ARUMILLI VIRAMMA Vs. ARUMILLI SESHAMMA ALIAS CHITTEMMA

JUDGEMENT

(1.) In this case the 1 respondent, the grandmother of one Ramarayudu, a minor, applied to the Lower Court for a limited grant to her of probate of a will asserting that a man named Krishnamurthi, her son, had died and that previous to his death he had made a will under the provisions of which she herself was a legatee and some of the property fell to her grandson a minor. This alleged will effectively shut out the alleged testator's widow the counter-petitioner on the petition in the Lower Court. The 1 respondent accordingly applied to have the will probated and eventually recognising that she was not entitled to ask for probate changed the nature of her application and asked instead to have granted to her letters of administration. This application was refused; and on the 13th November last the learned District Judge passed the following interim order: There is no ground to reject the application. This is really governed by Section 234. The alleged residuary legatee--granting he is one--is a minor.

(2.) That is the order appealed against here. The question which in my view determines this matter is whether the minor was under the alleged will an executor by implication. The alleged will put forward states as follows: It is devised that my nephew Ramarayudu is to discharge the debts due by me to the world.

(3.) The question is whether that provision makes Ramarayudu an executor by implication. Section 222 of the Indian Succession Act says that probate shall be granted only to an executor appointed by the will and that the appointment may be expressed or by necessary implication. Here of course no question arises as to whether there was an express appointment of Ramarayudu as an executor but the only question is whether by necessary implication he was so appointed. To Section 222 there are three illustrations and the third illustration seems to me to cover this case. There the words were: "I appoint my nephew residuary legatee to discharge all lawful demands against my will and codicils signed on different dates" and my nephew, was held to be appointed an executor by implication. The wording there seems to me to be very similar to the wording in the present case and, in my view, the minor was clearly appointed an executor by implication. If that is so, the learned District Judge was wrong in saying that the application was covered by Section 234 of the Indian Succession Act. It clearly was not. That section only deals with cases where no executor has been appointed or if an executor has been appointed he declines to act. Here an executor was appointed and it was not a case of his declining to act because in law he could not act. In my view, minor executors are expressly and solely provided for by Section 244 of the Act. Where a minor executor is appointed, then it is open to his legal guardian or such other person as may seem to the Court fit, to have letters of administration issued to him; and, if there is any section at all in the Indian Succession Act which enables the respondent in this case to apply for Letters of Administration, it is Section 244. In Bhagwaii Kuer V/s. Bahuria Rantsakhi Kuer (1920) 5 Pat. L.J. 347, which followed the decision in In the goods of Nirojini Debi (1907) I.L.R. 34 C. 706, the corresponding Section 33 in the Probate and Administration Act (V of 1881) was considered and it was held that before letters of administration can be granted to a legal guardian of a minor, the legal guardian must apply to be appointed the minor's guardian for the purpose of enabling him or her to obtain those letters of administration for the use and benefit of the minor. In this case there is no such application by the respondent and being of the opinion as I am that the only section under which this application can be made is Section 244, this appeal must be allowed. In doing so, we leave it open to the respondent to get herself appointed if she can as the guardian of the minor. Then, if the Court so think fit, she can obtain Letters of Administration. This appeal must, therefore, be allowed with costs. No orders are necessary on the Civil Revision Petition. Pakenham Walsh, J.