Rajamannar, J. -
(1.) ONE Lina Dalrimple Hay, a British National, died in England on 30 -12 -1950. She left behind her her last Will and Testament dated 24 -6 -1944. In and by the said Will the testatrix appointed her two nieces, Miss E. J. E. Butcher and Miss B. Butcher, both residents of London, to be the executrices thereof. Probate of the said Will was duly obtained by the said executrices from the Probate Division of the High Court of Justice in England on 3 -5 -1951. On 23 -8 -1952 the said two executrices appointed Lloyds Bank Ltd., Calcutta, as their attorneys for them, on their behalf and in their names to apply for and obtain from the High Court of Judicature, Madras, or from any other competent Court in India Letters of Administration with a copy of the said Will annexed of the estate of the deceased and effects in India. By a power of substitution, dated 17 -12 -1952 the said Lloyds Bank Ltd., Calcutta appointed Laurence Claude Levack (the petitioner herein), an Officer of the said Bank, Madras Branch, to be the duly constituted attorney of the said two executries to apply for and obtain from this court letters of administration with a copy of the will.
Thereupon, the above petition was filed by Levack for the grant of Letters of Administration of the estate and effects of the said deceased with a copy of the said Will annexed to have effect only in the State of Madras to him as the duly constituted attorney of the executrices with probate in England of the said Will and for their use and benefit until they or either of them shall apply for and obtain probate in Madras. Along with the petition, the petitioner filed a certified true copy of the probate of the said Will issued under the seal of the Principal Registry of the Probate Division of the High Court of Justice in England. A question was raised, if, before Letters of Administration could be granted to the petitioner, an administration bond should be given to this court under Section 291, Succession Act, (Act 39 of 1925, hereinafter referred to as the Act). It was contended on behalf of the petitioner that the grant in this case was a grant under Section 241 of the Act and therefore the provisions of Section 291 of the Act do not apply. It was therefore necessary to determine whether the petition fell within the scope of Section 241 of the Act.
On behalf of the petitioner, reliance was placed on the decision of a Bench of this court in 'In re Wilfried Hazell Sell' : AIR1940Mad680 in support of the position that the grant in this case should be deemed to be under Section 241. The matter first came up before Subba Rao J. sitting on the Original Side of this court, and he passed the following order:
"The judgment of this court in : AIR1940Mad680 appears to me to be in the teeth of the express provisions of Section 241 of the Indian Succession Act. But sitting alone, I am bound by the Bench decision. This may be placed before the learned Chief Justice for consideration whether the question may be placed before a Division Bench."
The petition was posted thereafter before a Division Bench consisting of Satyanarayana Rao and Rajagopalan JJ. The learned Judges thought that the matter required consideration by a fuller Bench. They also suggested that as this matter was of sufficient importance notice should go to the Advocate General to assist the court in coming to a decision in the matter. It now conies up before this Full Bench after notice to the Advocate General who has appeared and has been of considerable assistance to us.
(2.) SECTION 241 of the Act runs thus:
"When any executor is absent from the province in which application is made, and there is no executor within the province 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."
The conditions which have to be satisfied before Section 241 can apply are, (1) the executor is absent from the province in which the application is made and there is no executor within the province willing to act, and (2) the person applying is the attorney or agent of the absent executor. In the present case there can be no doubt that the petitioner must be deemed to be the attorney or agent of the two executrices. The question therefore is whether the executrices can be said to be "absent from the province." "Absent" literally, that is, etymologically , means "not present". "Present" means "being in the place in question." It follows that when an executor is not in the province in which the application is made at the time of the application, the first condition must be held to be satisfied. There is no implication in the word "absent" that the person should have been at any time present, or the person is only temporarily not present.
In - - 'Ashbury v. Eilis',, 1893 AC 339 (B) the Judicial Committee of the Privy Council had to construe the word "absent" which occurred in a rule of the New Zealand Code, the material part of which is as follows:
"In actions founded on any contract..........on proof that any defendant is absent from the colony at the time of the issuing of the writ, and that he is likely to continue absent...... the court may give leave to the plaintiff to issue a writ and proceed thereon without service."
The following observations deal with the point: "The only other contention related to the word 'absent' in Rule 53. The appellant seeks to confine it to persons who at some previous time have been domiciled or resident in New Zealand. It is not easy to appreciate the reasons why such an artificial sense should be put upon the word; and during the argument their Lordships expressed agreement with the Judges of the Court of Appeal, who held that the word is used in its ordinary sense, and describes persons who are not in New Zealand."
'Prima facie', therefore, it looks as if both the conditions are satisfied in this case and the petitioner is entitled to the grant of Letters of Administration under Section 241.
The question then arises whether the section will not apply because the petitioner in this case is unable to produce along with his petition the original will. The production of the original will is not incumbent by reason of any provision in Section 241 of the Act, but because of the provisions of Section 276(1) of the Act, which says that an application for probate or for letters of Administration with the will annexed shall be made "with the will" except in cases mentioned in Sections 237, 238 and 239. These three sections deal with the case of a lost or destroyed will and the case of a will in the possession of a person residing out of the province in which the application for probate is made and who has refused or neglected to deliver it.
(3.) IT is in this connection that Section 228 becomes important. It runs thus:
"When a will has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the province, whether within or beyond the limits of India, and a properly authenticated copy of the will is produced, letters of administration may be granted with a copy of such copy annexed."
The will concerned in this case has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the province, i.e. , in the English Court. A properly authenticated copy of the will has also been produced. Though not mentioned in Section 276, a case coming under Section 228 would also be an exception to the general rule in Section 276. A great deal of confusion has resulted on account of the expressions "letters of administration with will annexed", "with copy of the will annexed" and "with a copy of such copy". In our opinion, there is no substantial significance in these expressions so far as the light of the petitioner goes. Even when letters of administration are granted on an application made along with the production of the original Will, the original Will itself is never annexed to the letters granted. It is only a copy of the original will that is annexed to the letters.
Ordinarily this is so, because ordinarily the original will is produced along with the application for letters. But when the original will cannot be produced because it has already been lodged in a court of competent jurisdiction, the letters can be granted not with a copy of the will annexed, but only with a copy of the properly authenticated copy of the will. That no significance attaches to the expression '"will annexed" is evident from a perusal of some of the sections of the Act. In Section 231 which provides for the grant of letters of administration when an executor renounces or fails to accept an executorships within the prescribed time, the language used is
"The will may be proved and letters of administration with a copy of the will annexed may be granted".
In the next Section 232 which provides for the grant of letters of administration to a universal or residuary legatee in certain contingencies, the language used is
"Letters of administration with the will annexed may be granted".
In Section 213 the language used is: "has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed'.
In our opinion the expression "Letters of Administration with will annexed" is used in antithesis to letters of administration granted on intestacy. Reading therefore Section 241 along with Section 228 of the Act it follows that an attorney or agent of an absent executor can obtain letters of administration without producing the original will if the will had been proved and deposited in a competent court and a properly authenticated copy of the will is produced.;