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Mahima Chandra Moulick and anr. Vs. Saraju Bala Gupta - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in1Ind.Cas.140
AppellantMahima Chandra Moulick and anr.
RespondentSaraju Bala Gupta
Excerpt:
probate and administration act (v of 1881), sections 23, 42 and 50 - probate--subsequent application for letters of administration--notice to be given to executors--gift for maintenance, not necessarily a life estate--restriction against alienation--administration of whole estate, not of portions. - .....section himself. the present application, however, which is for letters of administration to an intestate estate, cannot possibly be granted.3. it has been suggested that the gift to matangini was at any rate a gift of a life estate, and that letters might be granted under section 23 in respect of the 12 annas share which was given to her. section 23, however, contemplates the grant of administration of the whole estate, and not of a portion. it would lead to great inconvenience to grant separate letters of administration for separate portions of one estate to all the various heirs of the deceased. exceptions may under certain circumstances be made under section 42, but there is nothing in the circumstances of this case to make such an exception expedient. we may refer in this connection.....
Judgment:

1. In this case it appears that one Mohim Chandra Moulik executed a Will in 1877 in which he appointed certain gentlemen executors. They took out probate in 1881. Under the Will the property of the testator was left to two persons named Jotadhar Sen and Matangini Gupta. After Jotadhar's death he was succeeded by his widow who took out probate of a Will executed by him. The appellants in this case have applied for Letters of Administration to the estate of Mohim Chandra Moulik under Section 23 of the Probate and Administration Act, 1881. Their case is that the gifts to Jotadhar Sen and Matangini Gupta under the Will of Mohim Chandra Moulik were gifts for life only and that after the death of the two legatees there was an intestacy. They obtained Letters of Administration under Section 23. Thereafter the widow of Jotadhar applied under Section 50 of the Act to have the grant of the Letters revoked. The learned District Judge has granted that application and revoked the Letters of Administration.

2. We need not discuss the case at length because it appears to us perfectly clear that the appellants are not entitled to Letters of Administration to the estate of Mohim Chandra under Section 23 of the Act. In the first place no notice was given to the executors of the Will who took out probate in 1881. That should certainly have been done. We are informed that these executors are dead, but there is nothing on the record to show that this is so or to show that any attempt has been made to serve them with notice. But the principal ground on which we think that Letters of Administration cannot be granted is that under the Will of Mohim Chandra Moulik the gift to Jotadhar was an absolute gift, and not a gift for life. It is described in the Will as being a gift to Jotadhar for his maintenance, but gifts for maintenance are very frequently heritable, and no authority has been shown to us for holding that a gift for maintenance must necessarily be a gift of only a life estate. There is also a restriction against alienation, but this restriction must necessarily be void and does not reduce the gift to one of a life estate. This being so it is clear that there is no such intestacy as would justify the grant of Letters of Administration under Section 23. It may be that the appellant would be entitled to call upon the representatives of Jotadhar as residuary legatee to take out Letters of Administration under Section 21, or may be entitled to take out Letters of Administration under that section himself. The present application, however, which is for Letters of Administration to an intestate estate, cannot possibly be granted.

3. It has been suggested that the gift to Matangini was at any rate a gift of a life estate, and that Letters might be granted under Section 23 in respect of the 12 annas share which was given to her. Section 23, however, contemplates the grant of administration of the whole estate, and not of a portion. It would lead to great inconvenience to grant separate Letters of Administration for separate portions of one estate to all the various heirs of the deceased. Exceptions may under certain circumstances be made under Section 42, but there is nothing in the circumstances of this case to make such an exception expedient. We may refer in this connection to the case of Ram Chand Seal 5 C. 2.

4. Under these circumstances we think that the Letters of Administration were wrongly granted. There was no such, intestacy as in the words of Section 50, was essential in point of land to justify the grant.

5. The appeal, therefore, must be dismissed with costs. We assess the hearing fee at five gold mohurs.


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