the interest of the third and fourth defendants. Section 191 which makes the letters of administration relate back to the death of the intestate cannot, it seems to us, affect the right of the purchaser. In Williams on 'Executors,' volume I, page 468, ' there is the following statement of the law: 'On the other hand an administrator derives his title wholly from the Court. He has none until the letters of administration are granted and the property of the deceased vests in him only from the time of the grant.' Later on, Williams adds 'the proposition, however, respecting the vesting of an administrator's interest must be taken with some qualification, for it seems clear that for particular purposes the letters of administration relate back to the time of the death of the intestate and not to the time of granting them.' And he proceeds to give a number of instances where the letters of administration relate back to the time of the death of the intestate. This statement of the law is reproduced in Section 191 of the Indian Act. We must therefore hold that the provision in the Succession Act as to the letters of administration relating back does not vest the property in the administrator before the grant of administration. The repeal of Section 239 as regards Native Christians strengthens the view that heirs to the property of an intestate are not disentitled to deal with their shares until administration is granted for the protection of the property by the District Court till the grant of administration has been taken away by the repeal. Act VII of 1901 has moreover authorized the issue of succession certificates for debts due to the estates of Native Christians. All this points to the intention of the Legislature that until the grant of administration the property of an intestate vests in the heirs sufficiently to enable them to deal with their interests. We must hold therefore that the plaintiff is not entitled to claim their one-third share. We dismiss the second appeal with costs,


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