MUNISAMI CHETTI Vs. MARTHAMMAL

JUDGEMENT

(1.) In this case the plaintiff who is the daughter-in-law of the deceased sues the first and second defendants as executors of his will. The plaintiff claims that under the will of the deceased she was entitled to be paid a proper maintenance out of the profits of a fund of Rs. 25,000 and odd disposed of by the will, and charges the defendants with certain acts of maladministration, non-payment of maintenance and refusal to keep and show accounts, and prays among other things that the executors may be made to account and may be removed; and the suit may I think be treated as an administration suit in which the Courtis asked to take upon itself the administration of the estate and see that the provisions of the will are given effect to. One question raised is whether the plaintiff is entitled to maintenance under the will out of the fund. In my opinion she is. Under the will, exhibit A, there was to be no delivery to her until there was issue to her and her husband, and in the meantime she and her family were to be paid maintenance out of the fund. Although the husband died after the institution of the suit, it is still open to her to adopt if aha can obtain the necessary consent, and I do not think there can be said to have been a failure of issue so as to let in the residuary legatees. Under these circumstances I am of opinion that the widow has an interest sufficient to maintain the suit.

(2.) It is however contended by the first defendant that the property devised by the will was not the self-acqaired property of the testator but was joint family property to which he and his brother the plaintiff's husband became solely entitled by survivorship on the death of the testator. The Subordinate Judge found that the properties so acquired were not joint family properties, but this finding is based on the proposition that when members of a joint family acquire property by working together without the aid of ancestral property, they are to be presumed to acquire it as co-owners and not as joint family property unless an intention to acquire it as joint family property is proved. I am however of opinion that the onus is the other way as laid down by Bhashyam Ayyangar, J., in Sudarsanam Maistri V/s. Narasimhulu Maistri (1902) I.L.R. 25 Mad. 149 and it would therefore be necessary to consider whether the plaintiff has discharged the onus on her and shown that the property was not joint family property, were it not that in my opinion the first defendant who raises the contention is estopped from raising it by having acted as executor under the will and got possession of the estate as executor.

(3.) In Srinivasa Moorthy V/s. Venkata Varada Ayyangar (1906) I.L.R. 29 Mad. 239, where a son had taken out probate of his father's will which dealt with the property as the self-acquired property of the testator, and had collected assets under the authority of the probate, and afterwards set up a claim that the property was joint family property which ha took by survivorship, Subrahmania Ayyar, J., observed at page 280 "In the next place, no such question of title can in point of law be taken as presented for our decision inasmuch as the defendant having with full knowledge of all the circumstances bearing on his rights as the testator's son, accepted the office of executor, obtained probate and, under its authority collected assets and otherwise so acted as to cause the plaintiffs to alter their position, the defendant is estopped from impeaching the will, repudiating his fiduciary position or setting up in respect of the property dealt with by the will any rights inconsistent with the dispositions and conditions therein. See Bigelow on Estoppel, 5 edition, page 554," Now so far as I can recollect the only way in which the plaintiffs in that case altered their position for the worse was by looking on and not opposing the defendant in the steps taken by him to get possession of the assets relying on him to give effect to the provisions of the will of which he had consented to act as executor. The facts of the present case seem to me to be precisely similar. It is not suggested that the first defendant was ignorant of any of the circumstances bearing on his rights as the testator's son when he took upon himself the character of executor and collected assets as such. It is true that in the present case the first defendant has not taken out probate being an executor under a Hindu will to which the Hindu Wills Act is not applicable and so entitled under Section 88 of the Probate and Administration Act to collect assets without probate, Shaik Moosa V/s. Shaik Essa (1884) I.L.R. 8 Bom. 241, but this seems to me immaterial. Nor does it seem to me material whether the estate of the deceased vests in him as executor under Section 4 without probate, or he is merely in the position of a manager until he takes out probate, though I may say that the view that under Section 4 of the Probate and Administration Act the estate vests in the executor without probate which is in accordance with the last mentioned case and Collector of Ahmedabad V/s. Savchand (1903) I.L.R. 27 Bom. 140, and the opinion of Messrs, Phillips and Trevaleyan in their "Hindu Wills Act" appears to be supported by the judgment of their Lordships delivered by Sir Arthur Wilson in Mirza Kriratulain Bahadur V/s. Peara Sahib (1905) L.R. 32 I.A. 244.