ALAMELAMMALL Vs. PNKSURAYAPRAKASAROYA MUDALIAR

JUDGEMENT

(1.) The plaint in this suit alleges that the husband of the plaintiff died in 1911, possessed of certain properties and having made a Will appointing the defendant as his executor, who entered into possession and management of the properties immediately after the testator s death but has taken no steps to obtain Probate of the Will. It alleges various acts of mismanagement by the defendant and that the plaintiff is interested as the mother of the testator s son, who died subsequently to the testator and to whose interest the plaintiff has succeeded as heir. The prayer of the plaint is that the defendant may be directed to apply for Probate of the Will, that he may be ordered to account for the administration of the estate of the deceased and the moneys collected by him or that ought to have been collected by him but for his wilful default or negligence, and that an account may be taken of the estate and the same be duly administered under the orders of this Court.

(2.) It is stated that the defendant did apply for Probate and that the fiat of the Judge was obtained upon his application, but that the actual grant has not been issued through the failure of the defendant to pay the stamp duty leviable under the Court Fees Act, 1870. The Will is one to which the Probate and Administration Act and the Hindu Wills Act apply, and, therefore, the case is governed by Section 187 of the Indian Succession Act, which applies to Wills of Hindus under the Hindu Wills Act. In the first place, I think that the fiat of the Judge upon the defendant s petition can only be read as an order that Probate shall issue to the petitioner upon his complying with the statutory provisions and the rules of the Court. One of the statutory provisions with which the petitioner must comply is that he must bring in the necessary stamps Section 4 of the Court Fees Act directs that no document of the kind specified in the Schedules to the Act shall be received or furnished by any of the High Courts unless the prescribed fees have been paid.

(3.) The decision of their Lordships of the Privy Council reported as Mungniram Marwari v. Gursahai Nand 17 C. 347 (P.C.) : 16 I.A. 195 : 13 Ind. Jur. 449 : 5 Sar. P.C.G. 463 is strongly relied upon by the learned Vakil for the plaintiff as showing that the order of the Court is sufficient without an issue of the actual grant. But it is clear from the observations of their Lordships at page 357 that they were interpreting a particular Act--Act XL of 1858--which was passed prior to the Court Fees Act of 1870--and that they disregarded the latter Act in putting a construction upon the former. The decision may also be distinguished on the ground that in the present case, there has been no actual order for the issue of Probate; and also the point in that case was as to whether a minor had been properly represented or not and their Lordships held that he was, as a matter of fact, represented in the proceedings and they refused to treat them as invalid merely because the formal order had not been carried out. I do not intend to discuss the English cases which have been cited by the learned Vakil for the plaintiff. They relate to cases of executors de son tort in which the Court has evidently strained its powers in order to prevent misapplication of the assets of a testator. I do not think that it is useful to refer to cases decided under a totally different system from that which obtains in India and under Statutes different in wording.