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Miscellaneous Application No. 7 of 1962, decided on 25^th May 1962.

‑Letters of Administration with will annexed‑Application for, made to High Court‑Notice of application to be sent to Chief Controlling Revenue Authority of local area and not to Collector‑Purpose of notice‑To check‑up value of property for purposes of Court fee.

Application of. Ss. 228 and 241‑Application for Letters of Adminis tration under S. 228 may he made by attorney of absent executor- Surety bond under S. 291‑[Wilfred I L R 1940, Mad. 820 and Adwait Nath, Sil's case A I R 1948 All. 3511‑reL]

Noor Muhammad for Petitioner.

Dates of hearing : 23rd and 25th May 1962.

This is an application for Letters of Administration with a copy of the will annexed. The facts giving rise to the present application are these:-

Sir Roger Thomas died on the 19th of September, 1960, having made a will dated the 1st of September 1960. Probate of the said will was granted on the 28th June 1961 by the High Court of Justice in the District Probate Registry at Car marthen. The present application has been made by Mr. R. F. Spickerell who holds a power of attorney on behalf of the execu tors of the will.

2. The application for Letters of Administration appears to be in order. A, properly authenticated copy of the will has been produced in this Court. The copy of the will is authenticated by the Deputy District Registrar of Carmarthen on the 2nd of October, 1961. The executor of the Will is absent from the Province.

3. After going through the record of this case I find that notice under section 19‑H of the Court Fees Act, 18:70, has been sent to the Collector. I asked the learned Advocate for the peti tioner Mr. Noor Muhammad to satisfy me that the notice to the Collector was a proper one. He took time to study the question. He has now stated that the notice to the Collector was not a proper one. The relevant provisions of section 19‑H of the Court Fees Act which require consideration are sub‑clauses 1 and 2. They read as under

"19‑H (1) Where an application for probate or letters of administration is made to any Court other than a High Court, the Court shall cause notice of the application to be given to the Collector.

(2) Where such an‑application as aforesaid is made to a High Court, the High Court shall cause notice of the application to be given to the Chief Controlling Revenue Authority for the local area in which the High Court is situated."

It would appear from sub‑clause 2 reproduced above that the application having been made to the High Court, the notice of the application should go to the Chief Controlling Revenue Authority for the local area in which the High Court is situated. The words "for the local area in which the High Court is situated" were added by the Court Fees Amendment Act, 1901 for the words "of the Provinces". It appears that the words "of the Provinces" were" deleted because in certain Provinces of pre‑partition India there were two High Courts. For instance in the Bombay Province there was the Bombay High Court and the Judicial Commissioner's Court. The Judicial Commissioner's Court was for alt intents and purposes a High Court. Similarly there were two High Courts in the United Provinces, that of Allahabad and the Chief Court of Oudh. So long as the words "of the Provinces" were there in sub‑clause 2 in section 19‑H, the Chief Controlling Revenue Authority for Sind also would have been the Board of Revenue at Bombay and not the Revenue Commissioner of Sind. The Legislature realised this difficulty and brought about an amendment in sub‑clause 2 of section 19‑H so that notice may be given to the Chief Controlling Revenue Authority for the local area and not for the Provinces. The Chief Controlling Revenue Authority for the local area for Sind was, for instance, the Revenue Commissioner who could look into the question of the value of the property more effectively and conveniently than that of the Province.

4. The Chief Controlling Revenue Authority is defined in the General Clauses Act of 1897. It reads as under:‑

"Chief Controlling Revenue Authority", or

"Chief Revenue Authority" shall mean‑

(a) in Provinces where there is a Board of Revenue, that Board ;

(b) in Provinces where there is a Revenue Commissioner, that Commissioner ;

(c) in (the Punjab) the Financial Commissioner and (d) else‑where, such authority as, in relation to matters enumerated in List 1 in the Seventh Schedule to the Government of India Act, 1935, the Central Government, and in relation to other matters, the Provincial Government, may by notification in the Official Gazette appoint."

Let the office send notice of the application to the Chief Cont‑IA rolling Revenue Authority for the local area of this Court.

5. In this case office has sent notices to the Collectors of Karachi and Mirpurkhas. The Collector Mirpurkhas has sent his report of no objection, while no report has been received from the Collector, Karachi. I may however mention that no notice was necessary under section 19‑H to the Collector. As the application has been made to the High Court the report of the Collector is unnecessary.

6. So far as this Court is concerned under section 19‑I of the Court Fees Act all that it has to, see is that the petitioner has filed in the Court a valuation of the property in the form set forth in the Third Schedule and the Court is satisfied that the Court‑fee mentioned in, No. 11 of the First Schedule has been paid on such valuation. The applicant has valued the property in form set forth in the Third Schedule of the Court Fees Act and has paid the Court‑fee as mentioned in No. 11 of the First Schedule of the said Act.

7. It may be that the valuation of the property put by the petitioner is under valued. It would appear to my mind from List 2 of the Application that Bungalow No. 66, Clifton, Karachi has been valued at Rs. 84,000 only. It is however for the Chief Controlling Revenue Authority to find out the correct valuation of the properties given by the petitioner so that the Government revenue does not escape. The Chief Controlling Revenue Authority under section 19‑B of the Court Fees Act where any person has estimated the estate of the deceased as of less value than it is found to be can recover the deficit Court‑fee with penalty.

8. The next important question for consideration in this case is when a will has been proved, in England, Letters of Administration with a copy of the authenticated copy of the will annexed may be granted to the attorney, of absent'' executor under section 228 of the Succession Act or under Section 241 of the said Act. After‑giving my careful consideration I. have come to the conclusion that in the circumstances of the present case a grant of Letters of Administration with a copy of the authenticated copy of the will annexed be made to the attorney of the absent executor under section 228 of the Act. The question no doubt is not free from difficulty. It has been the practice in Bombay, Calcutta and Madras High Courts to apply section 241 of the .Act in such circumstances. The importance of the application of section 241 of the Act lies in the fact that the person to whom the Letters of Administration is granted does not have to execute an administration bond with one or more sureties in accordance with the provisions of section 291 of the Act.

9. Section 228 is in Chapter 1 of part IX of the Act. That Chapter contains general provisions with regard to grant of probate or Letters of Administration. Section 241 deals with limited grant. In order to appreciate the point for decision it would be useful to reproduce these two sections. They run as under :‑

"228. When a will has been proved and deposited in a Court of competent jurisdiction situated beyond the‑ limits of the Province, whether within or beyond the limits of His Majesty's dominions, and a properly authenticated copy of the Will is produced, letters of administration may be granted with a copy of such copy annexed.

241. When any executor is absent from the Province 'in which application is made and there is no executor within the Province willing to act, letters of administration, with the will annexed, may be granted to the attorney or agent of the absent executor, for the use and benefit of his principal, limited until he shall obtain probate or letters of administration granted to himself."

10. It is apparent that there is some difficulty in the application of either section to the case before me. Section 228 does not make provision for the grant of administration to an agent or attorney, while section 241 assumes production by the attorney of the original will. The two sections are in my opinion intended to apply in very different circumstances, the former where the will has been proved and the latter where it has not been proved at all. The Court while acting under section 228 would grant Letters of Administration without further proof of the will, while under section 241 the will has to be proved. Looking at the scheme of the Act it seems that section 228 of the Act is more appropriate to apply. Section 228 applies in all respects to the circumstances of the present case except this that it does not state that the attorney of the absent executor can apply for Letters of Administration. On the other hand, there is nothing in section 228 to forbid the attorney of an absent executor to apply for Letters of Administration. On the other hand, section 241 of the Act clearly cannot apply because it states that Letters of Administration with the will annexed may be granted. In the present case, probate has already been granted of the will. Letters of Administration with a copy of the authenticated copy of the will has to be granted. Mr. Noor Muhammad, the learned Advocate for the petitioner, relied on a Division Bench case of Wilfred (I L R 1940 Mad. 820) where in similar circumstances they held that section 241 of the Act applied, and that it was not necessary to call upon the applicant to furnish security under section 291 of the Act. A perusal of that case would show that the learned Judges relied more upon the uniform practice of the Court rather than the language of section 241 of the Act. Krishnaswami Ayyanger, J. who formed the Bench with Sir Lionel Leach observed as under:

"I have come to the same conclusion but not without hesitation. But for the uniform practice of this Court and of the Bombay and Calcutta High Courts I should have been inclined to agree with the opinion of Somayya J. which is the same as the opinion expressed by the Allahabad High Court. I do not feel that the language of section 241 is sufficiently clear to set aside this long practice more specially when a strict inter pretation is likely to lead to this result namely that there would be no provision in the Act for an agent of an executor in a foreign country to apply for Letters of Administration in this country in circumstances similar to those present in this case."

With great respect to the views of Ayyanger, J. my opinion is that it is not correct to say that there is no provision in the Act for an agent of an executor in a foreign country to apply for Letters of Administration in this country in circumstances similar to the present case. There is nothing in section 228 of the Act to debar an attorney of the absent executor to apply for Letters of Administration with a copy of the authenticated copy of the will annexed.

11. On the other hand, Mr. Noor Muhammad, the learned Advocate for the applicant, candidly placed before me the Full Bench case of Adwait Nath Sil (A I R 1948 All. 351). It has been held in that case in similar circumstances that section 228 of the Act applied and not section 241.

12. Under section 291 every person to whom a grant of Letters of Administration other than a grant under section 241 is committed shall give a bond to the Court with one or more surety or sureties engaging for the due collection, getting in, and administering the estate of the deceased. As I have held that section 241 does not apply to the circumstances of the present case, I would order that Letters of Administration with a copy of the authenticated copy of the will annexed be granted to the applicant on condition that he executes a bond as required by section 291 of the Act.

A. H.

Order accordingly.

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