In Re: The Will of Ramchand Gurdasmal: Mangharam Wadhwani

Ramaswami, J.—These papers have been put up by the office in Diary No. 15008 for decision of two points viz. (a) jurisdiction for

admission and (b) affidavit of assets not being in form and affecting jurisdiction and duty.

The facts are: One Gurudasmal had acquired a large fortune in South Africa & had settled in Poona at the time of his death. He had married

according to the Hindu rites one Putlibai, and by her had no issue. In South Africa he seems to have been living with one Frances Meyer by whom

he has two sons Heman and Vivian and whom he has acknowledged as his sons. Those sons have got married and have families of their own.

Under his last will and testament dated 9-1-1953 this Gurudasmal appointed two sets of executors, one for the South African properties and five

executors for his Indian properties.

In these proceedings we are concerned only with the Indian properties. It is enough for our present purpose to mention that under this will besides

certain charities and trusts, etc., the testator has bequeathed all his properties in the shape of maintenance for his wife Putlibai and his sons and

daughters-in-law. The major portion of the assets are outside this State and so far as Madras is concerned the assets here are three items viz.

amount due from Messrs. Kewalram Chellaram, Bombay and Madras, Rs. 3,00,000/-; Rs. 15,000/-due from Messrs. Rupchand and Sons,

Madras; and Rs. 25,000/- due from Messrs. Hashmatrai and Sons, Madras, and considerable accrued interest thereon.

The net assets sworn to are Rs. 13,00,000/- odd. The affidavit of assets mentions at the end that out of the amount of interest mentioned in item 9

in Annexure ''A'' from seven persons Rs. 85,297-3-9 have been collected. This amount is shown as not liable to duty. It is in these circumstances

that the petition for probate has been made by one of the Indian executors Rai Bahadur Mangharam Wadhiwani.

Point (a): Jurisdiction: The jurisdiction to grant probate is contained in Ss. 279 and 271, Indian Succession Act. Under S. 270 the conditions of

the jurisdiction to the District Judge or the original side Judge of the High Court are that it should appear from the petition for the grant that the

deceased had, at the time of his decease (a) a fixed place of abode; or (b) any property, movable or immovable, within the jurisdiction of the

District Judge or the original side Judge of the High Court.

In this case the fixed place of abode of the testator was in Poona, outside this State and therefore we have to consider only cl (b). In regard to this

clause the settled case-law is as follows:-The existence of any property would be sufficient. Thus a watch and chain and an umbrella might be

sufficient to give jurisdiction: In re Mohendra Narain, 5 Cal WN 377 (A). So also debts which are to be paid according to the terms of an

agreement to the deceased or his heirs residing within the jurisdiction of the Court: Khubchand Bhai v. Motilbai, AIR 1936 Bind 150 (B).

Again the court within whose jurisdiction the office of the officer dealing with the provident fund due to a deceased railway servant lies can

entertain the application for grant of probate for the provident fund money: F. G. Stimpson v. E. M. Bennett, AIR 1946 Oudh 73 (C). It has been

held that the testator''s share in the assets of predeceased son is property within the meaning of S. 271 and therefore the Court within whose

jurisdiction such property lies has jurisdiction to entertain an application for grant of AIR 1949 90 (Nagpur) ).

The question as to the adequacy of the property within jurisdiction might arise in considering the question of convenience under S. 271, so that if it

appeared to the Court that the bulk of the property of the deceased was elsewhere the Court might in its discretion refuse to exercise jurisdiction:

Bai Mancha v. Bai Ganga, 1 Bom LR 666 (E).

Where, however, in such a case a grant is made by the District Judge and the same is not limited to property within his jurisdiction, the grant is not

for that reason bad: AIR 1944 29 (Privy Council) It is enough that the property in question was in the possession of the deceased at his death, the

question of his title to it will not be considered, as questions of title are foreign to the Court of Probate. Run Bahadoor Singh v. Rajrup Koer. 4 C

L R 498 (G).

The existence of property within jurisdiction would be sufficient even though the testator might be a foreigner residing abroad subject to the

discretion of the Judge under S. 271 : Bhaurao v. Lakshmibai, 20 Bom 607 (H); Golam Sobhan v Mahomed Rouf, 20 Suth WR 286 (I); Ravji

Renchod Naik v. Vishnu Ranchod Naik 9 Bom-241 (G). The question as to where the will was executed is immaterial on the question of

jurisdiction under S. 270:

(For a lucid discussion of the scope of S. 270 see Basu, Indian Succession Act, Third Edn. 1946 (Eastern Law House, Calcutta) pp. 1014-1017;

Sen Gupta, Indian Succession Act (1950) (N.Y. Roy- Chowdry and Co. Calcutta) pp. 563-565).

But a discretion is vested both in the District Judge as well as in the Original Side Judge of the High Court under S. 271 to refuse an application

for the grant of probate. This section totally excludes the discretion of the Judge where the deceased had fixed place of residence within his

jurisdiction. In that case the District Judge cannot refuse the application but the High Court would have power under S. 24, C. P. C. to transfer the

case to another Court where superior convenience or hardship of the parties is established.

This is not the case however where jurisdiction is founded on the existence of property within the jurisdiction and then the Court can exercise its

discretion only on the ground that the matter may be mote justly or conveniently disposed of in another District or in another State. This discretion

cannot, however, be lightly exercised against the applicant for grant, for he is the dominus litis who can choose his own forum unless there are

sufficient grounds for refusing jurisdiction. Nripendra Kumar, Dutta, Receiver Vs. Nadir Khan, , Babu Debi Bakhsh Singh Vs. Smt. Ashtbhuja

Ratan Kunwar and Another,

There can be no question that the fact of the bulk of the properties being at a great distance from the District or metropolis where the grant is

sought would be a good ground for the exercise of discretion. For the Court has several functions to exercise in connection with the administration

of estates and it would be inconvenient to exercise such functions if the properties were abroad. It has been held that where the property within

jurisdiction was trifling the application may be refused: 1 Bom L R 666 (E); 20 Bom 607 (H) O.V. Forbes Vs. V.G. Peterson,

The section gives no definition or limitation of the word ''convenient''. The Court has to determine after considering all circumstances whether it is

convenient. The fact that most of the witnesses to the will are outside jurisdiction is a matter which only concerns the applicant and the objector

cannot raise objection on that ground. Nripendra Kumar, Dutta, Receiver Vs. Nadir Khan, ).

But if the ground urged is that the witnesses for the objector are outside jurisdiction that would surely be an important matter for consideration. The

expenses of the litigation are also to be considered. I need not point out that these are all matters which can only be considered after the objector

comes forward and presses these points.

Bearing these principles in mind, if we examine the facts of the instant case there are no grounds to exercise our discretion at this stage because

the movable properties in Madras State are not trifling and there is nothing to show that the other inhibiting circumstances from entertaining

jurisdiction are evident in this case. Therefore, on the question of jurisdiction I hold that the mere fact that the executor applying for probate is not

residing in this State is no ground at all for refusing jurisdiction.

Point (b): This arises from the following note of the office, that the affidavit of assets is not in proper form as given in Sch. III, Court-fees Act,

for it contains an additional paragraph in which the petitioner states that he had collected after the death of the deceased and before the filing of the

petition a sum of Rs. 85,297-3-9 which is not subject to duty.

That an executor when appointed by will derives his title from the will and the properties of the testator vest in him immediately after the death of

the testator is well settled. Moreover, probate when granted relates back to the time of the testator''s death. ""The law knows no interval between

the testator''s death and the vesting of the right in his representative. As soon as he obtains probate, his right is considered as accruing from that

period"": Per Lord Denman C.J. in Whitehead v. Taylor (1839) 10 A and E 210 at p. 212 (N).

It follows that any executor who is of full age may after his testator''s death and before he proves the will, do any act incidental to his office except

bring actions. ""An executor is a complete executor as to every intent but bringing of actions before probate, so that he may release a debt due to

the testator, assent to a legacy, intermeddle with the goods of the testator"": Per Powys J. in Wankford v. Wankford (1699) 1 Salk 299 at p. 301

(O), See also In Re, Stevens; Cooke v. Stevens, (1897) 1 Ch. 422 at p. 430 (P).

He may even distrain for the rent due to the testator, and he may sell or otherwise dispose of the testator''s real and personal estate, but he cannot

prove his title to convey or assign the property sold except by producing the probate or other admission of the will in the court. Though an

executor as such cannot maintain actions before probate, he may commence an action and continue it until such time as the production of the

probate becomes necessary, but he must be ready to produce it then.

It is quite clear that an executor derives his title and authority from the will of his testator and not from any grant of probate. The personal property

of the testator, including all rights of action, vests in him upon the testator''s death, and the consequence is that he can institute an action in the

character of executor before he proves the will. He cannot, it is true, obtain a decree before probate, but 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"": Per Lord Parker

in Meyappa Chetty v. Subramanian Chetty, AIR 1916 PC 203 at p. 204 (Q). Thus, probate is a document issued under the seal of the Court and

is official evidence of the executor''s authority.

A person, therefore, who has been nominated by will to act as executor, must obtain grant of probate before he can take any steps which require

formal proof of his authority, though unlike an Administrator an executor derives his title from the will and probate does no more than certify the

validity of the will and of his appointment and does not itself appoint him to his office or constitutes a condition precedent for his exercising many of

his powers.

A probate copy constitutes a recognised legal evidence of the will and of the executor''s title. When the will is Proved the Court has the legal optics

through which to look at it. Ramamurti Law of Wills p. 439 et seq; Williams on Executors and Administrators 13th Edn, (1953) p. 57 and foll;

Bailey Law of Wills (Pitman) 1953 p. 7 Tristram and Coote''s Probate Practice Nineteenth Edn. P. 77 and foll. Therefore the mere fact in the

instant case that the sum of Rs. 85,297-3-9 has been collected and that this has been excluded from the affidavit of assets would not either make it

not being in proper form or affect the question of jurisdiction.

This will, however, affect the question of imposition of duty concerning which there are two possible views. One is the date of valuation of the

property of the deceased for the purpose of calculation of court-fee should be the date of application for probate and not the date of the death of

the deceased and in which case collections made before the date of application for probate would possibly constitute deductions from levy of duty.

The other view is that under S. 227, Indian Succession Act a probate when produced relates back to the testator''s death and is therefore of the

same effect as if the will has been proved immediately after the death of the testator and as the property of the deceased vests in the executor from

the time of his death and the law knows no interval between the testator''s death and the vesting of the right in his executor and under S. 227 grant

of probate has the effect of validating all the intermediate acts of the executor, the duty must be paid on the entire assets of the deceased at the time

of his death and probate cannot ordinarily be granted for portions of the estate only.

In the latter case the executor is not without remedy because the grant of probate can be limited in exceptional cases. But this is a matter which

has, however, to be decided separately after giving notice to the Government Pleader involving as this question does the revenues of the State.

This Diary is directed to be taken on file if otherwise in order with notice to the G. P. regarding the levy of duty.