Willan CJ:

The deceased, Sevugan Chettiar, died on the 25 April 1948, in South India leaving property within the Federation of Malaya.The deceased appointed the two petitioners, Meyappa Chettiar and Arunasalam Chettiar, his sons, executors of his will.They are both resident in South India, and this judgment is to decide whether Probate can be granted to an executor who is out of the jurisdiction.

From my own knowledge I know the general practice in the Malay States has been to refuse to make a grant of Probate to an executor, who is out of the jurisdiction, though there appears to have been isolated cases where this has been done.

Mr Ramani, for the petitioners, submitted that there is nothing in the Probate and Administration Enactment of the Federated Malay States (Cap. 8) which debars the petitioners from the right to have probate granted to them.

He argued that an executor named in the will has a right to have probate granted to him, whereas the granting of letters of administration is discretionary.He referred me to s. 6, the first part of ss. 16, 24(1) and 87 of the Probate and Administration Enactment, which read:-

"6. Probate can be granted only to an executor appointed by the will.

. . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . .

(16) When a person appointed an executor has not renounced the executorship, letters of administration shall not be granted to any other person until a citation has been issued calling upon the executor to accept or renounce his executorship;. . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(24)(i) When a deceased has died intestate, administration of his estate may be granted to any person who, according to the Rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased's estate.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(87) Notwithstanding anything hereinbefore contained, it shall be in the discretion of the Court to make an order refusing, for reasons to be recorded by it in writing, to grant any application for letters of administration made under this Enactment.

Contrasting the language in the first two sections with that of the last two sections, I agree with Mr. Ramani's argument.

I can find nothing in the Probate and Administration Enactment which deprives an executor out of the jurisdiction of the right to have probate granted to him unless the Court acts under the provisions of s. 54, which reads:

(54)(i) When a person has died intestate, or leaving a will of which there is no executor willing or competent to act, or where the executor is, at the time of the death of such person, resident out of the Federated Malay States, and it appears to the Court to be necessary or convenient to appoint some person to administer the estate or any part thereof other than the person who under ordinary circumstances would be entitled to a grant of administration, the Court may in its discretion, having regard to consanguinity, amount of interest, the safety of the estate, and the probability that it will be properly administered, appoint such person as it thinks fit to be administrator.

(ii) In every case letters of administration may be limited or not, as the Court thinks fit.

That section is analagous to s. 73 of the English Court of Probate Act, 1857, which applied to cases where a testator died before the 1 January 1926.That section reads:

Where a person has died or shall die wholly intestate as to his personal estate, or leaving a will affecting personal estate, but without having appointed an executor thereof willing and competent to take probate, or where the executor shall at the time of the death of such person be resident out of the United Kingdom of Great Britain and Ireland, and it shall appear to the Court to be necessary or convenient in any such case, by reason o