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Case Number

Testamentary and Intestate Jurisdiction No. 9 of 1939

Judges

B.J Wadia, J.

Acts

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Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

The petitioner, S. Venkatarama Iyer, is the duly constituted attorney of V. Venkatarama Iyer. V. Venkatarama Iyer claims to be the executor by implication of a testamentary writing executed by K. Raja Gopalan at Madras in or about September 1932. The writing concerns the sum standing to the deceased's credit in "The Officers & Staff Provident Fund of the Indian and Malayan Offices of C.C Wakefield & Co. Ltd." The company manager's letter dated 8 June 1938 stated the amount as Rs. 5952-15-6.

The petitioner applied under Section 241 of the Succession Act for letters of administration with the will annexed, limited to the amount standing to the deceased's credit, to be granted to him (as attorney) for the use and benefit of his principal, V. Venkatarama Iyer, until the principal obtained probate of the will from the Court. Evidence before the Court was that the alleged executor (V. Venkatarama Iyer) resided outside the Province of Bombay and the constituted attorney (the petitioner) resided within the Province. A caveat was filed by one of the deceased's widows (the caveatrix).

Legal Issues Presented

Whether the writing contained in the Provident Fund declaration (Ex. B) is the last will and testament of K. Raja Gopalan.
Whether V. Venkatarama Iyer is properly appointed executor of the said will (expressly or by necessary implication).
Whether the petitioner (S. Venkatarama Iyer), acting under the power of attorney produced (Ex. A), was competent to apply for letters of administration under Section 241.
Whether the caveat filed by the widow should be sustained (i.e., whether the caveat defeats the grant sought by the petitioner).

Arguments of the Parties

Petitioner's Arguments

The petitioner relied on Section 241 of the Succession Act to seek letters of administration with the will annexed as the attorney of an executor who is absent from the Province.
The petitioner produced a power of attorney (Ex. A) authorizing him to carry on and conduct proceedings regarding withdrawal of the provident fund amount and a general clause empowering him to do all acts necessary to give effect to the power.
By sworn statement the petitioner undertook, as attorney of V. Venkatarama Iyer, to faithfully administer the property and credits of the deceased for the use and benefit of his principal, to pay lawful claims so far as assets extended, to exhibit an inventory and to render accounts to the Court.
Correspondence from the company (letter dated 5 July 1938) agreed to pay the amount on production of letters of administration with the will annexed, supporting the appropriateness of the application.

Defendant / Caveatrix's Arguments

The caveatrix contended the document was not the deceased's last will and testament but only a declaration made for the company's Provident Fund rules.
She alleged the document was not properly executed and attested.
She contended that V. Venkatarama Iyer was not the executor, either by specific appointment or by implication.
In an affidavit (para. 6) she initially alleged the document had been executed at the instance and under the influence of V. Venkatarama Iyer and S. Venkatarama Iyer with intent to profit them and defeat the widows' rights; that contention was abandoned at the hearing.
Counsel further argued that the power of attorney was defective because it was granted to the attorney as the father and guardian of the minor (V. Pitchai) rather than as attorney of an executor — an argument the Court treated as a matter of description of the principal rather than a limiting defect in the instrument.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
43 Mad 728	Held that a form provided by a provident fund, if intended to name a person to receive money after death and duly executed and attested, may amount to a will (in the town of Madras) and be treated as a testamentary instrument.	The Court relied on the principle to treat the Provident Fund declaration (Ex. B) as a testamentary instrument if duly executed and attested; this authority supported the conclusion that such a form can constitute a will for the limited purpose intended.
2 Rang 388	Affirmed that such testamentary dispositions (in a fund form) would be valid if duly signed and attested by two witnesses; in that reported instance the disposition was invalid due to the subscriber's religious status (Barman Buddhist), not due to form or execution defects.	The Court cited this case to illustrate that, absent any incapacity like that in 2 Rang 388, a similar form would be valid if properly executed and attested by two witnesses; the Court applied that reasoning to validate Ex. B as a will.

Court's Reasoning and Analysis

The Court proceeded by addressing the questions in turn and applying statutory provisions and evidence to the facts before it.

On competence under Section 241 (Succession Act) and procedural prerequisites: the Court noted the statutory condition that letters of administration with the will annexed may be granted to an attorney of an absent executor provided the attorney is within the jurisdiction. Evidence established that the alleged executor (V. Venkatarama Iyer) was outside the Province of Bombay and the petitioner (his constituted attorney) was within the Province; accordingly the procedural prerequisites under Section 241 and High Court Rule 628 were met.
On whether the Provident Fund declaration (Ex. B) is a will: the Court examined the statutory definition of "will" (Section 2(h) of the Succession Act) and the requirements for unprivileged wills (Section 63). It observed that no technical form is necessary but that the document must embody a testamentary disposition to take effect after death. The Court accepted the defendant's concession that the declaration was revocable (a characteristic of wills) and found the declaration to be intended to operate after death.
On execution and attestation: the writing bore the signature of the deceased and signatures of two attesting witnesses. One attesting witness (S. Venkatarama Iyer) gave oral evidence that the deceased signed in their presence and that both attested in one another's presence. The Court invoked Section 68 of the Evidence Act (that calling one attesting witness may suffice) and found the execution and attestation proved. It further relied on the cited precedents (43 Mad 728 and 2 Rang 388) to treat the fund form as a testamentary instrument when duly executed.
On appointment of an executor by implication: the Court analysed Section 222 (executor may be appointed expressly or by implication) and Section 248 (limited probate where executor is appointed for limited purposes). It considered the argument that V. Venkatarama Iyer was only empowered to receive the money on behalf of the minor and not to discharge funeral expenses, debts and legacies. The Court held that an appointment for a limited purpose need not expressly state that the appointee shall perform all general duties of an executor; construction is for the Court. It accepted the petitioner's sworn undertakings (to administer assets, pay lawful claims so far as assets extend, exhibit inventory and render accounts) and concluded that the instrument constituted a will limited to the provident fund monies and that V. Venkatarama Iyer was an executor by necessary implication for that limited purpose.
On the power of attorney (Ex. A) and the petitioner's competence: the Court examined the power's clauses (clause 3 permitting proceedings regarding withdrawal of the provident fund amount; clause 6 being a general clause) and rejected the argument that the instrument was defective because it described the principal as father and guardian. The Court treated that description as non-limiting and held the power of attorney to be sufficiently general to enable the petitioner to apply under Section 241.
On the caveat: the Court considered and rejected the caveatrix's challenges (including the assertion that the form was merely an internal company declaration and not a testamentary instrument, and objections to execution), in light of the evidential findings and statutory principles recited above.

Holding and Implications

Primary Holding: The Court ordered that letters of administration with the will annexed be issued to the petitioner (S. Venkatarama Iyer) as prayed, limited to the amount standing to the credit of the deceased in the provident fund, and that V. Venkatarama Iyer is the executor by implication according to the tenor for that limited purpose.

Direct consequences and costs:

The caveat (filed by one of the widows) was dismissed.
The petitioner's costs were ordered to be paid out of the amount which is the subject-matter of the will, and taxed as between attorney and client.
The defendant (caveatrix) was directed to bear her own costs.

The opinion does not purport to establish a novel legal principle beyond applying existing statutory provisions and the cited precedents to the facts; the decision's practical effect is the limited grant of administration and dismissal of the caveat.

Order: Order accordingly (as recorded in the judgment).

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S. Venkatarama Iyer v. Sundarambal Opponent.

1. The petitioner, S. Venkatarama Iyer, is the duly constituted attorney of V. Venkatarama Iyer who claims to be the executor by implication of a testamentary writing in the nature of a will which was executed at Madras in or about September 1932 by one K. Raja Gopalan in respect of the amount lying to his credit with “The Officers & Staff Provident Fund of the Indian and Malayan Offices of C.C Wakefield & Co. Ltd.,” The deceased K. Raja Gopalan was until his death an employee in the service of C.C Wakefield & Co. Ltd., and the amount standing to his credit at his death was Rs. 5952-15-6 according to the letter of the Manager of C.C Wakefield & Co. Ltd., dated 8th June, 1938 and addressed to V. Venkatarama Iyer. The petitioner prays that letters of administration with the said will annexed limited to the amount standing to the credit of the deceased in the said fund be granted to him having effect throughout the Province of Bombay and for the use and benefit of V. Venkatarama Iyer limited until he shall obtain probate of the will of the deceased from this Court. The petition is made under the terms of Section 241 of the Succession Act, by which it is provided that when any executor is absent from the province in which application is made; and there is no executor within the province willing to act, letters of administration, with the will annexed, may be granted to the attorney or agent of the absent executor, for the use and benefit of his principal limited until he shall obtain probate or letters of administration granted to himself. Under this section, letters of administration can be granted to an attorney or agent of the executor only when the executor is absent from the province. It is necessary, however, that the attorney applying for letters of administration should be within the jurisdiction of the Court. S. 242 has no application to this case. It provides that when any person to whom, if present, letters of administration, with the will annexed, might be granted, is absent from the province, letters of administration, with the will annexed, may be granted to his attorney or agent, limited as mentioned in S. 241. That section applies when any person who is entitled to administration in case of intestacy, or a universal or residuary legatee, or the representative of a residuary legatee, or a legatee with beneficial interest, or a creditor of the deceased is absent. In the absence of any one of these, letters of administration with the will annexed may be granted to his attorney or agent limited as mentioned in S. 241. It is also provided by R. 628 of the High Court Rules that an application for letters of administration with the will annexed inter alia may be made by a constituted attorney of a person residing out of the province, provided that such constituted attorney resides within the province and that such application is made through an attorney of this Court. It is in evidence before me that the executor mentioned in the writing, V. Venkatarama Iyer, is residing outside the province of Bombay, and that his constituted attorney, the petitioner, is in Bombay, and it is the constituted attorney who has made this application under S. 241. So long as any grant made under the section is subsisting, the administrator under this section is the legal representative of the deceased and has all the powers of an ordinary administrator.

2. According to R. 9, Provident Funds Rules of the employees in India of C.C Wakefield & Co., Ltd., each employee of the company upon becoming a member of the provident fund mentioned in R. 1 is required to furnish to the company a declaration in form A signed by himself as a will of limited operation in the presence of two witnesses, stating the manner in which he wishes the money at the credit of his account in the fund to be disposed of in the event of his death whilst in the service of the company. The form A which is a form of declaration has been filled in by the deceased who was a member of the provident fund, and according to that form he declared that in the event of his death his minor nephew V. Pitchai named in col. 1 should be entitled to receive payment of the whole amount that would be standing to his credit in the Officers & Staff Provident Fund of the Indian and Malayan Offices of C.C Wakefield & Co., Ltd. He has also declared that he has made this his will so far as regards such deposit only, and he requests that the amount payable to his minor nephew be paid to V. Venkatarama Iyer who is described in col. 5 of the declaration as the person to whom the minor's share is to be paid on behalf of the minor. V. Venkatarama Iyer was the brother-in-law of the deceased, and the father of the minor. It is also provided in the form that the will should be signed by two attesting witnesses in the presence of each other and in the presence of the testator. The deceased has signed the will declaring that he was married at the date when he made the declaration, and the form was received by the company about 8th September, 1932. The amount, which, as I have said before, came to Rs. 5952-15-6, is by this declaration wholly given to the minor nephew of the deceased. The declaration has been put in as Ex. B.

3. The deceased left two widows, one of whom is the caveatrix to this petition. In her affidavit in support of her caveat she contends that this document is not the last will and testament of the deceased but that it is only a declaration for the purposes of the Provident Fund Rules of the company. She also contends that it has not been properly executed and attested, and that V. Venkatarama Iyer on whose behalf the petition is made is not the executor of the alleged will either by specific mention or by implication. She further contended in para. 6 of her affidavit that the writing alleged to be the will of the deceased was executed at the instance and under the influence of V. Venkatarama Iyer and S. Venkatarama Iyer with the intention profiting themselves and with the deliberate intention of defeating the rights of the widows. This contention was abandoned at the hearing. It is clear, however, that neither V. Venkatarama Iyer nor S. Venkatarama Iyer takes any personal profit under the will.

4. Several issues were raised on behalf of the defendant. Issue 1 is whether this writing is the last will and testament of the deceased K. Raja Gopalan. A will is defined in Section 2(h) of the Succession Act, as the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. It has been held that no technical words are necessary for a will and that the form of a will is immaterial. It is enough if the document embodies the legal declaration of the intention of the testator with respect to his property or any portion of his property which he desires to be carried into effect after his death. The question therefore is whether the writing containing the declaration Ex. B, is a legal declaration of the intention of the deceased K. Raja Gopalan with respect to the amount standing to his credit with the fund which he desired to be carried into effect after his death. The mere use of the word ‘will’ in the declaration cannot make it a will if it does not amount to a testamentary disposition, just as the absence of the word cannot make it any the less a will if there is a testamentary disposition of property. What is necessary is that the will must make a disposition of the testator's property and the declaration regarding the disposition must be in accordance with the provisions of the law. An unprivileged will can only be made in accordance with the provisions of Section 63 of the Succession Act.

5. One of the essential characteristics of a will is that it must be revocable during the lifetime of the testator, for, its irrevocability would be inconsistent with its being a will. It was conceded in argument by the defendant's counsel that this declaration was not irrevocable, and that it was open to the deceased to have changed his mind and made another declaration on another form if he so desired with the consent of the company. There is no doubt that this disposition of the amount standing to his credit was to take effect after his death, for the declaration says so in so many words. The writing has been signed by the deceased and the signature of the deceased has been attested by S. Venkatarama Iyer, one of the two attesting witnesses whose signatures appear on the writing. S. Venkatarama Iyer was called, and he deposed to the writing having been signed by the deceased in his presence and in the presence of the second attesting witness who has also put his signature as an attesting witness, though it cannot be clearly deciphered. S. Venkatrama Iyer was, however, sure that it was signed by the second attesting witness, that the deceased signed in the presence of them both, and that both of them attested the signature of the deceased in the presence of each other.

6. It is enough under Section 68 of the Evidence Act, if one of the attesting witnesses is called to prove a document which requires in law to be attested by two or more witnesses, and I am satisfied on the evidence given by S. Venkatarama Iyer that the writing was duly signed and executed and attested by the deceased in or about September 1932. Moreover, it has been held in 43 Mad 7281 that if a person depositing money with a fund filled in a form provided by the fund, and intended another person as the person entitled to receive the money after his death the form amounted to a will if made in the town of Madras, provided it was duly executed and attested as a will and probate obtained. Such a writing contained in the form is held to be in the nature of a testamentary instrument and must be proved to have been duly executed. This case was followed in 2 Rang 3882, in which it was held that the testamentary disposition was invalid as the subscriber was a Barman Buddhist, but that otherwise a testamentary disposition of that nature would be valid if duly signed and attested by two witnesses. I am satisfied that this writing was a will made by the deceased in 1932 and was properly executed and attested as his last will.

7. The next issue is whether V. Venkatarama Iyer is the properly appointed executor of the said will. The appointment of an executor under Section 222 of the Succession Act, may be either expressed or by necessary implication. An executor by necessary implication is also sometimes called an executor according to the tenor of the will. The appointment of such an executor is a question of construction for the Court. An executor according to the tenor like an executor expressly named may be an executor for a limited purpose. Under Section 248 of the Act, if an executor is appointed for any limited purpose specified in the will, the probate shall be limited to that purpose, and if he should appoint an attorney or agent to take administration on his behalf, the letters of administration, with the will annexed, shall be limited accordingly. If therefore an appointment, whether expressly or by implication, was made for a limited purpose, the grant of letters of administration with the will annexed to the attorney shall also be limited accordingly. It was argued that V. Venkatarama Iyer was only empowered under the will to receive the amount standing to the credit of the deceased on behalf of the minor, that there was no indication in the will that the deceased meant him to pay the funeral expenses, debts and legacies of the deceased also, and that therefore he could not in law be considered an executor by implication.

8. It is not necessary, in my opinion, when an executor is appointed for any limited purpose specified in the will, that there should be an express direction that he should also carry out all the general duties of an executor. But in this case the petitioner has made his statement on oath that as the attorney of V. Venkatarama Iyer he will faithfully administer the property and credits of the deceased and in any way concerning his will for the use and benefit of the executor and limited until he shall obtain probate, paying such lawful claims as he knows of so far as the assets would extend, and that he would exhibit a full and free inventory of the property and credits in the Court and render a true account of his administration to the Court. In my opinion, this writing is a will only as regards the moneys standing to the credit of the deceased. It is therefore a will for a limited purpose, and the person who is to receive the money on behalf of the minor is an executor by implication, but for that limited purpose only.

9. It was further argued on behalf of the defendant that the petition was not competent, as the power of attorney under which the petitioner acted was defective. The power of attorney has been put in as Ex. A and was deposed to by S. Venkatarama Iyer in whose favour it was given. Counsel contended that it was not given to the attorney by V. Venkatarama Iyer as the executor of the will but as the natural father and guardian of his minor son V. Pitchai. That however is only a description of the father. Under cl. 3 the attorney is empowered to carry on and conduct all proceedings regarding the withdrawal of the provident fund amount of the deceased in Messrs C.C Wakefield & Co. Ltd., Bombay, which has been gifted by the deceased to the minor son of V. Venkatarama Iyer. Under cl. 6, which is the general clause, the attorney is empowered to do all acts, deeds, matters and things as may be necessary to give effect to the terms of the power of attorney, one of them being to carry on and conduct all proceedings regarding the withdrawal of the amount. The power of attorney is general and would empower the petitioner to apply to this Court under Section 241 of the Act. I may mention here that in the correspondence that passed between V. Venkatarama Iyer and the company the company by their letter of 5th July, 1938, agreed to pay the amount on production of letters of administration with this will annexed, and the petitioner has made this application on behalf of his principal V. Venkatarama Iyer.

10. My findings on the issues are as follows: (1) Yes. (2) Yes. (3) Executor by implication according to the tenor for a limited purpose. (4) Caveat dismissed. Letters of administration with the will annexed to, issue to the petitioner as prayed. Petitioner's costs to come out of the amount which is the subject-matter of the will, taxed as between attorney and client. Defendant to bear her own costs.

G.N/R.K

11. Order accordingly.

S. Venkatarama Iyer v. Sundarambal Opponent.

Concise Analytical Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Defendant / Caveatrix's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

S. Venkatarama Iyer v. Sundarambal Opponent.

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