Ella Lavelette vs E.A. Tabuni and Others

Dawson Miller, C.J.—This case comes before us nominally as an appeal from an order of the District Judge, dated the 15th January 1923, refusing an application of the present appellant to review a previous order of the 16th December 1922 directing the grant of Letters of Administration to issue to certain minors through their guardian. The appellant in this case is Mrs. Cassels, formerly Mrs. Lavelette. Her first husband Mr. J.A. Lavelette died intestate leaving as his heirs his widow the present appellant and certain minor grand-children, the children of a deceased daughter. The amount of the estate left by the testator is small and it is, therefore, essentially necessary to avoid, as far as possible, in the interests of all parties, any unnecessary litigation in connection with the administration of this estate. Under the terms of the Indian Succession Act the widow takes a third of the property and the grandchildren two-thirds. An application appears to have been made by the widow for a succession certificate for the purpose of collecting the debts of her deceased husband sometime shortly after his death. In that application unfortunately for her she neglected or at all events omitted to mention the fact that in addition to herself there were other members of the deceased man''s family, namely, the grand-children to whom 1 have referred. There was then an application presented to the District Judge on behalf of the minor grand-children through their father and guardian Wilfred Edward Tabuni asking that a grant of Letters of Administration might be made to them: Notices were issued in those proceedings upon the near relations of the testator and upon the present appellant. Her attitude with regard to that petition is to be found in a petition filed by her in those proceedings in which she states that she had no objection to the petitioners, that is the minors, succeeding to their legal share of the estate but asked that the amount should be kept in fixed deposit till the attainment of the majority of the minors and as appears from a subsequent petition in those proceedings filed by Mrs. Cassels, the appellant, her reason for this was that she knew or at all events she alleged, it is not supported yet by any definite evidence that the father of the minors was heavily indebted and had no means of paying his debts; that his salary with overtime came to only Rs. 200, that he was a great spendthrift and drank a lot and she felt that if the money came into his hands he would very soon get through it in drinking and otherwise. It appears also that until the death of her husband these grand-children whose mother was dead had been living with the appellant Mrs. Cassele.

When the application for grant of Letters of Administration came before the District Judge, he took the view that although Mrs. Cassels had also applied for Letters of Administration she had put herself out of Court because in the application for a succession certificate she had failed to mention the fact of the existence of the grand-children. The learned Judge, therefore, presumably considered her not to be a proper person to be appointed. He goes on and says: "The only alternative is to appoint as administrator the father of the minors, Mr. Wilfred Edward Tabuni who is the applicant with whom we are here concerned," and he ordered Letters of Administration to issue to the applicant on his executing an administration bond. In pursuance of that order a grant of Letters of Administration was issued in fact to the applicants in the proceedings before the learned Judge. The applicants, however, were the minors and not their father and the grant is made to "Eugene Alexander Tabuni, minor son, Edward James Tabuni, minor son and others through their next friend and natural guardian Wilfred Edward Tabuni." It will be observed, therefore, that there was no grant of Letters of Administration to Wilfred Edward Tabuni. The grant was in fact to the minors through him as their next friend and natural guardian. Now, u/s 189 of the Indian Succession Act Letters of Administration cannot be granted to any person who is a minor. Therefore the grant in the present case was obviously illegal and beyond the powers of the learned Judge to make. On the 15th January 1923 an application was presented to the learned Judge which has been treated as an application for review of the order dated the 16th December 1922. The application which purports to be made under various sections of the Indian Succession Act and of the C.P.C. states that the applicant, Mrs. Cassels, is willing to act as administratrix to the estate of the deceased and contends that she is the fittest person to act as such. She further says that the omission of the names of her grand-children in the proceedings for a succession certificate was due to the negligence of her karpardaz. She further alleges that the grand-children were absolutely neglected by their father, the present administrator, and that they are more dear to her than any one else as she had no other near relations. She, therefore asks the Court to review the order, dated the 16th December 1922, and to revoke the administration order and appoint the petitioner as administratrix, but if the Court should think that any other person should be joined with her then let it do so. It will be seen that that petition was an application for review of the previous order and also asked for revocation of Letters of Administration already made.

When the matter came before the learned District Judge he considered that as the lady had been sitting in Court at the time when the order was passed on the 16th December she could not come forward now and ask for a re-hearing on the ground that her Counsel was absent. He points out that her claims to administer the estate were, in fact, considered upon that occasion and he rejected the application. It does not appear to have been pointed out to the learned District Judge that the grant of Letters of Administration made was a grant to person disqualified to hold that office. The matter, however, has been pointed out to us on appeal to this Court from the refusal to set aside the grant and the question is how we should deal with the present application. It is in form an appeal from an order refusing a review and it is pointed out to us that there are no grounds here for allowing a review. In the circumstances, I think, however, that we are entitled to and ought, having regard to the undoubted facts of this case--I refer to the fact that the grant is to persons who are not qualified to act as administrators--to treat the application as one u/s 115 of the C.P.C. and treat the matter as one of revision. It is quit clear that in making the grant objected to in this case the learned Judge was acting altogether without jurisdiction and if proceedings were taken to set aside that grant u/s 234 of the Succession Act there can be no doubt that the grant would inevitably be set aside. Whatever the intention of the learned Judge may have been the grant was in fact made to certain minors. It would appear from the order made by the learned Judge upon which the grant was made that he treated the father of the minors as himself the petitioner but looking at the record it appears that the father was not the petitioner at all. The minors themselves were the petitioners. Therefore the whole of the proceedings for grant of Letters of Administration were from first to last irregular and illegal. These minors had no power to be appointed and they were in fact'' appointed under the grant. In a case of this small magnitude, the total assets of the deceased being something in the neighbourhood of Rs. 8,000, 1 think it would be a disaster that this litigation should be prolonged unnecessarily and I consider, therefore, that we ought to act under the powers granted to the Court by Section 115 of the C.P.C. and treat this as a matter of revision. The grant cannot possibly stand and, therefore, in my opinion, must be set aside. The learned Judge will have to consider afresh and upon affidavits or evidence of the parties who is the proper person to be appointed administrator in this case. u/s 201 of the Succession x\\ct the widow of the deceased is, undoubtedly, the proper person to be appointed administrator unless there is good cause for excluding her. The learned Judge seems to have thought that her omission to refer to the existence of the grand-children in her application for a succession certificate was in itself quite sufficient to debar her claim. Looking, however, at the attitude she has taken throughout this case I cannot help feeling that her only interest in the matter is to see that her grand-children''s rights are protected. This, however, will be a matter for the learned Judge to consider when the application for administration comes again before him. He will then also have to consider whether there was any truth in the suggestion made by Mrs. Cassels that the father of these children is a spendthrift and addicted to drink. The whole matter, however, will be open to the District Judge and I do not wish anything I may say to prejudice him in favour of one party or the other. It is a matter which will have to be considered when he has the evidence before him but so far as the present application is concerned I think that the grant already made must be revoked. Let the sum paid into Court as Court-fee upon the application for Letters of Administration remain pending further orders. I think that the costs of this case ought to be realised out of the estate when the administrator is appointed and the estate is administered.

Foster, J.

I agree.