Report No. 110
35.4. Joint family property passing by survivorship.-
In the context of this section, we propose to consider one question that has arisen. Where joint family property passes by survivorship to the sole surviving co-parcener, the question arises whether the sole surviving co-parcener is entitled to apply for letters of administration under section 218. Is he a person 'who would be entitled to the whole or part of the estate of the deceased' within the meaning of the section? There seems to be a conflict of decisions on the subject.
35.5. Conflict of views.-
A Madras case1 answers the above question in the affirmative, though the observations in the case may be regarded as obiter. But, according to the Punjab view, if the deceased person and the present petitioner were members of a joint family, then, immediately on the death of the deceased, his interest in the estate at once ceases and the whole interest in the estate belongs to the petitioner by survivorship, and there is no "estate of the deceased" to be administered: there is no "succession" to the deceased's estate, because he has left nothing to succeed to. Consequently, an application for letters of administration is not competent in such cases2.
The Bombay practice, as is shown by some reported cases1, is that where the court grants letters of administration, it is not concerned with inquiries about title. But the Bombay cases did not relate to claims by survivorship. The claimants (petitioners) had their claim on the basis of succession, and it was the opposite party that put forth a case that the property was joint family property. The court held that it was not concerned with the question whether the property was, or was not, joint family property. It was no part of the duty of the testamentary Judge to consider the question of title to property.
The real conflict is between the Punjab and Madras rulings, as stated above.
1. Desu Manavala (in re:), 1910 ILR 33 Mad 93 (97): 10 MLJ 591 (case under Court Fees Act, construing section 23, Probate and Admn. Act).
2. (a) Uttam Devi v. Dina Nath, 5 PR 1919: 51 IC 651 (652), distinguishing Desu Manavala (in re:), ILR 33 Mad 93, on the ground that the remarks therein were obiter.
(b) Ramagiri v. Govindammah, AIR 1924 Rang 329 (330).
3. (a) Oochavaram v. Dolatram, ILR 28 Bom 644 (Jenkins, C.J.).
(b) Parvati Bai v. Raghunath Laxman, (1940) 42 Bom LR 1053 (Kania, J.): AIR 1941 Born 60.