The suit is dismissed on contest but in the circumstances of the case no order is made as to cost. The decree will not, however, debar the legal guardian of the plaintiff from applying for letters of administration if so advised'.
5. Being aggrieved by the said judgment and decree dated February 4, 1950, the instant appeal has been preferred in this Court on April 6, 1960 by the said Sarajubala. In spite of the fact of the dismissal of the suit, she challenged the findings of the trial Court on merits shortly noted before.
6. Jamini Kanta the father and natural guardian of the minor Jyotikamal, filed an application being Act, VIII case No. 5 of 1960. On July 11, 1960 he was appointed certificated guardian of the person and property of the minor Jyotikamal.
7. On August 5, 1960 Jyotikamal through his certificated guardian filed the cross-objection.
8. On March 1. 1964 Jyotikamal attained majority. Applications were thereafter filed, moved and allowed in this Court. The guardian was discharged. Jyotikamal being sui juris was allowed to proceed with the appeal and the cross-objection,
9. The appeal came up for hearing before the said two Hon'ble Judges.
Justice Chakravarti in his judgment held that the appeal by the Caveator Sarajubala was not competent, in spite of the other findings being made against her. The learned Judge observed:--
'As a matter of feet Mr. Manindra Nath Ghosh, learned Advocate appearing on behalf of the appellant very fairly conceded this position and did not want to proceed with the appeal'.
There seemed reason for Mr. Ghosh to feel apprehensive of the outcome of appeal.
10. Mr. Ranjit Kumar Banerjee, learned Advocate appearing on behalf of the respondent cross-objector, however, proceeded with the cross-objection. Both the learned Judges took the view that Jyotikamal cannot be regarded as a sole executor or sole residuary legatee or the sole universal legatee. Chakravarti, J. after considering the provisions of the Indian Succession Act and specially Sections 232, 236, 244, 246, 253, 268 and 295 thereof and also the provisions of Order 32, Rule 1 of the Code of Civil Procedure however held inter alia that Section 236 of the Indian Succession Act is a clear bar to a minor legatee applying for letters of Administration through his natural guardian, and an application by him would not be maintainable, Chakravarti, J. observed that the natural guardian would be an Executor by implication, and he might have applied for necessary Letters of Administration, Chakravarti, J. also observed that the certificated guardian would not be entitled to get Letters of Administration under Section 236 of the Act. In his opinion. as an application by the natural guardian is not maintainable, the proceedings were dead ab initio and the legal guardian cannot, therefore, also be given the Letters of Administration. He relied on the decision of the Patna High Court in the case of Babul Bhagwati Kuer v. Bahuria Ramsakhi Kuer, (AIR 1920 Pat 197). According to him subsequent events viz., that the fact of attainment of majority by Jyotikamal and the permission granted to him by this Court to proceed with the appeal and cross-objection, would not still entitle Jyotikamal as a major to the Letters of Administration 'in this proceeding'.
11. In the result Justice Chakravarti dismissed both the appeal and the cross-objection.
12. Justice Datta took a different view. He referred to Section 234 apart from other provisions of the Indian Succession Act. He distinguished the said Patna decision and referred to and discussed the following cases: In re Yeshvantibai, (AIR 1929 Bom 397); Arumilli v. Arumilli, (AIR 1931 Mad 343) In re: goods of Sewnarain Mohata, ((1894)ILR 21 Cal 911). On the points as to whether the defect has been cured by the attainment of the majority of Jyotikamal, the decision in the case of goods of Sreemutty Nerojini Debi, ((1907) 11 Cal WN 697 = ILR 34 Cal 706) was noticed. Justice Datta concluded :--
'I am of opinion that the application filed by the minor legatee through his legal guardian for proof of Will and on such proof, for grant of the Letters of Administration to such person as the Court would deem fit, is maintainable in law. I am further of the opinion that Section 236 of the Act is not a bar to the making of such application by the minor, though it is bar to the grant being made to the minor'.
13. In the result the cross-objection was allowed by Justice Datta.
14. Because of the said two differing judgments the point quoted in the first paragraph of this judgment has been referred to me for decision.
15. The point referred to above is in general terms. No particular of status is attached to such minor applicants. In other words, it is not stated as to whether the minor was or was not the sole executor or the sole universal or residuary legatee in the Will.
16. My decision on both the points viz., as referred tq above and also in cases where the minor was neither the sole Executor nor the sole universal or residuary legatee would be the same and be in the affirmative. On the view most favourable to the appellant, of the facts disclosed in the case, it is no misuse of language to say that the judgment of Justice Datta seems to me to be a better opinion. On the other, it would be a mistake to agree with the observations made by Justice Chakravarti to the effect that the contention that Section 236 of the Indian Succession Act is confined only to the grant of Letters of Administration is a pure sophistry. I would not be slow to differ from his sharp observation. It contains ,a dark hint. What is more there, heavy emphasis is laid by him only on the form of language of Section 236 and he asked us not to look beyond the bare bones of the same. It is, with due respect, a case of over simplification.
17. I have considered the provisions of the Indian Succession Act and particularly the sections referred to in the judgments of both the Hon'ble Judges. I have also considered the decisions referred to in both the judgments. Some of the English Texts on the subject were also consulted such as Tristam & Coote's probate Practice 22nd Edn. Mortimer on Probate Law and Practice, Williams on Wills 3rd Edn., Jarman on Wills 8th Edn., Theobald on Wills. Ingpen on Executors, Williams on Executors and Administrators. Miller on Irish Probate Practice but they are not of much help to the decision at issue. Two sides however have drawn justifiable satisfaction from their respective arguments and I have followed them with close attention.
18. I am not unmindful of the principles that minority is a legal incapacity and that both the Executor and the Administrator, who would hold the property belonging to the infant or minor, would be trustees, But in deciding such questions it would be better to remind us about and to condition our mind to accept the following principles :
(a) the provision in the Indian Succession Act as to persons who are entitled to Letters of Administration is not so stringent as that of probate,
(b) the welfare of the infant or the minor is a paramount consideration and the Court should always lean in favour of safeguarding the interests of the minors,
(c) in the matter of administration it ought to follow the interest and a minor may have a large interest in the Estate as in this case,
(d) the property may be in jeopardy : It may be perishable or otherwise;
(e) there is no bar in the Act, to other disqualified persons except persons of unsound mind and no bar about the appointment of minor as an executor,
(f) the bar by necessary implication is not to be favoured.
(g) the language in the Act should not be too strained and in doubtful oases the Letters of Administration may be granted, and lastly.
(h) in the matter of Letters of Administration, the Court has discretion unlike that in the Probate.
19. If we apply these principles to the facts in the instant case, the answer on the point under reference cannot but be plainest possible yes.
20. There remains however for brief mention that though the controversy is not wholly barren, I am not called upon to pronounce any opinion on the following arguments indulged by the learned Advocates of both sides in full-blooded justification. The arguments are long-simmering and are likely to surface with their impact on the result of the appeal but they are not sufficient to give us the historical distance of the point of law referred.
1. Whether the question has become more or less academic because another application has already been filed for probate before the Court of the District Judge, Hooghly and the minor Jyotikamal has attained majority pending the hearing of the appeal.
2. When this Court has allowed the minor to proceed with the appeal and the cross-objection as a major, after he has attained majority, the question does no longer arise. Rather the appellant is estopped from, raising the question and the Court is precluded from going into the question again.
3. When the minor Jyotikamal's lather Jamini Kanta had been appointed a certificated guardian by a competent Court and whether the cross-objection filed by such a guardian cured the defect, if any,
4. Whether the application has been made under Section 234 of the Act and whether the grant should be made under Section 254 thereof.
21. The Reference is thus disposed of.
Let the records be placed before the Hon'ble Chief Justice for appropriate orders.