Report No. 110
V. Grant of Probate
38.32. Section 289.-
Section 289 provides that when it appears to the District Judge or District Delegate that probate of a will should be granted, he shall grant the same under the seal of his Court in the form set forth in Schedule VI.
The section needs no change, having created no problems.
38.33. Section 290.-
According to section 290 when it appears to the District Judge or District Delegate that letters of administration to the estate of a person deceased, with or without a copy of the will annexed, should be granted, he shall grant the same under the seal of his Court in the form set forth in Schedule VII.
The section needs no change.
38.34. Section 291-Administration bond.- Section 291 reads as under -
"291. (1) Every person to whom any grant of letters of administration, other than a grant under section 241, is committed shall give a bond to the District Judge with one or more surety or sureties, engaging for the due collection, getting in, and administering the estate of the deceased, which bond shall be in such form as the Judge may, by general or special order, direct.
(2) When the deceased was a Hindu, Mohammedan, Buddhist, Sikh or Jain or an exempted person-
(a) the exception made by sub-section (1) in respect of a grant under section 241 shall not operate;
(b) the District Judge may demand a like bond from any person to whom probate is granted".
38.35. Need for giving discretion to court.-
As the section stands at present, there is no discretion given to the court to dispense with the taking of the bond. If sub-section (1) applies, then the only matter in respect of which the court has a discretion is as regards the amount of the bond.
Now, cases do arise in practice where a bond might become an idle formality-for example, where the applicant for the grant of letters of administration is the sole legatee or the sole heir. Under the present section, even in the case of a sole legatee, the only matter in the direction of the court is the amount of the bond.1 But subject to the above discretion and apart from cases specifically excluded by statute,2 the provision as to security in sub section (1) is mandatory.
1. Mohan Mohini v. Tara Mohini, AIR 1920 Cal 733 (734).
2. For example the Administrators Generals Act, 1963.
38.36. Rationale for taking security bond.-
Security is required for guarding against possible malpractices by the grantee. If there is reasonable protection against a malpractice arising from the special circumstances of the case, the taking on an administration bond is an unnecessary formality. It may even cause hardship. For example, the conditions imposed or the amount fixed may make it impracticable for the applicant to furnish the security demanded and consequently no letters of administration can he taken out. In such circumstances the safety of the estate may be seriously imperilled if letters of administration are not granted.1
1. Amir Chandra v. Mahanundlaibi, 6 Cal LJ 453.
38.37. English law.-
It may be noted that in England, while a bond is generally taken from an administrator, the court has a discretion to dispense with sureties by reason of special circumstances. For example, where all the debts had been paid and the persons applying were entitled to the whole of the residue, sureties were dispensed with.1 Again,2 where the applicant had no means, sureties were dispensed with, to enable the applicant (widow of the deceased) to carry on the business of the deceased.
1. Goods of Panton (in re:), 1901 Probate 188.
2. Cory (in re:), (1903) Probate 62.
38.38. Need of giving discretion to the court. On a careful consideration of the matter, it seems to us that the Court should be given a discretion to dispense with the taking of the administration bond or with the need for sureties in the following cases:-
(i) where the person to whom the grant is to be made is a sole legatee or a sole heir, or
(ii) where, for reasons to be recorded, the Court in the circumstance of the case thinks it proper to dispense with the bond or sureties.1
1. For a draft see para. 37.40, infra.
38.39. History of sub-section (2).-
As to sub-section (2) of section 291, its history is of interest. In the case of probate, a bond can be demanded only from the special classes of persons mentioned in sub-section (2). The reason for the difference is thus stated in the Statement1 of Objects and Reasons of the Probate and Administration Act, 1881:
"The Indian Succession Act, 1865 provided for the taking of security for the due discharge of this office only from an administrator, it being considered that in the case of an executor, who was selected by the testator himself, such security can safely be dispensed with. But amongst the classes to which this Act will apply, cases will, it is apprehended, occasionally occur, in which it may be expedient to take security even from an executor and accordingly a section has been inserted in the Bill amending section 256 of the succession Act in such a manner as to give a power to the court to require an executor to give security."
1. Cf. section 78, Probate & Administration Act, 1881 (Repealed).
38.40. Recommendation to amend section 291.-
In the light of the above discussion, we recommend that the following sub-section should be added in section 291:
"(3) Notwithstanding anything contained in this section, the Court may dispense with the taking of a bond thereunder or with the need for sureties to such a bond where-
(a) the person to whom the grant of probate or letters of administration is to be made is the sole legatee or the sole heir of the deceased, or
(b) where, for reasons to be recorded, the Court in the circumstances of the case thinks it proper to dispense with such bond or sureties, as the case may be."
38.41. Section 292.-
This takes us to section 292, which provides that the court may, on application made by petition and on being satisfied that the engagement of any such bond has not been kept, and upon such terms as to security, or providing that the money received be paid into Court, or otherwise, as the Court may think fit, assign the same to some person, his executors or administrators, who shall thereupon be entitled to sue on the said bond in his or their own name or names as if the same had been originally given to him or them instead of to the Judge of the Court, and shall be entitled to recover thereon, as trustees for all persons interested, the full amount recoverable in respect of any branch thereof.
The section needs no change, having created no difficulties.
38.42. Section 293.-
Section 293 provides that no probate of a will shall be granted until after the expiration of seven clear days, and no letters of administration shall be granted until after the expiration of fourteen clear days, from the day of the testator or intestate's death.
This section also needs no change.
38.43. Section 294.-
Section 294 provides that every District Delegate shall file and preserve all original wills, of which probate or letters of administration with the will annexed may be granted by him, among the records of his Court, until some public registry for will is established. It further provides that the State Government shall make regulations for the preservation and inspection of the wills so filed.
Recommendation.- The section needs no change of substance. However, the regulation to be made by the State Government should be published in the official Gazette and we recommend that a sub-section to that effect be added in section 294.
38.44. Section 295.-
This takes us to section 295. It lays down that in any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.
The section needs no change.
38.45. Section 296.- Section 296 reads-
"296. (1) When a grant of probate or letters of administration is revoked or annulled under this Act, the person to whom the grant was made shall forthwith deliver up the probate or letters to the court which made the grant.
(2) If such person wilfully and without reasonable cause omits so to deliver up the probate or letters, he shall be punishable with fine which may extend to one thousand rupees, or with imprisonment for a term which may extend to three months, or with both."
This section also needs no change.
38.46. Section 297.- Section 297 provides:-
"297. When a grant of probate or letters of administration is revoked, all payments bona fide made to any executor or administrator under such grant before the revocation thereof shall, notwithstanding such revocation be a legal discharge to the person making the same; and the executor or administrator who has acted under any such revoked grant may retain and reimburse himself in respect of any payments made by him which the person to whom probate or letters of administration may afterwards be granted might have lawfully made."
The section needs no change.