In Re: Laurence Claude Levack

Rajamannar, C.J.—One Lina Dalrimple Hay, a British National, died in England on 30-12-1950. She left behind her her last Will and

Testament dated 24-6-1944. In and by the said Will the testatrix appointed her two nieces, Miss E. J. E. Butcher and Miss B. Butcher, both

residents of London, to be the executrices thereof. Probate of the said Will was duly obtained by the said executrices from the Probate Division of

the High Court of Justice in England on 3-5-1951. On 23-8-1952 the said two executrices appointed Lloyds Bank Ltd., Calcutta, as their

attorneys for them, on their behalf and in their names to apply for and obtain from the High Court of Judicature, Madras, or from any other

competent Court in India Letters of Administration with a copy of the said Will annexed of the estate of the deceased and effects in India. By a

power of substitution, dated 17-12-1952 the said Lloyds Bank Ltd., Calcutta appointed Laurence Claude Levack (the petitioner herein), an

Officer of the said Bank, Madras Branch, to be the duly constituted attorney of the said two executriees to apply for and obtain from this court

letters of administration with a copy of the will.

Thereupon, the above petition was filed by Levack for the grant of Letters of Administration of the estate and effects of the said deceased with a

copy of the said Will annexed to have effect only in the State of Madras to him as the duly constituted attorney of the executrices with probate in

England of the said Will and for their use and benefit until they or either of them shall apply for and obtain probate in Madras. Along with the

petition, the petitioner filed a certified true copy of the probate of the said Will issued under the seal of the Principal Registry of the Probate

Division of the High Court of Justice in England. A question was raised, if, before Letters of Administration could be granted to the petitioner, an

administration bond should be given to this court u/s 291, Succession Act, (Act 39 of 1925, hereinafter referred to as the Act). It was contended

on behalf of the petitioner that the grant in this case was a grant u/s 241 of the Act and therefore the provisions of Section 291 of the Act do not

apply. It was therefore necessary to determine whether the petition fell within the scope of Section 241 of the Act.

On behalf of the petitioner, reliance was placed on the decision of a Bench of this court in In Re: Goods of Edwards Carmichael McCankie, in

support of the position that the grant in this case should be deemed to be u/s 241. The matter first came up before Subba Rao J. sitting on the

Original Side of this court, and he passed the following order:

The judgment of this court in In Re: Goods of Edwards Carmichael McCankie, appears to me to be in the teeth of the express provisions of

Section 241 of the Indian Succession Act. But sitting alone, I am bound by the Bench decision. This may be placed before the learned Chief

Justice for consideration whether the question may be placed before a Division Bench.

The petition was posted thereafter before a Division Bench consisting of Satyanarayana Rao and Rajagopalan JJ. The learned Judges thought that

the matter required consideration by a fuller Bench. They also suggested that as this matter was of sufficient importance notice should go to the

Advocate General to assist the court in coming to a decision in the matter. It now conies up before this Full Bench after notice to the Advocate

General who has appeared and has been of considerable assistance to us.

Section 241 of the Act runs thus:

When any executor is absent from the province in which application is made, and there is no executor within the province willing to act, letters of

administration, with the Will annexed, may be granted to the attorney or agent of the absent executor, for the use and benefit of his principal,

limited until he shall obtain probate or letters of administration granted to himself.

The conditions which have to be satisfied before Section 241 can apply are, (1) the executor is absent from the province in which the application is

made and there is no executor within the province willing to act, and (2) the person applying is the attorney or agent of the absent executor. In the

present case there can be no doubt that the petitioner must be deemed to be the attorney or agent of the two executrices. The question therefore is

whether the executrices can be said to be ""absent from the province."" ""Absent"" literally, that is, etymologicaily, means ""not present"". ""Present

means ""being in the place in question."" It follows that when an executor is not in the province in which the application is made at the time of the

application, the first condition must be held to be satisfied. There is no implication in the word ""absent"" that the person should have been at any

time present, or the person is only temporarily not present.

In -- ''Ashbury v. Eilis'', 1893 AC 339 (B) the Judicial Committee of the Privy Council had to construe the word ""absent"" which occurred in a rule

of the New Zealand Code, the material part of which is as follows:

In actions founded on any contract..........on proof that any defendant is absent from the colony at the time of the issuing of the writ, and that he is

likely to continue absent...... the court may give leave to the plaintiff to issue a writ and proceed thereon without service.

The following observations deal with the point: ""The only other contention related to the word ''absent'' in Rule 53. The appellant seeks to confine it

to persons who at some previous time have been domiciled or resident in New Zealand. It is not easy to appreciate the reasons why such an

artificial sense should be put upon the word; and during the argument their Lordships expressed agreement with the Judges of the Court of Appeal,

who held that the word is used in its ordinary sense, and describes persons who are not in New Zealand.

''Prima facie'', therefore, it looks as if both the conditions are satisfied in this case and the petitioner is entitled to the grant of Letters of

Administration u/s 241.

The question then arises whether the section will not apply because the petitioner in this case is unable to produce along with his petition the

original will. The production of the original will is not incumbent by reason of any provision in Section 241 of the Act, but because of the provisions

of Section 276(1) of the Act, which says that an application for probate or for letters of Administration with the will annexed shall be made ""with

the will"" except in cases mentioned in Sections 237, 238 and 239. These three sections deal with the case of a lost or destroyed will and the case

of a will in the possession of a person residing out of the province in which the application for probate is made and who has refused or neglected to

deliver it.

It is in this connection that Section 228 becomes important. It runs thus:

When a will has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the province, whether within or

beyond the limits of India, and a properly authenticated copy of the will is produced, letters of administration may be granted with a copy of such

copy annexed.

The will concerned in this case has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the province, i. e.,

in the English Court. A properly authenticated copy of the will has also been produced. Though not mentioned in Section 276, a case coming u/s

228 would also be an exception to the general rule in Section 276. A great deal of confusion has resulted on account of the expressions ""letters of

administration with will annexed"", ""with copy of the will annexed"" and ""with a copy of such copy"". In our opinion, there is no substantial significance

in these expressions so far as the light of the petitioner goes. Even when letters of administration are granted on an application made along with the

production of the original Will, the original Will itself is never annexed to the letters granted. It is only a copy of the original will that is annexed to

the letters.

Ordinarily this is so, because ordinarily the original will is produced along with the application for letters. But when the original will cannot be

produced because it has already been lodged in a court of competent jurisdiction, the letters can be granted not with a copy of the will annexed,

but only with a copy of the properly authenticated copy of the will. That no significance attaches to the expression ''""will annexed"" is evident from a

perusal of some of the sections of the Act. In Section 231 which provides for the grant of letters of administration when an executor renounces or

fails to accept an executorship within the prescribed time, the language used is

The will may be proved and letters of administration with a copy of the will annexed may be granted"".

In the next Section 232 which provides for the grant of letters of administration to a universal or residuary legatee in certain contingencies, the

language used is

Letters of administration with the will annexed may be granted"".

In Section 213 the language used is: ""has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed''.

In our opinion the expression ""Letters of Administration with will annexed"" is used in antithesis to letters of administration granted on intestacy.

Reading therefore Section 241 along with Section 228 of the Act it follows that an attorney or agent of an absent executor can obtain letters of

administration without producing the original will if the will had been proved and deposited in a competent court and a properly authenticated copy

of the will is produced.

In In Re: Goods of Edwards Carmichael McCankie, , the correctness of which is the matter for consideration by us, one Me Cankie died in

England leaving a will, probate of which was obtained in England. The testator appointed one Mrs. Hawkins as his executor. She not being able to

go to Madras, granted a power of attorney to one Sell to enable him to apply as her agent. The agent made an application, and it was held that it

fell within Section 241. The learned Judges there ruled that letters of administration with a copy of the Will annexed could be granted under that

section i. e., Section 241 without security in favour of an agent who applies on behalf of the principal who had obtained probate of the Will in

England. The learned Chief Justice who delivered the leading judgment of the Court referred to the practice of this court ever since the Succession

Act of 1865 to grant letters of administration with a copy of the will annexed in cases such as that before him without requiring security to be

furnished. The Court was also informed that the same practice prevailed in the Calcutta and Bombay High Courts. Of the two decisions cited

before the learned Judges, namely, ''In the goods of Leckie'', 15 Beng LR (App) 8 (C) and ''in the goods of William Ashton'', 1905 All WN 251

(D), the learned Judges preferred to follow the decision in ''15 Beng. L. R. (App) 8 (C)''. The learned Chief Justice repelled the contention that

Section 241 was intended to apply only to cases where the executor was temporarily absent from the province but his return was contemplated.

The other learned Judge, Krishnaswami Aiyangar J. came to the same conclusion as the learned Chief Justice but not without hesitation. He also

referred to the uniform practice of this court and of the Bombay and Calcutta High Courts which appears to have solely influenced him to agree

with the learned Chief Justice.

Derbyshire C. J. and Gentle J. followed the Madras decision in ''In the goods of Sidney Thomas Mathison, AIR 1949 Cal 560 (E)''. They held

that where the original will had been proved and deposited in another court outside the province and could not be produced letters of

administration with a copy of the will annexed may be granted to the attorney of an absent executor for use and benefit of his principal limited until

he obtains the grant himself u/s 241 read with Section 228, Succession Act The learned Judges followed the rulings in -- ''15 Beng. L. R. (App.) 8

(C) and Ram Singh and Another Vs. Emperor through Dhanpal, , and dissented from the decision of the Allahabad High Court in -- '' 1905 All W.

N. 251 (D)''.

The Act in force when -- ''15 Beng. L. R. (App) 8 (C)'' was decided was the Succession Act of 1865 and the section corresponding to Section

241 of the present Act was Section 212. A British subject possessed of property both in India and England died in England leaving a Will by

which he appointed four persons to be his executors in England and one W. D. his executor in India. Probate was granted to the four English

executors in England but W. D., the Indian executor, renounced probate. One D. G. L., the attorney in India of the English executors, filed an

application for letters of administration with the will annexed. It was held that the attorney was entitled to letters of administration. Phear J.

observed that it would be in accordance with the practice of the Court that letters of administration with the will annexed should be granted to the

attorney.

A contrary view was taken by the Allahabad Hing Court in -- ''1905 All W. N. 251 (D)''. In that case the will of one William Ashton was duly

proved by the executors in England. As some portion of the estate dealt with by the will was in India, the authorised attorney of the executors

applied to the High Court for grant of letters of administration. He filed along with the application an authenticated copy of the probate. The

learned Judges held that the application could not be sustained, first because only a copy of the will and not the original was produced and

secondly because the executors could not under the circumstances ever obtain probate of the will in India. In their opinion the section which was

intended to apply to cases of this kind was Section 180 of the Act of 1365 which corresponds to Section 228 of the present Act.

A Full Bench of the Allahabad High Court in -- Adwait Nath Sil Vs. In the goods of Alexander James Milne Late of Aberdeen, followed the

earlier ruling of their Court in -- '' 1905 All W. N. 251 (D)'' and refused to follow the decision of our Court in In Re: Goods of Edwards

Carmichael McCankie, . The learned Judges held that according to the scheme of the Indian Succession Act Sections 228 and 241 are intended to

apply in very different circumstances, the former where the Will has been proved abroad and the latter where it has not been proved at all. While a

Court in India can, when acting u/s 226, grant administration without further proof of the Will, on a petition u/s 241 the Will has to be established.

Where a Will had been proved and deposited in a competent Court in Scotland, letters of administration with a copy of the authenticated copy of

the Will annexed could be granted u/s 228 to the absent executor, but letters of administration could not be granted u/s 241. The learned Judges

dealt with the question after observing that there was never any question of the right of the attorney of an executor who has proved a Will in a

foreign court to obtain from an Indian court a grant of letters of administration with a copy of the Will annexed. The only question was whether the

grant should be u/s 228 or u/s 241. In their opinion the appropriate section was Section 228. They referred to the longstanding practice obtaining

in the Presidency High Courts of grants being made u/s 241 and the section in the previous Act corresponding to it, but there was no such practice

in the Allahabad High Court. Mootham J. who delivered the leading judgment of the Full Bench encountered some difficulty in the application of

either section to the case, the facts of which are almost identical with the facts of our case, because Section 228 did not make provision for the

grant of administration to an agent or attorney and Section 241 assumed production by the attorney of the original Will.

With great respect to the learned Judges of the Allahabad High Court we prefer to follow the decision in In Re: Goods of Edwards Carmichael

McCankie, Which affirms a longstanding practice of this court extending very nearly to a century. In our opinion Sections 228 and 241 should not

be read as if they provided for separate circumstances and they were mutually exclusive. On the other hand, we think that in a proper case they

could be read together. It is true that the objects of these two sections differ. The real object of Section 228 is to dispense with the production of

the original Will and proof thereof for a very good reason, viz., that it had already been proved and had been deposited in a court of competent

jurisdiction. The real object of Section 241 is to dispense with an application by the executor himself when he is absent from the province in Which

the application is made. We do not see why both these sections cannot apply to a case where (1) the Will has been proved and deposited in a

court of competent jurisdiction and (2) the executor is absent from the province in which the application is made. In such a case Section 228 would

dispense with production and proof of the Will and Section 241 would enable an attorney of the executor to make the application. If the attorney

of the executor applies in a case where the Will has not been proved before, then his application would come only u/s 241, and the applicant will

have to produce and prove the Will.

We think that undue weight has been given to the words ""with the will annexed"". They only indicate that the administration should be in

accordance with the terras of the will in antithesis to the case of administration on intestacy.

Section 241 and the corresponding section in the prior Act obviously have their origin in the practice of the Ecclesiastical Courts in England to

grant limited administration ''durante absentia''. When such administration is granted, the grantee has the same rights and liabilities as an executor.

The section as it stands applies to cases of Wills executed in India as well as to Wills executed outside in respect of which the proper court to grant

probate would be a foreign court. It contemplates the case of an executor applying for letters of, administration which can only be u/s 228.

Section 291(1) of the Succession Act of 1925 exempts a person to whom letters of administration are granted u/s 241 from giving an

administration bond. Sub-section (2) of that section enacts that the exception made in respect of a grant u/s 241 shall not operate when the

deceased was a Hindu, Mahomedan, Buddhist, Sikh, Jain or an exempted person. It is not necessary to speculate as to why the grantee of Letters

of administration u/s 241 should be exempted and why this exemption should not apply in the case of the Wills of Hindus, Mahomedans,

Buddhists, Sikhs and Jains. All that we have to find out is if the present application falls within Section 241. In our opinion it does. Letters will

therefore issue without insisting upon security being furnished.