GOMEZ Vs. GOMEZ
LAWS(KER)-1955-2-5
HIGH COURT OF KERALA
Decided on February 23,1955

GOMEZ Appellant
VERSUS
GOMEZ Respondents

JUDGEMENT

- (1.) The appellant applied for the grant of letters of administration with a copy of the Will annexed in respect of the estate of his mothers father John George Gomez who died at Anjengo on 25.2.1927. The application was originally made to the Subordinate Judge, Tinnevelly, within whose jurisdiction Anjengo was at that time but consequent on the transfer of the territory to this State, the application was transferred to the District Court of Trivandrum where it was numbered as Probate Petition No. 5 of 1950. John George Gomez left surviving him, his widow Mrs. Joanesa Gomez who died on 6.6.1936, two sons George John Gomez and Walter J. Gomez and three daughters Mary DSilva who died on 18.10.1936, Margaret Gomez and Jessie Fernandez. The appellant is a son of Margaret Gomez. It was alleged by the petitioner that of the two executors appointed under the Will viz. Joseph Gomez and J.C. Pereira, the former was dead and the latter was unwilling to act as executor, that Joanesa Gomez and Simon T. Gomez who were to act as executors in case the two persons named above found it inconvenient to do so were both dead, that the petitioner was a legatee under the Will, that letters of administration should be granted to him in that capacity and that the assets that were likely to come to his hands were the properties described as items Nos. 1 to 4 in Schedule A to the Will. The original Will was said to be missing and an authenticated copy obtained from the office of the Sub-Registrar of Anjengo where the original was registered was produced along with the petition. The petition was opposed in the court below and here by the 5th respondent to whom items Nos. 1 to 4 in Schedule A had been sold by the petitioners mother Margaret Gomez, to discharge the decree debt which was obtained on the mortgage mentioned in the Will, for the realisation of which, these properties had been sold in court sale. He contended that the District Court of Trivandrum had no jurisdiction to entertain the petition. The allegation that John George Gomez had left a Will of which Ext. A was produced as a copy was denied. It was also contended that the petitioner was not entitled to the grant of letters of administration, that the assets were not correctly stated in the petition, that the assets described in the schedule annexed to the petition belonged to him, that the original Will was not produced because the same was destroyed by the testator with intent to revoke the same, that the long delay in making the application was a ground for dismissing the petition and that all the formalities of law had not been complied with. The court below refused to grant letters of administration holding that the execution of the Will was not satisfactorily proved, that one of the witnesses to the Will did not sign the same, that the Will must have been revoked, that there was no estate to be administered, that the petition was defective in as much as it was for the grant of letters of administration for a part only of the assets of the testator and that the petition was an attempt to get by indirect means a declaration of the petitioners title from the probate court for the purpose of a civil suit pending between the parties.
(2.) The circumstances in which the petition was filed may also be stated. After the testators death a suit for recovery of the amount under the simple mortgage mentioned as the first item of debt in Schedule B to the Will was filed as O.S. No. 5 of 1936 of the Anjengo Munsiffs Court and a decree was obtained. Ext. A is copy of the plaint. The properties described as items Nos. 1 and 2 in the petition which were items Nos. 1 to 4 in Ext. A were sold in court sale for a portion of the decree amount on 18.6.1943. Ext. F is copy of a petition dated 8.10.1942 filed by Margaret Gomez for postponing the sale. On 12.7.1943 Jessie Fernandez one of the daughters of the testator filed an application for setting aside the ex parte decree in the case and another for setting aside the sale. Exts. II and III are copies of the said petitions. While these petitions were pending, Margaret Gomez sold these properties to the 5th respondent under Ext. B dated 17.7.1943, directing him to pay the auction amount and commission and to discharge the decree debt. The amount was duly paid, the sale was set aside and the decree was satisfied as seen from Ext. IV. The appellant when he came of age instituted a suit, O.S. No. 64 of 1943 in the court of the Subordinate Judge of Tinnevelly which was later transferred to the District Court of Trivandrum as O.S. No. 102 of 1950. This suit is now pending on the file of the Subordinate Judge of Attingal as O.S. No.46 of 1954 and is one for recovery of the properties sold. The 5th respondent had raised a contention in that suit that the plaintiff was not entitled to maintain the suit as the executors had not obtained probate of the Will. Since one of the executors was dead and the other declined to act, the appellant filed the petition for the grant of letters of administration to enable him to meet this contention in the original suit. It may be stated that the appellant cannot get a decree in the civil suit without obtaining letters of administration even if he is otherwise entitled to succeed.
(3.) The main ground on which the grant was opposed before us was that the appellant was not entitled to letters of administration under S. 234 of the Indian Succession Act. It was contended that he was not a legatee having a beneficial interest. The terms of the Will have to be examined for deciding this question. The testator owned 9 items of immoveable property which were described in Schedule A to the Will. Of these items, 1, 2 and 6 together with the buildings thereon were bequeathed to his wife with a direction to discharge his debts. It was stated in Clause.(2) that the testator had got his sons educated so that they were earning good income, that his daughters other than Margaret Gomez had been given dowry at the time of marriage and that Margaret Gomez alone was not given any dowry. It was therefore declared that Margaret, her husband Simon T. Gomez and their children were to have a greater share of the assets than the others. Items 3 and 4 in Schedule A were then demised to Margaret and her husband with the provision that they were to take the income but that they were not to alienate the properties, the power of alienation being vested in their children. Items Nos. 6, 7, 8 and 9 were bequeathed absolutely to Margaret and her husband. The effect of these clauses is to give a beneficial interest to the petitioner who is one of the sons of Margaret and Simon T. Gomez and prima facie he has a right to administer the estate. Learned counsel for the 5th respondent relied on the decision of the Supreme Court in Raj Bairang Bahadur Singh v. Thakursin Bakhtrai Kuer (AIR 1953 S.C. 7) and contended that as the appellant who was not born on the date of the testators death the gift to him as a person not in existence on that date would be void. The decision cited cannot apply to the facts of this case. Under S. 113 of the Indian Succession Act, the bequest to a person not in existence at the time of the testators death is void unless it comprises the whole of the remaining interest of the testator in the thing bequeathed. The bequest in favour of persons not in existence at the time of the testators death was only a life estate in the case cited above and it was on account of this that it was held that the bequest of a life estate to the person who was alive on the date of the testators death alone was valid and that it was invalid in respect of the rest. In our opinion the present case is one governed by the exception to S. 112 of the Indian Succession Act. We must, however, make it clear that we come to this conclusion only for the purpose of the present enquiry and not for deciding the question of title to the properties.;


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