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Report No. 110

Representative Title of the Deceased: Sections 211 to 216

(100) A special provision is needed to cover shares, in the context of the grant of letters of administration (section 211). There is also need to cover all cases of survivorship, in the context of grant of succession certificate. Accordingly, an Explanation should be added to section 211, as under:

"Explanation-Where shares in joint stock company belonging to an undivided family governed by the Mitakshara school of Hindu law stand in the name of the karta of the family, letters of administration limited to the shares may, in the event of the karta dying intestate, be granted to the legal representatives of the karta (including, in an appropriate case, the next karta of the family)."1

The amendment to authorise grant of succession certificate in cases of survivorship is dealt with later.2

1. Paras. 34.14 and 34.15.

2. Paras. 48.8 and 49.3.

(101) Section 213, which provides that before title as an executor under a will can be established, probate of the will must be obtained, should be amended, by clarifying that where probate has not been obtained, what is barred is only the passing of a decree in favour of the executor, and not the institution of, a suit by him.1

1. Para. 34.18.

(102) From section 213, Indian Christians should be excluded, and consequential changes, where necessary, be made in other sections.1

1. Para. 34.18A.

(103) For carrying out the various points made in the Report with reference to section 214, insertion of the following Explanations to section 214 is recommended:1

"Explanation 1. Nothing in this section2 shall be construed as precluding a debtor of a deceased person from making payment of a debt to a person (in this Explanation referred to as the 'payee') claiming, on succession, to be entitled to the effects of the deceased person or to any part thereof, where the debtor is satisfied that the payee is so entitled and has taken from the payee a bond indemnifying the debtor and where a debtor makes such payment in good faith end after due care and attention, he shall not be bound to make payment of the debt again in the person entitled to the effects of the deceased person or to any part thereof, as the case may be; but nothing in this Explanation shall affect any remedy which the person so entitled may have against the payee who has received payment from the debtor3."

1. Para. 34.45 read with paras. 34.40, 34.33 and 34.36.

2. If so considered necessary, the first Explanation (proposed to be added to section 214) could be limited to claims for small amounts.

3. Para. 34.36.

(104) To section 218, an Explanation should be added as under:

"Explanation-Where the property of a Hindu undivided coparcenary passes by survivorship to the sole surviving coparcener, the sole surviving coparcener shall, for the purpose of this section, be deemed to be a person entitled to the estate of the person on whose death the property so passes, and shall accordingly be entitled to apply for letters of administration under this section1."

1. Para. 35.7.

(105) In section 219(a), illustration (ii) should be revised as under1:-

"(ii) The widow has married again since the decease of her husband. This, in itself, is not a good cause for her exclusion."

1. Para. 35.9.

(106) The following new section should be inserted in the Act, as section 222A.

"222A. The court may by order exclude from acting as executor, a person who, in the opinion of the court, is definitely unfit to, administer the affairs of the deceased, whether or not that person has committed waste or breach of trust after commencing administration of such affairs:

Provided that no such order shall be passed without affording such person a reasonable opportunity of being heard1."

1. Para. 35.16.

(107) Section 223 should be re-drafted as under:-"223.-Probate cannot be granted-

(a) to any person who is a minor or is of unsound mind; or

(b) to any company, unless it satisfies the conditions prescribed by rules to be made by the State Government in this behalf; or

(c) to any corporation other than a company, if it is not legally competent to accept probate1."

1. Para. 35.21.

(108) To section 241, an Explanation should be added to the effect that-

(a) section 241 will apply also where the case falls under section 228; and

(b) if the case falls under section 228, a copy of the will is to suffice and the original will need not be produced.1

1. Para. 35.31.

(109) In view of that has been stated above section 223, section 236 should be revised as follows:-

"236. Letters of administration cannot be granted-

(a) to any person who is a minor or is of unsound mind, or

(b) to any company unless it satisfied the conditions prescribed by rules to be made by the State Government in this behalf, or

(c) to any corporation other than a company, if it is not legally competent to accept letters of administration1.

1. Para. 35.40.

(110) Sections 237 and 238 should be re-drafted, and new sections 238A and 238B should be inserted, as follows1:-

"237. When-

(a) a will has been lost or mislaid before or after the testator's death, or has been destroyed by a natural event and not by any act of the testator amounting in law to revocation of the will, and

(b) a copy of the will or a draft of the will has been preserved, probate may be granted of such a copy or draft, limited until the original or a properly authenticated copy of it is produced.

238. When a will has been lost or mislaid in the circumstances mentioned in section 237, and no copy or draft of the will has been preserved, probate may be granted of its contents if they can be established by oral evidence."

238A. In sections 237 and 238, "will include a part of a will.

238B. Where a will proved to have been lost in the custody of the testator before his death is not forthcoming after his death, the court may presume that it was destroyed by an act of the testator amounting in law to its revocation."

1. Para. 36.10.

(111) Section 241 should be revised as follows:

"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 provisions of 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 India1."

1. Para. 36.16.

(112) Below section 244, the following Explanation should be inserted1:-

"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."

1. Para. 36.20.

(113) Section 245 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 in that section, after the words, "the grant", the words and figures "under section 244".1

1. Para. 36.21.

(114) Section 246 should be revised as follows (to remove overlapping with section 244):

"246. If

(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 rules 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 be1".

1. Para. 36.24.

(115) Section 247 should be amended 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 deceased1.

1. Para. 36.28.

(116) To section 255, an Exception should be added as under1-2:-

"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. Para. 36.40.

2. Section 250 may require consequential change.

The Indian Succession Act, 1925 Back

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