Sm. Sulochana Debi vs Mt. Puranjaya

This is an appeal from the decision of the Additional District Judge of Bhagalpur granting letters of administration with the will annexed to one Mt. Puranjaya, widow of Bam Krishna Jha, by his judgment dated 6-12-1945.

The appeal is by one Mt. Sulochana who happens to be the daughter''s daughter of the deceased testator, Churaman Jha. The facts that need be stated in order to bring out the point which we propose to decide are these. The testator, Churaman Jha, had three daughters, namely, Mt. Jagdamba, Mt. Bindbashni and Mt. Nandrani. Jagdamba had a son, Ram Krishna, whose widow, Mt. Puranjaya, is the applicant for the grant of the letters of administration. Churaman Jha is alleged to have executed the will in question on 9-2-1907, and to have died after the execution of the will the same year. Bindbashni, the second daughter of Churaman Jha, died in the year 1918 without leaving any issue. Jagdamba, as already said, had a son, Bam Krishna, who died in the year 1920. It appears that on. 12-1-1926, Jagdamba executed a deed of gift in favour of Puranjaya, her widowed daughter-in-law, in respect of her own share in the properties inherited by her as also in respect of half the Share of Bindbashni which, on the death of Bindbashni, were taken in equal shares by the two surviving daughters, Jagdamba and Nandrani. In the year 1930 or 1932, Nandrani, died leaving behind her a daughter named Sulochana, who is the objector to this grant of the letters of administration. On 13-6-1944, the present, application for. grant of the letters of administration with the will annexed was made before the District Judge of Bhagalpur. Mt. Sulochana appeared and objected to the grant of the letters of administration on various grounds. One of the grounds taken by her was that Mt. Puranjaya had no locus stand to apply for the grant of the Testers of administration of the will in question, apart from objecting on the ground that the will in question was not the last will and testament of the deceased, Churaman Jha, and denying that it was executed by him. Her case wad that her mother. Mt. Nandrani, inherited the sixteen annas estate of Churaman. Jha, which, on her mother''s death, passed on to herself, and that Mt. Puranjaya, the applicant, had no interest in the properties, and had no locus standi to make this application.

The learned Additional District Judge raised two questions for decision first, whether Churaman Jha duly executed the will in question, and whether it was his last writing and testament; and secondly, whether the applicant was entitled to letters of administration with the copy of the will annexed. He held in favour of the applicant on both the questions, and granted the letters of administration with the will annexed, as applied for. Hence this appeal by Mt. Sulochana, the objector.

Mr. Rati Kant Chaudhury, appearing for the appellant, has. at the outset, contended that the applicant, under the law, had no right to make this application, and that the Court below was in error in granting the letters of administration with the will annexed to the applicant, in the circumstances of the present case.

His argument is that the right to apply for grant of probate and letters of administration is governed by the Succession Act, and referred to Sections 234, 232, 233, 234 and 235 as dealing with this question. u/s 231, it is only when the executor renounces, or fails to accept an executorship within the time limited for the acceptance or refusal" thereof, that the will will be proved, and letters of administration granted to one who would be entitled to administration in case of intestacy. So long as there is an executor to apply for and receive a grant of letters of, administration with the will annexed, no one has a right to make such an application. In case of there being no executor, or the executor failing to apply for grant of letters of administration, a universal or a., residuary legatee is entitled u/s 232 to prove the will, and the letters of administration with the will annexed will be granted to him of the whole estate or of so much thereof as may be unadministered. If the residuary legatee is dead, or is not available to apply for the grant of letters of administration, Section 233 of the Act provides for his representative making an application in that behalf; In case where there is no executor and no residuary legatee or representative of the residuary legatee, or he declines or is incapable to act or cannot be found, the person or persons who would be entitled to the administration of the estate of the deceased if he bad died intestate, becomes "entitled u/s 234 of the Act to be admitted to prove the will, and letters of administration may be granted to him or them accordingly. The question now, therefore, is as to whether Mt. Puranjaya comes in the category of any of the persons so named in the various sections of the Succession Act as being entitled to make an application for the grant of letters of administration.

It was contended by Mr. Jha, appearing for the respondent, that Mt. Jagdamba, one of the daughters of Churaman Jha and one of the. legatee under the will, was a residuary legatee, and she, having, by a deed of gift, transferred her interest to the present applicant, Mt. Puranjaya, the latter was representative of a residuary legatee, and as sach was entitled to make this application. Mr. Rati Kant Chaudhury, appearing for the appellant, has drawn our attention to Sections 102 and 103 of the Act, and has contended that none of the daughters, in whose favour the legacies were made under the will, would come under the term "residuary legatee" within the meaning of those sections. As laid down in Section 102 of the Act, a residuary legatee may be constituted by any words that show an intention on the part of the testator that the person designated shall take the surplus or residue of his property. Section 103 of the Act lays down that, under a residuary bequest, the legatee is entitled to all property belonging to the testator at the time of his death, of which he has not made any other testamentary disposition which is capable of taking effect. We have examined the terms of the will, and we are satisfied, that none of the daughters, in whose favour the legacies were made under the will, can be called residuary legatees they are at best universal legatees. None of the provisions of the Succession Act provide for the representative of a universal legatee being admitted, to prove the will, and apply for the grant of letters of administration with the will annexed. It is, therefore, plain that the present applicant, Mt. Puranjaya, not being a representative of a residuary legates, as contended for by Mr. Jha, had no right to mate the application, and the Court below was not entitled to grant the letters of administration with the will annexed at her instance.

In that view of the matter, it seems un-necessary to deal with the other point in the case, namely, as to whether the will in question is the last writing and testament of Churaman Jha, and whether it was duly executed as a will by him.

In the result, the appeal is allowed, and the order of the learned Additional District Judge is set aside; but, in the circumstances of the case, there will be no order as to costs.