VRANDAVANLA GOVERDHANLAL PITTI Vs. KAMALA BAI GOVERDHANLAL

JUDGEMENT

(1.) The Office Note in S. R. No. 34717 of 1967 had initially sought orders on the questions (1) whether the O-P. was maintainable in view of the fact that the petitioners seek probate fro a part of the property left by the deceased and not for the entire estate? (2) Whether the Advocates for the petitioners may be directed to file an English translation of the will by a competent authority duly verified as laid down by S. 277 of the Indian Succession Act, (3) Whether the advocate may be directed to file a valuation of the estate of the deceased ink duplicate as per Section 52 of the Court Fees Act and mention the Court Fee payable thereon. Our learned brother, Narasimham, J., directed that the probate fee should be levied under the proviso to Section 53(2) of the Andhra pradesh Court Fees and Suits Valuation Act, 1956 in respect of immoveable properties situated at Bombay for which probate is compulsory under Section 57(b) of the Indian Succession Act and that a translation of the will be obtained in compliance with Section 277 of the Indian Succession Act as the government Pleader had stated that this is necessary to know which are the immoveable properties in Bombay. Thereafter the Office resubmitted a further note regarding the maintain abililty of the petition about which there were no orders. In the note, the view of the office was that there was no provision in the Indian Succession Act for the grant of a limited probate when the entire estate vested in the executor, that a limited probate is not contemplated by the Act except where the will itself reserves the interests of the executors and that Sections 254 to 257 which deal with limited probate in special circumstances were clearly inapplicable to the instant case. In support of this, the office note also cited several decisions. Our learned brother, after, hearing the arguments of the counsel, thought that as this matter was of sufficient importance and that there is as yet no ruling of the Court, it may be decided by a bench as to whether probate duty is payable on apart of the estate of the testator Sri Goverdhanlal Bansilal, even if the case does not fall under the exceptions to sections 254 to 257 of the Indian Succession Act.

(2.) Before us, Shri G. Balaparameswari Rao, the learned advocate for the executors, contends that no probate need to obtained of a will except in cases mentioned in Section 57 of the Indian Succession Act; and at any rate only a limited court-fee of Rs. 25 is payable under the Court-fee Act and if a caveat is entered that O. P. will be registered as a suit and the Court-fee payable is on half of the value of the estate devised under the will less the Court-fee already paid. In so far as probate duty is concerned, that is a matter which has to be decided after probate is granted depending on the value of the estate either on the date of the death of the testator if the petition is within one year; or on the date of the application if it is after a year. The learned government Pleader has supported the office note and relied on the cases cited by it for the proposition that no probate of a part of a will can be obtained unless the Court, in cases which provide for exception, grants in respect of a part of the property bequeathed under the will. It appears to us that the provisions of Chapter II of part IX Sections 237 to 260 which deal with grants limited in duration are only applicable to limited grants and exceptions. Of these, Section 255 allows a limited probate in special circumstances of which the following are some examples. (i) When the testator makes a grant for a limited purpose. (ii) when the testator appoints several executors for different purposes. (iii) When a part of the will is invalid on the ground of fraud; and (iv) when the will is damaged or mutilated. From this it is sought to be contended that the grant of a general probate is the rule and a limited probate an exception. Shri G. Balaparameswari Raos contention, as already noticed, is that the cases cited in the Office note are all cases which deal with probate proceedings within the territories which on the first day of September, 1870 were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay and which are subject to the provisions of Sections 57 (a) and (b) of the Indian Succession Act. It is his submission that in these territories the obtaining of a probate is compulsory. As such, a probate of a will situated outside those territories has to be obtaining in respect of immoveable properties situated within those territories. Otherwise there is no necessity for an executor or executors to obtain probate of the will at all. If so, in respect of properties not situated within the territories specified in Section 57(a), partial probate also can be taken. At any rate, in so far as immovebale properties situated within the territories which were subject to Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay are concerned obtaining probate of a will is compulsory. For an appreciation of these contentions, it is necessary to read the provisions of Section 57, 211 and 213 of the Indian Succession Act which are in the following terms:

(3.) Sri Balaparameswari Rao Relies on a Division bench decision of the Madras high Court in Namberumal v. Veeraperumal, AIR 1930 Mad 956 for the contrary postiton. In that case the suit was for administration of the estate of the deceased Appaswami Pillai and fro the recovery of the balance of legacy of Rs. 15,000 with further interest, and of a sum of Rs. 15,000 due on a promissory note with further in test. The facts of the case were that one Appaswami pillai executed a will (ex. A-5) on 11/08/1915 under which he devised tow items of his property to Srinivasa pillai, son-in-law of his elder brother, and all the rest of his properties in favour of his nephew, the 1st defendant, Veeraperuman Pillai. On 19/10/1920, he addressed a letter (Ex. A-6) containing testamentary dispositions. Three days after the execution of Ex. A-6 i.e., on 22/10/1920, he and the executor (Ist defendant) had executed a promissory note (Ex. A-1) for Rs. 15, 000) in favour of Aparanji Ammal with interest at 4% per annum. The testator died on 4/10/1921 and on 2 1/12/1921, the executor (1st Defendant) applied for a probate of the will (Ex. A-5) and of Ex. A-8. A caveat was entered by the brother of the Ist defendant (executor) but probate was ordered. There was an appeal and in the appeal there was a compromise under which the 1st defendant promised to pay Rs. 50,000 to his brother (the appellant therein) and the later withdrew his appeal. Soon after the withdrawal, the 1st defendant applied for a loan of Rs. 2.5 lakhs to defendant No. 4 and Ex. A-3 was the deed of mortgage. It recites the purpose as follows: (1) Rs. 20,015 due with respect to two mortgage deeds of 1921 executed by the testator (2) Rupees 41,600 due to the Secretary of the Sri Madhaya Mohanji Temple. (3) Rs. 15,000 directed to be paid to Aparanji Ammal and certain amounts due from the 1st defendant and his son to certain persons which were his private and personal debts amounting to Rs. 1,43,000. The suit was dismissed for the legacy, but a decree was passed for the balance of the money due on the promissory note after crediting the admitted payment towards the promissory note, the decree being executable against the assets, if any, of the deceased Appaswami Pillai in the hands of 1st defendant and also against the 1st defendant personally. In appeal several questions were raised, one of which was whether Ex. A-6 should be called a will or codicil and whether the plaintiffs claim cannot be established without a probate being taken out. The letter (Ex. A-6) written by Appaswami Pillai to the 1st defendant from his residence near the Guindy Race Course, Guindy, outside the original side jurisdiction of the Madras High Court, is as follows: