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Report No. 110

II. Grants for the Benefit of Others

36.13. Section 241.- Section 241 reads-

"When any executor is absent from the State in which application is made, and there is no executor within the State 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."

In connection with this section, certain question arise by reason of section 273. Section 273 reads-

"273. Probate or letters of administration shall have effect over all the property and estate, movable or immovable, of the deceased, throughout the State in which the same is or are granted and shall be conclusive as to the representative title against all debtors of the deceased and all persons holding property which belongs to him, and shall afford full, indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted:

Provided that probates and letters of administration granted-

(a) by a High Court, or

(b) by a District Judge, where the deceased at the time of his death had a fixed place of abode situate within the jurisdiction of such Judge, and such Judge certifies that the value of the property and , estate affected beyond the limits of the State does not exceed ten thousand rupees, shall, unless otherwise directed by the grant, have like effect throughout the other States.

The proviso to this section shall apply in India after the separation of Burma and Aden from India to probates and letters of administration granted in Burma and Aden before the date of the separation, or after that date in proceedings which were pending at that date.

The proviso shall also apply in India after the separation of Pakistan from India to probates and letters of administration granted before the date 5of the separation, or after that date in proceedings pending at that date, in any of the territories which on that date constituted Pakistan."

36.14. Need to amend section 241 so as to exclude cases under section 273.-

It should be noted that section 273 empowers the court (in certain cases) to make a grant effective beyond the limits of the State. In order that the full benefit of this wider jurisdiction of the court under section 273 may be available, it is desirable that section 241 should also be relaxed. We, therefore, recommend that suitable words excluding from section 241, the case, where an order is passed under section 273 proviso should be added.

36.15. Non-resident attorney.-

There is some obscurity on the question whether the "attorney" (agent) should be a resident of the State. It appears, however, that the attorney may reside anywhere in India, if the grant is by the High Court.1 This interpretation can be suitably codified.

1. Goods of Cautly, 28 PR 1883.

36.16. Recommendation to revise section 241.-

In the light of the above discussion we recommend that section 241 should be revised as below:

"241. When any executor is absent from the State in which application is made, and there is no executor within the State 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.

Exception.-Nothing in this section applies to a case falling within the proviso to section 273.

Explanation.-Where the grant is by the High Court, it is not necessary that the attorney or agent should be residing within the State, provided he resides within India."

36.17. Section 242.- Section 242 provides as follows:-

"242. When any person to whom if present, letters of administration, with the will annexed, might be granted is absent from the state, letters of administration, with the will annexed, may be granted to his attorney or agent, limited as mentioned in section 241 ."

The section needs no change.

36.18. Section 243.- Section 243 reads-

"243. When a person entitled to administration in case of intestacy is absent from the State and no person equally entitled is willing to act, letters of administration may be granted to the attorney or agent of the absent person, limited as mentioned in section 241."

The section needs no change.

36.19. Section 244.- Section 244 reads as follows:-

"244. When a minor is sole executor or sole residuary legatee, letters of ' administration with the will annexed may be granted to the legal guardian or such minor or to such other person as the Court may think fit until the minor has attained his majority, at which period, and not before, probate of the will shall be granted to him."

It has been held that the expression "legal guardian", in this section, means a guardian appointed under the Guardians and Wards Act, 1980. If the natural guardian wants to apply under this section, he must first take proceedings (under the Guardians and Wards Act) to be appointed legal guardian.1 If there is a legal guardian of the person of the minor and another of the property of the minor, the latter is entitled to the grant2 (compare section 246, where the words "care of his estate" are used).

A guardian appointed by the father under section 69 of the Succession Act would appear to be a "legal guardian" within the meaning of this section.

It appears desirable to codify the law on the subject, as laid down in the above decisions.

1. (a) Arumilli Viramma v. Arumilli Seshamma, AIR 1931 Mad 343 (344);

(b) Goods of Nirojini Debi, 1907 ILR 34 Cal 706.

2. Ganjasur Koer v. Collector of Patna, ILR 25 Cal 795.

36.20. Recommendation to amend section 244.-

In the light of the above, the following Explanation should be inserted below section 244:

Explanation.-In this section, "legal guardian" means a guardian of the property appointed by a person or authority having power to do so, whether within or outside India, but does not include a natural guardian."

36.21. Section 245-Recommendation.-

Section 245 deals with administration during the minority of Several executors or several residuary legatees. An administration during minority is, under the section, limited until one of the executory attains majority. It is obvious that the section deals with the case dealt with in section 244 and, is indeed, a kind of Explanation to that section. This should be brought out by adding, after the words "the grant", the words and figures "under section 244".

We recommend that section 245 should be amended accordingly. 36.22. Section 246.-Section 246 reads as follows:-

"246. If a sole executor or a sole universal or residuary legatee, or a person who would be solely entitled to the estate of the intestate according to the rule for the distribution of intestates estate applicable in the case of the deceased, is a minor or lunatic, letters of administration, with or without the will annexed, as the case may be shall be granted to the person to whom the care of his estate has been committed by competent authority, or, if there is no such person, to such other person as the Court may think fit to appoint, for the use and benefit of the minor or lunatic until he attains majority or becomes of sound mind, as the case may be".

36.23. Overlapping with section 247.-

There is some overlapping between this section and section 244, as regards a minor sole executor or a minor sole residuary legatee. In section 217 of the Succession Act of 1865 (corresponding to present section 246), the word 'minor' did not occur, but the word occurred in section 33 of the Probate and Administration Act. The effect was that as regards persons governed by the Succession Act of 1865 in the case of intestacy, if the minor was solely entitled to the estate of the intestate, there was no provision for the grant of letters of administration to his guardian on his behalf.

If the minor was the sole executor or sole universal or residuary legatee, grant could be made under section 215 (present section 244). The insertion of the word "minor" in section 246 (in 1925) was intended to supply this omission. But it has created overlapping1 so far as the minor sole executor or minor sole residuary legatee is concerned, as section 244 has already provided for this contingency. So far, therefore, as section 246 is concerned the word "minor" should be read as confined to the case of intestacy.

1. See Paruck Succession Act, Commentary on section 246.

36.24. Recommendation to revise section 246.-

In our opinion, it is desirable to amend section 246 to bring out that point.

To carry out the above object, we recommend that section 246 should be revised as follows:-

"246. If-

(a) a sole executor or a sole universal or residuary legatee is a lunatic, or

(b) a person who would be solely entitled to the estate of the intestate, according to the rule for the distribution of intestates' estate applicable in the case of the deceased, is a minor or a lunatic, letters of administration, with or without the will annexed as the case may be, shall be granted to the person to whom the care of his estate has been committed by competent authority, or, if there is no such person, to such other person as the Court may think fit to appoint, for the use and benefit of the minor or lunatic until he attains majority or becomes of sound mind, as the case may be".



The Indian Succession Act, 1925 Back




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