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TMI Blog1952 (10) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... time of his widows, which has been the subject-matter of much subsequent litigation. According to the plaintiff he is entitled under these directions to hold and to manage the properties of the testator, meet certain necessary expenses from the income thereof and apply the balance of the income to the support, comfort and well-being of the two widows. A declaration to this effect was obtained by him from this Court on 1-4-1942 on an application under Section 302, Succession Act, 1925. The plaintiff's case is that he entered into possession of the property on the death of Sheopragash and that he remained in possession thereof in spite of the fact that Munga Kuer and after her death Dharohar Kuer got themselves recorded as proprietors in Register D, and that he was dispossessed on or about 7-6-1944 after his attempt to get himself registered in Register D had finally failed in the Land Registration Courts. The present suit was filed by him on 21-12-1944. The defendant denied the plaintiff's right under the will to hold and manage the property. Secondly, she pleaded that even conceding that the plaintiff had such a right, the plaintiff has not been in possession since Sheoprag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1940 in First Appeal No. 56 of 1939 on the ground that a Court of probate is in no way concerned with any question other than whether the will, of which probate is asked, has been proved to the satisfaction of that Court or not. 4. The decision of the High Court was followed soon after by a proceeding under Section 144, Criminal P. C., in which the Sub-divisional Magistrate of Hajipur, by his order Ex. N, dated 26-12-1940, made the rule absolute against the plaintiff executor. The relevant portion of his order is: Now there is dispute regarding possession over the properties covered by the will. It may be noted that the name of the widow Mt, Dharohar Kuer was duly recorded in Register D. She has been paying revenue and has filed challan. She has been suing tenants for rent and has obtained decrees. She has paid rents to landlords and obtained receipts. She filed petition for reduction of rent under Section 112A, B. T. Act, and obtained decree. In short she has been exercising her right over the properties and has been in possession over the same. It is now contended on behalf of the second party that the second party having obtained probate he should in the eye of law be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns for dismissing the petition in revision the Commissioner observed : It is not in my view the business of the courts administering the Land Registration Act to enter into discussions of the exact legal position of the petitioner as an executor I consider that it has been sufficiently proved in this case that Mt. Dharohar Kuer is in Possession of the property and I agree with the findings of the Land Registration Deputy Collector that it is for the petitioner) to establish his claim in a civil court if he desires to do so. 6. It was after this that on .4-2-1942 the executor filed his petition, Ex. O, under Section 302, Succession Act, 1925, asking the High Court to allow the petitioner to manage the properties and give such other direction or directions to your petitioner as may be deemed fit and proper . The first four paragraphs of his petition give the substance of the will so far as it was relevant to the case and speak of the proceedings in probate. Paragraph 5 then continues: That after the judgment of this Hon'ble Court the petitioner began to manage the properties but he was obstructed by the men of the opposite party in the management and possession of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istered in Register D in place of Mt. Dharohar Kuer but was unsuccessful. Thereafter the applicant filed a petition under Section (under punch?) 302 (sic), Succession Act, in the Hon'ble High Court of Judicature at Patna in which an objection petition was filed on behalf of Mt. Dharohar Kuer and after hearing both the parties it was adjudicated and ordered by the High Court that Mt. Dharohar Kuer had no right to manage the inheritance of Babu Sheo-pragash Singh, aforesaid and that the applicant had every right to manage the said property. In fact, the applicant was appointed manager on 1-4-1942 by the High Court for the management of the entire movable and immovable properties inherited from the said Babu Sheopragash Singh, deceased. Accordingly the applicant has been managing the estate of Babu Sheopragash Singh aforesaid as executor-manager since 1-4-1942. It is significant that he says nothing about possession following the death of Sheopragash Singh. According to his petition he was appointed manager by the High Court on 1-4-1952, has been managing the property since that date. His petition succeeded before the Land Registration Deputy Collector and the appellate Depu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff and a perusal of the evidence given by the plaintiff in the witness-box is very unconvincing. In these circumstances, the finding of possession was advisedly not seriously attacked by counsel for the appellant. 9. The appeal was principally pressed on the ground that the finding of the Subordinate Judge regarding limitation is incorrect. A doubt has been urged as to the Article of the Schedule to the Limitation Act applicable to the suit and it has been suggested that the Subordinate Judge was wrong in applying Article 142 relating to a suit for possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession. It is pointed out that the plaintiff is not claiming title to the property as such but only the right to manage it. For myself, I do not see why this should make a difference to the applicability of Article 142. But even if the contention is accepted, it seems to me that the plaintiff would not be in a better position, for limitation in that case would be governed by Article 120 and would be six years from the time when the right to sue accrues instead of twelve years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opy of the will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator. The effect as explained by Section 273, is to provide a ready means of establishing the genuineness of the will conclusively against all the world. The definition in Clause (a) and (c) of Section 2 distinguishes between an administrator and an executor, the executor being appointed by the testator, whereas the administrator is appointed by competent authority . This is the reason why under Section 222 probate can be granted only to the executor appointed by the will. The distinction is recognised later by the court being directed by Section 291 to insist on the execution of an administration bond and the furnishing of security by administrator while no such provision is made in respect of an executor. An administrator by definition requires an order appointing him. He, therefore, comes into existence only when there has been a grant of letters of administration. The definition of executor makes no reference to a grant of probate and there is no reason to read such a reference into the definition. The executor, therefore, comes into existence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the provisions of Section 220 relating to an administrator in intestacy and Section 227 relating to an executor. The vesting in the former case is a vesting by an order of the Court and is subject to Section 221 that is to say, letters of administration do not render valid intermediate acts of an administrator tending to the diminution or damage of the interstates estate. 13. Sections 119 and 174 show that the vesting of property immediately on the death of the testator, independently of the grant of probate or letters of administration, as the case may be, is not foreign to the Act. Under the former section a bequest in respect of which the lagatec is not entitled to immediate possession vests in the legatee on the testator's death. Under the latter section an annuity provided for any person under the will vests on the testator's death and commences from the date of his death ('vide' Section 338). 14. Section 273 dealing with the effect of probate and letters of administration provides that they shall be conclusive as to the representative title of the executor or the administrator, as the case may be. They thus establish the representative character o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tle, but are only intended to simplify the proof of his title as dating from the testator's death. -- 'Venkata Subamma v. Ramayya' 15. The absence of qualification as to time which I have noticed in respect of Section 211 also applies to Section 305 under which all cases of action that survive the deceased accrue to the executor or administrator, as the case may be, there is nothing to prevent the running of limitation against the executor in respect of such causes of action between the death of the testator the grant of probate. Limitation in such a case would be governed by Section 17 Sub-section (1), Limitation Act, which provides that where a person, who would if he were living have a right to institute a suit or make an application, dies before the right accrues, the period of limitation shall be computed from the time when there is a legal REPRESENTATIVE of the deceased capable of instituting or making such suit or application. Under the terms of Section 211 the executor is the legal representative of the deceased person from the date of his death and limitation would run against him from this time. In contrast limitation would run against the administrato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this is not because his title depends on probate, but because the production of probate is the only way in which, by the rules of the Court, he is allowed to prove his title. An administrator, on the other hand, derives title solely under his grant, and cannot, therefore, institute an action as administrator before he gets his grant. 17. The point arose for consideration in --'Ramiah v. Venkata Subbamma' AIR 1926 Mad 434 (FB) (I), in the following circumstances. One Subbamma executed a will in 1914 appointing his wife as executor, giving her certain instructions about dealing with his property and directing in particular that his debts be paid out of the proceeds of one thousand bags of paddy in store. He died in 1916 and, the paddy being no longer available, his wife sold some land for the purpose of satisfying his debts. Probate was not taken out. His daughter's son, to whom a one-third share of the property was left under the will, challenged the transfer. The question arose whether under the Probate and Administration Act of 1881 title vested in the executor before the grant of probate, or whether her position till the grant of probate was merely that of a manag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 788 (K)' related to a Hindu will of 1889 probate of which was granted in 1891 after which the executor transferred the estate to the Administrator-General of Bengal, professing to act under Section 31, Administrator-Generals Act, 1874. The only question which arose for decision in the case was whether the executor of a deceased Hindu is a private executor within the meaning of that section. In the course of the decision holding that such an executor came within the terms of the section Lord Watson pointed out that before the Hindu Wills Act of 1870 the position of an executor under a Hindu Will was different from that of an English executor, his powers functions being those of a manager that title in the estate did not vest in him even after he got probate. After the Act, his Lordship observed, a Hindu executor who took advantage of its provisions was on precisely the same footing as the executor of an Anglo Indian testator, in so far as concerned the taking out of probate and the vesting in him of the estate of the deceased. The position of such an executor in the event of probate not being taken out did not arise for consideration. 20. '25 Cal 103 (L)' r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id: I think that until some other claimant conies forward, the party who takes possession of the estate of a deceased Hindu must, in the present state of the law, be treated for some purposes as his representative and a judgment obtained against such a representative is not a mere nullity. The principle of the decision was that unless this was so the remedy of a creditor against the estate might be barred by an intentional delay in taking out probate. As stated in -- 'Bibhuti Bhusan v. Narendra Narayan' AIR 1951 Cal 228 (P), the essential question to be considered in such cases is whether the estate of the deceased person was sufficiently represented by the legal representative who has been brought on the record. The decisions belonging to this catena are really an application of Section 213, Succession Act, 1925. Till probate or letters of administration are obtained there is nobody who can establish in court his right under the will to represent the estate. Till this is done, therefore, the Court has to determine, on the circumstances of each case, whether the person impleaded is the proper legal representative. This is recognised by Section 216 of the Act which e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng up of the reasons in support of the view they took may usefully be reproduced as it applies 'mutatis mutandis' to the position under the present law. In the extract below I have, for facility in applying the reasoning to the present law, shown in brackets against each section of the Probate and Administration Act the number of the corresponding section in the Indian Succession Act of 1925: There can be no doubt that in England the title of an executor is derived from the will and not from probate, though it is probate alone which authenticates his right: see Williams on Executors, Edn. 12 p. 1226. Section 12 (= 227), Probate and Administration Act, is a reproduction of Section 188, Succession Act of 1865, and it has always been recognised that the latter Act was largely based on English Law. It is not suggested that this doctrine is for any reason inapplicable to the wills of Hindus and their Lordships think that the material parts of Sections 4 and 90 (= 211 307), which are set out above, afford a strong indication in themselves that the legislature intended to adopt it. Section 4 (= 211) makes no reference to probate nor does the definition of 'executor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession and to manage the property only after he had obtained probate and, therefore, his cause of action in this suit arose when he obtained probate. I do not think that the testator intended that there should be a particular sequence of time between the obtaining of probate and the taking of possession of the property by the executor. The will indicates that he was unwilling that his property should be in the direct possession and management of his wives and he cannot have contemplated that following his death they should remain in possession until in due course his son-in-law obtained probate. The directions in his will about obtaining probate and about managing the properties are two separate directions, not connected with each other. He was aware that in the usual course, if the executor was to act under the will at all, he would have to take out probate, and he was merely emphasizing the necessity for the probate in directing his son-in-law to take out probate. He was certainly not making the taking of possession of the estate by his son-in-law dependent upon the son-in-law first obtaining probate. 25. For the reasons I have given the appeal fails and I would dismiss it w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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