- (1.) This is an application for the issue of succession certificate with regard to certain moneys of the deceased in banks in Calcutta and Bombay. I had granted the application. Before the certificate was actually issued the learned Registrar-in-Insolvency very properly drew my attention to a decision of the Bombay High Court which seemed to throw doubt on the jurisdiction of this Court to grant the certificate. I had the matter then again placed on the list for further arguments. I had at that time requested Mr. Subimal the matter and Mr. Roy very kindly agreed to do so. This Court is deeply obliged to Mr. Roy for his able assistance. Having had the benefit of hearing Mr. Roy my doubts have been resolved and I accordingly confirm the order that I previously made.
(2.) The difficulty arose in this way. The petition shows that the deceased had at the time of his death his ordinary residence at Rangoon and that the he had died on January 27, 1947, that is after the separation of Burma from India. He was, therefore, a non-resident foreigner. In Mir Ibrahim v. Ziaulnissa,1887 12 ILR(Bom) 150 , Weston, J., said about Section 3 of Act XXVII of 1860 that it did not make provision for the administration of the effects of a foreigner domiciled abroad. Section 3 of this Act corresponds to Section 371 of the Indian Succession Act which has taken the former's place. Weston, J., also said that the former Act seemed to him in contemplate the issue of a certificate under it only to the estate of a British subject, either resident within the District where a certificate is sought, or else having no fixed place of residence. He further stated that representation to the estate of a non-resident foreigner could properly be sought in a country he belonged to and the constituted representative could then sue in the British Courts. This is the judgment which created the difficulty in the mind of the learned Registrar-in-Insolvency.
(3.) It is quite clear that the observations of Weston, J., were entirely obiter dicta. It is equally clear that his observations that the representative of a foreigner could take out representation in the foreign state in which the foreigner resided and then sue in this country on the strength of it is wrong. The law on the point may be quoted from Cheshire on Private International Law (3rd Ed.), p. 674 : "The rule is absolute that the status of an administrator appointed by a foreign Court is not recognised in England. His title relates only to property that lies within the jurisdiction of the country whence he derives his authority, and, therefore, he has no right to take or to recover property in England without a grant from the English Court. 'I did not consider' said Williams, J., in Vanquelin v. Board, 1863 15 CBNS 341, 370-1 'that . . . the Court will in any way depart from or diminish the effect of the rule which has been established by a long series of cases as well at law as in equity upon this subject, viz., that in order to entitle a party to sue in any Court in this country, whether of law or of equity, in respect of the property of the personal rights of a deceased person, he must show that he has obtained probate or letter of administration from the proper Court of this country. That rule was recognised by Lord Cottenham in , that in order to entitle a party to sue in any Court in this country, whether of law or of equity, in respect of the property of the personal rights of a deceased person, he must show that he has obtained probate or letter of administration from the proper Court of this country. That rule was recognised by Lord Cottenham in Tyler v. Bell,1837 2 Mylne&Cr 89and Price v. Dewhurst,1837 4 Mylne&Cr 76and also by the Exchequer Chamber in Whyte v. Rose,1842 QB 493, 507'." So it was laid down by Farran, C.J., in Bhaurao v. Lakshmibai,1895 20 ILR(Bom) 607p. 609. "It has always been the practice of the Courts of Probate in England to grant probate of foreign wills, whether executed abroad or not, if the testator has left personal property in England." This being the international law it applies to our country. On this principle in Bhaurao's case probate of the Will of a subject of the Baroda State residing there was granted by a Court in India under Section 56 of the Probate and Administration Act. (corresponding to Section 270 of the Succession Act of 1925).;