ORDER
C.V. Kumaraswami Sastri, J.
1. The question raised in this reference is Whether an executor appointed by a Hindu Will made in the mufussal of the Presidency has vested in him the estate of a testator and has all the powers of an executor as set out in the Probate and Administration Act even though such executor does not obtain probate of the Will or whether his powers, unless he obtains probate, are only those of a mere manager as held in respect of executors previous to the Probate and Administration Act.
2. Before the passing of the Hindu Wills Act of 1870, the estate of a deceased Hindu did not vest in the executor even though he obtained probate, and in cases not governed by the Act the right of the executor or legatee could he established either by production of probate or by other proof of the Will, probate being only treated as one of the modes by which a Will can be proved in Court, and District Courts had no power to grant probate or letters of administration to Hindu Wills which were not governed by the Hindu Wills Act. Supreme Courts, however, reserved to themselves the power to grant probate but it was recognized that the grant of probate did not of itself confer any additional powers on executors not governed by the Hindi; Wills Act. The position of such an executor was merely that of a manager in so far as the powers which were not expressly conferred on him. In the Administrator-General of Bengal v. Premlall Mullick [1895] 22 Cal. 788 : 22 I.A. 107 : 6 Sar. 603 (P.C.), their Lordships of the Privy Council, in dealing with rights of Hindu executors prior to the passing of the Administrator-General's Act of 1867, observe: His powers and functions were not those of an English executor but rather those of a manager, but he did not require probate and probate if obtained would not have vested him with any title to the estate, either real or personal, which he administered. In view of these observations it is unnecessary to refer in detail to the decisions of the High Courts on the subject. I need only refer to Kherodemoney Dossee v. Voorgamoney Dossee [1879] 4 Cal. 455 : 3 C.L.R. 315; Sarat Chandra Banerjee v. Bhupendra Nath Bosu [1898] 25 Cal. 103; Amulya Charan Seal v. Kali Das Sen [1905] 32 Cal. 861 : I C.L.J. 270; Maniklal Atmaram v. Manchershi Dinsha Coach man [1875-77] 1 Bom. 269.
3. As regards grants of probate and the proof required of a Will not governed by the Hindu Wills Act it was held in Bharati v. Bharati [1880] 6 C.L.R. 138 that before the passing of the Probate and Administration Act, it was not competent to District Courts to grant probate or letters of administration; but as pointed out in Krishna Kinkur Roy v. Rai Mohun Roy [1887] 14 Cal. 37, the passing of the Probate and Administration Act has altered this. It has, however, been held that there is no obligation east on a Hindu or Muhammadan executor of Wills not coming under the Hindu Wills Act to take out probate and that he can prove the Will during the course of the suit just as if he was proving any other document requiring proof. Probate was regarded only as one mode of proving a will. I need only refer to Krishna Kinkur Roy v. Rai Mohun Roy [1887] 14 Cal. 37, Krishna Kinkur Roy v. Panchuram Mundul [1889] 17 Cal. 272, Bhagvansang Bharaji v. Bechardas Harjivandas 1881 6 Bom. 73, Shaik Moosa v. Shaik Essa [1884] 8 Bom. 241 : Sakina Bibee v. Mahomed Ishak 1910 37 Cal. 839 : 15 C.W.N. 185. The Probate and Administration Bill as originally drafted and introduced in the Council, proposed to make the production of probate or letters of administration necessary in all cases where the property exceeded Rs. 1,000; but when the Bill was in the Select Committee this provision was deleted. The result is, that the Probate and Administration Act is as it stands a measure purely permissive so for as the necessity for taking out probate is concerned.
4. The question is whether the Probate and Administration Act is only confined to cases where such permission is availed of and a person applies for probate or letters of administration or whether it applies to all cases. So far as the decided cases are concerned, there is a difference of opinion between the view taken by the Madras and Bombay High Courts on one side and the Calcutta High Court on the other. In Fatima v. Shaik Essa [1883] 7 Bom. 266. West, J., held that the executor of a Will of a deceased Muhammadan executed after the Probate and Administration Act had come into force could not claim to represent the estate of his testator until he had taken out probate. His view was that all classes of executors with regard to the necessity of taking out probate were on the same footing, that S. 12 of the Act showed clearly that the idea at the bottom of the scheme of the Act was that a Will was not to be considered until probate had been taken out and that till probate there was no will established, that is there was no Will, at all, exacting recognition of the dispositions made and the authority conferred by it. He held that the Act, read as a whole, established that probate was necessary in all cases. This view of West, J., was however, overruled by Sir Charles Sarjent, C.J., and Bayley, J. in Shaik Moosa v. Shaik Essa [1884] 8 Bom. 241, and it was held that by reason of the omission from the Probate and Administration Act which applies to Hindus and Muhammadans of any section corresponding to S. 187 of the Succession Act which requires the production of probate or letters of administration, a right of suit may be established by a Hindu or Muhammadan without taking out probate. Sir Charles Sargent, C.J., was of opinion that S. 12 of the Probate and Administration Act was merely intended to be a condensed statement of the English Law which regards probate as the authenticated evidence of the Will itself from which the executor derives his title and by virtue of which the property of the testator vests in him from the death of the testator and not as a condition precedent to establishing his claim. In Mathuradas v. Goculdas Madhowji [1886] 10 Bom 468 it was held following the decision in Shaik Moosa v. Shaik Essa [1884] 8 Bom. 241, that an executor who has not taken out probate has the powers of alienation which the English Law confers on executors. In Narrondas v. Narrondas [1970] 31 Bom. 418 : 9 Bom. L.R. 287 it was held that the estate of the deceased vested in the executor appointed under the Will even though he did not obtain probate. Russell, J., observed as follows: The plaintiffs were his executors and by S. 4 of the Probate and Administration Act all his estate vested in the plaintiffs as such. This Court has held S. 4 applicable before probate: see Shaik Moosa v. Shaik Essa [1884] 8 Bom. 241 approved in Mathuradas Lowji v. Goculdas Madhowji [1886] 10 Bom 468 and in Bai Harkor v. Maneklal Rasikdas 1888] 12 Bom 921. It seems to have been assumed that the effect of S. 4 would have been to vest the property in the executor of a Will made before the passing of the Act, and not governed by the Hindu Law, although probate had not been granted. In Sir Mahommed Yusuf v. Hargovandas Jivan, A.I.R. 1922 Bom. 392 Marten and Fawcett, JJ., after reviewing the case law on the subject held that the estate vests in the executor under S. 4 of the Probate and Adminis tration Act and that he can convey the property by virtue of the power conferred upon him by S. 90 of the Act even though he has not obtained probate. All the authorities are reviewed by the learned Judges in their judgment.
5. So far as Madras is concerned the view of the Bombay High Court has been accepted as correct. In Ganpathi Aiyar v. Sivamalai Goundan [1913] 36 Mad. 575 : 23 M.L.J. 306 : (1912) M.W.N. 1112, Sundara Aiyar and Sadasiva Aiyar, JJ., held that an executor under the Will of a Hindu who has not obtained probate is governed by the provisions of the Probate and Administration Act and can clothe a vendee with full title. Dealing with the argument that the property of the testator would vest in the executor only if he took probate or letters of administration the learned Judges observed We are unable to uphold this contention. There is no provision in the Probate and Administration Act which requires a person appointed as executor under a Will to take out probate or letters of administration. S. 187 of the Indian Succession Act which provides that no right as legatee or executor under a Will can be enforced unless probate or letters of administration have been taken out has not been enacted in the Probate and Administration Act. It was imported into the Hindu Wills Act, but it was apparently for very good reasons considered undesirable to embody it in the Probate and Administration Act. Under S. 4 of the Act all the property of the deceased vests in the executor as such. Probate is not necessary to make a person an executor. His title is derived under the Will. If S. 187 of the Succession Act had been imported into the Probate and Administration Act, then neither the executor nor any person claiming as alienees under him would be entitled to enforce any right as executor or alienee. But we can see nothing in the Act as it stands to prevent the executor from acting as executor and exercising the powers given to him under the Act without obtaining probate. This was the view taken in Shaik Moosa v. Shaik Essa [1884] 8 Bom. 241 and Mathuradas Lowji v. Goculdas Madowji [1886] 10 Bom 468. The learned Judges distinguish Sarat Chandra Banerjee v. Bhupendra Nath Bosu [1998] 25 Cal. 103, on the ground that it related to the validity of a sale made by an executor under a Hindu Will in the year 1864 long before the Probate and Administration Act was passed and they observed that hey could not assume that the learned Judges would have taken the same view in respect of Wills made by a person who died after 1881. In Balakrishnudu v. Narayanaswami Chetty [1914] 37 Mad. 175, Wallis, C.J., held that the estate of a deceased vests in the executor even though probate has not been taken out, and observed as follows; The Will is not governed by the Hindu Wills Act and S. 187 of the Indian Succession Act is therefore not applicable. Under S. 4 of the Probate and Administration Act the estate of the deceased vested in the plaintiff as her executor on her death in January 1904, and there is nothing in that Act to prevent him suing the defendant at once. No doubt if he had omitted to take out probate he could not have obtained a decree without producing a succession certificate, but there is nothing in that Act to prevent his instituting the suit and afterwards obtaining the certificate before decree. In Rajah Parthasarathy Appa Rao v. Rajah Venkatadri Appa Rao, A.I.R. 1922 MAd. 457 it was assumed both by Sadasiva Aiyar and Phillips, JJ., who originally heard the appeal and by the Full Bench that the Probate and Administration Act applied to unprobated Wills in the mufassal to which the Hindu Wills Act did not apply.
6. A different view has been taken by the Calcutta High Court. In Sarat Chandra Banerjee v. Bhupendra Nath Bosu [1998] 25 Cal. 103, it was held that an executor under a Hindu Will executed before the Hindu Wills Act came into force is not in the same position as an English executor under an English Will and that the property does not vest in him but that he holds it only as manager. As pointed out by Sundara Aiyar and Sadasiva Aiyar, JJ., in Ganpathi Aiyar v. Sivamalai Goundan [1913] 36 Mad. 575 : 23 M.L.J. 306 : (1912) M.W.N. 1112, the Will in question was executed before the passing of the Hindu Wills Act and the Probate and Administration Act; but I have little doubt that there are observations in the judgment which support the view taken that the Probate and Administration Act does not apply to cases where probate has not been granted to the executor. Sir William Maclean, C.J., refers to the preamble of the Act and the fact that S. 4 comes in under Chapter II of the Act headed Of grant of Probate and Letters of Administration and observes that this indicates that the vesting was only to follow upon the grant of probate of the will in the one case, or grant of letters of administration in the other and that the section applies not only to executors but to administrators who obtain letters of administration under the Act. Banerjee, J., thinks that the provisions of the Act must be taken to be controlled by the preamble of the Act and states that where probate has not been obtained the provisions of the Act would not apply. In Prosunno Chunder. Bhuttacharjee v. Kristo Chytunno Pal [1879] 4 Cal. 342 : 3 C.L.R. 154, a decree was obtained against a person who was not the proper legal representative. Subsequent to the decree under the Will of the deceased he took out probate and he filed a claim to the property attached in execution of the decree against the defendant in that suit who was only the concubine of the deceased. Markby, J., held that a person who took possession of the estate of a deceased Hindu who had left a Will which was not probated must be treated for some purpose as his legal representative until some other claimant comes forward. In the course of his judgment the. learned Judge observes that the executor does not represent the deceased by virtue of the Will until he has obtained probate, that somebody must have represented the deceased, and must represent the deceased and that the person who was in possession of the estate and managed it till probate was obtained might be treated as the person who was representing the estate. The same learned Judge, however, in Komollochun Dutt v. Nilrutun Mundle [1875] 4 Cal. 360 : 1 C.L.R. 175, observed: When the probate is granted it operates upon the whole estate, and (by S. 188) it establishes the Will from the death of the testator and renders valid all intermediate acts of the executor as such. The property vests in the executor by virtue of the Will, not of the probate. The Will gives the property to the executor, the grant of probate is the method which the law specially provides for establishing the Will. So long ay the probate exists it is effectual for that purpose. The question for determination there, however, was whether when once probate was granted it can be set aside by a separate suit and it was held that the only way to set it aside was to apply to the Court which granted the probate to revoke the grant. In Sakina Bibee v. Muhammad Ishak, 1910 37 Cal. 839 : 15 C.W.N. 185. it was held by Pugh, J., 'following Sarat Chandra Banerjee v. Bhupendra Nath Bosu [1998] 25 Cal. 103, that the powers conferred by the Probate and Administration Act do not apply to an executor who has not taken out probate and that the powers of the executor under such a Will must be the same as it was before the passing of the Act. The observations of the learned Judge were; however, obiter as the question did not arise for determination.
7. I may refer to two Calcutta cases decided by their Lordships of the Privy Council which were referred to in the course of the argument. The first is Administrator-General of Bengal v. Premlal Mullick [1895] 22 Cal. 788 : 22 I.A. 107 : 6 Sar. 603 (P.C.). The question in that case was whether a Hindu executor who had obtained probate of a Will can transfer the administration to the Administrator-General by virtue of the provisions of the Administrator General's Act, II of 1874. The Will was executed in 1889 after the passing of the Probate and Administration Act. Their Lordships of the Privy Council were of opinion that the right conferred by S. 31 of the Administrator-General's Act was not confined to any particular class of executors and that the executor under a Hindu Will can take advantage of the provisions of the Act. In the course of their judgment their Lordships of the Privy Council, after pointing out that S. 31 of the Administrator-General's Act of 1874 is a re-enactment, without verbal alterations, of S. 30 of the Administrator-General's Act, 1867 (Act No. XXIV of 1867), make the following observation at p. 796: It is not disputed that the immediate effect of the Act of 1870 was to place a Hindu executor who was in a position and chose to take advantage of its provisions, on precisely the same footing as the executor of an Anglo-Indian testator in so far as concerns the baking out of probate and the vesting in him of the estate of the deceased. The Will of the late Nundo Lal Mullick was executed in August, 1889, and his executors, therefore, on their obtaining probate, became immediately vested, by force of statute, with the whole estates which belonged to him at the time of his decease. The words the executors, therefore, on their obtaining probate immediately vested by force of statute are relied upon as supporting the view that the powers of an executor only arise on probate being taken. I do not think that we can hold that these observations which were obiter can be taken as an authoritative interpretation of S. 4 of the Probate and Administration Act. The only question for decision was whether a Hindu who obtains probate of a Will executed after the passing of the Probate and Administration Act was a person who came within the class of persons empowered to transfer the estate to the Administrator-General under S. 31 of the Administrator-General's Act. There is great force in the following observations of Sir E.J. Trevelyan in his book The Law relating to Hindu Wills: Although it was unnecessary to decide this question, these observations would show that an estate does not vest in an executor until probate. It is submitted that their Lordships have omitted to consider the words unless probate has been granted to him, in S. 90[1970] 31 Bom. 418 : 9 Bom. L.R. 287, the omission from S. 4 of any reference to probate and the expression of the effects of probate in Ss. 12 and 59 which, it is submitted suggest that the powers of an executor are not dependent upon probate. I may also point out that Sir Rowland Wilson in his work on Muhammadan Law is also of opinion that the powers of an executor of a Muhammadan under a Will which is not probated are subject to the provisions of the Act and that without probate he is an executor within the meaning of the Probate and Administration Act except where the contrary appears from the context: see page 232, 5th Edition.
8. Reference has also been made to Kurru Tulain Bahadur v. Nuzbat-ud-dowla Abbas Hossein Khan 1906 33 Cal. 116 : 32 I.A. 244 : 7 Bom. L.R. 876 : 9 C.W.N. 938 : 2 A.L.J. 758 : 1 C.I.J. 594 : 15 M.L.J. 336 : 8 Sar. 839 (P.C.). That was a case where a Muhammadan left a Will which under the Muhammadan Law would be invalid to the extent of two-thirds of the estate. The Will was executed in 1893 after the passing of the Probate and Administration Act and the question was what the effect of the Probate was as regards two-thirds of the estate which the testator under Muhammadan Law had no power to dispose of. It was held that the grant of probate did not estop the plaintiff from pleading that the Will did not operate on two-thirds of the estate. Their Lordships of the Privy Council at page 130, state that, although the Supreme Courts granted probates of Hindu and Muhamadan Wills, those Courts never applied the English rule as to the necessity for probate to such Wills; nor did they attribute to such probates, when granted, the English doctrines as to the operation of probate, and observe as follows: Under that system a Hindu or Muhammadan executor took no title to property merely as such by virtue of the probate. I do not think 'this decision throws much light on the question before us.
9. So far as legislation in Madras is concerned there are two regulations which deal with this matter. One is Regulation III of 1802, and S. 16 gave power to executors of Muhammadans and others to take charge of assets and to execute the trusts mentioned in the Will and forbade Courts interfering except on complaints. This section, however, was repealed so far as Hindus were concerned by Regulation 5 of 1829 and the preamble states that the provisions of S. 16 of Regulation 3 of 1802 were contrary to the provisions of Hindu Law and the authorities prevalent. S. 4 of Regulation 5 of 1829 Says that Wills left by Hindus shall have no legal force whatever except so far as their contents may be in conformity with the provisions of the Hindu Law, according to the authorities prevalent in the respective provinces under this Presidency.
10. I am of opinion that the view taken by the Bombay High Court and by our own Court in Ganapathi Aiyar v. Sivamalai [1913] 36 Mad. 575 : 23 M.L.J. 306 : (1912) M.W.N. 1112 is correct. As regards the vesting of the estate on the executor before probate is obtained I think the observations of their Lordships of the Privy Council in Meyyappa Chetty v. Subramanyam Chetty [1916] 43 I.A. 603=18 B.L.R. 642 (P.C.) are clear. They observe It is quite clear that an executor derives his title and authority from the Will of his testator and not from any grant of probate. The personal property of the testator including all rights of action vests in him upon the testator's death. I think there are many practical difficulties in coming to the opposite conclusion. S. 12 of the Probate and Administration Act says that probate of a Will when granted establishes the Will from the death of the testator, and renders valid all intermediate acts of the executor as such; so that it will be open to the executor to defer taking out probate and after administering the estate with the limited powers of a manager to apply for probate and clothe himself with rights which are far more extensive and which would have retrospective effect. For example, if he sells property before obtaining probate, the sale would not be binding unless there was an express provision in the will or unless it were necessary and beneficial to the estate within the meaning of Hunooman-persaud Panday v. Mt. Babooee Munraj Koonweri [1854-57]6 M.I.A. 393 : 18 W.R. 81 Foot-Note : 2 Suther. 29 : 1 Sar. 552 (P.C.), but if he takes out probate the alienation would be valid from the date of death of the testator because under S. 90 unless there is an express prohibition, there is no question of necessity. It is not in every case that a purchaser can apply for letters of administration with will annexed. As the view taken by the Madras High Court has always been that the provisions of the Probate arid Administration Act apply to cases where probate has not been obtained and as it would unsettle many titles if a contrary view were held we should not do so unless we are satisfied that the view taken till now is clearly erroneous.
11. Turning to the Probate and Administration Act, I do not think there is anything in the Act which clearly indicates that it is only applicable to executors who take out probate. Executor is defined generally in S. 3 as a person to whom the execution of the last will of a deceased person is, by the testator's appointment, confided. S. 4 enacts that the executor or administrator, as the case may be, of a deceased person, is the legal representative for all purposes and all the property of the deceased person vests in him as such. No doubt this section comes under Ch. 11 which is headed Of grant of probate and letters of administration, but I do not think that this fact has much bearing on the general words of the section, nor do I think that the fact that an administrator gets title only from the date of the grant of letters of administration throws much light on the question. I think the meaning of the section is that property will vest in both of them but that in the case of an executor it vests from the date of the death of the testator, but by virtue of Ss. 14 and 15 an administrator being merely a person to whom the Court confides the management of the estate the property vests in him from the date of the grant of letters of administration and not before. I do not think there is much point in the contention that because executors and administrators are both referred to m S. 4 and because an administrator's rights commence from the date of the grant a similar restriction should he placed upon the -executor who derives title from the will of the testator. S. 90, I think, makes the point clear. It distinctly applies to both executors who have taken out probate and those who have not. CI. 1910 37 Cal. 839 : 15 C.W.N. 185 gives the executor or administrator power to -dispose of all or any of the property for the time being vested in him under S. 4 and Cl. [1970] 31 Bom. 418 : 9 Bom. L.R. 287 says that if the will contains a restriction and the executor wants to sell property, he should obtain probate and get the leave of the Court. It is difficult to read S. 90 as not applying to unprobated wills. It clearly contemplates the vesting of property in the executor who has not obtained probate. It is no doubt true that in the preamble it is stated that it is expedient to provide for the grant of probate, wills and letters of administration to the estates of deceased persons in oases to which the Indian Succession Act does not apply but I do not think that this fact alone should be taken as conclusive on the question. It seems to me that if the legislature intended that only wills which are probated should be governed by this Act, it would have said so in unequivocal terms and in the absence of any such statement I do not think I will be justified in holding that the Act is not applicable to cases where probate has not been obtained. There are several sections in the Act which have nothing to do with probate and which are general in their character and there is no reason why such provisions should not be applied to Hindu wills of which probate has not been obtained. I think there is great force in the observations of Sir Charles Sargent, C. J., in Shaik Moosa v. Shaik Essa [1884] 8 Bom. 241 where the learned Judge observes that the object of the legislature in enacting the Probate and Administration Act seems to have been to frame an act which would be applicable to all natives of this country whilst leaving the existing law as to those Hindus, to whom the Hindu Wills Act apply untouched.
12. I would answer the reference by stating that in cases of Hindu wills to which the Hindu Wills Act does, not apply the estate vests in the executor (who accepts office) from the date of the testator's death and that the provisions of the Probate and Administration Act are applicable even though probate has not been obtained.
V.M. Coutts Trotter, C.J.
13. I agree.
Phillips, J.
14. I agree.