GEORGE ANTHONY HARRIS Vs. MILLICENT SPENCER

JUDGEMENT

(1.) The plaintiff has filed this suit for revocation of the grant of letters of administration to the estate of one Annie Made Fencer deceased made by this Court to the defendant, who is the full sister of the deceased, on June 25, 1931, on the ground that the grant was obtained by means of false and fraudulent representations contained in her petition for letters of administration. The deceased was a resident of Manmad, but in or about January 1931 she came to Bombay to have an operation performed for removing a cataract in one of her eyes, and she died in the King Edward Memorial Hospital on or about March 3, 1931. The plaintiff is the son of one Christian Harris, who is the son of a predeceased sister of the deceased named Matilda alias Henrietta. The deceased also left her surviving two sons and two daughters by another predeceased sister Ellen and a cousin by the name of John Lastings alias John Spencer. Plaintiff alleges that the deceased left an estate which inter alia consisted of four per cent. Improvement Trust Bonds of the face value of about Rs. 19,000 and also some jewellery and cash, that these bonds belonged to the deceased herself but were kept in the joint names of herself and the defendant, and payable to the survivor of them, merely for the sake of convenience. The bonds were deposited for safe custody with the Imperial Bank of India, Bombay, and on the security of these bonds the deceased used to draw moneys for her purposes from time to time. Plaintiff further alleges that the deceased made a will on or about October 24, 1928, in which, after giving certain legacies, she gave and bequeathed all the rest of her estate to him. That will is not forthcoming. It is alleged in the plaint that the defendant has wrongfully concealed and suppressed the same, and in his evidence the plaintiff says the same thing by stating that the defendant is now withholding the same. There is, however, a writing in his possession which he says is the draft of the said will, and in April 1931 he applied to the District Court at Nasik for letters of administration to the estate of the deceased as her grand-nephew and legatee under the will. He also filed the draft of the will in the proceedings at Nasik. Defendant appeared in these proceedings through her advocate on June 6, 1931, to oppose the grant, and presumably the proceedings were thereupon stayed.

(2.) On June 18, 1931, defendant applied for letters of administration to this Court, and letters of admininistration were granted to her on June 25, 1931. Defendant says that she drafted the petition to obtain letters of administration herself without any assistance, and she got it typed by some one in this Court. On the grant of the letters the proceedings at Nasik were allowed to drop. In her petition the defendant stated that no will of the deceased had been found though due and diligent search had been made for the same, that she was the only surviving next-of-kin of the deceased, being the only surviving sister of the deceased, that she was entitled to the whole of the estate left by the deceased, and that no application had been made to any other Court for probate or letters of administration. The plaintiff says that these statements are false and fraudulently made, and he has therefore filed this suit for revocation of the grant, for receiver and for injunction.

(3.) The defendant contends in the first place that this suit is not maintainable on the ground that the plaintiff has no interest in the estate of the deceased. Ho is admittedly not an heir as on an intestacy, and his only interest would bo as a legatee under a will which according to the defendant was destroyed by the deceased with the intention of revoking it. It is laid down in Mortimer on Probate Law and Practice, Edn. of 1911, p. 585 (B), that an action for revocation of letters of administration granted on an intestacy may bo brought by a person claiming an interest under an alleged will of the deceased for the purpose of having the grant revoked in order that he may obtain probate of the alleged will under which he claims to be interested. The contest in such a case lies between the administrator to whom letters of administration have been granted and the person alleging the existence of the will, and the contest which relates to the validity of the will is decided in one and the same proceeding. If the will propounded is invalid, the Court pronounces against it, and the grant is re-delivered out to the administrator on a copy of the decree being filed. If the will is valid, the grant is revoked, and probate is ordered to issue in solemn form of law to the person entitled thereto. This is done in England in one and the same proceeding, and the question which arises is whether the same procedure is also applicable in India when a party applies for revocation of letters of administration and at the same time propounds a will as the last will and testament of the deceased. Rule 639 of the High Court Rules provides that in cases not provided for by chapter XXXI of the High Court Rules, or by the rules of procedure laid down in the Indian Succession Act, 1925, or by the Civil Procedure Code, the practice and procedure of the Probate Division of the High Court of Justice in England shall be followed so far as they are applicable and not inconsistent with that chapter and the said Acts. There is no decided case in India, at least I have been referred to none, in which the procedure followed in England has been adopted, and it appears to me to be somewhat doubtful whether the same procedure can be followed here. In England a caveat can be lodged by the party applying for a revocation of a grant even after the grant has been made. Section 284 of the Indian Succession Act refers only to the usual caveats against the grant of probate or letters of administration, that is to say, to caveats filed before the grant is made. The grant of probate or letters of administration is the decree of a Court, and where it has boon wrongly granted, an application can be made to the same Court which granted it to set it aside, and it seems that a regular suit is not always necessary (see Komollochun Dutt V/s. Nilruttun Mundle (1878) I.L.R. 4 Cal. 360), unless the grant is sought to be revoked on the ground of the invalidity of the will or on the ground of any dispute as to its genuineness. There may, therefore, be either an application to revoke the grant or a substantive suit, but when the grant is revoked, it seems that fresh proceedings have to be instituted in order to obtain proper representation to the estate of the deceased, and that must be done by a petition filed under the provisions of the Act. It may be argued that if a suit is filed, there is no reason why the matter of the alleged will and the revocation of the previous grant should not be tried at the same time. The party propounding the alleged will may as plaintiff seek to obtain revocation of the grant to the defendant. The defendant may be called upon to prove his title to the letters of administration, and then the plaintiff may contest the grant and lead his own evidence in support of the will. At any rate such a procedure will save multiplicity of proceedings and costs especially where the estate is a small one. As I have said, the point has not been decided before and is not free from doubt, and as we are governed by the Indian Succession Act, we cannot follow any rule of the English procedure which may be inconsistent with the provisions of that Act. The point, however, does not really arise for determination in this suit. There is no prayer in the plaint that the Court shall pronounce for the will sought to be propounded by the plaintiff on a draft and that the Court shall decree probate thereof in solemn form. The plaintiff applies only for revocation, and what is necessary both in England and in India is that the person applying for revocation must show that he is interested in the alleged will, i. e., in the estate of the deceased disposed of by the alleged will. That interest may be very slight. It has even been held that it may be a bare possibility. But there must be some interest which the applicant is prima facie entitled to claim in the estate of the deceased.