Labanya Prova Guha vs Balai Chandra Mukherjee

Salil Kumar Datta, J.—This is an appeal by the Defendant No. 4 against the judgment decreeing the Plaintiffs Respondents'' suit thereby allowing their application for grant to them of letters of administration with the copy of the will annexed in respect of the estate of one late Harimohan Ghosal.

The relevant facts according to the Plaintiffs are as follows:

(a) Harimohan Ghosal was the owner of the premises No. 5, Saha Nagar Road, Tollygunge, Calcutta. He executed a will on December 3, 1927, which was registered on December 5, 1927, Ex.4. The will, was attested by several witnesses. By the said will, Harimohan who was childless bequeathed all his properties, movable and immovable, to his wife Durgamani who was also appointed the executrix to the will. On the same day, that is, December 3,1927, and prior to the execution of the will, Harimohan sold about 15 cottahs 9 chataks of land beings; portion of premises No. 18 Russa Road to Balaram Dolui and others for Rs. 3,117. The said deed was also registered or December 5, 1927. At the time of execution of the said sale deed Harimohan received Rs. 517 in cash and for the balance of Rs. 2,600 he took an instalment bond from the purchasers in favour of his wife Durgamani. The certified copy of the sale deed was marked Ex. 1 after the original was proved.

(b) Harimohan died on March 19, 1928, leaving the said Durgamani as his only heir. Durgamani did not, however, take out the probate of the will of Harimohan. She executed a will on February 22, 1946. By the said will Durgamani gave the property in dispute to the Plaintiffs in this contentious suit out of which the present appeal arises. This will was duly probated on April 3,-1948, and the executors mentioned in the will duly administered the estate and rendered accounts. The probate with the copy of the will of Durgamani deceased is Ex. 6.

(c) It may be mentioned here that the said Plaintiffs, hereinafter referred to as the applicants for grant, are the sons of a daughter of late Kali Mohan Ghosal who was the elder brother of late Harimohan. They filed an application for grant to them of letters of administration to the estate of late Harimohan Ghosal which being objected became contentious and was converted a suit.

The application for grant was really contested by the Defendant No. 4, the Appellant before us, who is the purchaser for consideration of the right, title and interest of Defendant No. 5, the alleged reversionary of late Harimohan in the property in dispute. The Appellant contended, inter alia, that the suit was barred by Section 213(1) of the Indian Succession, Act, 1926 (XXXIX of 1935), that the applicants had no Locus standi to'' apply for grant of letters of administration and the will was not executed by the testator nor validly attested by the witnesses.

The suit was tried on evidence� and oh the materials on record the learned Judge was of the opinion that the will was duly executed by Harimohan and was also duly attested. The learned Judge further found that the Plaintiffs had the locus standi to apply for the letters of administration to the estate of Harimohan Ghosal. The suit was also held as maintainable in law and was, accordingly, decreed and the letters of administration were directed to be issued on payment of proper stamp duty. The contesting Defendant No. 4 had preferred this appeal against the said decree.

Mr. Jitendra Nath Guha, the learned Advocate appearing for the Appellant, firstly contended that Section 213(1) of the Indian Succession Act, 1925, is a complete bar to the establishment of any right of the applicants for grant of letters of administration to the estate of late Harimohan Ghosal on the basis of his will of December 3, 1927, which was never probated. In support he relied on the decision in the case of Mrs. Hem Nolini Judah (since deceased) and after her Legal Representative Mr. Marlean Wilkinson Vs. Isolyne Sarojbashini Bose and Others, . Shorn of details in the above case, the Respondent Mrs. Bose instituted a suit for a declaration that she was the owner of at least, two-thirds of a house at Lucknow. This property originally belonged to Dr. Miss Mitter who died in July 1925 leaving her mother Mrs. Mitter, and three sisters Mrs. Judah, Mrs. Bose and Mrs. Momin. She left a will whereby she bequeathed the house to her mother Mrs. Mitter. Subsequently, Mrs. Mitter made a will in favour of the Appellant Mrs. Judah. No probate of the will of Dr. Miss Mitter to Mrs. Mitter was taken out. Mrs. Mitter died in 1934 and the letters of administration was granted to Mrs. Judah in respect of the will of Mrs. Mitter. In the said suit filed by Mrs. Bose, Mrs. Judah claimed the property in its entirety and the trial Judge held that Mrs. Judah was entitled to the house by virtue of the letters of administration granted to her of Mrs. Mitter''s will. On appeal, the High Court held that as the will of Dr. Miss. Mitter in favour of her mother Mrs. Mitter was not probated nor letters of administration were obtained with respect thereto on the death of Dr. Miss. Mitter, her three sisters and mother stated above, who were then alive, became equally entitled to the property left by her. As Mrs. Mitter''s share must be deemed to have been willed away to Mrs. Judah and the other sister Mrs. Momin''s share was gifted to Mrs. Bose, the High Court gave a declaration to the Plaintiff Mrs. Bose that she was entitled to half share in the house in dispute. An appeal was preferred against the said decision by Mrs. Judah and it was held by the Supreme Court that as Mrs. Bose wanted to establish that Mrs. Mitter was the legatee of Dr. Miss. Mitter and, therefore, entitled to the whole house, she could only do so if the will of Dr. Miss Mitter in favour of Mrs. Mitter, under which the right is claimed had resulted in the grant of probate or letters of administration As no such grant was obtained, the contention of Mrs. Judah a: Defendant claiming the house in its entirety was rejected, as it was: taken as if Dr. Miss Mitter had died intestate. On the above principle Mr. Guha contended that as the will of late Harimohan was not probated nor were letters of administration granted in respect thereof, the will of late Harimohan must be deemed as if it did no exist and thus Harimohan must be deemed to have died intestate His wife Durgamani, accordingly, had a life estate on the death o Harimohan, which on her death reverted to the reversioner of lat Harimohan. Thus the applicants acquired no interest in the property and their attempt to establish their right to the property as legatee was absolutely barred u/s 213(1). Mr. Shyama Charai Mitter, the learned Advocate appearing for the contesting Respondents the applicants to the grant of the will, opposed the above contentions and submitted that on a true interpretation of Section 213(1) it must be held that it was no bar for grant of the letters of administration to the applicants.

That on an examination of the respective contentions of the parties and in the light of the decision of the Supreme Court referred to above it is obvious that Section 213(1) is a bar to the establishment of any right as executor or legatee unless the probate of the will under which the right is claimed or the letters of administration with the will or copy thereof is granted. Before, therefore, any right in any property is sought to be established, there must be a grant of the probate or of the letters of administration in respect of the relevant will under consideration and in absence of any such grant either of the probate or letters of administration, the will under consideration must be deemed to be not in existence.

We find, however, that the present suit was not a suit for declaration of any title or right; in the property of the testator on the basis of his unprobated will or of his will in respect whereof no letters of administration were granted as was the case of Hem Nolini Judah v. Isolyne Sarojbashini Bose (Supra). We have here an application filed by certain persons claiming as legatees of Durgamani on the basis of her probated will, by which they are trying to obtain letters of administration on proof of the will of late Harimohan. The grant of a will or letters of administration is not concerned with the title of the testator in the properties bequeathed with the declaration or establishment of any interest or right of the legatees in the property of the testator on the basis of an un-probated grant of a will. On the contrary, this is an application converted" to a suit in view of the contention wherein a grant is sought on the proof of the will. The Supreme Court was not concerned in the above case with the issue of the grant itself but with the declaration of the Defendant''s claim of title to the property set up on the basis of a will which was not probated nor any grant was issued. On an interpretation of Section 213(1) it appears to me that while the establishment of any right in a property as executor or legatee on the basis of a will in respect whereof there is no grant of probate or letters of administration, is prohibited by Section 213(1), it does not prohibit the application for a grant itself of probate or letters of administration of a will upon proof thereof. In the circumstances, we are unable to accept! the contentions of Mr. Guha that the application for grant; itself is barred u/s 213(1) or by the decision cited by him.

Mr. Guha next contended that the applicants for grant had no locus standi to apply for administration of the estate of late Harimohan. He contended that u/s 233 of the Act the applicants could not be the representatives of Durgamani as they were the legatees of part of her estate, as will appear from her will a copy whereof is annexed to the grant of letters of administration, Ex. 6. In support he relied on the decision in Natesa Sastrigal and Another Vs. Alamelu Achi by power agent, K.S. Sundaram Chettiar, where it was held that the expression legal representatives'' does not include legatees of a part of the estate. The decision in Haribhmom v. Manmatha Nath I.L.R.(1918) Cal. 862 was also referred to where it was held that the right to a grant of administration is a personal right and although ''the applicant, if the will is established, may be the proper person to obtain a grant this would be so not by virtue of any right to administration, which he inherits from his father, but by virtue of the fact that as heir of his father to the residue he is the person most interested in the estate.

Reliance was also, placed in the case of Haripada Saha and Another Vs. Gobinda chandra Saha and Others where it was held that the executor''s right to probate was a personal right derived from the appointment made by the testator himself, and, on his death pending the hearing of the probate suit the right to sue does not survive in favour of his legal representative. The proper thing in such a case is not to continue the proceedings as substituted heirs of the executor, when the executor dies before grant but to put in fresh application praying for letters of administration with a copy of the will annexed as heirs and personal representatives of the deceased sole legatee. It was held that Section 233 deals with the right of the personal representatives of the residuary legatee and lays down that the personal representative of a deceased legatee can claim the right of administration-cum-iesta-mento-annexo as the residuary legatee himself only when the personal representatives have vested in them the beneficial interest Which the residuary legatee himself had. According to Mr. Guha, in the absence of the proof of the will of late Harimohan the applicants could claim no interest in his estate even as heir or personal representative of Durgamani as she had merely a life estate subject to reversion or her death.

Mr. Mitter opposing the said contentions has relied on the decision in The Andhra Bank Ltd. Vs. R. Srinivasan and Others, in which case the Supreme Court repelled the argument that a legatee who obtains a part of the estate of the deceased under a will cannot be said to represent his estate and is, therefore, not a legal representative u/s 2(11) of the Code of Civil Procedure, as its plain construction, considerations of logic and common sense are equally against it. It was held on an interpretation of the relevant provision that the clause ''a person who in law represents the estate of a deceased person'' must include different legatee under the will, and the observation in Natesa v. Alamelu (Supra) to the effect that Section 2(11) does not include legatees of part of the estate, was held as not representing the correct view. It must, accordingly, be held that the applicants had the locus standi to apply for grant even if they were legatees of the part of the estate of Durgamani if not otherwise barred.

Mr. Guha contended that the meaning of ''legal representative'' as in Section 2(11) of the CPC is for the purposes of procedure and cannot affect the substantive rights provided by the statute for grant. In- support he referred to the decision in Amarchand and Another Vs. Parmanand and Others where it was held that the definition of the expression legal representative'' is only meant for the purpose of the. Code and not a general statement of substantive rule of law. It may, however, be noted that. Section 233 is within pt. IX of chap. I of the Act which contains provisions to be followed for grant of probate and. letters of administration with the will annexed and the administration of the assets of the deceased. Chapter IV of the same part contains provisions on the practice in granting and revoking probates and letters of administration and in Section 268 it is provided that the proceedings in relation to probate and administration is to be regulated by the CPC unless otherwise provided and so far as the circumstances permit. I am not inclined to hold that the right to apply for grant as in Section 233 is a substantive right simpliciter or that Section 2(11) has no application. It may also be noted that the expression in Section 233 is ''representative'' which has much meaning and implication than the expression ''legal representative'' as was pointed out in Re Manji Jetha Lakhani AIR 1932 -Bom. 270.

In Section 213, it is provided that. no right as executor or legatee can be established unless a competent Court has granted the probate of the will under which the right is claimed or has granted letters of administration with the copy of the will annexed. The executor or legatee, as the case may be, has therefore to apply in a competent Court for the grant for establishing their respective rights under the will. In the instant case, by the will of late Harimohan who was childless, his wife Durgamani was expressly appointed the sole executrix of his will as also the sole legatee and, accordingly, she was entitled to having a beneficial interest to the right, to a grant of probate in her favour u/s 222. Durgamani died without even applying for grant of probate of the will of late Harimohan though under her will, which was duly probated the applicants are her legatees of the property in dispute which Durgamani claimed to be hers obviously on the bequest of the will of Harimohan. We have seen that the applicants on the basis of the grant of probate of Durgamani''s will, Ex. 6, are the legal representatives or at least representatives of Durgamani being her legatees under her will of the property in dispute. There is no dispute also that in the circumstances the estate of late Harimohan could not be and had not been administered by Durgamani qua administrator legally and properly appointed as required under the law. If Durgamani could apply for grant in such circumstances to establish her absolute interest bequeathed under Harimohan''s will her representatives had the same right to apply as the conditions of Section 233 were satisfied. It is no answer that Durgamani could have no further interest than a life-interest liable to reversion in late Harimohan''s estate, as, according to the Appellant, Harimohan in absence of proof of his will must be deemed to have died intestate and on Durgamani''s death the property reverted to late Harimohan''s heirs. On the principles of Sections 105 and 119 the bequest vested in the wife, Durgamani, on the death of Harimohan under his will and passed to the representatives or the legatee Durgamani on her death though such right of the legatee could be established by a grant of probate or letters of administration. It is precisely for the establishment of the right of Durgamani as absolute legatee under late Harimohan''s will and through her of her legatees under her will duly probated that the present application for issue of grant of letters of administration with copy of late Harimohan''s will annexed, has been filed and in our opinion properly and in accordance with law. We, therefore, overrule the contentions on behalf of the Appellant) and hold that the applicants had the locus standi to apply for grant of the letters of administration with a copy of late Harimohan''s will annexed.

Mr. Guha lastly contended that the learned Judge erred in holding that the will of late Harimohan was genuine and duly executed by him. The learned Judge, in arriving at the said conclusion, compared the signature of Harimohan in the will with his signature appearing in the sale deed of even date executed by Harimohan and he was satisfied that both the signatures were of the same person. Mr. Guha''s objection to this procedure was that there was no evidence that the standard of comparison of the signature, namely the signature in the sale deed, the original of Ex. 1, was the real signature of Harimohan. Mr. Guha further contended that ''the will was filed in Court before the expiry of thirty years and as such the presumption of ancient document u/s 90 of the Evidence Act was not available to it, and in any event the presumption, though it might relate to the execution of documents, did not extend to the testamentary capacity of the testator.

Mr. Mitter opposing the said contentions relied on the decision in MunnaLal v. Mst. Kashibai 51 C.W.N. 175 where it was held by Privy Council as follows:

A party setting up a will is required to prove that the testator was of sound disposing mind when he made his will but in the absence of any evidence as to the state of the testator''s mind proof that he had executed a will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind, and understood what he was about. This presumption can be justified under the express provisions of Section 90, since a will cannot be said to be duly executed by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of Section 114, since it is likely that a man who performs a solemn and rational act in the presence of witnesses is same and understands what he is about.

In view of the above decision, in absence of even any suggestion about the mental state of late Harimohan, the Court would be justified in making the presumption that Harimohan duly executed the will, and at the time of execution he had the requisite testamentary capacity if such presumption was available u/s 90. In Sarat Chandra Mondal and Others Vs. Panchanan Mondal and Another, it was held that the reason for the rule embodied in Section 90 is based on the impossibility of obtaining living testimony to the signing or the handwriting of a document. Accordingly, the time should run from the date which the document bears. In AIR 1936 15 (Privy Council) it was held that the material date is the date when the document is tendered in evidence. In the instant case, _the will Harimohan executed bears date of December 3, 1927, and it was admitted in evidence on September 1, 1959, though filed on September 9, 1955. The presumption of ancient document u/s 90 was thus available to the will of Harimohan and we must hold in view of the above authorities and in agreement with the trial Court that the will, Ex. 4, is the genuine and valid will of Harimohan duly executed by him. It may also be pointed out that the deed of sale, Ex. 1, executed by Harimohan on the same day as the will selling another property belonging to him had long been acted upon and was not at any time challenged! by any reversionary of Harimohan, and we find nothing wrong also in the procedure adopted by the learned Judge in comparing the signature of Harimohan thereon with his signature as appearing in the will. No dispute as to the signatures of the attesting witnesses has been raised and such signatures have also been duly proved.

As all the contentions raised on behalf of the Appellant fail, the appeal is dismissed, parties bearing their own costs in this Court.

S.K. Chakravarti, J.

I Concur with my Lord in the findings he had arrived at as also on the reasonings behind the same and in the border proposed. I would like, however, to add a few words of my own on the main point raised by Mr. Guha.

The facts of this case have been very elaborately dealt with by my Lord and do not require a repetition. The main point urged by Mr. Guha is to the effect that the Petitioner did not have any locus standi to file the application for probate of the will of Harimohan inasmuch as they derived no interest in the property left by. Harimohan by virtue of their having obtained probate of the will executed by Durgamani. He relies on a decision of the Supreme Court in Hem Nolini v. Isolyne (Supra). Now this decision does not lay down that the persons who are deriving benefit from the second will, would have no Locus standi to apply for probate of the first will. In that case what had happened was that the Plaintiff was claiming the property by virtue of a probate obtained by her of the will of her mother Mrs. Mitter. It was her definite case that Mrs. Mitter got this property in its entirety by virtue of a will executed by Dr. Miss. Mister in favour of Mrs. Mitter. That will which was executed by Dr. Miss. Mitter Was not probated. The Plaintiff filed a suit for declaration of her title to the property bequeathed to her by Mrs. Mitter. The Supreme Court observed that as Mrs. Mitter did not have the will by Dr. Miss. Mitter probated the Plaintiff would not have any title to the property on the basis of the will executed in her favour by Mrs. Mitter so long as the will left by Dr. Miss. Mitter was not probated. There are indications also in this judgment to show that what the Plaintiff should have done was to have obtained probate of the will of Dr. Miss. Mitter. Though this judgment was delivered long after the instant suit was decreed yet, as a matter of fact, it is the same principle which has been accepted and followed upon by the Plaintiffs in this suit, finding that they were not in a position to claim title to the immoveable property in question as the will of Harimohan was not probated. They, therefore, have applied for probate of that will. We are unable to read in this decision of the Supreme Court any principle that if the first will is not probated the legatees or executors of the second will would have no locus standi to apply for probate of the first will.

As a matter of fact, Mr. Mitter, appearing on behalf of the Respondents, relies entirely on Section 233 of the Indian Succession Act to support his claim. When a residuary legatee who has a beneficial interest survives the testator, but dies before the estate has been duly administered his representative has the same right to administration with the will annexed as such residuary legatee.

It is clear from this section that the residuary legatee must die before the estate is fully administered and in that circumstances his representatives would be entitled to the grant of the probate or letters of administration.

In this particular case, Durgamani did not obtain probate of the will of her husband Harimohan whatever may be the reasons thereof. It is well-settled also that a sole legatee would be the residuary legatee for the purpose of Section 233: Haripada v. Gobinda (Supra). Durgamani was the sole legatee of Harimohan. As there was no probate nor letters of administration issued in respect of the will of Harimohan the question of administration of his estate did not arise. Durgamani dies before Harimohan''s estate was at all administered. The main requirements of the application of Section 233 are, therefore, fulfilled in this case and the only point that remains for our consideration is as to whether the Respondent Plaintiffs would be her. representatives. It cannot be disputed that if Durgamani had been alive now she would have a right to obtain probate of the will of Harimohan. If the Plaintiffs be the representatives of Durgamani, then in the circumstances by virtue of Section 233, they would have also the right to obtain the probate or letters of administration of the will of Harimohan.

Mr. Guha has very seriously contended that the Appellants cannot be considered to be the representatives of Durgamani. He has relied on Natesa v. Alamelu (Supra).

Now in this decision the point in issue was whether a particular person would be the legal representative. Moreover, the decision in Natesa''s case has also been specifically overruled by the Supreme Court in Andhra Bank Ltd. v. R. Srinivasan (Supra). The term as used in Section 233 is ''representative'' and not the ''legal representative''. This Court has held that in the case of a Hindu if the residuary legatee dies without obtaining probate or letters of administration his heirs would be entitled to do so not by virtue of any right to administration which he inherits from the residuary legatee, but by virtue of the fact that as heirs of the residuary legatee he is the person most interested in the estate of the testator: (vide Haribhusan v. Manmatha (Supra). This decision was quoted with approval and followed by the Bombay High Court In Re. Manji Telka Lakhami (Supra). In that case it was definitely laid down that the term ''representative'' is much wider in connotation than the term ''legal representative''.

Mr. Guha contends that as by the will of Durgamani the moveable properties were given to some other persons and immoveable to the Plaintiffs, they would not be entitled to represent the entire estate of Durgamani and, as such, would not be her representative. He relies on the decision referred to above on this point: Natesa''s case (Supra). Now, the Supreme Court in Andhra Bank''s case (Supra), referred to above, has definitely held that for a person to be the legal representative it is not necessary that he must represent the entire estate. Even if he is a fractional legatee he would be a legal representative. So on this basis the present Plaintiffs could be the legal representatives of Durgamani.

Mr. Guha has drawn our attention to the fact that in the decision referred to above the question involved was whether a person is a legal representative within the meaning of the term as used in the Code of Civil Procedure, and it cannot, be extended to other Acts. He has relied on Amarchand v. Paramand (Supra). That may be a fact, but the fact also remains as has been held in Haribhusan''s case (Supra) by this Court, and the Bombay High Court referred to above that the term ''representative'' is much wider than the term ''legal representative''. The Plaintiffs were appointed as executors under the will of Durgamani and they have already obtained the probate of the same. It is well-settled that an executor would also be the legal representative. By the will Durgamani bequeathed not only immoveable property, but also some moveable, and so the Plaintiffs can definitely claim to be executors under that will. As they would be the legal representatives, they would be entitled to do with respect of the will of Harimohan whatever Durgamani could do. In this view of the matter they would have the locus standi to maintain the application for the probate of the will of Harimohan. Mr. Guha has urged that the legacy to Durgamani has not been proved, because the will has not yet been probated and, as such, the Plaintiffs cannot claim to be her representatives whether the testator had title to the property bequeathed by the will is not a question which would arise in a probate suit. Therefore, a legatee can always have the right to represent the testator if he had obtained the letters'' of administration in respect of that will and this principle will hold good even if the property in question does not really belong to the testator. Therefore, this point which has been urged by Mr. Guha does not arise at all. Moreover, as I have already shown the Plaintiffs had been appointed as executors and they must be determined to be her representatives.

Mr. Guha has already drawn our attention to the fact that in the decision of this Court as reported in Haripuda v. Gobinda (Supra) this Court has held that the heir would be the personal representative. In that case the question which arose was whether the heir would be the representative. If the heir could be the representative, we see no reasons why the executor could not be. In this view, therefore, the Plaintiffs would be the representatives of Durgamani and, as such, have the locus standi to maintain the application.

I, therefore, agree with my Lord that this appeal must be dismissed.