Report No. 110
35.30. Points of difference between Allahabad and Madras view summarized.-
The points of difference between the Allahabad and the Madras view can be thus summarised:
(a) According to the Allahabad view, in a case under section 241 the will must be established. Not so, according to the Madras High Court.
(b) While the Allahabad view is that section 228 does not make provision for the grant of administration to an agent or attorney, according to the Madras High Court, this defect can be cured with the aid of section 241.
(c) The Madras High Court has put the case coming under section 228 as an exception to the rule provided in section 276. The Allahabad High Court has refused to accept this argument.
The controversy has a practical aspect also, concerned with the furnishing of a bond. In the kind of cases mentioned above, when the letters of administration were granted under section 228 by the Allahabad High Court, the petitioner had been asked to furnish an administration bond as required by section 291(1). Since the Madras High Court granted letters of administration under section 241, an administration bond under section 291(1) was not required to be furnished.
The Madras High Court, expressing its disagreement with the above-mentioned Allahabad High Court decision, observed, "sections 228 and 241 should not be read as if they provided for separate circumstances and they were mutually exclusive. On the other hand, they could be read together. It is true that the objects of these two sections differ.
The real object of section 228 is to dispense with the production of the proof thereof, for the reason that it had already been proved and had been deposited in a court of competent jurisdiction. The real object of section 241 is to dispense with an application by the executor himself when he is absent from the province in which the application is made."
According to the Allahabad High Court, these sections are mutually exclusive and deal with separate circumstances. The Madras High Court, however, holds that they are not mutually exclusive and do not provide for separate sets of circumstances.
