Report No. 110
Practice in Granting and Revoking Probate etc.: Sections 264, 302.
(117) Under the present proviso to section 265(1), the appointment of judicial officers as "Delegates" for granting probate etc. in non-contensous cases requires, in the case of High Courts not established by Royal Charter, the previous sanction of the State Government. This proviso should be deleted, as unnecessary at the present day.1
1. Para. 38.3.
(118) In section 273, the amount of ten thousand rupees should be increased to rupees fifty thousand, in view of fall in the value of the rupee.1
1. Para. 38.15.
(119) In section 291, the following sub-section should be added:-
"(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 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."1
1. Para. 38.40.
(120) From section 306, the exception for assault and other personal injuries not causing death should be removed.1
1. Para. 40.11.
(121) From section 306 (survival or causes of action after death), the provision for non-survival of proceedings for defamation should also be deleted.1
1. Para. 40.20.
(122) Section 306 should apply to other persons (besides executors or administrators), who represent the estate of a deceased, such as heirs.1
1. Para. 40.21.
(123) Section 306, should, therefore, be revised as follows1
"306. All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators or representatives, except in cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory."
1. Para. 40.22.
Illustration
** ** *** *** ***
A sues for divorce. A dies. The cause of action does not survive to his representatives."
(124) If, from section 306, the words excluding "personal injuries" are not deleted (as recommended above), then the expression "personal injury" should be defined as recommended, and the expression "representative" should also be added in the section. The amendment should define 'personal injury' as
(i) including any disease and any impairment of a person's physical or mental condition, and (ii) excluding injury caused by malicious prosecution.
For the purpose, an appropriate Explanation could be added to section 306.1
1. Para. 40.15.
(125) Section 309 should be modified on the following lines:
(1) Whether or not the will provides for the payment of remuneration to an executor or administrator, so long as the will does not prohibit such payment, an executor or administrator shall be entitled to receive or retain reasonable commission or agency charges.
(2) Unless the will otherwise provides or the court otherwise permits, those charges shall not be a higher rate than that for the time being fixed in respect of the Administrator General by or under the Administrator-General's Act, 1963.1
1. Para. 40.31.
(126) From section 310, the case where purchase is sanctioned by the court should be excluded.1
1. Para. 40.32.
(127) Section 311 speaks of a "direction to the contrary", but does not specify where the direction is to be contained. It is recommended that in section 311, it should be made clear that the direction may be either in the will or in the probate.1
1. Para. 40.33.
(128) Section 317 should be amended, by adding the following Exception to the section1:
"Exception-Where the Administrator-General is the executor or administrator, he shall not be bound to exhibit an inventory or an account of the estate under this sub-section, unless the court has directed him to do so, in which case he shall exhibit the inventory or the account, as the case may be, within such period as the Court may allow; but copies of the accounts maintained by him shall be filed in court."
1. Para. 41.17.
(129) Section 324(2), and the illustration to the section, should be deleted.1
1. Para. 41.30.
(130) If the provisions of the Succession Act relating to domicile are extended to Hindus etc. (as recommended separately), sub-section (3) of section 324 will also have to be deleted, as a consequential change.1
1. Para. 41.30.
(131) In section 330, the illustration should be revised, so as to express the amounts in decimal coinage.1
1. Para. 41.36.
(132) In regard to section 332 (assent of the executor etc. to legacy), the position should be improved by a suitable clarification, to the effect that nothing in this section shall be deemed to invalidate a transfer of the property (which is the subject-matter of the legacy) by the legatee before assent by the executor or administrator, but every such transfer shall be regarded as conditional on the assent of the executor or the administrator, as the case may be. The section should be amended by inserting an Explanation on the above lines.1
Also, in illustration (i) to the section, the words "Imperial Bank of India" should be replaced by the words State Bank of India.2
1. Para. 42.3.
2. Para. 42.2, footnote.
(133) Section 362 needs a verbal change, namely, the last four words should read "wasting on the part of the executor"1 (and not "wasting of the executor").
(134) In section 367, a new sub-section should be inserted, as under:-
"(2) Where there has been a grant of administration in a country other than the country of domicile and other than India, the executor or administrator may, with the permission of the Court, take the same action as he could have taken if there had been a grant in a country of domicile other than India; and the provisions of this section shall, with necessary modifications, apply to the case as they apply if there had been a grant in a country of domicile other than India."
1. Para. 46.8.
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