Report No. 110
Powers of an Executor or Administrator (Sections 305 to 315)
Sections 305 to 315 deal with powers of an executor or administrator. Although contained in an enactment dealing with succession, some of the sections in this chapter (particularly, section 306 which deal with the survival of causes of action) have a much wider interest, and really the draftsman, in dealing with this topic, has entered the realm of torts. It is well-known that the topic of survival of causes of action has, during the last four or five decades, been the subject-matter of much legal learning, and of certain legislative developments in other countries:
These legislative developments remedy, to some extent, certain anomalies arising from the earlier common law rule. In India, however, the section, not having been subjected to systematic review in the past, still suffers from a serious drawback. Accordingly, it will be necessary to suggest suitable reforms in this regard, when dealing with the section.
40.2. General principle.-
The general principle underlying the provisions in sections 305-315 is that the executor or administrator represents the deceased-though, until he obtains probate or letters of administration, no right can be established in a court of justice. This principle is worked out in relation to several matters dealt with in this Chapter, such as:-
(a) the survival of causes of action: sections 305-306.
(b) disposal of property and general powers of the executor or administrator-sections 307-325.
The executor or administrator cannot make a profit out of the office. Accordingly, sections 309-310 impose certain restrictions based on that principle.
The rest of the sections (311-315) deal with matters of detail.