E J JOHN Vs. COLLECTOR OF MALABAR

JUDGEMENT

(1.) The appellant filed an application for letters of administration in favour of the Collector of the district with reference to the will of one Antony Chandikunjan, who died on 7 June, 1934, having executed and registered a will dated 20 September, 1924. By that will the testator appointed as his executors (1) his son, the third respondent, (2) the Rev. Father John, who has since died and (3) the vicars of two churches within the diocese of Cochin. The will provided a sum of Rs. 40,000 for the establishment of a convent within the parish of Santa Cruz, Cochin, and also set apart a considerable extent of land for the endowment of a chapel. The petition alleges that the petitioner is a prominent parishioner of Santa Cruz Cathedral Church and a person interested as a beneficiary in the proper administration of the properties set apart by the testator for trust purposes. It is also alleged that the executors named in the will have "slept over the will," making it easy for the third respondent to get possession of the properties and utilise them for his own purposes in contravention of the will. There is no specific averment that the surviving executors are unwilling and incompetent to execute the will. But the general purport of the allegations is to impute indifference to the executors and, so far as the third respondent is concerned, to allege a hostile interest. The petitioner impleaded in his petition the Collector of Malabar whom he proposes as administrator, the Bishop of Cochin who is the ecclesiastical superior of the two vicars who are the executors, and the third respondent who is one of the executors.

(2.) The lower Court has rejected the petition in limine on three grounds. Firstly there is the lack of a specific averment satisfying the conditions of Section 254 of the Indian Succession Act that the executors named in the will are not willing and competent to act. Secondly, the lower Court holds that a petition under Section 254 of the Indian Succession Act can only be preferred by the person who himself seeks letters of administration in his own favour and that a petition seeking letters of administration in favour of a third party or a public official is incompetent. Thirdly, it is held that the provisions of Section 229 of the Indian Succession Act require a special citation to the persons appointed executors in the will and that the petition has to be rejected in the absence of proof of such citation.

(3.) The first of these three objections is, in our opinion, the most substantial. No doubt, Section 276, which lays down certain legal requirements for a petition for: letters of administration, does not refer to the special circumstances which have to be established in order to justify an appointment under Section 254. It is, however, apparent that Section 254 will have no operation unless the deceased has either died intestate or has left a will of which there is no executor willing and competent to act or unless the executor is, at the time of the death of the testator, resident outside the province and it is obviously desirable that a petition filed under this section should plead specifically the existence of such circumstances as would make the section operate. We are, however, of the opinion that, while this petition is drafted in very loose language, the averment that the executors have "slept over the will" thereby making it possible for one of those executors to misappropriate the trust funds, may be treated as a sufficient averment that the executors named in the will are not willing and competent to execute the will. If necessary the petitioner might have been required to amend this petition making the pleading more specific." But we do not think that the vagueness of this plea is of itself a sufficient ground for the rejection of the petition.