T K PARTHASARATHI NAIDU Vs. STATE

JUDGEMENT

(1.) This petition has been placed before this Bench on a reference made by one of us, (Ramaswami J.) "for deciding authoritatively whether letters of administration with the will annexed should be for the entire estate under the will or for a specific portion or part thereof." The petitioner is one T.K. Parthasarathi Naidu, the son's son of T. Parthasarathi Naidu. The latter owned a half share in house No. 9, Sydoji Lane, Triplicane, Madras, his brother, Balayya, being entitled to the other moiety in that property. Jt would appear that those two brothers owned this property as their self-acquisition and not as a joint family property, and so, both of them joined in the execution of a will dated 29-5-1919, which they got registered. Under that will, both the brothers dealt with their respective half share in the property, and we are only concerned with the will in so far as it relates to the disposition of T. Parthasarathi Naidu, the grandfather of the petitioner. He died in November, 1919, while his brother, Balayya, died in April, 1926. Parthasarathi Naidu left three sons; but he completely excluded the eldest son from the bequest, as he had separated from the family after executing a release deed. The disposition, therefore, was in favour of the other two sons and their descendants. So far as the petitioner was concerned, he was given a moiety of the grandfather's half share subject to the life interest in favour of his parents, the other moiety having been bequathed to the youngest son, Sriramuhi's sons, Santhanagopal and Kothandapani; that is to say, under the will, the petitioner would be a beneficiary to the extent of an undivided 1/4th share of the house property. By the said will, three persons were appointed executors, of whom two died and the third had signed a letter of renunciation, which has been filed into Court. In this petition, therefore, the petitioner prays for permission to prove the will in common form and that letters of administration with a copy of the will annexed may be granted to him, limited to the undivided 1/4th share which he got under the will. In this connection, it may be necessary to take note of a provision in the will which directed that if the testators died without discharging the debts which they might incur thereafter, the executors were to effect a sale of the house- property and discharge the debts, and with the balance, purchase another property or advance the same on a mortgage and make the income available for the legatees. In these circumstances, the question was raised whether the petitioner was entitled to the letters of administration in respect of his share of the property. Ramaswami J., who made this reference, found that there was a conflict of opinion on that question not only in the other High Courts, but also in our court, and felt that there should be an authoritative decision by a Bench of this court.

(2.) On this reference, we feel indebted to Sri K. Viraswami, Assistant Government Pleader, who took us through the relevant sections of the Indian Succession Act as well as the decisions of the various High Courts and also the. English law bearing on this question. The answer to the question propounded in the. order of reference must be found only in chaps. 1 and 2 of Part IX, Indian Succession Act (Act 39 of 1925), for, the introductory Section 217 prescribed, that save as otherwise provided by the Act or by any other law for the time being in force, all grants of probate and letters of administration shall be made or carried out in accordance with the provisions of Part IX. Before examining the relevant sections of those two chapters, it may be necessary to remember the. principle-embodied in Section 211 of the Act that the executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such. That is to say, that section makes it clear that the executor or the administrator shall be the legal representative of the deceased for all purposes and in respect of all the properties of the deceased person -- In Willams on Executors and Administrators, 13th Edn., at p. 1, we find this passage:

(3.) Such being the general principle, we now proceed to examine the relevant sections of Chaps. I and II of Part IX, Indian Succession Act and see if there is anything to justify the grant of probate or letters of administration for portions of the estate of the deceased. Chapter I begins with Section 218, which provides that if the deceased had died intestate, 'administration of his estate may be granted to any person', who, according to the rules for the distribution of the estate, would be entitled to the whole or any part of such deceased's estate. That section, in our view, indicates that if administration is granted to any such person, it must be of his estate as a whole, and not in fractions; that is to say, that section contemplates the administration of the estate as one integer, whether the person to whom the administration may be granted is entitled to the whole or any part of such estate. Clause 2 of that section provides that when several of such persons apply for such administration, it shall be in the discretion of the court to grant it to any one or more of them. In our view, it would not be proper to interpret the words "more of them" as meaning that the estate may be broken up into fragments and each fragment entrusted to one of such persons, for, as we said, Clause I clearly contemplates the administration of the estate as one unit, so that those words can have reference to letters of administration being granted jointly to more than one person. Section 218 and the following sections up to 221 relate to the case where the deceased died intestate. Sections 222 to 231 deal with the case of the deceased leaving a will appointing an executor; and probate shall be granted only to an executor appointed by the will. We do not find anything in those sections entitling an executor to apply for probate for part of an estate. Sections 232 to 236 deal with a case where the deceased had made a will, but not appointed an executor or an executor appointed under the will is incapable or refuses to act or died before the testator or before he proved the will, or, having proved the will, he died before he had administered all the estate of the deceased. In such cases, Section 232 provides that a universal or residuary legatee may be admitted to prove the will and letters of administration with the will annexed may be granted to him of the whole estate or of so much thereof as may be unadministered. It will be noticed that this Section contemplates letters of administration being granted in respect of the whole estate or in respect of the whole of the un-administered portion of the estate. It will also be noticed that it is not confined only to a universal legatee; and even in the case of a residuary legatee, the administration contemplated by the section is of the whole estate or of the whole of the un-administered portion of the estate. Section 234 provides for the case where there is no executor and no residuary legatee, or he declines or is incapable to act; and in such case, the person entitled to the administration of the estate of the deceased if he had died intestate or any other legatee having a beneficial interest, or even a creditor may be admitted to prove the will and letters of administration may be granted to him accordingly. This section read in conjunction with Section 232 clearly indicates that in a case where there is no executor and no residuary legatee, then, any other legatee may obtain letters of administration for the whole of the estate or so much thereof as may be unadministered.