- (1.) JUDGEMENT JAGDISH SAHAI, J. Special Appeal No. 135 of 1954 is directed against the judgment of Sri Brij Mohan Lall, J., dated the 4th November 1962, while Special Appeal No. 453 of 1955 is directed against the judgment of the same learned Judge dated 21st November 1952. In both the cases the appellants are (1) Ronald Lloyed Powell, (2) Ewen Cameron Caldwell, (3) Dr. Ian Mackenzie Munro, (4) James Cruickshank and (6) Douglas Alexander Ritchie Youngson, while the respondent is the Administrator-General. Connected questions have been raised in these appeals. They were, therefore, heard together and are being disposed of by this common judgment.
(2.) WE would first set out the facts relevant for the decision of the two appeals. One Dame Annie Elizabeth Marshall (on marriage Annie Watson) was possessed of vast properties, part of which are situate in India and part in England and Scotland. She resided in London, where she died on 26th December 1951. On 10th October 1951 she had already executed a will appointing Dr. Ian Mackenzie Munro, James Cruickshank and Douglas Alexander Ritchie Youngson as executors of the Will. These gentlemen all of whom reside in England (hereinafter referred to as the executors) took out a probate of the will from the Sheriff of Lothians and Peebles of the Commissariat of Edinburgh admittedly a Court of competent jurisdiction. The executors feeling difficulty in administering the estate in India appointed Ronald Lloyed Powell and E. C. Caldwell who resided in Kanpur (hereinafter referred to as Powell and Caldwell) as their attorneys. On 19th August 1952 Powell and Caldwell made an application under S. 228 and S. 273 of the Indian Succession Act (hereinafter referred to as the Act) in this Court. This was registered as Testamentary Case No. 16 of 1952. Along with this application were filed the following three documents : (a) A copy of the will dated 10th October 1951 of Dame Annie Elizabeth Marshall or Watson under the seal and signatures of the Sheriff bearing the certificate that the will was registered in the Commissariat of Edinburgh (paper No. A5/1). (b) A certified copy of the Probate of the will aforesaid issued by the Commissariat of Edinburgh under the seal and signature of the Sheriff (paper No. A6/1). The relevant portions of this document read : "The Sheriff of the Lothians and Peebles considering that the said deceased died at London on 26th December 1951, and that, by Trust Disposition and Settlement, dated 10th October 1951, the said deceased Nominated and Appointed Doctor Ian Mackenzie Munro. 4 Allen Mansions, Allen Street, London, W. 8, James Cruickshank, Westwood, Stonewood, Aberdeenshire, and Douglas Alexander Ritchie Youngson, Advocate, 222 Union Street, Aberdeen, hereinafter referred to as "the said Executors"...... Therefore the Sheriff, in Her Majestys Name and Authority, Ratifies, Approves, and Confirms the Nomination and Appointment of the said Executors, and Gives and Commits to the said Executors full power to uplift, receive, administer, and dispose of the said personal Estate and Effects, grant discharges thereof, if needful to pursue therefor, and generally every other thing concerning the same to do that to the office of an Executor-Nominate is known to belong : Providing always that the said Executors shall render just count and reckoning for intromissions therewith, when and where the same shall be legally required. Given under the seal of Office of The Commissariat of Edinburgh, and signed by the Clerk of Court of Edinburgh, the Twenty fifth day of July Nineteen Hundred and Fifty Two". (c) The power of attorney executed in favour of Powell and Caldwell.
(3.) IN the application of the Attorneys Powell and Caldwell it is clearly stated that Dame Annie Elizabeth Marshall or Watson left a will dated 10th of October, 1951 which was registered in the Commissariat of Edinburgh and that a probate of it had been granted in favour of the executors. Paragraphs 5, 6 and 7 of the application read. "5. That the said last will and Testament of the deceased was presented for registration to the Commissariat of Edinburgh on the 24th of July, 1952 and was recorded in the Court Books of the Commissariat on the 24th of July, 1952. 6. That the Sheriff of the Lothians and Peebles of Commissariat of Edinburgh ratified, approved and confirmed the nomination and appointment of the said Executors and granted Probate of the said will in their favour on the 25th day of July, 1952. 7. That the Authenticated copy of the Will so proved, the Extract Confirmation of the Executors by the Commissariat of Edinburgh and the Power of Attorney executed by the Executors by the Commissariat of Edinburgh have been filed with this petition." On 25th October 1952 the respondent, the Administrator General of U. P., intervened and made an application purporting to be under Sections 7 and 8 of the Administrator Generals Act (III of 1913) (paper A-17 on the record), a copy of which he had already served on Mr. Chaudhry, the learned counsel for the Attorneys of the Executors on 23-10-1962 (see the endorsement of Mr. Chaudhry on that application). In this application the Administrator General stated that "under Ss. 7 and 8 of the Administrator Generals Act he has prior right for the Administration of the estate in India" and prayed as follows : "Your petitioner, therefore, respectfully submits that your petitioners claim to the administration of the property in preference to the Attorneys may be considered before the Letters of Administration are granted." In his application the Administrator General admitted the knowledge of the Will and the grant of Probate by the Commissariat of Edinburgh to the executors and did not challenge their right to obtain the Letters of Administration from this Court. He only claimed a preferential claim over the Attorneys. On 31-10-1952 an application dated 30-10-1952 was made to Court by Sri V. K. S. Chaudhry, learned counsel for the attorneys, the relevant portions of which read : "(1) That the applicants aforementioned have applied under S. 228 of the Indian Succession Act for grant of the Letters of Administration to the estate of Dame Annie Elizabeth Marshall or Watson as Attorneys representing the execution and on their behalf. (2) That the applicants do not have any objection at all if the Letters of Administration to the estate aforementioned are granted in the name of the executors themselves. It is, therefore, prayed that, for the sake of clarification, the prayer at page 6 of the petition for grant of Letters of Administration be amended in the following manner viz., the words "or to the executors through the petitioners, their lawfully constituted attorneys or to the executors themselves or any one of them" be added after the words to the petitioners;" There is an endorsement of this application made by Sri J. K. Srivastava, the Administrator General, that he received a copy of it on 31-10-1952. The same day another application dated 30-10-1952 was made by the executors Ian M. Munro, James Cruickshank and D. A. R. Youngson to the Court, the relevant portions of which read as follows : "(1) That Dame Annie Elizabeth Marshall or Watson...... died at London on the 26th of December 1951. (2) That the deceased left her last Will and Testament dated the 10th day of October 1961 and appointed therein the executors named above as her trustees and executors. (3) That the nomination and appointment of the said executors was ratified, approved and confirmed and probate of the said Will was granted to them by the Sheriff of the Lothians and Peebles of the Commissariat of Edinburgh on the 25th day of July 1952. (4)....... (5) That Sri Ronald Lloyed Powell and Sri Ewen Cameron Caldwell aforementioned as representing the executors and on their behalf have filed the petition (registered as Testamentary Case No. 16 of 1952) in this Court for giant of Letters of Administration with the English grant annexed thereto under S. 228 of the Indian Succession Act. (6) That an objection has been filed to the petition by the Administrator-General, U. P., claiming a preferential right to the attorneys to administer the estate. (7) That the executors aforementioned, not only never renounced the executorship, but have already elected to act as executors and have been granted probate of the said Will in the United Kingdom. (8) That the executors, by themselves, as well as through their attorneys wish to administer the estate of the deceased in India and they or their attorneys, acting on their behalf, have a preferential right to administer the estate of the deceased to that of the Administrator-General. PRAYER. It is, therefore, prayed that the Letters of Administration to the estate of Dame Annie Elizabeth Marshall or Watson be granted to and in the name of the attorneys or in the name of the executors through their attorneys or the executors themselves in preference to the Administrator-General." There is an endorsement on this application too by the Administrator-General (Sri J. K. Srivastava) that he had received a copy of it on 31-10-1952. ;