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Report No. 110

III. Grant for Special Purposes

36.25. Section 247-Administration pendente lite.-

Administration pendente lite is dealt with in section 247, which reads as follows:-

"247. Pending any suit touching the validity of the will of a deceased or for obtaining or revoking any probate or any grant of letters of administration, the Court may appoint an administrator of the estate of such deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing such estate, and every such administrator shall be subject to the immediate control of the court and shall act under its direction".

36.26. Section 247(1)-who can apply.-

A question that requires to be considered is-Who can make an application under this section? In a Calcutta case1, it was held that an application under section 247 can be made only by the parties to the suit. According to the English practice, however, such an application may be made by any person interested in the estate, and even by a creditor of the deceased.2

1. Nirod v. Chamtkarini, (1892) 19 CWN 205.

2. Tichborne v. Tichborne, LR 1 IP&D 730, cited by Mitra Commentary on the Succession Act (under section 247).

36.27. Appointment.-

The appointment1 of an administrator pendente lite does not follow as a matter of course whenever litigation is pending. Before granting administration pendente lite, the Court must be satisfied as to the necessity of such an administrator. The applicant is required to show, for instance, that it is necessary for the preservation of the estate, for receiving rents, interest or dividends on shares, and that no fit and proper person is in a position to discharge these offices2.

1. (a) Horrel v. Witts, 1866 IP&D 103.

(b) Bhuban Mohini v. Kiranbala, 13 CLJ 47: 9 IC 215 (216) (Cal).

(c) Jogendra v. Atindra, 13 CLJ 34: 2 IC 638 (639).

(d) Pandurang v. Dwarkadas, AIR 1933 Born 342 (344).

(e) Estate of Day (in re:), (1940) 2 All ER 544.

2. See Goods of Borendra Nath, AIR 1952 Cal 418.

36.28. Recommendation to amend section 247.-

Having considered the present position, we are of the view that it is desirable to amend the section so as to provide that an application for the appointment of an administrator under the section can be made by any person interested in the estate, and even by a creditor of the deceased. Such a widening of the section is likely to increase the utility of the section, in cases where the parties to the suit do not take any initiative1. An Explanation to the above effect can be added. We recommend accordingly.

1. Compare the English practice in para. 36.26, supra.

36.29. Section 248.- Section 248 reads-

"248. If an executor is appointed for any limited purpose specified in the will, the probate shall be limited to that purpose, and if he should appoint an attorney or agent to take administration on his behalf, the letters of administration, with the will annexed, shall be limited accordingly".

The section needs no change.

36.30. Section 249.- Section 249 reads-

"249. If an executor appointed generally gives an authority, to an attorney or agent to prove a will on his behalf, and the authority is limited to a particular purpose, the letters of administration, with the will annexed, shall be limited accordingly".

This section also needs no change.

36.31. Section 250.- Section 250 reads-

"250. Where a person dies, leaving property of which he was the sole or surviving trustee, or in which he had no beneficial interest on his own account, and leaves no general representative, or one who is unable or unwilling to act as such, letters of administration, limited to such property may be granted to the beneficiary, or to some other person on his behalf".

The section needs no change.

36.32. Section 251.- Section 251 reads-

"251. When it is necessary that the representative of a person deceased be made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in such suit, limited for the purpose of representing the deceased in the said suit, or in any other cause or suit which may be commenced in the same or in any other court between the parties, or any other parties, touching the matters at issue in the said course or suit, and until a final decree shall be made therein and carried into complete execution".

The section needs no change.

36.33. Section 252.- Section 252 reads-

"252. If, at the expiration of twelve months from the date of any probate or letters of administration; the executor or administrator to whom the same has been granted is absent from the State within which the Court which has granted the probate or letters of administration exercises jurisdiction, the Court may grant, to any person whom it may think fit, letters of administration limited to the purpose of becoming and being made a party to a suit to be brought against the executor, and carrying the decree which may be made therein into effect".

The section needs no change.

36.34. Section 253.- Section 253 reads-

"253. In any case in which it appears necessary for preserving the property of a deceased person, the court within whose jurisdiction any of the property is situate may grant to any person, whom such Court may think fit, letters of administration limited to the collection and preservation of the property of the deceased and to the giving of discharges for debts due to his estate, subject to the directions of the Court".

The section needs no change.

36.35. Section 254.- Section 254 reads-

"254. (1) When a person has died intestate, or leaving a will of which there is no executor willing and competent to act or where the executor is, at the time of the death of such person, resident out of the State, and it appears to the Court to be necessary or convenient to appoint some person to administer the estate or any part thereof, other than the person who, in ordinary circumstances would be entitled to a grant of administration, the Court may in its discretion, having regard to consanguinity, amount of interest, the safety of the estate and probability that it will be properly administered, appoint such person as it thinks fit to be administrator.

(2) In every such case letters of administration may be limited or not as the Court thinks fit."

The section needs no change.

36.36. Section 255.- Section 255 reads-

"255. Whenever the nature of the case requires that an exception be made, probate of a will, or letters of administration with the will annexed, shall be granted subject to such exception."

36.37. Section 256.-

Section 256 provides that whenever the nature of the case requires that an exception be made, letters of administration shall be granted subject to such exception.

36.38. Case law on the section.-

An important point concerning sections 255-256 arises out of a Madras case.1 In that case, the appellant, the widow of one S.R., had applied for grant of letters of administration in respect of a bank account and death benefit payable by a company (apparently, the employer of the deceased). S.R. had died at Madras, leaving a will dated 14-1-1964. He had an account in the United Commercial Bank jointly with the appellant (the wife) and her daughter.

The respondent claimed to be the senior wife of the deceased and contended that the assets left by the deceased amounted to much more than the value mentioned in the affidavit of assets. She contended that it was necessary that all the assets of the deceased should be valued and brought into the affidavit of assets of the deceased, for granting letters of administration.

The High Court, dealing with this contention, first noted that the general rule is that the entire assets should be disclosed in the affidavit of assets2, which will count for valuation for the purposes of court fees. But where it is a case of joint account in a bank and the amount is payable to either or survivor, the nature of the case requires that it should be treated as an exception to the above rule that the entirety of the assets of the deceased should be disclose in the affidavit of assets. The High Court also held that it might not even be necessary to obtain letters of administration, for there was, in this case, little to administer, and the wife's right to draw the amount could be independently of the will.

However, since the bank had been insisting on letters of administration, the High Court held that the application should be granted, the case being treated as one falling within the "exception" clause in section 255.

1. Hnpzinnb Annathai Rangachari v. R. Ananthnlakshmi Rangachari, AIR 1975 Mad 342 (Veeraswami, C.J. and Natarajan, J.).

2. T.K. Parthasarthy Naidu (in re:), AIR 1955 Mad 411 was referred to.

36.39. Recommendation as to joint account in a bank.-

The facts of this case, when examined closely, disclose need for amending the law. If, in such cases, obtaining letters of administration becomes necessary by reason of the practice of banks, should it not be covered specifically in section 255 (and also in section 256)?

36.40. Recommendation to amend section 255.-

As the language of section 255 stands at present, the proposition that the grant can be limited to a particular item is not so evident from the section. It appears to be desirable to amend1 section 255, so as to make this clear. The object could he achieved by adding the following exception to section 253:

"Exception-Notwithstanding anything contained in this section or in section 256, where moneys have been deposited in joint account in a bank and the amount thereof is payable to either or any survivor of the persons depositing the money, the application for letters of administration in respect of those moneys may, on the death of either or any of such persons, be made by the survivor."

1. Point is relevant to section 256 also, which may need consequential changes.

The Indian Succession Act, 1925 Back

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