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Before Naimuddin, C. J. and Saeeduzzaman Siddqui, J
SHAMSUDDIN HUSSAIN AJAMI-Petitioner
versus
KAIKHUSRO MERWAN MONDI-Defendant
Suit No. 629 of 1983 and Miscellaneous Application No. 91 of 1980. decided on 4th September, 1986.
(a) Succession Act (XXIX of 1925)-----
-- Ss. 222 & 232-Sind Chief Court Rules (O. S.), R. 376 Probate and Administration Act (V of 1881), S. 9.-Will-Probate Application for probate must cover entire property of deceased --Will not disposing of all properties owned by deceased-Probate, held, could not be granted in such case but letters of Administration could be applied for which could be granted on basis of such will.
Khubchand son of Bulchand v. Motilbai widow of Bulchand and another and Chularam Bulchand v. Motilbaf (1936) 30 S L R 210 ; Abdul Gafur Mahmadsaheb Maniyar v. Jayarabi Ibrahim and others A I R 1929 Bom 456 ; B. Amrit Rae and others v. B. Sangamlal and others A I R (30) 1943 Oudh 151 ; Sardar Singh and another v. Teja Singh and others A I R 1946 Lah. 277 ; In re: T. K. Parthasarathi Naidu A I R 1955 Mad. 411 and Vrandavanla Goverdhanlal Pitti and another v. Smt. Kamala Bai Goverdhanlal and others A I R 1970 Andh. Pra. 109 ref.
Hara Coomar Circar v. Doorgamoni Dasi I L R 21 Cal. 195 ; Kedar Nath Mitter v. Sarojini Dasi I L R 26 Cal. 634 and The Midnapur Zamindary Co. Ltd. v. Ram Kanai Singh Deo and others A I R 1926 Pat. 130 not relevant.
(b) Succession Act (XXIX of 1925)----
--Ss. 222 & 232- Probate and Administration Act (V of 1881), S. 9 Will-Probate-Money in joint Bank account in the name of deceas ed and his son belonging to deceased and latter having no interest therein-Principle of "advancement", held, would not apply to such cases in Pakistan.
F. J. R. Kerwick v. K. M. Kerwick A I R 1921 P C 56 ; Shambhu Nath Shivpuri v. Pushkar Nath and others A I R 1945 P C 10 ; Ismail Dada Adam Soomar v. Shorat Banoo P L D 1960 (W. P.) Kar. 852 ; Abdul Latif Khan son of Abdul Wadud Khan and another v. Muhammad Akbar Ahan and others A I R 1947 Pesh. 1; Guran Ditta and another v. T. Ram Ditta A I R 1928 P C 172 ; Sura Lakhmiah Chetty and others v. Kothandarama Pillai A I R 1925 P C 181 and Mst. Bila.v Kun war v. Desraj A I R 1915 F C 96 ref.
Behary Lall Sandyal v. Juggo Mohun Gossain I L R 1878 4 Cal. 2 ; Hormusji Navroji v. Bal Bhanbaiji, Jamshetf Dosabhai and others I L R 12 Bom. 164 ; Arunmoyi Dasi v. Mohammendra Nath Wadadar and others 20 Cal. 888 and In the Estate of Fawcett (1941) 2 All E R 341 not relevant.
(c) Succession Act (XXIX of 1925)
-----Ss. 222 & 232--Probate and Administration Act (V of 1881), S. 9 Will-Probate-Partnership concern-Interest in such concern, on its dissolution, assigned to one of deceased's sons before demise of his father-Such property, held, could not be included in the list of properties and credits annexed to petition for probate.
G. H. Abbasi for Plaintiff.
Hamza I. Lal & G. Raymond for Defendant.
Dates of hearing : 15th September and 30th October, 1985.
NAIMUDDIN, C. J.-The relevant facts giving rise to this suit briefly stated are as follows :----
2. Shamsuddin Husain Ajami (hereinafter called the plaintiff) on 22-6-1980, filed a petition under section 222 of the Succession Act read with rule 376 of the Sind Chief Court Rules (Original Side) (hereinafter called 'the Rules') for grant of probate of the Will of Kaikhusro Merwan Mondi (hereinafter called the deceased') who died in Karachi on 31-7-1979 appointing by the will the plaintiff as one of the two executors, the other being Mr. Iqbal Kazi Advocate, who has declined to not as such.
3. According to the averments made in the petition the deceased died possessed of or entitled to at the time of his death the following properties and credits which are mentioned in Annexure "A" to the petition and which were likely to come to his hands;
(a) Business of Cafe Victoria and General Mer chants carried on at Shops Nos. 1 and 2 on the ground
floor of Lotia Building, Abdullah Haroon Road along- Rs.
with tenancy rights. 6,00,000.00
(b) Business of Palace Cinema Stall in the Palace
Cinema Building, Karachi.
(c) Flat No. 2, Suleman Centre on the 4th Floor
on Plots 34 and 35, S. B. 3, Saddar, Karachi. 1,21,000.00
(d) Shop No. 50 on the ground floor of Suleman
Centre on Plots 34 and 35, S. B. 3, Karachi. 1,50,000.00
(e) Four Bedrooms Flat under construction by
Ahmed Construction Company near Cantonment and
Rs. 59,000 in balance. 1,31,000.00
(f ) Fresh Wine Retail Shop and the share in
Partnership or Shaheen Variety Stores and tenancy
rights in the shop in Fahmeed Chamber on plot
No 286/288, Central Commercial Area, P. E. C. H. S.,
Karachi. 4,00,000.00
Valuation of Movable Property
Two annas in a rupee share now closed business of:
(i) Asiatic Wine Merchants (Store)
(ii) Paris Refreshment Room.
(iii) Associated Wine Merchants. 2,00,000.00
According to the plaintiff, the following expenses are to be deducted from the assets
(a) Funeral Expenses and expenses of ceremonies
relating thereto. 10,000 00
(b) Court Fees. 15,000.00
4. According to the further averments made in the petition the deceased left surviving him the following next-of-kins according to the Parsi Law of Intestate Succession.
(a) Kaikhusro Merwan Mondi,
(b) Ardeshir Merwant Mondi,
(c) Mahrockh Rustom Chemi,
(d) Parichalar A. Khairabadi,
(e) Dolly Rustom Hormezdi.
5. The notice of the petition was duly published in the Daily DAWN, dated 19-8-1980, besides being served on the next-of-kins. Thereafter, on 18-9-1980, one of the next-of-kips namely, Kaikhusro Merwan Mondi, (hereinafter called the defendant) who is son of the deceased, filed a Caveat under section 284 of the Succession Act read with rule 408 of the Rules. In the affidavit filed in support of the Caveat the stand taken by defendant is that the plaintiff has only mentioned the properties bequeathed by the deceased through the Will. But as a matter of fact the deceased has left several other properties including cash, Share Certificates, National Investment Trust Units, Defence Saving Certificates, Khas Deposit Certificates, Jewellery, Furniture etc.
6. The other objections taken are as follows :------
(b) Business of Cafe Victoria and General Merchants (which is Item No. (a) of the Annexure "A" of the petition) has been grossly undervalued.
(c) No valuation of Item No. (b) i. e. Palace Cinema Stall has been shown in the Valuation List.
(d) There is no reference of Partnership Business of Shaheen Variety Store or of the tenancy rights in Shop (No. 6) in Fareed Chambers on Plot No. 286/288, Central Commercial Area, P. E. C. H. S., Karachi. It has been wrongly and mala fidely included in Item No. (f) of Annexure "A" of the petition.
(e) 1/8th (i.e. two annas in a rupee) share in Asiatic Wine Merchants Store, Paris Refreshment Room and Associated Wine Merchants has been overvalued as the Licences of these shops have been cancelled and the business has been totally suspended.
(f) In Annexure "B" the Funeral Expenses of the deceased have been wrongfully claimed and deducted out of the value of assets by the petitioner as they were met by the youngest daughter of the deceased namely Mrs. Maharukh Rustom Chemy out of the cash left by the deceased (my father) at his residence 4-A, Island Apartments Chaudhry Rehmat Ali Road, Bath Island, Karachi."
7. In view of the affidavit filed in support of the caveat against the grant of probate, the proceedings were numbered and registered as a suit describing the petitioner as plaintiff and caveator as defendant in accord ance with rule 413 of the Rules and treating the affidavit filed by the caveator defendant as his written statement.
8. Since according to the Rules, the procedure in such suits has to be followed as nearly as possible according to the provisions of the Code of Civil Procedure the following consent issues were framed.
(1) Whether the will dated 20th May, 1979 is a valid will
(2) Whether the will does not mention all the properties left by the deceased, if so, what is the effect
(3) Whether the Item No. F' in Annexure "A" was not the property of the deceased
(4) Relief
However, on 20-5-1984. issue No. 3 was reframed as follows on an application made on behalf of the defendant's Advocate.
"Whether the share in partnership of Shaheen Variety Stores and tenancy rights in the shop in Fareed Chamber on Plot No. 286/288 Central Commercial Area. P. E. C H. S., Karachi, have been wrongly and mala fide included in Item No. "F" of Annexure "A" to the petition T'
9. On behalf of the plaintiff Jamsheed Barucha (Exh. 4), Musaddaq Hussain (Exh. 5), were examined. On behalf of the defendant, besides him (Exh. 6), Minoo N. Bamjee (Exh..7) and Abdul Rauf Qureshi (Exh. 8) were examined.
10. Jamsheed Barucha (Exh. 4) produced the will (Exh. 4/1) executed by the deceased and he proved his signature thereon as a witness. In cross-examination, he has stated that the deceased at the time of execution of the will was lying in bed due to illness but he could not state the nature of the illness, The will was executed in the presence of the Sub-Registrar in the room where the deceased was living. He admitted that Chemy, the son-in-law of the deceased and his wife Mahrukh who is daughter of the deceased were living in the same flat wherein the deceased was living. He stated that the will was executed at about 5 o'clock on 21-7-1979.
11. Musaddaq Hussain (Exh. 5) stated that he knew the deceased and the will bears his signature. He, in cross-examination, stated that the deceased was ailing at the time of execution of the will at 4-30 p. m. to 5-00 p. m. on 21-7-1979, and at that time his son-in-law Chemy and his wife Mahrukh and a maid-servant were present. He further stated that the property bearing No. 42-S. B. 4, Saddar, belonged to the deceased and was purchased by his father (witness's father) in the name of RIAZ FATIMA. He produced the certified copy of the conveyance deed of the property (Exh. 5/2). He further stated that the sale-deed was also executed at the same time when the will was executed and that his fattier had paid the sale consideration of Rs. 1,35,000 in cash in his presence and in the presence of the Sub-Registrar. The deceased had kept the money with him.
12. K. M. Mondy, the defendant (Exh. 6) in his disposition inter alia, stated that his father remained sick for about 5 or 6 years and died of liver cancer. He lived in the house of his daughter MAHRUKH till he died. Before that he was living in a rented flat opposite Empress Market, Saddar, Karachi. The flat was completely furnished. He took all the furniture from the flat wherein he was living to the house of his daughter. According to the witness, there were two expensive carpets, 2 or 5 wardrobe, refrigerator dining table, chairs sideboards, show cupboards and jewellery consisting of gold buttons, gold studs, gold rings, gold pocket watch with gold chain and a gold dollar attached to it valuing in all Rs. 1,50,000. He also had a car when he went to live in the house of his daughter. The car was with his sister and was being used by CHEMY, her husband. He further stated that he filed the caveat because his father had left besides the above properties mentioned other properties which are not mentioned in his will and one of such properties was immovable property bearing No. S. B. 4/42, Frere Street, Karachi which was sold by his father just before he died for a consideration of Rs. 1,35,000 which was received by his father in the house of his daughter. The sale of the property has been exhibited marked as Exh. 5/2. According to the witness, his father had also Defence Saving Certificates, Khas Deposit Certificates, Postal Certificates, N. 1. T. Units. He produced one Dividend Warrant received at his address in the name of Mrs. M. M. Mondi, her mother together with its memorandum and another memorandum in the name of his father marked as Exh. 6/1 to 6/3. The witness further deposed that N. I. T. Units belonged to his mother which were given to his father through the will of which probate was issued. He produced the certified copies of the will and probate marked as Exh. 6/4 and 6/5. The deceased, the witness went on to depose had two accounts, one current account in the name of Mondi Refreshment Room and Bar and the other saving account in his own name which was later on joined by his (witness's) brother Aredsher. The witness claimed that the money in the saving account belonged to his father though the account was in the joint name and that his brother Aredsher had no financial interest in it because he was already settled in Canada for the last about 12 or 1.4 years and he had become a Canadian national and had no commercial interest in Pakistan. According to the witness efforts were made to settle the dispute as to the properties left by the deceased amicably through Minoo N. Bamjee, an Income-tax Practitioner whose evidence was also recorded in this case. He has also produced as handwriting of Minoo N. Bamjee.
In the cross-examination to Mr. G. H. Abbasi, he admitted that he was objecting to the validity of the will only because there were other properties outside the will otherwise there was no objection to the will. He, however, admitted that he had no cash memos or title deeds or purchase vouchers of any of the properties which he claims, have been left by his father.
13. Minoo N. Bamjee, Chartered Accountant and Income-tax practi tioner (Exh. D-7) who was examined on behalf of the defendant deposed that he used to represent the deceased and Aredsheer Mondi before the Income-tax authorities but not the wife of the deceased. After the death of M. K. Mondee, the defendant saw him on several occasions with regard to the assets left by the deceased. Chemy also saw him for the same purpose on several occasions. He produced a sheet (Exh. X-6) and confirmed that it was prepared by him after discussion between him, the defendant and Chemy the son-in-law of the deceased marked as Exh. 7/1. He explained that in this exhibit the abbreviation K. M. stands for the defendant, Behli stands for Behli Irani, A. P. I. stands for brother of the defendant and the word Amanat was given to him by the defendant. He could not say whether the amount of rupees two lacs shown against Behli was the amount of money lying in the hands of Behli belonging to the deceased as claimed by the defendant. He further deposed that according to the version of the defendant a sum of Rs. 3,50,000 was lying with Aredsheer as Amanat' of the deceased but according to the version of Chemy the only amount in which the defendant could have a share was Rs. 2,50,000 as noted by him in Exh. 7/ 1. He further explained that the word Hotchpotch mentioned in this document refers to the balance amount shown in the statement of Wealth of the deceased which amount was not bequeathed to any individual. He further stated that according to the defendant the inheritable and divisible assets were Rs. 3,82,865 but according to the Chemy they were of Rs. 2,97,153. The witness further deposed that he called both of them separately and taking the average of two figures as noted therein he divided it by 2 to find a figure of Rs. 3,40,009 and he tried to settle the dispute between the two accordingly. He further deposed that the defendant went on changing the figure for the purpose of settlement. He started from Rs.2,00,000 and went up to Rs. 5,00,000.
He admitted in the cross-examination to Mr. G. H. Abbasi, Advocate for the plaintiff' that the defendant had first supplied him the figure of Rs. 2,50,000 which was later on changed to Rs. 3,50,000. In reply to a question by Mr. Abbasi, he stated that he had no contact with Aredsheer Mondi, except that at the request of his brother, he sent a cable to him to settle the matter.
14. Abdul Raoof Qureshi, Second Officer of the Habib Bank Limited, Frere Street Branch, Saddar, Karachi (Exh. 8) was also examined on behalf of the defendant and he produced the Account Opening Form of the deceased of the account with his Branch. According to the witness this account was first in the name of the deceased and Mali Khurshed Mondee but was subsequently, changed in the joint names of the deceased and his son Aredsheer Mondee on a letter written by the deceased. He produced the letter (Exh. 8/2). He further stated that Aredsheer used to operate this account after the change of the name but he was not sure of this because he was not the accountant. He further deposed that Aredsheer transferred a sum of Rs. 4,00,000 from this account to another Profit and Loss account in his own name on 7-3-1982. He further stated that on 7-3-1982, there was a balance of Rs. 35,88_5.20 in this account and after the death of M. K. Mondee, it was not operated. He also stated that during the lifetime of the deceased he used to operate the account. He produced the statement of account from 14-6-1979 to 6-12-1979 (Exh. 8/4). He also produced a photostat copy of the statement of account from 19-12-1981 to 7-3-1982 marked as Exh. 8/5.
In cross-examination to Mr. G. H. Abbasi. he admitted that Saving Bank Account No. 5877 was a joint account and could be operated by either or the survivor. The witness claimed that after the death of either, the account belong to the survivor and it becomes his sole account. The witness explained that be had not produced the statement from 7-12-1979 to 18-12-1981 because the account was not operated during this period.
15. Having given the resume of the evidence led by the parties in this case I now, proceed to consider the issues framed by consent in this case.
The first issue is whether the will dated 20-5-1979, is a valid will. The will has been proved by the marginal witnesses namely, Jamshed Barucha (Exh_ 4) and Mushtaq Hussain (Exh. 5)- The first named witness has stated that the will (Exh. 4/1 was executed by the deceased in his presence and he proved his signature on the will. The second named witness also proved his signature on the will and also the thumb impression of the deceased on the will and stated that it was put on the will in his presence and execution was recorded by the Sub-Registrar in his presence. I need not discuss the evidence in this regard in greater detail as the defendant in his deposition has not questioned the execution of the will by the deceased. He has however, questioned the validity of the will because the deceased has left other properties in respect of which the will makes no provision. In other words, the objection in reality is that the probate of the will which does not contain residuary clause in respect of the properties of the deceased which have not been bequeathed could not be granted. I may here quote the evidence of the defendant in this regard. He deposed that "I am objecting to the validity of the will because there are many other properties outside the will. It is correct that there is no other objection to the will except that it does not relate to all the properties. However, I would deal with this objection while considering the fourth issue, that is the issue of relief. I therefore, answer the first issue in the affirmative.
16. Issue No. 2.
This leads me to the consideration of the second issue whether the will does not mention all the properties left by the deceased, if so, what is the A effect. It is therefore, necessary to consider the question whether the deceased has left any properties which are not mentioned in the will.
The burden of this issue was on the defendant. The defendant in support of the claim that the deceased had left other properties which are not mentioned in the will has relied on the evidence of Mushtaq Hussain (Exh. 5.) who in his deposition, while being cross examined by Mr. Hamza I. Ali Advocate for the defendant, admitted that the property bearing No. 42. SB-4, Saddar, Karachi was sold by the deceased and was purchased by his father in the name of his mother Razia Fatima. He produced a certified copy of the sale-deed (Exh. 5/2). According to the witness the property was sold by the deceased for a consideration of Rs. 1,50,000 out of a sum of which Rs. 1,35,000 was paid in cash to the deceased on 21-7-1979, which was kept by him on his bed. He further stated that the sale-deed was executed at the same time when the will was executed. The defendant also relied on the evidence of two other witnesses besides his own. He deposed that the deceased had a bank account at the time of his demise which was a joint account in his own name and in the name of his brother Aredsheer but according to him the money lying therein exclu sively belonged to the father.
It is proved by the evidence of Abdul Raoof Qureshi, an Accountant of the Habib Bank Ltd. Frere Street Branch, Saddar, Karachi (Exh. 8) that there was a credit balance of Rs. 4,05,885.20 in the joint account bearing No. 5877-9 as on 6-12-1979. According to the evidence of the accountant a sum of Rs-. 4,00,000 was transferred on the request of Aredsheer M. Mondi on 7-3-1982, from the joint account to his Profit & Loss Account No. 139-6 leaving the balance of Rs. 35,885.20 on that date in the account. The defendant has further stated that the deceased left Defence Saving Certificates, Khas Deposit Certificates, Postal Certificates N. I. T. Units and the jewellery as detailed hereinbefore. In support he produced a dividend warrant of N. I. T. Unit (Exh. 6/1) in the name of his mother who willed her properties including the N.I.T. Units to the deceased as evidence by the will and the probate marked as Exh. 6/4 and 6/5. According to the defendant, these Units on the demise of his mother became the property of the deceased and in support of which he relied on the memorandum (Exh. 3) which is in the name of the deceased for the same number of Units, According to the defendant the value of the jewellery left by the deceased was Rs. 1,50,000. He also claimed that the deceased had two expensive carpets and other furniture and a car when he went to live in the house of his daughter and the car was still with her and was being used by her husband Chemy.
In support of the claim that the deceased left some cash, he also relied on the evidence of Minoo N. Bamjee, a Chartered Accountant (Exh. D-7) who tried to bring about a settlement between the brother and the sister whose evidence proved that the deceased had left some money which was divisible between the brother and the sister. According to him he divided it by two to find a figure of Rs. 3,40,009. There was not much cross-examination of this witness. However, it was brought out in the cross-examination of this witness that the defendant had changed the figure of Rs. 2,50,000 to Rs. 3,50,000 and that he had sent a cable to Aredsheer to settle the matter but the settlement could not be reached as the defendant went on varying the figure for the purpose of settlement. He started with Rs. 2,00,000 and went upto Rs. 5,00,000.
From the evidence produced, it is proved beyond doubt that the deceased left many other properties. It is in evidence that the deceased had sold the property hearing No- 42. SB-4, Saddar, Karachi four Rs. 1,50,000 by the registered sale-deed executed on 21-7-1979, and out of it, he had received a sum of Rs- 1,35,000 in cash on that date hardly ten days before he died. This money had not been accounted for. There is a joint Saving Bank account of the deceased with his other son Aredsheer in which a sum of Rs. 4,05,885.20 was lying in credit as on 6-12-1979.
17. It was argued by Mr. G. Raymond, learned counsel for the defendant that the money in the joint account belonged to the deceased and that Aredsheer had no interest and the principle of advancement which applies to such cases in England does not apply to the Sub-continent. He further argued that on the demise of the deceased there was a resulting trust in his favour in the absence of the proof of a contrary intention, there being in Pakistan no presumption of an intended advancement in favour of the son. He relied on F. J. R. Kerwick v. K. M. Kerwick (A I R 1921 P C 56), Shambhu Nath Shivpuri v. Pushkar Nath and others (AIR 1945 P C 10), Ismail Dada Adam Soomar v. Shorat Banoo (P L D 1960 (W P) Kar. 852), Abdul Latif Khan son of Abdul Wadud Khan and another v. Muhammad Akbar Khan and others (A I R 1947 Pesh. 1).
In the first named case, it was held by the Privy Council as follows;
"The general rule and principle of the Indian law as to resulting trusts differs but little, if at all, from the general rule of English law upon the same subject, but in their Lordships' view it has been established by the decisions in the case of Gopeekrist Gosain v. Gungapersaud Gosain (1854) 6 M I A 53, and Moulvie Sayyud Ushur Ali v. Mst. Bebee Ultaf Fatima (1869) 13 M I A 232, that owing to the widespread and persistent practice which prevails amongst the natives of India, whether Mahomedan or Hindu, for owners of property to make grants and transfers of it benami for no obvious reason or apparent purpose, without the slightest intention of vesting in the donee any beneficial interest in the property granted or transferred, as well as the usages which these natives have adopted and which have been protested by statute, no exception has ever been engrafted on the general law of India negativing the presumption of the resulting trust in favour of the person providing the purchase money, such as has, by the Courts of Chancery in the exercise of their equitable jurisdiction, been engrafted on the corresponding law in England in those cases where a husband or father pays the money and the purchase is taken in the name of a wife or child. In such a case there is, under the general law in India, no presumption of an intended advancement as there is in England."
In the second named case of the Privy Council the facts were that a Hindu deposited his money in Bank in the joint names of himself and his wife and on terms that it was payable to either as survivor. It was held that there was no resulting trust in his favour in the absence of proof of a contrary intention, there being in India no presumption of an intended advancement in favour of a wife. Reliance was placed on an earlier decision of the Judicial Committee of the Privy Council in Guran Ditta and another v. T. Ram Ditta (AIR 1928 P C 172).
In the case of Ismail Dada Adam Soomar v. Shorat Banoo (supra) it was held by Faruqui, J. that the principle of advancement which applies to such cases in England does not apply to the Sub-continent. Reliance was placed on Sura Lakhmiah Chetty and others v. Kolhandarama Pillai (A I R 1925 P C 161) wherein it was observed by their Lordships as follows;-----
"A purchase in India by a native of India of property in India in the name of his wife unexplained by other proved or admitted facts is to be regarded as a benami transaction by which the beneficial interest in the property is in the husband although the ostensible title is in the wife. The rule of the law of England that such a purchase by a husband in England is to be assumed to be purchased for the advancement of the wife does not apply to India."
It was further observed by Faruqui, J., in the aforesaid case that the English principle of advancement does not apply to India (also Pakistan) has never been doubted. And no distinction has been made between the cases of Hindus and Muslims on this question. Reliance was placed on Mst. Bilas Kunwar v. Desraj (AIR1915PC96).
In the Peshawar case the facts, as taken from the head note, were, that one A deposited certain amount in a bank as a fixed deposit. Sub sequently, he renewed the fixed deposit and got a fixed deposit receipt in the joint names of himself and his sister's son B and payable to either or survivor. In a suit by the collaterals of A claiming the amount, B who was a defendant did not raise the plea of intended advancement in his written statement but urged it at the argument stage. But all available evidence bearing on the point had already been on the record.
On these facts, it was held that from the mere fact that B's name was included in the fixed deposit receipt no presumption of any intended advancement could be raised in favour of B.
Reliance was placed by the learned Judges on A I R 1928 P C 172 and AIR 1945PC10.
18. It was however, submitted by Mr. G. H. Abbasi that the Court cannot determine in these proceedings whether the amount lying to the credit of the deceased and his son Ardesheer in joint account was the exclusive property of the deceased or it belonged to the deceased and his son or on the death of the deceased, it became the exclusive property of his son Ardesheer. The same was his submission with regard to other properties claimed to have been left by the deceased.
In support he relied on Behary Lail Sandyal v. Juggo Mohun Gossain (ILR4 Cal. 2) and in Hormusji Navroji v. Bai Bhanbaiji, Jamshetji Dosabhai and others (I L R 12 Born. 164).
In Behary Lall Sandyal's case, it was held that upon a bona fide application for probate of a will, it is not the province of the Court to which the application is made to go into questions of title with reference to the property of which the will purports to dispose. The grant of probate does not prejudice the rights of any person who claims any such property and in Hormusji Navroji's case it was held that the probate is only conclusive as to the appointment of executors and the validity and the contents of the will and that in an application for probate it is not the province of the Court to go into the question of title with reference to the property of which the will purports to dispose, or the validity of such disposition.
Mr. Abbasi cited two more cases in support of his contentions, namely, Arunmoyi Dasi v. Mohammendra Nath Wadadar and others (20 C A L 888) In the Estate of Fawcett ((1941)2 All ER341).
In the first named case, it was held by Calcutta High Court that the application for letters of administration was not a suit properly so called, and that the finding on the construction of the will by the Court of the North-Western Provinces, being incidental and for the purpose of determin ing the question of the representative title of the applicants, could not be regarded as concluding the plaintiff by res judicata from obtaining a construction of the will in the suit brought by her.
In the second named case, it was held that the Court has power to decide the questions of construction in so far as they affect the admissibility to probate of a testamentary document.
19. I have already found that the deceased has left many other properties which have not been disposed of by the will as the will does not contain a residuary clause. Therefore, the real question for consideration is whether the probate of the will which does not dispose of all the properties owned by the deceased could be granted or in such case a letters of administration should be applied for, which could be granted with the will annexed thereto.
20. It was contended by Mr. Raymond that an application for probate must cover the entire property and in support he relied on Khubchand son of Bulchand v. Motilbai widow of Bulehand and another and Chularam Bulchand v. Motilbai widow of Bulchand ((1936) 30 S L R 210), Abdul Gafur Mahmadsaheb Maniyar v. Jayarabi Ibrahim and others (A I R 1929 Bom. 456), B. Amrit Rae and others v. B. Sangamlal and others (A I R 1943 Oudh 151), Sardar Singh and another v. Teja Singh and others (A I R 1946 Lah. 277), In re: T. K. Parthasarathi Naidu (A I R 1955 Mad. 411) and Vrandavanla Gover dhanlal Pitti and another v. Sint. Kamala Bai Goverdhanlal and others (A I R 1970 Andb. Pra l09).
In the case of Khubchand, a Division Bench of Sind Chief Court consisting of Davis, J. C., and Lobo. A. J. C., while considering inter alia the ground that the Court had no power to make the grant because the grant did not extend to all the property of the deceased, observed as follows :-----
"The learned Advocate for the petitioner has referred us to section 254 of the Succession Act in support of his argument, that a petitioner for grant of letters under section 232 of the Act can as it were pick and choose among the assets of the estate, and ask for grant of letters and pay Court-fees only on so much as is convenient. But we think section 254 of the Indian Succession Act, though a good argument, is a good argument, against and not for the case of the learned Advocate, because in subsection (2) it is specifically provided that in every such case, that is, in every case referred to in subsection (1) of section 254, letters of administration may be limited or not, as the Court thinks fit. As the legislature thought it necessary to put this special provision in section 254 of the Succession Act, it is a fair inference that in this case also, but for this special provision, the rule that probate or letters of admi nistration must apply to all the assets would be applicable.
Moreover, when we refer to section 19-I of the Court Fees Act, and to the third schedule, it is perfectly clear that what is required is a full and honest account of all the property of the estate. It is true that the words used are "valuation of the property in the form set forth in the third schedule", but we think that there can be no doubt that the word "property" is used in its inclusive and not in its exclusive sense and that what is meant is that what shall be shown in all the property of the deceased. It appears, therefore, that so far as the question of jurisdiction is concerned, the petitioner has succeeded, and so far as it is contended on her part that letters of administration with the will annexed can apply only to the part of the estate, she has failed."
Before the learned Judges the case of Gurbachan Kaur v. Satwant Kaur ((1925) 90 1 C 620), was cited. Dealing with it- is was observed as follows;---
"On the second objection, that the petition must relate to all the property of the deceased, it was argued for the respondent that when an application was made for letters of administration with the will annexed, the application could be limited to a particular property, and reliance was placed upon the case reported in Gurbachan Kaur v. Satwant Kaur, in which a learned Judge of the Lahore High Court, held, that the relevant provisions of the Indian Succession Act must be read alone and that they are not governed or controlled by relevant provisions of the Court Fees Act, and it was upon this judgment that the learned Judge of the lower Court has relied. But with due respect to this judgment, we are of the opinion that section 19-I of the Court Fees Act must be read with the relevant provisions of the Indian Succession Act. It is clear from this section that a Court shall not grant probate or letters of administration until the petitioner has filed in the Court a valuation of the property in the prescribed form, and the Court is satisfied that the prescribed fee has been paid. This appears to us an order from the legislature that a grant of probate or letters of administra tion shall not be made until certain conditions have been complied with. This being so, we cannot agree that the relevant provisions of the Succession Act are, so far as the order granting probate or letters is concerned, independent of, and are not governed by, the relevant provisions of the Court Fees Act. Section 232 of the Indian Succession Act, under which this petition has been made, reads as follows;---
"When (a) the deceased has made a will, but has not appointed an executor, or (b) the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the will, or (c) the executor dies after having proved the will, but before he has administered all the estate of the deceased, an universal of a residuary legatee may be admitted to prove the will, the letters of administration with the will annexed may be granted to him of the whole estate or of so much thereof as may be un-administered."
We think that the last words in this section "or of so much thereof as may be un-administered" apply only to clause (c) and not to the preceding clauses (a) and (b), for it is only under the circumstances described in clause (c) that the last words of this section are appropriate.
In this case, it is said, that so far as the house is concerned, nothing has to be administered because it is in the possession of the petitioner as the universal or residuary legatee, but the administration of an estate within the meaning of section 232 appears to us to mean administration under the authority of a grant of a Court. There is nothing in the petition to show that part of the estate has been already administered.
In this case, in our opinion, none of the estate has been administered, and, therefore, it is necessary for the petitioner to apply for a grant in relation to the whole estate. Moreover, it appears to us that where in the Succession Act special provision is made in Part IX, Chapter II, for limited grants, it is the intention of the legislature that limited grants should be those only which fall within these special provisions. We cannot, therefore, accept the argument that because, there is no express direction in the Indian Succession Act that grants shall apply to all property, therefore, a petitioner can, under section 232 of the Succession Act, apply for the administration of just so much of the property as suits his purpose. Under section 232 of the Succession Act, though the grant is one of letters, it is a grant with the Will annexed. In the case of the grant of probate, court-fee must be paid on all the property. We see no reason why the same condition should not apply when the grant is of letters with the Will annexed. Schedule III of the Court Fees Act contemplates a full declaration of all property."
In the case of Abdul Gafur Mahmadsaheb Maniyar v. Jayarabi Ibrahim and others, which is a Division Bench decision of Bombay High Court consisting of Marten, C. J., and Murphy, J., it was observed as follows;---
"I should view with disfavour the granting of separate certificates to one man as regards property A, and to another as regards property B. Speaking generally the main idea of probate or administration is that the grant should be of all the property to one individual or to two or more jointly."
I must also refer to the case of Sardar Singh and another v. Teja Singh and others (supra). which is also a Division Bench judgment, consisting of Abdul Rashid, Actg. C. J. and Achhru Ram, J. In this case it was observed as follows--
".....An application for grant of letters of administration in respect of a part only of the estate of a deceased who has left a Will is made under section 232, Succession Act, which reads as follows;-----
"When-(a) The deceased has made a will but has not appointed an executor, or
(b) the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before has proved the will, or (c) the executor dies after having proved the will, but before he has administered all the estate of the deceased, an universal or a residuary legatee may be admitted to prove the will, and letters of administration with the will annexed may be granted to him of the whole estate, or, of so much thereof as may be un-administered."
"It is obvious that except in a case where the estate has been partially administered before an application for grant of letters of administration is made, the application must cover the entire estate of the deceased. It is only in cases covered by cl. (c) where the executor has died after having proved the will but before having administered all the estate of the deceased that an application for administration of a part of the estate can be made, and even in that case, the application must comprise the entire un-administered estate. On principle apart from the provisions of section 232, also it is quite clear that a person who is appointed to administer the estate of a deceased must administer the entire estate. A suit for administration where it omits to include the whole of the estate of the deceased is liable to be thrown out on that ground alone. In Gurbachan Kaur v. Satwant Kaur and others A I R 1925 Lah. 493, Abdul Raoof, J. based his decision on the ground that his attention had not been drawn to any provision in the Probate and Administration Act, under which the application for grant of letters of administration had been made in that case, prohibiting grant of letter of administration for part of the property only. With all respect I must say that, that was not the correct method of approach to the question that arose for decision. Section 19, Probate and Administration Act, under which the application for grant of letters of administration was made in that case, was absolutely analogous in terms to section 232, Succession Act, which governs the present case. The correct way to look at the matter was to see if the application conformed to the provisions of the statute under which it purported to have been made. Like section 232. Succession Act, section 19, Probate and Administration Act provided for letters of administration being granted only of the whole estate except in the case where an executor had died after having proved the will but before having administered all the estate of the deceased in which case letters of administration could be granted of the portion of the estate remaining un-administered. By necessary implication grant of letters of administration of a part of the estate in any other case was prohibited. Section 19, Probate and Adminis tration Act, was considered by Abdul Raoof, J., in another connection but his attention does not appear to have been drawn to the implied prohibition contained in that section against grant of letters of administration for a part of the estate except in the case specifically provided foe In 5 Cal 2, a case arising under the Hindu Wills Act. under similar circumstances letters of administration of a part of the estate of the deceased testator were refused. In Bhai Khubchand v. Mst. Motilbai A I R 1936 Sind 150, a Division Bench of the Court of Judicial Commissioners of Sind has taken the same view of the implications of section 232, Succession Act, as I have stated above and has held that where none of the estate in respect of which letters of administration were applied for is administered, it is necessary for the petitioner to apply for a grant in relation to the whole estate."
21. On the other hand Mr. G. H. Abbasi, learned counsel for the applicant referred to the cases of Hara Coomai Sircar v. Doorgamoni Dasi (I L R 21 Cal. 195), Kedar Nath Mitter v. Sarojini Dasi (I L R 26 Cal. 634). The Midnapur Zamindary Co. Ltd. v. Ram Kanai Singh Deo and others (A I R 1926 Pat. 130).
I would first take up the last cited case first. In this case, the defendants contested the suit on grounds which were common to them. The Subordinate Judge gave effect to most of these objections and dis missed the plaintiff's suit; firstly, on .the ground that the plaintiff Company had not established its title to the minerals; secondly, on the ground that the plaintiff Company, not being in possession of the thing demised, is incompetent to maintain an action for trespass and therefore for injunction; thirdly, on the ground that there was, by operation of law, an abandon ment by Kenny of his interest under the lease of 1881, entitling the proprietor to enter into a fresh arrangement with Herambo ; fourthly, on the ground that the suit is barred by limitation, and lastly, on the ground that the plaintiff Company is estopped from disputing the title of Herambo under the lease of the 5th September 1911."
Dealing with the question of title it was observed as follows :--
"Now it is quite true that Kenny did not deal with the demised property in his will and the learned Subordinate Judge is right in saying that "so far as this property is concerned, he died intestate". But even the estate of an intestate has to be administered in due course of law, and section 179 of the Indian Succession Act says that the "executor or administrator as the case may be, of a deceas ed person is his legal representative for all purposes, and all the property of the deceased person vests in him as such". Now what is the meaning of the words all the property of the deceased ' There is high authority for the view that the words "all the property of the deceased" must be construed as meaning the actual property of the deceased, whether held by him for his own benefit or for the benefit of others : See De Souza v. Secretary of State (1874) 12 B L R 428. There is no reason to doubt therefore that the demised property vested in Foley as such administrator under section 179 of the Indian Succession Act."
This case therefore, is authority for the proposition that the words "all the property of the deceased" must be construed as meaning the actual property of the deceased, whether held by him for his own benefit or for the benefit of others and not for the proposition that application can be made for part of the property of the deceased.
In the case of Kedar Nath Mitter (supra) the rule laid down was, as head note would show that probate can be granted of a portion only of a will to the extent to which the contents are proved where the other portion is lost, and there is nothing in section 25 of the Probate and Administration Act (V of 1881) to prohibit such a grant of probate. It was observed by Renerjee, J., in this case that Probate and Administration Act (v of 1881) does not contain any express provision for the grant of probate of a part of will and section 25 of the Act which relates to the grant of probate of lost or destroyed will, in terms relates to the grant of probate in respect of a will, if its contents can be established by evidence.
This case should be understood in the context of the facts of the case. The rule laid down in this case is, therefore, not relevant to the facts of the present case.
In the case of Hara Coomar Sircar the rule laid down is that whether an application for probate by a person appointed executor by the will, the genuineness whereof is not disputed, and the applicant is a person not legally incapable, the Court acting under the Probate and Administration Act (V of 1881) has no discretion to refuse probate on the ground that in its opinion the applicant is not a fit and proper person to be appointed executor.
In the present case the question of the fitness of the petitioner is not in question. The question in this case is altogether different, therefore, this case has also no relevancy. I, therefore, find that the contention of Mr. Raymond has force and I uphold the same.
22. Issue No. d. Defendant No. 1 in his deposition has stated that Shaheen Variety Store was a partnership concern and by the deed of dissolution of partnership the interest therein was assigned to him before the demise of his father. This statement has gone unchallenged in cross -examination. It is therefore, clear that this property has been wrongly included in the Annexure "A" to the petition, and I would answer issue No. 3 accordingly.
23. Issue No. 4. In the result I dismiss the suit. It will be open to the party who is entitled to apply for Letters of Administration to apply for the same with the will annexed.
S. Q. Suit dismissed.
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