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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Mookerjee
  • Panton, JJ.
Acts
  • Sections 50 and 82 of the Probate and Administration Act. S. 50
  • section 92 of the Probate and Administration Act,
  • section 3 of the Probate and Administration Act
  • section 41 of the Indian Evidence Act)
  • SECTION 13 COURT FEES ACT
  • provisions of clauses 9 and 10
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Mookerjee
  • Panton, JJ.
Acts
  • Sections 50 and 82 of the Probate and Administration Act. S. 50
  • section 92 of the Probate and Administration Act,
  • section 3 of the Probate and Administration Act
  • section 41 of the Indian Evidence Act)
  • SECTION 13 COURT FEES ACT
  • provisions of clauses 9 and 10
See more information ...
Smart Summary

Opinion Summary — Mookerjee, J.

Factual and Procedural Background

The plaintiffs are executors to the estate of the late Raja Jogendranath Ray of Nabore. As executors, they instituted a suit for contribution, claiming that on 19 September 1916 they satisfied a mortgage decree which affected the estate of their testator and property of the defendants, and they seek recovery by way of contribution from various defendants.

The defendants denied the validity of the claim and also contended that the plaintiffs were incompetent to maintain the action. The Subordinate Judge dismissed the suit on a preliminary point for two reasons: (1) that the executorship of the plaintiffs had terminated when the heir-at-law attained majority; and (2) that, even if the executorship had not terminated, the plaintiffs (three out of four surviving executors) were not competent to maintain the action because the will contemplated that at least six executors should take joint action.

The plaintiffs appealed, contesting the Subordinate Judge's view on competency. The District Judge had granted probate to seven named executors on 23 June 1902; the probate was not expressed to be limited in duration. The appeal raises two principal questions which the Court examined in sequence.

Legal Issues Presented

  1. Whether a general grant of probate (not expressly limited in duration) can be treated as having ceased to operate by reason of provisions of the will (specifically on the heir-at-law attaining majority) absent a formal recall or revocation of the probate, and whether a court other than the probate court may entertain such a collateral attack.
  2. Whether three executors out of the surviving executors are competent to maintain the suit when the will contains a direction that at least six executors should act at the same time (i.e., whether the will displaces the statutory rule enabling fewer executors who have proved the will to exercise powers).

Arguments of the Parties

Appellants' (Plaintiffs') Arguments

  • The probate granted on 23 June 1902 was not recalled or revoked; under section 82 of the Probate and Administration Act a grant not expressly limited in duration remains operative until revoked or recalled, and therefore the plaintiffs are competent to institute the present suit.
  • Where a grant is formulated in general terms, only the probate court (the court which granted the probate) is competent to determine whether the grant has ceased to be operative.

Respondents' (Defendants') Arguments

  • Under section 3 of the Probate and Administration Act the term “probate” should be read in the light of the provisions of the will; the scope of the grant must therefore be interpreted with reference to the will.
  • Applying that construction, the clear intention of the testator (to be gathered from the will) was that the executors should cease to hold office on the attainment of majority by the heir-at-law; therefore the plaintiffs' executorship had ended and they are incompetent to sue.
  • Separately, the will envisaged that at least six executors should act jointly, so three executors out of the surviving four are inadequate to maintain the suit.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Surendra Nath v. Amrita Lal Interpreting the fourth clause of section 50 of the Probate and Administration Act as sufficiently general to apply to circumstances arising after the date of grant. Used to support the conclusion that a general grant may be revoked for circumstances that arose since the grant, indicating revocation or recall proceedings are the appropriate remedy rather than collateral attack.
Chandra Kumar v. Prasanna Kumar Rule that executors remain entitled to continue in occupation unless the person entitled has taken the estate out of their possession (relying on Bombay Burmah Trading Co. v. Smith). Relied upon to support the proposition that executors holding by general grant continue until displacement by appropriate proceedings or action of the entitled person.
Bombay Burmah Trading Co. v. Smith Authority relied on by Chandra Kumar for the proposition about executors' entitlement to continue in occupation. Cited as supporting authority underlying Chandra Kumar's rule which the Court found persuasive on the continuity of a general grant.
Offley v. Best Assumed that no formal revocation was necessary where a grant was expressly limited in duration and the period had elapsed. Included among authorities demonstrating divergence of opinion elsewhere on whether expiry of a time-limited grant requires formal revocation.
Freke v. Thomas Same group of authorities assuming no revocation necessary where grant limited in duration. Used illustratively in discussing differing approaches in other jurisdictions regarding revocation of time-limited grants.
Slater v. May Same as above (assumption: no formal revocation needed when grant limited and period elapsed). Referred to as part of the body of authorities adopting that position.
In re Metcalfe Included among cases treating limited grants as expiring without formal revocation. Noted as part of the contrasting authorities on whether formal revocation is necessary where grant was limited in duration.
Howell v. Metcalfe Another case in the line assuming expiry of a limited grant without formal revocation. Grouped with earlier cases to show one strand of judicial opinion abroad.
In the goods of Cassidy Sir John Nicholl's judgment where a grant was pronounced to have ceased and expired (rather than revoked) on application of the executor for probate and affidavit that no suits were pending. Referred to as an authority where a court treated a grant as ceased/expired without formal revocation in a particular factual context.
Webb v. Kirby Cited among cases supporting the view that limited grants may be treated as expired. Mentioned as additional supportive authority in the same vein.
Re Rendall Another case cited among those treating limited grants as expired without formal revocation. Included in the catalogue of authorities illustrating that view.
Hewson v. Shelley Also cited among cases supporting the expiry-without-revocation approach. Referenced as part of the group of authorities adopting that approach.
Rainbow v. Kittoe Included among cases treating limited grants as expiring without formal revocation. Referred to for comparative authority.
Suwerkrop v. Day Similar grouping of authority on expiry of limited grants. Noted as part of the body of supportive cases.
Pipon v. Wallis Represents the contrary line of authority favouring that a formal order of revocation is necessary even where grants are limited in duration. Referred to as part of the opposing authorities demonstrating divergence of opinion elsewhere.
In the goods of Phillips Another case cited for the view that formal revocation is necessary even where grant appears limited. Included in the group of authorities adopting the formal-revocation-required approach.
In the goods of Newton Also cited for the view that formal revocation is required. Used to illustrate the contrary line of authority.
Rainsford v. Taynton (Lord Elden and Sir William Grant, M.R.) Decision aligning with the view that formal revocation is necessary. Mentioned as substantially endorsing the formal-revocation-required position.
Morgan v. Dodge United States decision cited as reaching substantially the same view (formal revocation necessary) in that jurisdiction. Referred to as showing similar judicial thinking abroad in support of the formal-revocation-required stance.
Satya Prashad v. Motilal Authority cited for the statutory rule (section 92 of the Probate and Administration Act) that when there are several executors, the powers of all may, in absence of contrary direction in the will, be exercised by any who has proved the will. Applied by the Court to reject the Subordinate Judge's conclusion that the will required six executors acting jointly so that three could not maintain proceedings; the Court held the will did not clearly displace section 92.

Court's Reasoning and Analysis

The Court analyzed the two principal questions in order.

First question — Whether a general grant may be collaterally attacked or must remain operative until recalled or revoked:

  1. The Court observed that the probate granted on 23 June 1902 was not in express terms limited in duration and thus attracted the operation of section 82 of the Probate and Administration Act, which restricts the power to act as representative of the deceased to the person to whom probate was granted until such probate is recalled or revoked.
  2. The plaintiffs relied on the absence of a recall or revocation to assert competence. The defendants countered, invoking section 3, that the term "probate" should be interpreted in light of the will so that the grant's scope might have ceased by the will's provisions (e.g., on the heir attaining majority).
  3. The Court framed two sub-questions: (a) whether a court other than the probate court can inquire whether a general grant has expired by reason of the will (i.e., whether collateral attack is permissible); and (b) if collateral attack were permissible, whether in this case the grant had in law expired prior to the suit.
  4. The Court held that where a grant is made in general terms it must be deemed to continue in force until the probate or letters of administration are recalled or revoked by the probate court under the grounds enumerated (notably section 50). The Court found the plaintiffs' contention well-founded that an occasion to recall or revoke generally lies with the probate court.
  5. In support of that conclusion the Court relied on statutory provisions (sections 50 and 82) and on authorities (including Surendra Nath v. Amrita Lal and Chandra Kumar v. Prasanna Kumar, with the latter drawing on Bombay Burmah Trading Co. v. Smith) that embody the principle that executors under a general grant remain operative unless displaced by appropriate proceedings.
  6. The Court emphasized that a general grant should be treated as continuing until recall or revocation and invoked the principle that the probate court's decision operates as a judgment in rem (citing section 41 of the Indian Evidence Act), meaning it is not open to collateral attack and is conclusive while in force.
  7. The Court therefore concluded it was not open to the Subordinate Judge to treat the grant as having ceased to operate by way of collateral attack in the present proceeding.

Second question — Construction of the will and competence of three executors:

  1. Although the first point disposed of the defendants' principal contention, the Court considered whether, even if collateral attack were permissible, the defendants' construction of the will (that executorship would terminate on the grandson's attainment of majority) could be supported.
  2. The Court examined the terms of the will (notably clause 3 and clauses 9 and 10 dealing with maintenance, education and marriage expenses) and found that the will did not lay down that the executorship would terminate on the grandson attaining majority; on the contrary, the clauses indicate executorship might continue thereafter.
  3. Accordingly the Court held the authority of the executors had not lapsed before the commencement of the litigation.
  4. Turning to the Subordinate Judge's ruling that three executors could not maintain the suit because the will directed that there should be at least six executors acting at the same time, the Court examined the will and rejected that view.
  5. The Court applied section 92 of the Probate and Administration Act, and relied upon Satya Prashad v. Motilal and earlier decisions of Holmwood and Imam JJ. in another case, to conclude that the will did not clearly indicate an intention to supersede the statutory rule that, in absence of contrary direction, the powers of several executors may be exercised by any of them who has proved the will.
  6. Because the will did not clearly displace section 92, the Court concluded that three executors (as in the present case) were competent to sue; the fact that probate had been granted to seven persons, three had died, and three instituted the suit with the fourth not joining as plaintiff did not invalidate the suit.

Holding and Implications

APPEAL ALLOWED; THE DECREE OF THE SUBORDINATE JUDGE IS SET ASIDE; THE CASE IS REMANDED FOR TRIAL ON THE MERITS.

Direct consequences flowing from the Court's decision:

  • The plaintiffs (three executors who instituted the suit) are competent to maintain the suit: the grant of probate, being a general grant not expressly limited in duration, continued in force until recalled or revoked and was not open to collateral attack in the present proceedings.
  • The Court held that, on the construction of the will, the executors' authority had not lapsed on the heir-at-law attaining majority.
  • The Court found that the will did not displace the statutory rule in section 92; therefore three executors out of the surviving executors could exercise the powers and maintain the proceedings.
  • The matter is remanded to the Subordinate Judge for trial on the merits. The plaintiffs are entitled to their costs in this Court; costs in the Court below are left to the discretion of the Subordinate Judge.
  • Under section 13 of the Court-Fees Act the court-fees paid on the memorandum of appeal are to be refunded to the appellants.

The opinion confines its conclusions to the application of the relevant statutory provisions and cited authorities to the facts of this case; it does not purport to announce a novel rule of law beyond those applications.

Show full summary ...

    (Rani) Hemangini Debi v. Sarat Sundari Debya

    Mookerjee, J.:— This is an appeal by the plaintiffs in a suit for contribution, which has been instituted by them as executors to the estate of the late Raja Jogendranath Ray of Nabore. The case for the plaintiffs is that on the 19th September, 1916, they satisfied a mortgage decree which was operative against the estate of their testator as also the properties of the Defendants. They consequently pray for recovery of specified sums by way of contribution from different sets of Defendants. The Defendants repudiate the validity of the claim and also contend that the plaintiffs are incompetent to maintain the action. The Subordinate Judge has dismissed the suit on the preliminary point on two grounds, namely, first, that before the institution of the snit, the executorship of the plaintiffs must be deemed to have terminated when the heir-at-law of the deceased testator attained majority; and, secondly, that even if the executorship has not terminated, the plaintiffs, who are three out of four surviving executors, are not competent to maintain the action, as the will contemplated that at least six executors should bake joint action. On the present appeal, the plaintiffs have controverted the view adopted by the Subordinate Judge on the question of the competency of the suit. We shall examine the two points raised by the appellants in the order stated above.

    2. As regards the first point, it is not disputed that Raja Jogendranath Ray made a testamentary disposition of his properties on the 11th May, 1900, that after his death the will was duly proved on the 2nd April, 1902, and that on the 23rd June, 1902, the District Judge granted probate to seven persons (named as executors therein) in the form prescribed by section 76 of the Probate and Administration Act.

    3. This grant is not in express terms limited in duration, and, attracts the operation of section 82, which provides that after the grant of rotate, no other than the person to whom the same shall have been granted, shall have power to sue or prosecute any suit or otherwise act as a representative of the deceased throughout the province in which the same may have been granted, until such probate shall have been recalled or revoked. The plaintiffs contend that inasmuch as the probate has admittedly been neither recalled nor revoked, no question can arise as to their competence to institute the present suit. The defendants urge that as under section 3 of the Probate and Administration Act the term “probate” means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator, the scope of the grant should be interpreted in the light of the provisions of the will, and, further, that if this rule of construction be applied it will be found that the grant has cased to be operative, because the clear intention of the testator, to be gathered from his will, was that the executors should cease to hold office on the attainment of majority by the hair-at-law.

    4. This argument plainly raises two distinct questions, namely, first, is it open to a Court, other than the Court which granted the probate, to investigate whether a grant expressed in general terms and not explicitly limited in duration, has expired by reason of the provisions of the will, and, secondly, if such collateral attack is permissible in a Court other than the Court of rotate, bad the grant in the present case ceased to be operative before the commencement of this litigation? As regards the first of these points, the plaintiffs have maintained that where a grunt is not expressly limited in duration but is formulated in general berms, the Court of probate and that Court alone is competent to determine whether it has ceased to be operative, in other words whether occasion has arisen to recall or revoke the grant. In support of this proposition, reference has been made to Sections 50 and 82 of the Probate and Administration Act. S. 50 provides that a grant of probate may be revoked or annulled for just cause which is defined to include amongst others the contingency that the grant has become useless and inoperative through circumstances. The argument in substance is that a general grant made in berms of S. 76 is operative under S. 82 until the probate shall have been recalled, or revoked, for the reason, amongst others, specified in S. 50 that the grant has become useless and inoperative through circumstances. In our opinion, this contention is well-founded. This view receives support from the principles which underlie the decisions in Surendra Nath v. Amrita Lal (1) and Chandra Kumar v. Prasanna Kumar (2). In the former case, it was rated that the phraseology of the fourth clause of S. 50 is sufficiently general to make it applicable to cases where the circumstances contemplated have happened since the date of grant. In the latter case, it was ruled, on the authority of the decision of the Judicial Committee in Bombay Burmah Trading Co. v. Smith (3), that so long as the person entitled to the estate has not taken it out of the possession of the executors, they are entitled to continue in occupation of the estate.

    5. The principle need not be affirmed in an, unqualified form that “once an executor always an executor”: it is sufficient to hold that a general grant must be deemed to continue in force until the probate or letters of administration shall have been, recalled or revoked by the Court of probate on one or other of the grounds enumerated in S. 60. We are not now called upon to consider whether an order for revocation is necessary, when a grant has been, in express terms, limited in duration, and the time specified has elapsed.

    6. But we observe that even upon that question, there has been divergence of judicial opinion in other systems of law. Thus in Offley v. Best (4); Freke v. Thomas (5); Slater v. May (6); In re Metcalfe (7) and Howell v. Metcalfe (8), it appears to have been assumed that no revocation was necessary, where the grant, on the face thereof, was limited in duration and the prescribed period had elapsed. Reference may also be made to the judgment of Sir John Nicholl in the case of In the goods of Cassidy (9), where, as Judge of the Prerogative Court, he did not revoke a grant of administration with will annexed to an attorney of the executor who was abroad, but pronounced it to have ceased and expired on application of the executor for probate and on affidavit that no suits were pending. It was further directed that future grants durante absentia should be expressly limited until the executor or party entitled to administration should duly apply for and obtain a grant; see also Webb v. Kirby (10); Re Rendall (11), Hewson v. Shelley (12); Rainbow v. Kittoe (13); Suwerkrop v. Day (14). On the other hand, in Pipon v. Wallis (15); In the goods of Phillips (16) and In the goods of Newton (17), the view was favoured that even in such cases, a formal order of revocation is necessary. Substantially to the same effect is the decision of Lord Elden and Sir William Grant, M.R in Rainsford v. Taynton (18). A similar view has been adopted in the United States as appears from the decision in Morgan v. Dodge (19).

    7. But whatever room for difference of opinion there may be elsewhere in case of grants expressly limited in duration or made for a specific purpose, it is fairly clear that under our statutory provisions a grant made in general terms must be deemed to continue in operation till revoked or recalled in an appropriate proceeding instituted before a Court competent to exercise jurisdiction in that behalf. This conclusion is in harmony with the elementary rule that where a judgment operates as a judgment in rem (as the decision of a probate Court does under section 41 of the Indian Evidence Act) it is not subject to collateral attack; while it remains in force, it is conclusive not only on the persons who are parties to the judgment but upon all persons and all Courts.

    8. This view renders unnecessary an examination of the second point, namely, assuming that the grant can be collaterally attacked in the present suit, did it in law expire on the attainment of majority by the heir-at-law? It is manifest, however, that the construction of the will as propounded by the defendants cannot be supported. The third clause of the will floss not lay down that the executorship would terminate on the attainment of majority by the grandson of the testator. It is clear, even on the terms of that clause taken by itself, that the executorship might continue after the heir-at-law should have attained majority. But the other classed of the will leave no room for doubt on this point; referance may be made specially to the provisions of clauses 9 and 10 which deal with the expenses of maintenance and education of the grandson, or in the event of the date, of the adopted son, and also the expanses of maintenance and marriage of the grand-daughters and their sons end grandsons. We are of opinion that the testator did not intand that the executors should case to hold office immediately on the attainment of majority by his grandson. From both these standpoints. We must hold accordingly that the authority of the executors] had nob, lapsed before the commencement of this litigation.

    9. As regards the second question, the Sub-ordinate Judge has held that in view of the direction in the will that there should be at least six executors acting at the same time, three executors cannot maintain this suit. We have examined the provisions of the will and we are unable to uphold the view taken by the Subordinate Judge. We are fortified in our opinion as We Had that bills vary will was so interpreted by Holmwood and Imam JJ. in another case which came up to this Court, when they ruled that three executors out of the four who had obtained probate were competent to carry on proceedings in execution of a rent decree. In our judgment, the will affords no clear indication that the tastator intended to supersede the rule enunciated in section 92 of the Probate and Administration Act, namely, that when there are several executors, the powers of all may, in the absence of any direction to the contrary in the will, be exercised by any of them who has proved the will; Satya Prashad v. Motilal (20). In the case before as, protate was granted to seven executors; three of them have died and their places have not been filled up; three others have instituted this suit and the remaining executor who refused to join as a plaintiff has been included in the category of defendants. We are not prepared to say that the provisions of the will invalidate a suit so framed.

    10. The result is that this appeal is allowed, the decree of the Subordinate Judge sub aside and the case remanded to him for retrial on the merits. The plaintiffs are entitled to their costs in this Court. The casts in the Court below will be in the discretion of the Subordinate Judge. As the suit has been dismissed on a preliminary ground, We direct, under section 13 of the Court-Fees Act, that the court-fees paid on the memorandum of appeal be refunded to the appellants.

    11. Case remanded.

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    Comments

    (Rani) Hemangini Debi v. Sarat Sundari Debya
    (Aug 11, 1921)