NANJAPPA ASARI Vs. STATE

JUDGEMENT

(1.) THIS is a second appeal sought to be preferred against the decree and judgment of the learned Subordinate Judge of Coimbatore in A.S. No. 196 of 1956, confirming the decree and judgment of the learned District Munsif of Coimbatore in O.S. No. 417 of 1955.

(2.) THE facts are : One Velayudha Asari died leaving surviving him two widows, Under his last will and testament he gave the two widows certain amounts as maintenance and deducting certain expenses, mentioned that one -third of the income was to bet paid to the plaintiff in this suit. After the death of the widows one -third of the properties itself was made to vest in the plaintiff. The present defendant Angammal applied for letters of administration with the will annexed. On caveat being entered by the opposite party, the proceedings were registered as O.S. No. 116 of 1942. Letters of administration with the will annexed was granted to Angammal; seel Exhibit A -6, dated 9th March, 1944. Subsequently this plaintiff had filed O.S. No. 690 of 1952 for accounting by Angammal. That suit ended in a compromise agreement, dated nth September, 1953. Subsequent to the said compromise in O.S. No. 690 of 1952 the plaintiff has received several amounts as evidenced by Exhibits B -4 to B -13. Exhibit B -1, dated 4th March, 1955, is the lump sum receipt for Rs. 2,000 executed by the plaintiff in favour of the defendant. It is in these circumstances that the plaintiff had filed another suit for accounts for the period 1st April, 1953, to 31st March, 1955. The defendant took objection that in O.S. No. 116 of 1942, the Sub -Court of Coimbatore had appointed her as administrator and that the has to render accounts of her management to the Sub -Court and has been doing so, that the present suit for rendition of accounts is not maintainable and that the remedy of the plaintiff is to move the probate Court for appropriate orders or file an administration suit.

(3.) PROBATE is a document issued under the seal of the Court and is the official evidence of an executor's authority. A person, therefore, who has been nominated by a will to act as executor, must obtain a grant of probate before he can take any steps which require formal proof of his authority, e.g., if he wishes to sue for debts due to the deceased or to sell the deceased's land. It is sometimes said that unlike an administrator an executor derives his title from the will for probate does no more than certify the validity of the will and of his appointment and does not itself appoint him to his office. There is a sharp distinction between metropolitan and mofussil wills. In the former case the will has got to be probated and in the latter it is optional. But even in the latter case the executor may be compelled to apply for probate at the instance of the persons interested.