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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
VINEET KOTHARI, J.
Mr. Parameshwaran Subramani – Petitioner
Versus
Nil – Respondent
Probate CP 1 of 2016 & C/W 2 of 2016
Decided On : 08-07-2016
S.228 Part IX - Indian Succession Act, 1925 - S.228, 241, 291 - The court granted ancillary Letter of Administration under S.228 of the Indian Succession Act, 1925 in the absence of the Executor. The court discussed the provisions of S.228, 241, and 291 of the Act and relied on case laws to establish the legal framework for granting ancillary Letters of Administration in favor of the petitioner.
Fact of the Case:
The petitioner filed a petition seeking an ancillary Letter of Administration under the provisions of S.228 of the Indian Succession Act, 1925 in the absence of the Executor of the Will. The deceased had properties in Australia and Bengaluru, India. The petitioner, as the attorney of the absent Executor, sought grant of Letters of Administration for the estate of the deceased in India.
Finding of the Court:
The court found that the petitioner was entitled to grant of Letters of Administration with a copy of the authenticated copy of the Will annexed, as the Will had been proved and deposited in a Court of competent jurisdiction in Australia. The court also considered the liabilities and assets of the estate and the petitioner's undertaking to administer the property and credits of the deceased.
Issues: The main issue was whether the petitioner, as the attorney of the absent Executor, was entitled to the grant of ancillary Letters of Administration for the estate of the deceased in India, in the absence of any objection.
Ratio Decidendi: The court relied on the provisions of S.228, 241, and 291 of the Indian Succession Act, 1925, and case laws such as In the matter of Tadimalla Subba Rao, Adwait Nath Sil, and Deputy Commissioner Vs. Jagadish Chandra Deo Dhabal Deb to establish that ancillary Letters of Administration can be granted in favor of the petitioner for the absent Executor of the Will.
Final Decision: The court granted the Letter of Administration to the petitioner in respect of the property of the deceased in favor of her grandson and Executor of her Will, and directed the petitioner to furnish the inventory and accounts in respect of the administration, and to preserve and maintain the said property for the benefit of the Executor of the Will.
Key Points: - The court granted ancillary Letters of Administration to the petitioner as the attorney of the absent Executor under Section 228 of the Indian Succession Act, since the Will was proved abroad and no objection was raised (!) (!) . - The deceased had properties in Australia and Bengaluru, India, and the petitioner sought administration of the estate in India as the attorney of the absent Executor (!) (!) . - Section 228 applies when a Will has been proved and deposited in a Court of competent jurisdiction beyond the State, and a properly authenticated copy is produced, allowing letters of administration to be granted with a copy annexed (!) (!) (!) . - The court determined that Section 228, not Section 241, was the appropriate provision, as the original Will was not produced before this court and the grant was not of a temporary nature (!) (!) (!) . - The petitioner was directed to furnish an inventory and accounts within six months and a bond as required by Rule 17, and to preserve and maintain the property for the benefit of the Executor (!) (!) (!) . - The estimated net value of the estate did not exceed Rs. 6,50,00,000, and there were no liabilities, satisfying the eligibility criteria for the grant (!) (!) . - No objections were received against the grant after the court directed publication in newspapers, supporting the issuance of ancillary Letters of Administration (!) (!) .
1. These petitions under S.228 Part IX of the Indian Succession Act, 1925 have been filed by one Mr. Parameshwaran Subramani seeking an ancillary Letter of Administration under the provisions of S.228 of the Indian Succession Act, 1925 (‘Act’ for short) in the absence of the Executor Mr. Adrian Maxwell Kenneth Shedden (Jr) of Unit 3/72, Patrick Street, Clayton North and presently at No.6, Anne Court, Cranbourne, Victoria 3977, Australia , in respect of the Will executed by one Mrs Dorothy Mavis Shedden, his grand mother and the deceased who died in Clayton, Australia on 29.7.2004.
2. The deceased at the time of her death, had a fixed place of abode at 29, Leonard Close, Clayton South Victoria 3168 in Australia and left properties in Australia and also at Bengaluru within the State of Karnataka, India.
3. Prior to her death, the deceased made and published her last Will and Testament dated 11.12.1998 naming her grandson, Mr. Adrian Maxwell Kenneth Shedden (Jr) of Unit 3/72, Patrick Street, Clayton North and presently at 6, Anne Court, Cranbourne, Victoria 3977, Australia, as the Executor of the Will and the Trustee of her estates. The original of the said Will has been filed in the Supreme Court of Victoria, Probate Jurisdiction for obtaining probate of the said Will.
4. On October 7, 2014 the Supreme Court of Victoria, Probate Jurisdiction, granted a probate of the Will of late Dorothy Mavis Shedden who died on July 29, 2004. A certified true copy of the Grant of Representation – Annexure C issued by the Supreme Court of Victoria, Probate Jurisdiction, is also produced.
5. Pursuant to the execution of the power of attorney in his favour by the Executor of the Will, the petitioner herein, has filed the above petition for grant of Letters of Administration with copies of the authenticated copies of the Will annexed in respect of the estate of the deceased (testator) in India.
6. The deceased Dorothy Mavis Shedden and her brother George Reginald Upshon were the joint owners of the property bearing New 6 (Old No.12), Elysium, Moyenville Road, Langfod Town, Bangalore 25. The deceased’s half share in the property is more particularly described in the schedule to the petition.
7. The deceased, at the time of her death, was entitled to 50% of share in the said property (the balance 50% share belonging to her brother George Reginald Upshon), which after her death on 29.7.2004, devolved upon her legal heir, Adrian Maxwell Kenneth Shedden (Jr.)
8. George Reginald Upshon, at the time of his death, had a fixed place of abode at 20, Arnold Street, Noble Park Victoria 3174, Australia. He left a Will dated 24.3.2010 wherein he appointed Arthur Roy Wayne Towt, as the Executor of the Will. The Executor applied for and obtained probate of the Will from the jurisdictional Court in Australia and has also appointed an attorney to apply for and obtain grant of Letters of Administration of the Indian estate of George Reginald Upshon, from the competent courts in India.
9. The petitioner submits that as the Will of the deceased has been proved and deposited in a court of competent jurisdiction in Australia and a properly authenticated copy of the Will is produced along with this petition, the petitioner is entitled to grant of Letters of Administration with copy of such copy annexed.
10. The schedule property is situated within the jurisdiction of this Court and hence, this Court has jurisdiction to try this petition for grant of Letters of Administration and hence, the petitioner has approached this Court for grant of Letters of Administration of the estate of the deceased, Dorothy Mavis Shedden.
11. The grant of estates which are likely to come into the hands of the petitioner do not exceed in the aggregate sum of Rs.6,50,00,000/- as on January 22, 2016 and the same has been calculated with regard to the market value of the deceased’s half share in the said property. The gross and net amount of the said assets, after deducting all items which may by la
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