GOODS OF REGINALD PHILIP ROISSIER Vs. STATE

JUDGEMENT

(1.) This is an application for letters of administration in respect of the assets of the deceased Reginald Philip Roissier who died on 18.1.1952 at Jersey in the Channel Islands, leaving a will. Two executors were appointed by him that will. Both of them are residents at Jersey. The executors obtained a probate on the said will from the Probate Division of the Royal Court of Jersey on depositing the original will in that court. The assets of the deceased are mainly at Jersey. There are some assets within the jurisdiction of this Court in the shape of 150 debenture bonds of Twyford Tea Co. Ltd., Kottayam, which has its registered office at Kottayam, besides 100 fully paid ordinary shares in the Cambodia Mills Ltd., Coimbatore. The Cambodia Mills are situate in the State of Madras. Not being able to proceed to this place the executors appointed the petitioner as their power of attorney to apply for and obtain letters of administration from this court in respect of the aforesaid two assets. The Indian Succession Act, XXXIX of 1925 has been extended to this State as from 1.4.1951 by The Part B States Laws Act 111/1951 (Central). Three sections of that Act have to be read in connection with this application. They are S.228, 241 and 291 which read as follows:

(2.) Neither of the first two sections directly applies to the case in hand. S.241 authorises the grant of letters of administration to the attorney of an absent executor on production of the original will which has to be annexed to the letters. S.228 provides for a case where the original will is deposited in court of competent jurisdiction, provides for and authorises, the grant of letters of administration with a copy of the will annexed. This section, however, does not refer to the grant of letters to the attorney of an executor. A situation like this arose in Allahabad in the case reported in 1905 Allahabad Weekly Notes 251 In the goods of William Ashton where it was held that letters of administration could not be granted to an attorney of an executor either under S.241 or under S.228 because S.241 limits the grant until the executor himself shall obtain probate or letters of administration on production of the original will. In a case where the will had been admitted into probate in a court of competent jurisdiction it is not possible to produce the original will in any other court and, therefore, the contingency contemplated by S.241 until which alone the grant of letters may be made to the attorney of the executor cannot happen. As regards S.228 as it does not expressly authorise the grant of letters to an attorney of the executor that also was held not to apply. Under these circumstances the court felt powerless to issue letters to the attorney of the executor and his application was dismissed. The same question arose before the Madras High Court in In re W.H. Sell, AIR 1940 Mad. 680 . The question also arose before the Calcutta High Court in In the goods of Sidney Thomas, AIR 1949 Calcutta 560. Both the High Courts of Madras and Calcutta took the view that reading S.228 and 241 together it is possible to grant letters of administration with a copy of the will annexed to the attorney of an executor. The Allahabad case aforesaid was not followed by either the Madras or the Calcutta High Courts. I am inclined to follow the view taken by the Madras and Calcutta High Courts and hold that letters of administration can be granted to the attorney of the executor with a copy of the will annexed. The question then arises whether any condition should be imposed to the grant of the letters. S.291 provides for security to be taken in every case where letters are granted under any section other than S.241. The grant in this case, as already stated, is under the two S.228 and 241 read together. It is, therefore, necessary that the petitioner be directed to give security for making over the assets collected by him to the executors. The application is, therefore, allowed. Letter of administration to the estate of the deceased Reginald Philip Roissier will be issued to the petitioner limited to the two items aforesaid and subject to his giving a bond in conjunction with a surety in the name of the Registrar of this court in such amount as will be sufficient to cover their values of the assets to be realised and to secure the handing over the assets realised by the petitioner to the executors as whose attorney the letters are granted to him.