Report No. 16
4. Insertion of a provision similar to section 22 of the Administrator-General's Act.-
The first suggestion made by the Government of West Bengal is that a provision on the lines of section 22 of the Administrator-General's Act should be incorporated in the Official Trustees Act.
Under section 22 of the Administrator-General's Act, 1913, whenever an Administrator-General applies for letters of administration under the Act, it is sufficient if the petition states certain matters mentioned in the section1. This provision, in effect, dispenses with the necessity of mentioning all the particulars under sections 277 and 278 (1) of the Indian Succession Act, 1925 as also the submission of any separate affidavit2 which may be required under the rules made by the High Court or under section 19-I of the Court Fees Act, 1870. While under the Administrator-General's Act, the occasions for filing such petitions may be3 numerous, we find that in the case of Official Trustee, such occasions would be rare.
Under the Official Trustees Act, the only possibility in which the Official Trustee may become an executor is under section 7(6) which states that the Official Trustee shall not administer the estate of a deceased person unless he is expressly appointed as sole executor and sole trustee under the will of such person. He cannot be appointed under this provision as an executor, simpliciter, but he can be appointed only if there is a trust created by will in which he will be appointed as the sole executor and sole trustee under the will. In such a case, he will have to apply for a probate in case the probate is obligatory.
There is no possibility of his applying for letters of administration in the other cases in which the Administrator-General can apply. The Government of Madhya Bharat was against the proposal made by the Government of West Bengal. Cases where a trustee is appointed as the sole executor and sole trustee under will would be rare and in such cases there is no harm if he files an affidavit as required by section 19-1 of the Court-fees Act or under rules made by the High Court.
For a remote contingency of that type we think it unnecessary to engraft a provision similar to section 22 of the Administrator-General's Act in the Official Trustees Act. Besides, it would seem to be in keeping with the pattern of the Act to treat the Official Trustee as standing, generally speaking, in the same position as a private executor and a private trustee.
1. Section 22 of the Administrator-General's Act runs as follows:-
"22. Whenever any Administrator-General applies for letters of administration in accordance with the provisions of this Act, it shall be sufficient if the petition required to be presented for the grant of such letters states,
(i) the time and place of the death of the deceased to the best of the knowledge and belief of the petitioner;
(ii) the names and addresses of the surviving next-of-kin of the deceased, if known;
(iii) the particulars and value of the assets likely to come into the hands of the petitioner;
(iv) particulars of the liabilities of the estate, if known.".
2. See in Goods of Mc. Comisky, 20 Cal 879. This case, though decided under Act II of 1874 is a good authority as the relevant provisions of the 1874 Act have been reproduced in the present Act.
3. Petitions for letters of administration under the Administrator-General's Act can be presented in the following cases:-
(a) Compulsory petitions in the case of non-exempted persons having assets exceeding two thousand rupees, where no other person has applied for administration-section 9;
(b) Petitions under orders of the High Court in respect of assets left within the Presidency Towns, where there is apprehension of misappropriation, deterioration, etc.-section 10;
(c) Petitions under orders passed by the High Court in respect of assets in the Presidency Towns pending determination of rights of succession, section 11 (1) read with section 11(2)(b);
(d) Petitions limited to military estates-section 17;
(e) Petitions under the general provisions of sections 6, 7, 8, 11 and 31, etc.
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