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Vanama Akkayya Petit... v. Vanama Lakshmamma In...
Factual and Procedural Background
This is an application under Sect. 302 of the Indian Succession Act seeking directions regarding administration of an estate and an injunction restraining the respondent from executing the decree in O.S. No. 65 of 1925 on the file of the Sub-Court, Bezwada.
Facts relevant to the dispute: Subba Rao died on 13 November 1920 having executed a will on 11 November 1920. The will gave the widow power to adopt a boy and directed the executor to pay a certain amount to the widow for maintenance and for management of the estate. The executor, who is the petitioner in this application, failed to give the respondent (the widow) possession of a portion of a house mentioned in paragraph 3 of the will and did not provide maintenance for a considerable time.
As a result, the respondent filed O.S. No. 65 of 1925 claiming recovery of the whole of the property as the widow of Subba Rao. The suit was resisted; the Subordinate Judge passed a preliminary decree in favour of the respondent and an account was taken showing a large amount due. The parties compromised on payment of Rs. 9,000 to the respondent as the amount due to her from estate property in possession of the executor. The respondent obtained possession of the portion of the house mentioned in the will. The petitioner deposited Rs. 9,000 into the District Court at Guntur and applied to this Court for directions as to the handing over of the amount and as to the amount that should be allowed to remain with him for performance of a charitable provision in the will.
Legal Issues Presented
- Whether an application under Sect. 302 of the Indian Succession Act lies in the present circumstances (i.e., whether the High Court can give directions where the respondent's right to the estate was disputed in prior proceedings).
- Whether the High Court, in making directions under Sect. 302, may give directions that would be inconsistent with or in variance to the judgment of a subordinate court that has adjudicated between the parties.
- Whether the petitioner (executor) is entitled to retain the whole or any portion of the corpus in his hands for the purpose of carrying out a charitable provision in the will (feeding two guests daily) pending possible adoption of a boy by the widow and his attaining majority.
Arguments of the Parties
Respondent's Arguments (as presented by Mr. Satyanarayana)
- A preliminary objection that an application under Sect. 302 does not lie in this case because, relying on English Chancery practice and authority, the Court cannot be asked to decide conflicting claims of parties under a will by way of such a petition; it can only advise an executor on administration matters.
- Relied upon authorities including In re Lorenz's Settlement, In re Samuel Marie Brereton, and In re Lakshmibai to support the contention that the power to advise trustees/executors is advisory and does not extend to deciding contested rights or construing instruments where parties' rights conflict.
Petitioner's Arguments
- The petitioner contends that a clause in the will (authorising the testator's junior uncle to give provisions to two guests once a day so long as a certain amount remained) created a trust in favour of charity and thereby constituted the petitioner a trustee to carry out that charitable provision.
- On that basis the petitioner asserts entitlement to retain the amount (or a portion of the corpus) in his hands so that the charity (feeding two guests once a day) can be performed — especially on the premise that the widow may adopt a boy who on attaining majority would carry out the charitable purpose or benefit under the will.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| In re Lorenz's Settlement | Held that under the relevant English provision (Sect. 30 of 22 & 23 Vict. Cap. 35, enacted as Sect. 43 of Trustees' & Mortgagees' Powers Act), the Chancery Court could give opinion or advice relating to management and investment of trust property but would not decide conflicting claims between parties or construe instruments affecting rights inter se. | The Court used this authority to explain the nature of the older English provision and then distinguished it from Sect. 302 of the Indian Succession Act, holding that the English line of authority under the older statute does not control the present section enacted in 1919. |
| In re Samuel Marie Brereton | Recognised that Sect. 43 (Trustees' & Mortgagees' Powers Act) did not empower the Court to decide questions of considerable difficulty and importance or to deal with disputed points of law or fact under that advisory power. | The Court cited this case to show the limitation of the English advisory power and then held that those limitations do not apply to Sect. 302, which confers broader powers on the High Court. |
| In re Lakshmibai | Confirmed that the Court advising trustees historically limited its advice to undisputed matters of management (advancement, maintenance, sale, compromises, proceedings) and would not construe instruments or make orders affecting parties' rights under the English provision. | The Court relied on this precedent to characterise the English practice but distinguished it from the present statutory regime (Sect. 302), concluding the High Court's power is wider and may include settling questions and construing wills when asked. |
| Conway v. Fenton | Explained that Order 55, Rule 3(e) (originating summons) was intended to permit trustees or persons beneficially interested to obtain determination by summary procedure of any question of administration, law, or construction; the Court on originating summons has substantially the same jurisdiction as in an administration action. | The Court invoked this case to support the proposition that under Sect. 302 the High Court has power analogous to that given by O.55, R.3 — namely, power to determine questions of administration, law, and construction by summary procedure. |
Court's Reasoning and Analysis
The Court proceeded in two stages: first it considered the preliminary objection that Sect. 302 did not permit the High Court to entertain the petition; second it addressed the substantive dispute about the executor's entitlement to retain corpus for a charitable provision.
On the jurisdictional point the Court reviewed the English authorities construing the earlier advisory provisions (Sect. 30 of 22 & 23 Vict. Cap. 35 and Sect. 43 of the Trustees' and Mortgagees' Powers Act) and the consistent line of decisions that limited the Chancery Court's power under those provisions to giving advice on management and investment, not to deciding contested rights or construing instruments in a way affecting parties inter se. The Court quoted observations (Kindersley V.C., Mr Justice Latham, Mr Justice Scott) indicating that the older English section was intended as advisory and that the Court should not decide difficult contested questions under it.
The Court then distinguished those English authorities from the present case on the basis that Sect. 302 of the Indian Succession Act (enacted in 1919 as Sect. 264-B of the Indian Succession Act and 87-B of the Probate and Administration Act) empowers the Court "on an application made to it, to give the executor or administrator any general or special directions in regard to the estate or its administration." The Court interpreted "any directions as regards the administration of an estate" to include directions the executor may seek to administer the estate properly, including settling questions between executors and legatees and construing a will when asked to do so. The Court considered Order 55, Rule 3(g) and Conway v. Fenton in concluding that the High Court has power under Sect. 302 analogous to the powers exercisable by the Chancery Court under O.55, R.3.
On the question whether the High Court should give directions inconsistent with a subordinate court's judgment, the Court stated a reluctance to interfere with matters properly litigated and adjudicated in a Civil Court. However, it found that the specific question before the High Court — whether the petitioner was entitled to retain sums for a trust provision in the will — had not been disposed of by the Subordinate Judge. Consequently, the High Court could and should decide that question.
Regarding the substance of the alleged charitable trust, the Court examined the will clause relied upon (providing that provisions be given to two guests once a day so long as a certain amount remained after excluding maintenance) and observed that:
- The will does not specify the amount to be spent on feeding the guests nor does it indicate what portion of the property should be set apart for that purpose.
- It was unnecessary for the Court to finally determine whether the clause created a valid trust for the feeding of two guests, because the decisive question was whether the executor was entitled to retain the corpus pending an uncertain event (the widow adopting a boy who would attain majority).
- The Court applied the legal principle that a bequest to a person not in existence at the testator's death, without an intervening life interest during which such person could come into existence, is void; and even if void, that does not entitle the executor to retain property indefinitely.
Applying these principles to the facts, the Court concluded that, in the absence of an adopted boy or any specified corpus allocation, the executor cannot retain any portion of the corpus in the hope that an uncertain event (adoption and attainment of majority) will occur. The respondent (the widow), who had obtained a decree for the whole of the amount in the civil suit and had not adopted a boy, was entitled to the whole corpus. The Court therefore directed the petitioner to hand over the whole corpus to the respondent and to render accounts as an executor.
Finally, the Court assessed the bona fides of the application and found it not bona fide — concluding that the petitioner, having been defeated in the Subordinate Court, sought to obstruct the respondent by this application. The Court ordered personal costs against the petitioner (vakils' fee of Rs. 100) and dismissed the petitions.
Holding and Implications
Holding: The petitions are DISMISSED. The Court held that:
- The High Court has power under Sect. 302 of the Indian Succession Act to give general or special directions regarding the administration of an estate, including settling questions between executors and legatees and construing a will when asked.
- The petitioner (executor) is not entitled to retain any portion of the corpus for the performance of the charitable provision described in the will (feeding two guests once a day) where the widow has not adopted a boy and there is no specification of what portion of the property should be set aside; the widow is entitled to the whole corpus as she has obtained a decree in the civil suit.
- The petitioner is directed to hand over the whole of the corpus to the respondent and to render accounts as executor.
- The petitioner was ordered personally to pay the costs of this application, including a vakils' fee of Rs. 100.
Implications: The direct effect is the transfer of the corpus to the respondent and a personal costs order against the petitioner. The Court expressly distinguished earlier English authorities interpreting the older advisory statute and concluded Sect. 302 confers broader powers on the High Court; accordingly, the Court exercised its power to decide the executor's duty in the circumstances presented. The opinion does not purport to announce additional broader rules beyond these determinations as set out above.
This is an application under Sect. 302 of the Indian Succession Act praying for the issue of general or special instructions in regard to the administration of an estate and for an injunction restraining the respondent herein from executing the decree in O. S. No. 65 of 1925 on the file of the Sub-Court, Bezwada and such other order or orders as this Court may deem fit to pass.
One Subba Rao died on the 13th November, 1920. He executed a will on the 11th November, 1920 giving power to his wife to adopt a boy and directing the executor to pay a certain amount to her for maintenance and for the management of the estate. The executor who is petitioner did not put the respondent in possession of a portion of a house mentioned in paragraph 3 of the will and did not give her maintenance for a considerable time, in consequence of which she was obliged to file O.S No. 65 of 1925 for the recovery of the whole of the property as the widow of the deceased Subba Rao. The suit was resisted on various grounds and the Subordinate Judge passed a preliminary decree in favour of the respondent overruling the objections of the petitioner. An account was taken and a large amount was found due and both the petitioner and the respondent entered into a compromise under which it was arranged that Rs. 9,000 should be paid to the respondent as being the amount due to the estate in the possession of the executor. She has obtained possession of the portion of the house mentioned in the will. The petitioner has deposited the amount of Rs. 9, 000 into the District Court at Guntur and has come up here for the directions of this Court as regards the handing over of the amount to her and as regards the amount that should be allowed to remain in his hands for the performance of some charity.
Mr. Satyanarayana for the respondent raised a preliminary objection that an application under Sect. 302 does not lie in this case. His argument is that the Court can only be asked to give advice to the executor but when the right of the respondent to receive the whole of the estate is disputed, this Court has no jurisdiction to give any directions under Sect. 302 and he relies upon In re Lorenz's Settlement, In re Samuel Marie Brereton(2) and In re Lakshmibai(3). No doubt under Sect. 30 of 22 and 23, Vict. Chap. 35 the Court had no jurisdiction to decide upon the conflicting claims of parties claiming under a will. The relevant portion of Sect. 30 is as follows:
“Any trustee, executor, administrator shall be at liberty without the institution of a suit to apply by petition to any Judge of the High Court of Chancery or by a summons upon a written statement to such Judge in Chambers for the opinion, advice or direction of such Judge on any question respecting the management or administration of trust property or the assets of any testator or intestate.”
The section is clear that what is asked for is the opinion, advice or direction of the Judge. It was held, that under this section the Court of Chancery had no power to give a decision upon contested questions and upon conflicting claims. In In re Lorenz's Settlement, it was said:
“The Court will not upon a petition presented by a trustee or executor under 30th Section of 22 and 23 Vict. Chap. 35 for the opinion, advice, or direction of the Court construe an instrument or make an order affecting the rights of parties to property. Such petitions should relate only to the management and investment of trust property.”
Kindersley, V. C. observed at page 434:
“My understanding of that section of the Act is, that it was intended by the legislature that the Court should have the power to advise a trustee or executor as to the management and administration of the trust property in the manner which will be most for the advantage of the parties beneficially interested, but not to decide any question affecting the rights of those parties inter se; otherwise the effect would be, that a deed or will involving the most difficult questions, and relating to property to an amount however large, might be construed, and most important rights of parties decided, by a single Judge, without any power of appeal whatever.”
The jurisdiction of the Court of Chancery under 22 and 23 Vict. Chap. 35, Sect. 30 or 38 was only advisory. This provision in 22 and 23 Vict. Chap. 35 was enacted in Sect. 43 of the Trustees' and Mortgagees' Powers Act XXVIII of 1866. Under Sect. 43:
“Any trustee, executor, or administrator shall be at liberty, without, the institution of a suit, to apply by petition to any judge of the High Court for opinion, advice or direction of such judge on any question respecting the management or administration of the trust property or the assets of the testator or intestate.”
In In re Samuel Marie Brereton, it was held by a Judge sitting on the Original Side that Sect. 43 did not empower the Court to decide any question of considerable difficulty and importance. Mr. Justice Latham relied upon the observation of Kindersley, V. C., in In re Lorenz's Settlement quoted above and held
“that the Court should not deal, under the power here given, with a point of law, like the present one, on which so much may depend, and which is in itself so full of difficulty.”
This case was followed in In re Lakshmibai. In that case also an application was made under Sect. 43 of the Trustees' and Mortgagees' Powers Act of 1866 praying (1) that the trustee might be advised whether she had power to grant the proposed lease (2) whether the Court will sanction or direct the said lease, and (3) that the Court will advise in the premises as may seem fit. Mr. Justice Scott observed at page 644:
“The questions on which the Court has advised trustees have related strictly to undisputed matters of management, such as questions of advancement, maintenance, change of investment, sale of a house, compromises, taking proceedings. But disputed points of law or fact have never been included. The Court will not, for instance, construe an instrument or make any order affecting the rights of parties.”
These cases have no application to proceedings under Sect. 302. This section was enacted in the year 1919 as Sect. 264-B of the Indian Succession Act and 87-B of the Probate and Administration Act. It is now embodied in the New Act as Sect. 302. Under this section the Court has got power
“on an application made to it, to give the executor or administrator any general or special directions in regard to the estate or its administration.”
“Any directions as regards the administration of an estate” means such directions as the executor may seek in order to administer the estate properly. This section gives ample power to the Court to settle questions arising between the executor and the legatees and between the legatees themselves and also power to construe a will whenever the Court is asked to do so. It is difficult to hold that the legislature when it enacted Sect. 264-B in the year 1919 overlooked the well-known English practice which has been prevailing in the Court of Chancery for the last so many years. The Court of Chancery has full power to give directions as regards the administration of an estate, whether an application is made to it by the executor or by the administrator or by the legatee or other person interested in it. O. 55, R. 3 (g) is as follows:
“The determination of any question arising in the administration of the estate or trust.”
That is wide enough and I do not think the language of Sect. 302 cuts down the power of the Court. In Conway v. Fenton. Mr. Justice Kekewich observed at page 515:
“The question is raised on an originating summons under O. 55, R. 3 (e). The object of that order was to enable trustees or persons beneficially interested under a settlement or will to come by summary mode to the Court and to obtain the determination of any question, whether of administration, or of law, or of construction, without the necessity of what used to be known as an administration suit or action. I take it that, for all purposes, or almost all purposes, the Court is precisely in the same position on the hearing of an originating summons as if there were really an administration action properly constituted, and that I have precisely the same jurisdiction under an originating summons as I should have in an administration action—neither more or less.”
I hold that the High Court has power under Sect. 302 to give the directions which the Court of Chancery in England has under O. 55, R. 3.
The next point urged by Mr. Satyanarayana is that the matter between the parties has been concluded by the Judgment of the Subordinate Judge and therefore this Court cannot give directions in variance with the judgment of the Subordinate Judge. When a matter has been properly litigated in a Civil Court and has been adjudicated upon, this Court will be very reluctant to give directions which would in any way conflict with the judgment between the parties already arrived at. Though this Court had jurisdiction to go into the matter, it should in cases where the matter has been definitely settled in a properly constituted suit, hold its hands. But the question that is now raised before me was not disposed of in the lower Court, for Mr. Raghava Rao raised the question whether he is entitled to hold a certain sum of money in his hands for the performance of a trust which he says has been constituted under the will. The following passage in the will is relied upon as having created a trust and as having appointed the petitioner, the trustee for performing the charity mentioned in that passage:
“So long as the said amount remaining after excluding the amount paid for maintenance to my wife from out of my property continues, I have authorized my junior uncle, Vanama Akkayya Garu to give provisions rice, dhol, tamarind etc., to two guests once a day from to-day onwards.”
Mr. Raghava Rao's contention is that this clause in the will establishes a trust in favour of charity and consequently it constitutes the petitioner a trustee for carrying out the terms of the trust. It is unnecessary in the view, I take, to consider whether this clause creates a proper trust for the feeding of two guests. The amount that is to be spent on the feeding of guests is not mentioned and there is nothing in the will itself to show what portion of the property should be set apart for feeding two guests a day.
The question that requires decision is whether the petitioner is entitled to keep the whole or any portion of the corpus in his hands for the purpose of carrying out the trust. The contention is that till a boy is adopted and till he attains majority he is entitled to keep a portion of the corpus in his hands for feeding guests. The widow may or rosy not adopt and if no adoption takes place there could be no boy who can come to maturity. The petitioner, according to Mr. Raghava Rao's contention, is entitled to keep the money till the boy attains majority. If that is so, seeing that there is no boy and there is no likelihood of the widow adopting a boy, I fail to see how he can keep any portion of the corpus for the performance of charity. If a boy is adopted, on his attaining majority, the charity should be performed by him. If no boy is adopted, the widow if she likes may give effect to the intention of the testator as regards charity but I fail to see how an executor who is only asked to be in possession for a time can hold on to the property on the ground that an uncertain event was likely to happen. It is clear that a bequest in favour of a person not in existence at the time of the testator's death, when there is no intervening life-interest before the expiration of which he could come into existence is void but that will not give a right to the executor to hold on to the property indefinitely. The petitioner is only an executor and he having invoked the provisions of Sect. 302 is bound by the directions of this Court. Seeing that the respondent has obtained a decree for the whole of the amount in a civil suit, he is not entitled to keep any money in his hands for the purpose of carrying out the objects of the charitable trust. He being an executor must render an account to the Court and must hand over the property to the person entitled to it. The widow not having adopted a boy is entitled to the whole of the corpus. No doubt if she adopts a boy according to the terms of the will, she would be entitled to maintenance according to the terms of the will and the corpus would go to the adopted boy. The executor is not entitled to keep any portion of the corpus in his hands in the hope a boy would be adopted to his testator. My direction therefore is that the petitioner should hand over the whole of the corpus to the respondent and should not raise any objection to doing so in his capacity as executor.
I am satisfied that this application is not a bona fide one, for the petitioner having fought the respondent in the Bapatla Sub-Court, and having been worsted there has thought of putting obstacles in her way by making this application. I therefore direct him to pay personally the costs of this application and vakils' fee Rs. 100.
Memorandum of costs will follow.
N. R. R.Petitions dismissed.
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