P.V. Annaswami vs R. Janaki Ammal and Another

Koshi, J.—The applt. lodged a caveat in the matter of an appln. made u/s 16, Probate and Administration Act II [2] of 1105, by his deceased brother''s widow before the Dist. ct. of Quilon to extend to the then State of Travancore the probate granted to heir by the H .C. of Madras in O. P. 271 of 1941. The widow, who is resp. 1 to this appeal, is the sole legatee under her husband''s last Will & Testament & she is also appointed executor there under. Probate was granted to her with respect to the will by the Madras H. C. on 27-11-1941 & the appln. giving rise to the present appeal was made to the lower Court on 4-2- 1949, but it was not until 28-9-1949 the Applt. entered the caveat. Another caveator was Seetbammal, the mother of the testator & the applt. She is resp. 2 to this appeal. The main opposition to the appln. was, however, by the Official Liquidator of the Travancore National & Quilon Bank Ltd., (in liquidation). The Bank was the testator''s main creditor. The Ct. below overruled all opposition & allowed resp. 1''s appln. The Bank as also the mother accepted the decision, but the applt. has preferred this appeal against it.

In the caveat filed by the applt. it is stated inter alia that the will is not one executed with the free will & consent of the testator. But reading the caveat as a whole, it would appear that the main ground on which the appln. was sought to be resisted by the applt. was that the testator had no disposing power over any of the assets he purported to leave, that they belonged to a joint family which consisted of the testator (the manager thereof), the applt. their mother Seethamal, resp. 1 & the wife & children of the applt. The caveat also goes on to say that resp. 1 was allowed to proceed with her appln. before the Madras H. C. for pro bate without opposition as the result of some arrangement entered into between resp. 1 on the one hand & the applt. and others on the other and that the opposition to the appln. in the Ct. below was necessitated by resp. 1''s unwillingness or refusal to carry out certain of the obligations undertaken by her while the proceeding before the Madras H. C. was pending. It further shows that subsequent to the grant of probate by the Madras H. C. tripartite arrangement had been come to between the applt. resp. & the official Liquidator of the Travancore National and Quilon Bank Ltd., to the effect that out of the testator''s assets held by the Bank a sum of Rs. 25,000 should be given to the applt. in lieu of his claims.

The lower Ct''s. order is mostly taken up with the objections raised by the Official Liquidator of the Back, but we are not concerned with them here in this appeal. The objections raised by the applt. and resp. 2 are disposed of by the learned Judge in one short para, which reads thus:

I also find no force in the contentions raised by Mr. Annaswamy and his mother that they had no knowledge of the will and that the assets scheduled to the petn. are joint family properties for the reasons that Mr. Annaswamy, on his own admission, has been a consenting party to the issue of a probate by the H. C. of Judicature, Madras and that there is not an iota of evidence to show that they are joint family properties.

In the appeal the applt''s learned Counsel raised two main contentions. Firstly it was argued the appln. could not have been granted unless the will was proved afresh in this jurisdiction, that is before the Ct. in which the appln. was made. What was urged was it was not enough that the propounder had proved the will before the Madras H. C. which granted a probate to her. The second ground raised in the appeal was a repetition of the ground urged before the lower Ct. that the testator had no disposing power over the assets proposed to be dealt with by the will and that they all belonged to the joint family of which he was the manager.

The latter point can easily be disposed of. It has been settled by a long line of decisions that it is not the province of a Probate Ct. to go into the question of title, with reference to the property of which the will purports to dispose, or the validity of such disposition. In the case reported in Ramchandra Vishnu Joshi Vs. Ramabai Govind Gadre and Others, Broomfield J. has summarised the effect of the important decisions bearing on the point as follows at p. 355 of the report:

The grant of probate to an executor does not Confer upon him any title to property which the testator had no right to dispose of Behary Lall v. Juggo Mohun 4 Cal. 1 : 2 C. L. R 422. The Ct. Is-not justified in refusing pro bate because the testator had no power to dispose of some or oven all of the property ha purported to deal with; Barot Parshotam v. Bai Muli 18 Bom. 749. Probate is decisive only as to the genuineness of the will and of the right of the executor to represent the estate. It decides no question of the disposing power or the existence of disposable property ; Bal Gangadhar Tilak v. Sakwarbai, 26 Bom. 792 : 4 Bom. L. E. 637. It is not the province of the Ct. in probate proceedings to go into questions of title and it has long been the settled practice of this H. C. in applns. for probate or letters of administration not to enter into the question whether the deceased''s property is joint or separate: Ochawaram v. Dolatram 28 Bom. 644 : 6 Bom. L. R 966. Probate gives no efficacy to the provisions of the walk it is merely proof of its contents: Khaw Sin Tek v. Chuah Hooi Gnoh Neoh, 49 I. A. 37: AIR 1922 P. C. 212.

The judgment Sir Lawrence Jenkins C.J. delivered in Ochawaram Nanbhai v. Dolatram 28 Bom. 644 : 6 Bom. L. R. 966, is a short one and that can with advantage be quoted in this context:

The point urged on behalf of the applt. is that the deceased was, at the time or his death, joint in family and entitled only to joint property; so that Letters of Administration could not be granted, as though he had left separate property. But in Bombay it has been repeatedly held that on applns. for probate the Ct. will not enter on a question as to the title to the property which the testator by his will purports to leave. Hormusji v. Bai Dhanbaiji 12 Bom. 164 and Barot Parshotam v. Bai Muli 18 Bom. 749 may be refd. as illustrations in point. Nor is this doctrine peculiar to Bombay; the same view prevails in Calcutta and Allahabad ; Behary Lall v. Juggo Mohan 4 Cal. 1 : 3 C. L. R. 422; Arunmoyi Dasi v. Mohendra Nath 20 Cal. 888 and Birj Nath v. Chandra Mohan 19 All. 458 : 1897 A. W. N. 106. It is urged these cases do not touch the present, because here the Ct. is asked not to grant probate, but Letters of Administration. The petn. however, alleges property in the deceased, and the reasons operating to limit the scope of the inquiry, when probate is sought, are equally applicable to a petn. for Letters of Administration. This was recognised by the Allahabad H. C. in Birj Nath De''s case 19 ALL. 458: (1897 A. W. N. 106) and was actually decided in Raghu Nath v. Mt. Pate Koer 6 Cal. W. N. 345. Nor does the matter rest there; for on inquiry from the Testamentary Registrar, Mr. Dimji N. Banaji, an officer of very great experience, we learn that the invariable practice on the Original Side of this Ct. is, in applns. for Letters of Administration, not to enter into the question whether deceased''s property is joint or separate- This view it has been argued,, is in conflict with the decision in Guracharya v. Svamiraya charya 3 Bom. 431, but that case has no appln. The grant in no way hurts or prejudices the caveator, for it is general in its terms, specifying no item of property and prejudging nothing to the detriment of the applt. It has been suggested that a grant of Letters might involve peril to the applt''s interest, but this is not so, as on the grant of Letters adequate security is taken. The result then is Russell J.''s decree is confirmed with costs.

Among other oases which take the view that the question of title is foreign to the scope of an enquiry for the grant of a probate or Letters of Administration may be cited the decision of Stone C.J. and Puranik J. in Abdul Rashid v. Minhazul Hasan AIR 1938 Nag. 173 : 175 I. C. 897. In fact no decision to the contrary was cited before as and the applt''s learned Counsel made only a faint attempt to sustain the appeal on this ground. The case reported in Chuppayya Mooppanar v. Parvathi Ammal (1932) 22 Tr. L. J. 1047 takes the same view on this question and follows some of the cases cited above.

Now we shall take up the first point. Section 16 Probate and Administration Act of Travancore is in these terms:

When a will has been proved and deposited in a Ct. of competent jurisdiction situated beyond the limits of Travancore and a properly authenticated copy of the will is produced, letters of administration may be granted with a copy of such copy annexed.

This section corresponds to Section 5, now of the defunct Probate and Administration Act v [5] of 1881 and Section 228, Succession Act, 1925. While the applt''s. Counsel contended that the fact a foreign Ct. had granted a probate does not dispense with the necessity of fresh proof of the Will in this jurisdiction. Rasp, 1''s learned Counsel took the other extreme position that the word "may" in the section should be interpreted to have the same meaning as the word "shall". It was therefore argued on behalf of resp. 1 that when a Will with respect to which an appln. is made under the section was proved and deposited in a Ct. of competent jurisdiction situated beyond the limits of the State and a properly authenticated copy of the Will was produced the grant mentioned in the section should automatically be made by the Ct. in this State. We are afraid we cannot countenance either view. It is no doubt an accepted rule of interpretation that though prima facie the word "may" is an enabling word under certain circumstances that word may have a compulsory force. From the con-text in which that word occurs in this section or from the scope and object of the section it is difficult to bold that the legislature has used the word in the sense of that compulsory meaning. Eminent Judges have interpreted the provision as an enabling one and we cannot find any justification for taking a different view. Relevant case law bearing on the point will presently be refd to. The decision in Ram Lal v. Chanan Dass AIR 1988 Lah. 349 : ILR (1938) Lah. 562 cited on behalf of the applt. no doubt states that with respect to an appln. u/s 228, Succession Act, a caveator is entitled to have questions such as the genuineness of the Will or the disposing state of the testator''s mind tried before effect is given by the Ct to which the appln is made. In this respect this decision which was given by a Single Judge (Munro J.) goes against a long catena of decisions of the H. C. in India. At the same time that decision, if we may say so with respect, strikes the correct note when it states:

''''The section is merely an enabling section and if the Ct. in this country considers that there is a question to be decided relating to the validity of the Will, I think that the Ct is bound to try that question before enabling the executor to act under the will in this country." In our opinion as the plain words of the section indicate the discretion is of the Ct. and a caveator cannot as of right claim to have the question of the genuineness of the Will or other similar questions tried over again.

The earliest decision brought to our notice touching this point is one given by Sir Charles Farran, C.J. in Bhaurao Dadajirao v. Lakshmibai 20 Bom. 607. The question did not directly arise in the case but in the course of the discussion whether a foreign Will can be admitted to probate by a Ct. in Bombay with respect to the properties situated within the Presidency the learned Chief Justice observed in his judgment thus:

If a foreign will has already been proved and deposited in a competent Ct. abroad, Section 5, of the Act, following the English Law, enables a Ct. in British India to grant letters of administration to the appct. with a properly authenticated copy of such will annexed, and thus to dispense with a necessity of proof of the original will the underlining (here italicised) is ours), but where a foreign will has not been so proved, the Judge will have himself to take evidence as to the due execution of the will...

The Calcutta H. C. is of the same view, See Srimati Sushilabala Dasi Vs. Anukul Chandra Chowdhury and Others, The relevant observations are contained at p. 718 of the report and read thus:

I think the copy in this case that was produced before the Ct. was one on which the Ct. was entitled to act u/s 5, Probate and Administration Act. That being so, the Ct. was entitled, if it thought fit, (the underlining (here italicised) is ours) to make the grant of letters of administration with the will annexed without any farther evidence at all. It was a will recognised by the French Ct. and the lower Ct. was entitled to act upon it.

In Sukumar Banerji Vs. Rajeswari Debi, Costello J. made the following observations at p. 240 of the report regarding the scope of the corresponding provision in Section 228, Succession Act of 1925:

That section lays down a procedure which is in accordance with the law in England, according to which pro bate granted by a foreign Ct. is not recognised as establishing the title of any person to the estate of the deceased lying within the jurisdiction of the English Cts. The English practice, however, is that where probate has been granted of a will in a foreign Ct. which was the Ct. of the testators''s domicile, the English Cts. will follow the grant not merely with regard to the document admitted to probate but also with regard to the person to whom the probate is granted. In such oases, if any part of the property is situate in England, the Ct. will grant the probate on any duly authenticated copy of the will in respect of which such grant was made by the foreign Ct. without any further proof. (The underlining (here italicised)- is ours). The position is summarized in Halsbury''s Laws of England, Vol. 14, p. 202, Para. 381, in these words:

''''Where a person dies domiciled abroad, and it becomes necessary to prove his will in England, probate is granted of his will upon proof that the testator was domiciled in the country, in question, and that either the foreign Ct. has adopted his will as a valid testament or that his will is valid by the law of the country.

In the Patna H. C. in The Deputy Commissioner of Singhbhum Vs. Jagadish Chandra Deo Dhabal Deb, the scope of the section (Section 5, Succession Act, 1881) came up for consideration with reference to the ct.fee leviable on the Letters of Administration issued in that case. P. R. Das. J. who delivered the leading judgment in that case made inter alia the following observations:

In my view the grant made u/s 5 is only an ancillary grant in order to give efficacy to the grant already made by another Ct. of competent jurisdiction and the procedure laid down in Section 6 is analogous to the procedure in England which enables the Probate Ct. in England to re-seal Scotch, Irish or Colonial grants. Grant u/s 5 is in no sense a grant of probate or letters of administration either with or without will annexed.

Again at p, 214 the learned Judge has stated:

The grant u/s 5 does not pretend to establish either the will or the representative character of the appct. It is merely an ancillary grant, giving efficacy to a grant already made by the Ct. on an appln. u/s 62 of the Act. If we apply certain tests which are ordinarily applied to grants of probate or letters of administration it will be seen that a grant made u/s 5, Probate and Administration Act, does not partake of the character of a grant made in an appln. u/s 62 and Section 64 of the Act.

Finally at p. 215 the learned Judge observed:

It seems to me that the jurisdiction conferred on a Ct. in India u/s 5 Probate and Administration Act, is analogous to that conferred on the Cts. in England, Scotland or Ireland by the repealing statutes to which I have refd. The Ct. has no power, u/s 5, either to grant probate or letters of administration with or without the will annexed. It has power only to grant letters of administration with a copy of a properly authenticated copy of the will annexed. The language employed by the legislature u/s 6 is not accidental but is deliberate, and enables the ct. ''following the English law'' as Farran C.J. said in Farran Dadajirao v. Lakshmibai 20 Bom. 607, to dispense with the necessity of proof of the original will.'' Is a Ct. then bound to grant administration u/s 5 when an appln. is made for it? The word "may" indicates that there is some discretion in the Ct. to refuse the grant.

The learned Judge then goes on to discuss the considerations which must weigh with the Ct. in making or refusing the grant u/s 5. For our pre sent purpose it is unnecessary to commit ourselves to the View that the discretion is only with respect to the cases mentioned by the learned Judge. The comment by Farren C.J. made in Bhaurao Dadaji Rao v. Lakshmibai 20 Bom. 607 that analogy has no place in the case of a positive enactment like the Probate and Administration Act may not in our opinion be entirely out of place with reference to what Das J. has said regarding the limited scope of the discretion vested in the Ct. u/s 5.

In the F. B. decision of the Allahabad H. C. reported as Adwait Nath Sil Vs. In the goods of Alexander James Milne Late of Aberdeen, Mootham J. (Harish Chandra and Bind Basni Prasad JJ. concurring) said that Section 228, Succession Act, Act. 1025 is entitled to be applied to a case where the will has been proved abroad and that a Ct. in India will, when acting under that section grant administration without further proof of the will.

These cases while helpful to repeal the applts'' argument strike equally against the contention that Section 16 leaves no discretion on Cts. in this State to refuse the grant asked for when the requirements of the section have been satisfied. In other words the contention that the word "may" in the section should be read as "shall" finds no support in decided cases. In passing it may be observed that English Cts. also exercise a discretion in following a foreign grant. See Williams on Executors, Ed 12, p. 243 of Vol. I. There it is stated:

The Probate Division, however, is not merely mechanically guided by the foreign grant, but exercises its own judgment and discretion.

To return to the applt''s argument, it was not contended that the requirements of Section 16 have not been complied with in this case. In the face of the authorities refd to above, it is idle to Contend hat the lower Ct. was bound to take evidence regarding the genuineness of the will before it proceeded to give effect to it in this State. That to all intents and purposes the applt. was a consenting party to the Madras H. C. granting probate to resp 1 with respect to her deceased husband''s will is clear from the caveat he filed before the lower Ct. That circumstance and other facts mentioned therein and alluded to in Para. 2 of this judgment, make us think that the lower Ct. was plainly right in exercising the jurisdiction vested in it u/s 16 to give effect to the will without further proof than that the Madras H. C. had issued to resp. 1 a pro bate with reference to the identical will and the production of an authenticated copy of the same therefrom. If the applt. has any grievance he must seek his relief before the Madras H. C. by way of revocation of the probate it granted to resp. 1. The decision that Ct. made is a judgment in rem and in the circumstances disclosed binds him in the same way as he had opposed the grant there. See Venkatarathnam v. Satyavati AIR 1924 Mad. 578 : 79 I. C. 44 and Musammat Phekni Vs. Musammat Manki, .

The two grounds raised in the appeal have, therefore, to be decided against the applt. and we so decide. There is, however, a technical error committed by the Ct. below which was left unnoticed in the argument. Section 16 authorises a Ct. to grant letters of administration with a copy of the authenticated copy of the will produced annexed and not to grant a probate. What resp 1 applied for in the Ct. below and what that Ct. has ordered is to grant a probate. This is a mistake and in modification of the lower Ct''s. order to grant a probate we direct that Ct. to issue letters of administration instead. In Ramlal v. Charan Dass AIR 1938 Lah. 349 : I. L. R. (1938) Lah. 562, the primary Ct. dismissed the appln on the ground that what was asked for was a probate and not letters of administration as contemplated by the section. The appellate Ct. took the view that the ground of the decision was based on the barest technicality and remitted the case back with leave to amend the appln. Here in this case as no objection was taken either in this Ct. or in the Ct. below we have thought it unnecessary to allow time being wasted on a mare formal amendment and hence the direction to issue letters of administration.

In the result the appeal fails and subject to the modification noticed above it will stand dismissed with costs.