Sm. Akshay Kumari Debi and Others

Sarkar, J.—This is an application for the issue of succession certificate with regard to certain moneys of the deceased in banks in Calcutta and Bombay. I had granted the application. Before the certificate was actually issued the learned Registrar-in-Insolvency very properly drew my attention to a decision of the Bombay High Court which seemed to throw doubt on the jurisdiction of this Court to grant the certificate. I had the matter then again placed on the list for further arguments. I had at that time requested Mr. Subimal the matter and Mr. Roy very kindly agreed to do so. This Court is deeply obliged to Mr. Roy for his able assistance. Having had the benefit of hearing Mr. Roy my doubts have been resolved and I accordingly confirm the order that I previously made.

The difficulty arose in this way. The petition shows that the deceased had at the time of his death his ordinary residence at Rangoon and that the he had died on January 27, 1947, that is after the separation of Burma from India. He was, therefore, a non-resident foreigner. In Mir Ibrahim v. Ziaulnissa, ILR 12 Bom 150 (1887), Weston, J., said about Section 3 of Act XXVII of 1860 that it did not make provision for the administration of the effects of a foreigner domiciled abroad. Section 3 of this Act corresponds to Section 371 of the Indian Succession Act which has taken the former''s place. Weston, J., also said that the former Act seemed to him in contemplate the issue of a certificate under it only to the estate of a British subject, either resident within the District where a certificate is sought, or else having no fixed place of residence. He further stated that representation to the estate of a non-resident foreigner could properly be sought in a country he belonged to and the constituted representative could then sue in the British Courts. This is the judgment which created the difficulty in the mind of the learned Registrar-in-Insolvency.

It is quite clear that the observations of Weston, J., were entirely obiter dicta. It is equally clear that his observations that the representative of a foreigner could take out representation in the foreign state in which the foreigner resided and then sue in this country on the strength of it is wrong. The law on the point may be quoted from Cheshire on Private International Law (3rd Ed.), p. 674 : "The rule is absolute that the status of an administrator appointed by a foreign Court is not recognised in England. His title relates only to property that lies within the jurisdiction of the country whence he derives his authority, and, therefore, he has no right to take or to recover property in England without a grant from the English Court. ''I did not consider'' said Williams, J., in Vanquelin v. Board, (1863) 15 C.B. (N.S.) 341, 370-1 ''that . . . the Court will in any way depart from or diminish the effect of the rule which has been established by a long series of cases as well at law as in equity upon this subject, viz., that in order to entitle a party to sue in any Court in this country, whether of law or of equity, in respect of the property of the personal rights of a deceased person, he must show that he has obtained probate or letter of administration from the proper Court of this country. That rule was recognised by Lord Cottenham in , that in order to entitle a party to sue in any Court in this country, whether of law or of equity, in respect of the property of the personal rights of a deceased person, he must show that he has obtained probate or letter of administration from the proper Court of this country. That rule was recognised by Lord Cottenham in Tyler v. Bell, (1837) 2 Mylne & Cr. 89 and Price v. Dewhurst, (1837) 4 Mylne & Cr. 76 and also by the Exchequer Chamber in Whyte v. Rose, (1842) Q.B. 493, 507''." So it was laid down by Farran, C.J., in Bhaurao v. Lakshmibai, ILR (1895) 20 Bom 607 p. 609. "It has always been the practice of the Courts of Probate in England to grant probate of foreign wills, whether executed abroad or not, if the testator has left personal property in England." This being the international law it applies to our country. On this principle in Bhaurao''s case probate of the Will of a subject of the Baroda State residing there was granted by a Court in India u/s 56 of the Probate and Administration Act. (corresponding to Section 270 of the Succession Act of 1925).

There is, therefore, no question that Courts in our country have jurisdiction to grant representation to the estate of a non-resident foreigner. If so, why not a succession certificate? This being permitted by the international law, I have to see if it is prohibited by the relevant section of the Succession Act. The section is 371 and it reads as follows: -

The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time he had no fixed place of residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this part.

The question is what is meant by the expression, "if at that time he had no fixed place of residence." In my view it means "fixed place of residence" within the jurisdiction of the District Judge within whose jurisdiction any part of his property may be situate. Section 372 (b) shows that this was what was intended. Dalipsingh, J., in AIR 1935 646 (Lahore) rejected the contention that the expression meant fixed place of residence anywhere in the world. Reading the whole of Section 371 together this latter meaning becomes impossible. A similar view was taken in Krishnammal Vs. R. Lakshmi Ammal, . The second basis for giving jurisdiction mentioned in the section arises only on the failure of the first and hence it should be taken as meaning no fixed place of residence within the jurisdiction of a District Judge, that is to say, in India. From this point of view it becomes irrelevant to enquire whether he had a fixed place of residence outside India. If he had, as in this case, then, if the expression meant fixed place of residence anywhere in the world, no application could under the section be made to any Court in India, for the situation of property of the deceased can give the Court where the property is situate, jurisdiction only if he had no fixed place of residence at all. In such a case no succession certificate with such property could in any event have been taken out. Such a result would be unreasonable and must, therefore, be deemed not to have been intended. Furthermore, Section 372 (b) would seem to indicate that a Court in India may have jurisdiction if the deceased had left property within its jurisdiction but did not reside there, that is to say, no matter whether he had resided within the jurisdiction of any other such Court.

For these reasons I think, I have jurisdiction to grant the application.

Mr. Roy, however, submitted that I should order the applicant to furnish security as the deceased may have creditors in India and the money may be taken outside India. As regards creditors, if they are not alive to their rights I do not think that it is for this Court to go out of its way to secure them. If they do not take steps it is not for this Court to do anything. Again, there may not be creditors at all.

In the result, this application is granted.