Judgement

Appeal (No. 95 of 1929) from an order of the High Court (December 9, 1925) setting aside a decree of the Additional Subordinate Judge of Ellore (March 6, 1922) and remanding the suit for trial.

The order appealed from was made consequent upon a judgment of the Full Bench dated March 21, 1925, delivered by Kumaraswami Sastri J., Coutts Trotter C.J. and Philips J. concurring, and reported at I. L. R. 49 M. 261. The judgment held that in the case of wills to which the Hindu Wills Act, 1870, does not apply, the estate vests in the executor, if he has accepted office, from the date of the death of the testator, and he has the powers given by the Probate and Administration Act, 1881, although probate has not been obtained.

The present appeal was in effect an appeal from that decision. The facts appear from the judgment of the Judicial Committee.

1931. Nov. 19, 21. E. B. Raikes K.C., Narasimham and W. Lakshmanna Rao for the appellants (plaintiffs). The Probate and Administration Act, 1881, applies only if probate has been obtained; it is an enabling Act. That is indicated by the preamble. That s. 4 applies only where a grant has been made is shown by the heading of chapter II., of which it is the first section. Before the Act the executor of a will made in the mufassal was merely a manager, and if his position was intended to be altered, although probate was not granted, the Act would have so provided. Sect.12, by which probate validates the earlier acts of the executor, is unnecessary if the view of the Full Bench is right. Sects.59 and 127 show that the Act is dealing with cases in which probate has been granted. Sect.90, sub-s.2, has been treated as against the appellants contention, but its effect is merely to empower the Court when granting probate to remove restrictions in the will; the section in its present form was enacted in 1889 and was not intended to alter the law. Previous decisions of the High Court of Madras and Bombay are against the appellants, but the decisions of the Calcutta High Court in Sarat Chandra Banerjee v. Bhupendra Nath Bosu (( 1898) I. L. R. 25 C. 103.) and Sakina v. Bibee (( 1910) I. L. R. 37 C. 839.) are in their favour. The present question has not been directly before the Board, but the appellants are supported by observations in the judgments in Administrator-General of Bengal v. Prem Lal Mullick (( 1895) L. R, 22 I. A. 107.); Mirza Kurratulain v. Peara Saheb.(( 1905) L. R. 32 I. A. 244.) The judgment in Meyappa Chetty v. Subramanian Chetty (( 1916) L. R. 43 I. A. 113.), a Straits Settlements case, was regarded as being against the appellants, but it is submitted that it does not touch the present case. [Reference was made also to Fatima v. Shaik Essa (( 1883) I. L. R. 7 B. 266.); Shaik Moosa v. Shaik Essa (( 1884) I. L. R. 8 B. 241.); Ganapathi Aiyar v. Sivamalai Goundan (( 1912) I. L. R. 36 M. 575.) and Mahomed Yusuf v. Hargovandas Jivan.(( 1922) I. L. R. 47 B. 231.)]

Subba Row for the respondents was not called upon.

1932. Jan. 12. The judgment of their Lordships was delivered by

SIR GEORGE LOWNDES. The appellants are beneficiaries under the will of one Madduru Venkata Subanna, who died on January 5, 1917. He was a Hindu residing at Pedakapavaram, in the Kistna District of Madras. The respondent, Madduri Gangamma, is his widow, and was appointed (as is now admitted) executrix according to the tenor of the will, but has not obtained probate. The other respondents are a minor son, adopted by the widow, and various persons interested in the properties of the testator under alienations made by the widow purporting to act as his executrix.

The suit out of which the appeal arises was instituted by the appellants to enforce their right to particular parcels of land which they alleged had been allotted to their shares under a family arrangement made shortly after the testators death, or in the alternative for partition of the estate without regard to the alienations which, it was contended, th