Kalyanikutty Amma vs Gourikutty Amma

Menon, J.—This is an appeal from an appeal from an order of the learned District Judge in Trichur refusing letters of administration to the Appellant in respect of the estate of her deceased husband, R.P. Nathan, on the sole ground that he had no jurisdiction to make a grant. The Respondent is the mother of the deceased and she supports the Appellant in her contention that the refusal was wrong.

R.P. Nathan died intestate in Malaya early in March 1949 and at the time of his death had "a fixed place of abode" in the Chittur Village within the jurisdiction of the District Judge of Trichur. He, however, left behind him no assets in this country, movable or immovable and the short question that arises for consideration is whether in the absence of Indian assets it is possible to make a grant under the Indian Succession Act, 1925.

The parties base their contention in favour of jurisdiction essentially on the wording of Section 270 of that enactment. The foundation of the jurisdiction of a Court to grant probate or letters of administration is that there is property of the deceased to be administered within the country and Section 270 does not in any way provide an alternative basis for a grant.

That section cannot be understood as dispensing with the necessity for the existence of Indian assets before probate or letters of administration can issue from an Indian Court. What it does is to detail the conditions under which a particular Judge will have jurisdiction to grant probate or letters of administration in respect of the Indian assets, and say that they may be granted if "the testator or intestate, as the case may be, at the time of his decease had a fixed place of abode, or any property, movable or immovable within the jurisdiction of the Judge".

We are not aware of any Indian decision which is directly in point. Section 270 has its origin in Section 46 of the Court of Probate Act, 1857 (20 and 21 Vict. C. 77) and the English decisions from the earliest time have insisted on English assets as a condition precedent to an English grant. In ''Evans v. Burrel'' 1859 4 Sw. and Tr. 185: 164 E. R. 1487 (A). Sir C. Cresswell rules:

It does not appear from the affidavits that the deceased left any property in this country. Unless he did so, there is nothing upon which the grant asked for would operate and I should have no jurisdiction to decree letters of administration to be granted.

and in - ''The Goods of Hannah Tucker'' (1864) 3 Sw. and Tr. 585: 164 ER 1402 (B) Sir J.P. Wilde said:

It is not one of the functions of this Court to determine as an abstract question who is the proper representative of a deceased person. The foundation of the jurisdiction of this Court is, that there is personal property of the deceased to be distributed within its jurisdiction. In this case the deceased had no property within this country, and the Court has therefore no jurisdiction.

Other decisions to the same effect are ''In Goods of Fittock'', (1863) 32 J.L.P. M. and A. 157 (C) where administration was refused because the deceased left no personal property in England and - ''In Goods of Coode'', (1867) 1 P. and D. 449 (D) where it was held that a will disposing only of property in a foreign country was not entitled to an English probate.

The jurisdiction of the ecclesiastical Courts from which the probate jurisdiction was inherited was based upon the presence of movables and that was the reason for the insistence on personal property, in the English cases prior to the Land Transfer Act, 1897. Since that enactment the existence of either real or personal property has been sufficient and since the Administration of Justice Act 1932, if has also been possible to make an English grant of probate or administration "notwithstanding that the deceased person left no estate",

The distinction between realty and personalty - so reminiscent of a feudal age and according to Maine and Austine so fruitful of litigation - was one of those technical distinctions of English law which Sir John Romilly and his Law Commission refused to import into the law of India. Their draft of the Indian Succession Act eschewed that distinction and we need not concern ourselves with it except as a background to the English decisions anterior to the Land Transfer Act of 1897.

It is clear from what has been stated above that the object of a grant is to enable the executor or administrator to administer the property in this country and where the deceased left no such property the Court has no jurisdiction to make a grant.

There is a good deal to be said in favour of a wider jurisdiction of the type conferred by the Administration of Justice Act 1932. Grants of the forum domicilii are often insisted upon by foreign Courts as a necessary preliminary to a foreign grant and it will certainly be an advantage if Indian Courts have the power to make grants in respect o persons dying abroad domiciled in India but leaving no property in this country.

This is a matter for the future. The law as it stands does not permit an Indian grant in a case like the present where there are no Indian assets to be administered and it follows that this appeal should fail.

We dismiss the appeal and leave the parties to bear their costs.