HIRJIBHOY RUSTOMJI PATEL Vs. STATE OF BOMBAY

JUDGEMENT

(1.) One Rattanshaw died on October 9, 1950. He left behind him his mother Meherbai and a brother Hirjibhoy, who is the appellant before us. He also left children of a predeceased brother and a predeceased sister. On 2-5-1951, Meherbai applied for letters of administration to the estate of Rattanshaw and letters were granted to her. Meherbai died on 6-12-1951, and it is common ground that when Meherbai died the estate of Rattanshaw was not fully administered. Thereupon the appellant applied for letters of administration 'de bonis non' to the estate of Rattanshaw. This application was rejected by the learned Judge below on the ground that the appellant should have applied for letters "of administration to the estate of Meherbai, his mother, and not to the estate of his brother Rattanshaw, and the ground on which the learned Judge based his rejection was that Meherbai was the sole heir of Rattanshaw and as such she became entitled to the estate of Rattanshaw and therefore letters of administration should have been sought to the estate of Meherbai and not Rattanshaw. Now, with very great respect to the learned Judge, the whole judgment proceeds on a fallacy and on a misapprehension of the correct effect of Section 259, Succession Act. That section provides that "in granting letters of administration of the estate not fully administered, the Court shall be guided by the same rules as apply to original grants, and shall grant letters to those persons only to whom original grants might have been made." Therefore, the original grant was made under Section 259 to Meherbai, she being the mother and the heir of Rattanshaw. If the estate had been fully administered by her, then undoubtedly she would have been entitled to whatever Rattanshaw left, and if an application had been made to administer the estate of Meherbai, then duty would have had to be paid not only on what Meherbai left but on what was inherited by her from Rattanshaw. But the position here is that the estate of Rattanshaw is not still fully administered, and therefore what the appellant is seeking is not to administer the estate of his mother Meherbai but to administer the estate of his brother Rattanshaw. Now, it is difficult to understand why in law he is prevented from asking the Court to grant him letters of administration 'de bonis non' to administer the estate which has not yet been fully administered. In pur opinion he is entitled to letters of administration to the estate of Rattanshaw because he is one of those persons to whom original grant could have been given, because if the mother was not alive he would have been the next in line of succession under the Parsi law of succession, and he would have been entitled to letters of administration to the estate of Rattanshaw. It is also difficult to understand why at this stage the appellant is bound to pay duty over agaia on the estate of his brother in respect of which duty was already paid by Meherbai when she applied for letters of administration.

(2.) The Advocate-General's contention is that inasmuch as Meherbai was the heir of her son, the appellant is bound to pay duty on the estate of his brother Rattanshaw. But it is not to the estate of his mother that the appellant is applying for representation. Meherbai held property in two capacities. She held her own property and she held property as the administratrix of her son. Till the estate is administered, the property of her son does not belong to her. She only held it as the administratrix of her son. And as she has not administered fully the estate of which she was the administratrix, some one else can come forward and ask for permission to administer the estate and apply for letters of administration. Therefore, there was no obligation whatever upon the appellant to apply for letters of administration to the estate of Meherbai. It is perfectly true that when the estate of Rattanshaw is administered and when the property of Rattanshaw belongs to the estate of Meherbai as the heir of Rattanshaw and an application is made for letters of administration to the estate of Meherbai, duty would have to be paid not only on the property which Meherbai left in her own right but also in her capacity as the heir of Rattanshaw. But that situation would only arise when an application is made for letters of administration to the estate of Meherbai. The estate of Rattanshaw has remained unadministered and the appellant is entitled, in our opinion, to have the estate administered by getting letters of administration 'de bonis non'.

(3.) Our attention has been drawn by the Advocate-General to two precedents pointed out in the office note where an estate was unadministered, and the person who applied for letters of administration was given letters of administration not to the estate of the person whose estate was unadministered but to the estate of a person who was the heir of the person whose estate remained unadmmistered. In our opinion, those precedents are not in accordance with law. When a party applies for letters of administration 'de bonis non, letters can only be issued to the estate of the person whose estate has not been administered. That is the whole object and reason for giving letters of administration 'de bonis non'. Therefore, in our opinion, with respect to the learned Judge below, there was no justification for refusing to the petitioner the letters of administration 'de bonis non' to the estate of Rattan shaw.