BAI MONGHIBAI Vs. BAI RAMBHALAXMI

JUDGEMENT

(1.) In this testamentary suit the parties have agreed on certain terms, and, as frequently happens in testamentary suits, some of the terms are such as possibly do not fall strictly within the testamentary jurisdiction. Some undoubtedly do; but it is possible that, as regards some of the others, they could more strictly be carried out in the exercise of the original jurisdiction of this Court. The difference between these two jurisdictions corresponds very mush to what would be the difference in England between the Probate jurisdiction and the Chancery jurisdiction.

(2.) Quite recently in this Court in the case of Samuel, In re Testamentary Suit No. 3 of 1920 (unreported.) a similar point arose; but there the terms Counsel agreed on were even more of what I may call a Chancery nature. In effect, the parties there wanted certain directions given to the administrator as to how the estate should be dealt with and how it was to be divided between certain beneficiaries. When the order in that latter case came before the Registrar, he very properly drew my attention to the standing direction of Sir Lawrence Jenkins given on the 22nd August 1901. It is contained in a letter written by the then Registrar to the Attorneys in a particular case; and it says as follows: With reference to your precipe to draw up the consent decree in the above suit (1) Testamentary Suit No. 3 of 1920 (unreported.) passed on the 14th instant, I beg to inform you that I cannot draw up the decree as specified in the terms save and except as mentioned in Clauses 6 and 7 thereof. The Honourable the Chief Justice is of opinion that the Court exercising testamentary and intestate jurisdiction can deal with the questions of grant of Probate and Letters of Administration only and nothing more; and I have been directed to see that the consent decrees providing for more than that should not be drawn up.

(3.) Now, I think I have been taking testamentary matters row for a considerable time, 1 suppose some two years, and this particular direction was not previously brought to my attention, although of course from practice in England I was quite familiar with the distinction drawn between the jurisdiction of the Probate Court and the jurisdiction of the Chancery Court. The note I have made in dealing with this standing direction is as follows: The Testamentary Registrar is quite right in drawing attention to this direction of Sir Lawrence Jenkins, but it must not be pushed too far. The English Probate Court s jurisdiction is also confined to Probate and Administration and it has not even got the Indian jurisdiction given by Section 90 of the Probate and Administration Act. Yet, it is a matter of common occurrence for Probate suits in England to be settled on terms that embody distribution or administration of the estate in a particular way and which are by no means confined to the mere question whether Probate or Letters or Administration shall issue and if so to whom. If such terms are arrived at they must be all shown in the decree either expressly or by reference. Otherwise, the decree is misleading. It may be that the English Probate Court cannot itself carry out all the terms, e.g., an application to the Chancery Division under the Settled Land Acts or in Lunacy may he necessary to effectuate the terms. But that does not prevent the terms being set out. In the present case I think I have jurisdiction to order the sale asked for in paragraph 4 and to direct the payment to the Accountant-General asked for by paragraph 7. The issue was as to the person to be appointed administrator and these terms are really safeguards attached to her appointment. I was not compelled to appoint the widow (see Succession Act, Section 202 and Sections 225 and 224). Paragraphs 5, 6 and 7 are, however, more appropriate to an administration suit, and a decree could not be made here for administration simpliciter. That would be for the ordinary jurisdiction on the Original Side. I think the best plan is to put the terms in a schedule and for the body of the order to carry them out so far as we have jurisdiction. The doubtful paragraphs 5 to 7 san rest on agreement and, if necessary, they can be enforced in a suit on the Original Side. The liberty to apply to the Probate Court is added as possibly it may be useful. I have accordingly settled the minutes on these lines.