(August 17, 2001) 2001 (TLS)125247

2001-DLT-93-798 :: 2001-AD (Del)-6-67

JAIN SOCIETY FOR THE PROTECTION OF ORPHANS FOR INDIA Vs. STATE of DELHI

SANJAY KISHAN KAUL

( 1 ) WHETHER the petitioner, a society registered under the Societies Registration Act XXI of 1860 (hereinafter referred to as "the Act" ) is prohibited from obtaining letters of Administration because of Section 236 of the indian Succession Act, 1925, (hereinafter referred to as "the Succession Act" )? The answer to this question will dispose of the present reference made by the learned Single judge vide order dated 22/1/1991.

( 2 ) THE factual matrix required to be stated for determination of the present controversy is very limited. Late Ratan Lal is alleged to have executed a will dated 15/10/1977 bequeathing a part of his estate to Jain Bal ashram. No executor was appointed in the Will. The said jain Bal Ashram is managed by the Jain Society for protection of Orphans for India, a society registered under the Act. Sh. Ratan Lal died on 4/3/1978. A petition was filed under Section 276 of the Succession Act for grant of letters of Administration with the will annexed. Objections were filed on behalf of the natural he;irs of late Ratan Lal and inter alia it was alleged that the will filed by the appellant-Society was forged and fabricated and in any case there was a subsequent will dated 26/11/1977 in favour of the natural heirs.

( 3 ) THE petition was pending when the issue arose about maintainability of the probate petition as the petition had been filed by a Society registered under the Act. This objection arose in view of Section 236 of the Succession Act which reads as. under

"236. To whom administration may not be granted.- letters of Administration cannot be granted to any person who is a minor or is of unsound mind (nor to any association of individuals) unless it is a company which satisfies the conditions prescribed by rules to be made (by notification in the official Gazette) by the state Government in this behalf. "

( 4 ) THE objection was that the Society was an association of individuals and thus no letters of administration could be granted to it. This aspect has been considered earlier by another Single Judge of this Hon ble court in Inder Chand Nayyar v. Sarvadeshik Arya Pratinidhi sabha and another AIR 1977 Delhi 34 where it was held that letters of administration could be granted to a society registered under the Act. This judgment was rendered by b. C. Misra,j. However, Mahinder Narain. J. was not in agreement with this view and in terms of the order dated 22/1/1991, directed that the case be laid before the Chief justice for constitution of Larger Bench to hear and determine this question. The matter has now been placed before us to decide this controversy.

( 5 ) AT the inception it may be stated that there are two distinct judicial views in this matter. The first view is of the Lahore High Court and the second view is that of the Allahabad High Court followed by the Delhi High Court. the first view is propounded in Mahashaya Krishna vs. Mt. Maya Devi and others. AIR (35) 1948 Lahore 54 which considered the question of grant of letters of administration to the Arya Pritinidhi Sabha, a society registered under the Act. The view taken was that an association of individuals does not cease to be an association by the mere fact of its,being registered as a registered society under the Act and thus the registration of the society does not exempt the society from the operation of Sections 223 a. nd 236 of the Succession Act. It may be stated that Section 223 of the Succession Act creates a similar bar to the grant of probate as Section 236 does for the letters of Administration. Achhru Ram, J. in the said judgement was of the view that registration under the act only confers on it certain privileges which are not enjoyed by other associations of individuals- An illustration of this was that a society may sue or be sued in the name of the p