Report No. 110
35.27. Question to be considered-absent executor.-
The question that needs to be considered regarding the precise scope of these two sections, is this. When a will has been proved and deposited in a court of competent jurisdiction situated beyond the limits of the State, which is the provision whereunder letters of administration (with the will annexed or with a copy of the authenticated copy of the will annexed), can be granted to the attorney of the absent executor? It may be noted that section 241 postulates production of the original will-note the words 'with the will annexed'1. In contrast, section 228 speaks of a copy of the will being annexed.
1. Para. 35.26, supra.
35.28. Case law.-
It is necessary to refer to two cases-one decided by the Allahabad High Court and the other by the Madras High Court-dealing with the question.
In the Allahabad ease1, a person had died in Scotland leaving property both in India and in the U.K. By his will, he appointed an executor, who, in due course, obtained 'confirmation' of the will from the Court of Scotland. The executor then appointed the present applicant as his attorney for the purpose of apply in to the proper court in India for letters of administration with an authenticated copy of the will annexed. The attorney accordingly applied to the High Court of Allahabad.
The High Court noted that the practice in Madras, Calcutta and Bombay had been to grant the letters of administration in such cases under section 241, but observed that, "the provisions of section 241, were not intended to apply, nor are they appropriate, to the case in which a grant of probate has already been obtained in another court. The section applicable in such case is section 228. The High Court took the view that it may, under section 228, grant letters of administration, with a copy of the authenticated copy of the will annexed, to the agent or attorney of the executor.
1. Adwait Nath (in re:), AIR 1948 All 351 (FB).
35.29. In the Madras case1, a lady had died in England, leaving a will. By the will she appointed her two nieces to be the executrixes. They obtained probate in England and appointed the Lloyds Bank Ltd., Calcutta, as attorneys, who, in turn, appointed one of their officers, as Attorney, to obtain letters of administration with a copy of the will annexed, in respect of the property of the deceased in India. The officer of the Lloyds Bank filed a petition in the Madras High Court for the grant of letters of administration, to have effect only in the State of Madras, along with a certified copy of the probate.
The question for consideration before the High Court was whether the grant was to be a grant of letters of administration under section 241 or under section 228. The question was material, because the petitioner was unable to produce the will in original. The Court observed that section 241 did not require the production of the original will. Since the will had been proved and deposited in a court of competent jurisdiction in England, what can be produced here is only a properly authenticated copy of the will.
Therefore, a case coming under section 228 would be an exception to the general rule2 in section 276 as to the production of the will in original, though the exception is not mentioned in section 276. The court said that in section 241, the expression "letters of administration with the will annexed had been used in antithesis to letters of administration granted on intestacy.
It was permissible to read section 241 along with section 228, and an attorney or agent of the executor can obtain letters of administration without producing the original will, if the will had been proved and deposited in a competent court and a properly authenticated copy of the will is produced.
1. L.C. Levack (in re:), AIR 1954 Mad 898 (FB).
2. Section 276.