Santosh Kumar Bose vs Jaladsashi Devi

Fazl Ali, J.—This is an appeal from an order of the District Judge of Bhagalpur overruling the objections of the appellant to the grant of letters of administration to the respondent.

The circumstances under which the grant was made were these: One Babu Prasanna Kumar Mukherjee died on 22nd June 1924 leaving a will. By this will he bequeathed all his properties, both moveable and immovable, in the town of Muzaffarpur to the respondent who was his wife with the condition that after her death the said properties would devolve on his grandsons. The other properties were left to certain other relations. The testator died on 22nd June 1924 and one Babu Upendra Nath Mukhorjee, who had been appointed an executor under the will duly obtained probate of the will. It appears that one of the properties of the testator was a mortgage decree for Rs. 4201 which was obtained in the Court of the Subordinate Judge of Muzafferpur against the father and an elder brother of the appellant. It is common ground that the property in that mortgage suit Was situated in the town of Muzaffarpur and that in satisfaction of the mortgage decree the testator got a mortgage bond executed by Ramanath, father of the appellant on 16th January 1922.

On the basis of this bond the executor instituted a mort gage suit before the Subordinate Judge of Muzafferpur. The executor however died on 15th November 1938 while the suit was still pending and so the respondent applied u/s 258, Succession Act, for letters of administration. An objection petition was thereupon filed by the appellant against the grant of the letters of administration to the respondent. The main objection was that the respondent was not a residuary legatee under the will but merely a specific legatee of the mortgage decree and that the mortgage decree having been subsequently adeemed during the life time of the testator by the execution of a fresh mortgage bond the-respondent could not apply for letters of administration. The learned District Judge however overruled this objection and granted letters of administration to the respondent. Hence this appeal.

In my opinion the appeal is entirely without merits. In the first place the appellant had no locus standi to object to the grant of the letters of administration. Section 283(c) empowers the Judge when an application, is made before him for grant of letters of administration to issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration.

In the present case it is difficult to hold that the appellant had an interest in the estate of the deceased. He was a mere debtor and by no stretch of reason it can be said that a debtor by merely contracting a loan becomes interested in the estate of the deceased. In my opinion therefore the appellant had no locus standi to object to the grant of the letters of administration.

On the merits also the appeal must fail. Under the will the testator bequeathed his moveable and immovable properties in the town of Muzafferpur to the respondent. It is not disputed that the mortgage decree was a piece of moveable property and if therefore the testator had died without the decree having been realized or satisfied, the respondent was obviously the person entitled to claim this specific property. The position was not changed, in my opinion, merely because ''the testator during his lifetime got a mortgage bond executed by the father of the appellant in satisfaction of the decree. As the mortgage bond was executed during the life-time of the testator it also satisfied the description which applied to the property which was left by him to the respondent.

In other words, under the will, after the death of the testator it was the respondent who would have become entitled to enforce the mortgage bond. Thus, no question of ademption arises in the present case. Section 152, Succession Act, lays down that if anything which has been specifically bequeathed does not belong to the testator at the time of his death, or has been converted into property of a different kind, the legacy is adeemed; that is, it cannot take effect by reason of the subject-matter having been withdrawn from the operation of the will.

In the present case the decree was not converted into property of a different kind in the sense that the new property could not satisfy the description of the property bequeathed to the respondent. As all the moveable properties in Muzafferpur were left to the respondent, it cannot be said that this was a case in which one property was converted into a property of a different kind in such a manner that the will could not take effect by reason of the subject-matter having been withdrawn from the operation of the will.

Besides, as the learned Judge has shown, the respondent had applied for letters of administration u/s 258 and both under Sections 258 and 234 the learned Judge was competent to grant letters of administration. Section 234 applies because, as the learned Judge has pointed out, the position of the respondent''s paternal grandsons, as residuary legatees cannot be challenged; and it appears that out of the four grandsons two are minors and therefore incapable of being granted letters of administration and the two major grandsons, had filed a petition stating that they were unwilling to act as administrators as they were studying in Calcutta.

As I have already said there is no merit in this appeal and it must be dismissed with costs.

Meredith J.

I entirely agree.