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1932 Supreme(SC) 1
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT DUNEDIN, SIR LANCELOT SANDERSON, AND SIR GEORGE LOWNDES.
KADIYALA VENKATA SUBAMMA - Appellant
Versus
KATREDDI RAMAYYA, SINCE DECEASED, (DEFENDANTS) - Respondents
On appeal from the High Court at Madras.
Decided On : Jan. 12. 1932.
Solicitors for appellants: Douglas Grant & Dold.
Solicitors for respondents: Chapman-Walker & Shephard.
The estate of a testator vests in the executor from the date of death, and the executor possesses the powers of disposal under the Probate and Administration Act, 1881, regardless of whether probate has been obtained, as probate serves to authenticate title rather than create it.
Headnote:(A) Probate and Administration Act, 1881 - Sections 4, 12, 59 and 90 - Vesting of estate in executor - Whether probate is necessary for the estate to vest in the executor and for the executor to exercise powers of disposal - Section 4 provides that the executor is the legal representative for all purposes and all property of the deceased vests in him; this section makes no reference to probate - Section 90(2) contemplates an executor without probate being able to dispose of property vested under Section 4, subject to restrictions in the will - Section 12, which validates intermediate acts of the executor upon grant of probate, is intended to simplify proof and authenticate the will against the world, rather than to create title - Title of an executor is derived from the will and not from probate.
(B) Probate and Administration Act, 1881 - Section 12 - Object of the section is to avoid multiplication of proofs regarding execution and capacity of the testator and appointment of the executor - Probate authenticates the will but does not create the executor's title, which dates from the testator's death.
Facts of the case:
A testator died leaving a will appointing a widow as executrix. The executrix did not obtain probate but made certain alienations of the estate's property. Beneficiaries of the will challenged these alienations, contending that in the absence of probate, the executrix had no power to alienate the property and acted merely as a manager.
Findings of Court:
The estate of the testator vests in the executor who accepts office from the date of the testator's death, and the provisions of the Probate and Administration Act are applicable even if probate has not been obtained.
Issues: Whether an executor appointed by a will has the estate of a testator vested in him and possesses all the powers of an executor as set out in the Probate and Administration Act, even if such executor does not obtain probate, or whether his powers are limited to those of a mere manager.
Ratio Decidendi: The court held that under Section 4 of the Probate and Administration Act, the executor is the legal representative and the property vests in him regardless of probate. Section 90(2) explicitly recognizes the power of an executor to dispose of immovable property without probate, subject to restrictions in the will. Probate serves as a means of authentication and simplification of proof but is not the source of the executor's title, which is derived from the will itself.
Result: Appeal dismissed.
Legal Category Hierarchy
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succession law
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wills and probate
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executor's powers
- vesting of estate
- power of disposal
- probate and administration act, 1881
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executor's powers
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hindu law
- hindu wills
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wills and probate
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,
