R VENKITESWARAN Vs. A KRISHNA RAO
LAWS(KER)-1963-1-2
HIGH COURT OF KERALA
Decided on January 14,1963

R.VENKITESWARAN Appellant
VERSUS
A.KRISHNA RAO Respondents


Referred Judgements :-

MT.PHEKNI V. MT.MANKI [REFERRED TO]
RAMA NAIDU V. RANGAYYA NAIDU [REFERRED TO]
CHANDRAMANI MAITY VS. BIPIN BEHARI SASMAL [REFERRED TO]
HARI BHUSAN DATTA VS. MANMATHA NATH DATTA [REFERRED TO]


JUDGEMENT

- (1.)The Civil Revision Petition raises a short but interesting question under the Indian Succession Act. A person by name Bappu yemuni of the Devadasi community died and on the strength of a will left by her the respondent obtained letters of administration from the District Court of Ernakulam. Another person by name Manakki, claiming to be a relation of the deceased on the ground that both of them were descendants of a common great grandmother, filed an application for revoking the letters of administration granted to the respondent. Pending that application Manakki died and the petitioner applied for substituting him as the legal representative of Manakki and permitting to continue the application for revocation of the letters of administration. This petition was dismissed by the District Court and the petitioner has come up in revision.
(2.)The learned District Judge has taken the view that the right to apply for letters of administration was a personal right and the right to apply for revocation of the same was also a personal right, which did not survive after the death of the applicant, so that the legal representative of the applicant could not be substituted in the application. He has considered two decisions of the Calcutta high Court and another of the Patna High Court. The Calcutta decisions are Sarat Chandra Banerjee v. Nani Mohan Banerji ( ILR 36 cal. 799) and Haribhusan Datta v. Manmatha Nath Datta (ILR 45 Cal. 862). In the first of these decisions Harington J. held in a case, where the sole executor who applied for the grant of probate died pending the application and his widow and legal representative applied to have her name substituted, that the application should be refused as the right to sue had not survived. In the second case Greaves J. held that the right to grant of administration was a personal right derived from the court and therefore if on the death of the testatrix the residuary legatee under her Will, obtained a grant of administration to her estate, his title would have been derived from the court and would not devolve on his heir. The third case is the Division Bench ruling of the Patna High Court in Mt. Phekni v. Mt. Manki (AIR 1930 pat. 618). In that case the sole legatee under a Will, whose application for grant of letters of administration was rejected, appealed from the order, but died during the pendency of the appeal; and the heir of that sole legatee was allowed to be substituted in his place for the purpose of carrying on the litigation and obtaining a final adjudication as to whether the Will was genuine or not. In this last case Fazl Ali J. distinguished the Calcutta decision in Sarat Chandra v. Nani Mohan on the ground that in that case the executor applied for probate and under S.222 of the Indian Succession Act probate could be granted only to the executor appointed under the will. The learned Judge also observed that the provision for the issue of letters of administration was not so stringent under S.232 and 233 of the Succession Act. Fazl Ali J. held further that in the case before him the person sought to be substituted had himself an interest under the Will and was competent to obtain letters of administration and was therefore entitled to get himself substituted to proceed with the application.
(3.)My attention has been drawn to two more decisions, one of the Calcutta High Court again and the other of the Madras High Court. The Calcutta decision is Chandramani Maity v. Bipin Behari Sasmal ( AIR 1932 Cal. 206 ), where the donees from a legatee and executor were allowed to be substituted as legal representatives. The Madras decision is the Division Bench ruling in P. Rama Naidu v. Rangayya Naidu ( AIR 1933 Mad. 114 ), which is a fairly enlightening decision on the question. In that case the learned Judges held that an executor who prayed for probate prayed in form for something which could be granted to no one else, but the essence of the proceedings was that he sought to establish a will not for himself, but as the representative of those who took benefits under it; and if he failed in his duty, any of those whom he represented might intervene to carry on the proceedings, having in effect by representation through the executor been a party to the proceedings from the outset. Their Lordships made it clear that a testator who applied for probate was not doing it for himself, but was applying as the representative of all those who took benefits under the will, though it might be said that, in form, he was asking for something, which could be granted to him and nobody else. If he failed at any stage of the proceedings in his duty any one of the others whom he represented might intervene to continue the proceedings. In fact, each one of those interested persons was already in the proceedings, having been represented through the executor. Therefore, if the executor dropped out of the proceedings through death, any of those persons whom he represented might get himself substituted and carry on the proceedings.
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