P L D 1988 Karachi 327 (PLP)

This is an application under section 276 read with sections 228 and 241 of the Succession Act, 1925, made by Miss Henryka Jurek who is permanently residing at 13‑A Ashchurch Park Villas London W 12 England, London, through her attorney, in the following circumstances: ‑

2. Mrs. Hideguarde Marguerite Ives died in London on 26th June, 1985. She executed her last Will and Testament on 9‑11‑1984, by which the petitioner was made the Executor and Trustee thereof.

3. The deceased has left the following assets within the territorial jurisdiction of this Court "(i) Local Currency Saving Account No.1070700533201 with the Grindlays Bank, Hotel Metropole Branch in which an amount of Rs.28,862.17 was in credit balance on 1‑9‑1986. (ii) U.S.Dollar Account No.1070781843251 with the Grindlays Bank, Hotel Metropole Branch in which a credit balance of U.S. Dollars 7,046.24 was shown on 1‑9‑1986. (iii) Khas Deposit Certificates No.G 801158‑169 of the fixed value of Rs.1,20,000.

4. The petitioner applied for grant of probate of the Will which was granted to her on 25th February, 1986, by the District Probate Registrar of the High Court of Justice Bristol. Original of the Letters of Probate with the Will attached bearing exemplification by the District probate is annexed to the petition.

5. By the order dated 31‑1‑1988, a question was raised whether an executor appointed under the Will could file an application for grant of Letters of Administration through his attorney.

6. I have heard Mr. Ahsan Zahir Rizvi, learned counsel for the petitioner and Mr. Qadir Hussain Sayeed, learned counsel for the next‑of‑kin on this point.

7. At the very outset, I may record that Mr. Qadir Hussain Sayeed stated that he has no objection to the grant of Letters of 14 Administration and that he withdraws the objections filed by him on 30‑9‑1987.

8. On the question, Mr. Qadir Hussain Sayeed submitted that the application for Letters of Administration with the authenticated copy of Will anexed could be made by the Attorney of the absent executor under section 228 of the Succession Act. In support, he relied or a Single Bench, decision of this Court in the matter of Sir Roger Thomas (P L D 1962 (W.P) Karachi 744). He also referred to a Division bench case of Wilfrid Hazell Sell (AIR 1940 Madras 680,, and a Full Bench decision of Allahabad High Court in the case of Adwait Nath Sil (AIR (35) 1948 Allahabad 351).

9. Additionally, Mr. Ahsan Zahir Rizvi referred me to the following cases in support of the same submission and added that the Letters of Administration could be granted to the Attorney of the executor without any security and in support he referred me to the provisions of section 241 of the Succession Act and in support relied on the following cases, namely, (1) Charles Gardner (AIR (36) 1949 Calcutta 560), (2) Laurence Claude Levack (AIR 1954 Madras 898), and another decision of this Court in the case of His Eminence Cardinal Joseph Cordoiro (1985 C L C (Karachi) 2202).

10. Before proceeding further, it would be convenient if I may here quote the provisions of sections 228 and 241 of the Succession Act, which read as follows:‑ "

228. ADMINISTRATION, WITH COPY ANNEXED, OF AUTHENTICATED COPY OF WILL PROVED ABROAD.‑‑When a will has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the Province, whether within or beyond the limits of Pakistan, and a properly authenticated copy of the Will is produced, letters of administration may be granted with a copy of such copy annexed.: 11241. ADMINISTRATION, WITH WILL ANNEXED, TO ATTORNEY OF ABSENT EXECUTOR. 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."

11. It is now well settled that when a will has been proved in a, foreign country, say England, as in this case, Letters of Administration with a copy of the authenticated copy of the will annexed may be A granted to the attorney of absent executor, However, the further question is whether it can be granted under section 241 of the Succession Act or under section 228 of the Act. But, if it is granted under section 241 of the Act to the attorney then the person to whom the Letters of Administration is granted does not have to execute an administration bond with one or ,,ore sureties in accordance with the provisions of' section 291 of the Act which requires execution of the bond with one or more sureties. The practice in Bombay, Calcutta and Madras High Courts was to apply section 241 of the Act.

12. So far this Court is concerned, the question came up for consideration in the case of Sir Roger Thomas before Mr. Justice Inamullah (as he then was) who, realizing the difficulty with regard to provisions of sections 228 and 241 of the Act observed as follows‑‑ "It is apparent that there is some difficulty in the application of either section to the case before me. Section 22B does not make provision for the grant of administration to an agent or attorney, while section 241 assumes production by the attorney of the original will. The two sections are in my opinion intended to apply in very different circumstances, the former where the Will has been proved and the latter where it has not been proved at all. The Court while acting under section 228 would grant Letters of Administration without further proof of the Will, while under section 241 the Will has to be proved. Looking at the scheme of the Act it seems that section 228 of the Act is more appropriate to apply. Section 228 applies in all respects to the circumstances of the present case except this that it does not state that the attorney of the absent executor can apply for Letters of Administration. On the other hand, there is nothing in section 228 to forbid the attorney of an absent executor to apply for Letters of Administration. On the other hand, section 241 of the Act clearly cannot apply because it states that Letters of Administration with the Will annexed may be granted. In the present case, probate has already been granted of the Will."

13. Before the learned Judge the case of Wilfrid Hazell Sell (supra) was cited and dealing with this case, Mr. Inamullah, J., stated as follows: ‑ "A perusal of that case would show that the learned Judges relied more upon the uniform practice of the Court rather than the language of section 241 of the Act. Krishnaswami Ayyanger, J., who formed the Bench with Sir Lionel Leach observed as under:‑ "I have come to the same conclusion but not without hesitation. But for the uniform practice of this Court and of the Bombay and Calcutta High Courts I should have been inclined to agree with the opinion of Somayya, J. , which is the same as the opinion expressed by the Allahabad High Court. I do not feel that the language of section 241 is sufficiently clear to set aside this long practice more specially when a strict interpretation is likely to lead to this result namely that there would be no provision in the Act for an agent of an executor in a foreign country to apply for Letters of Administration in this ‑country in circumstances similar to those present in this case. With great respect to the views of Ayanger, J. , my opinion is that it is not correct to say that there is no provision in the Act for an agent of an executor in a foreign country to apply for Letters of Administration in this country in circumstances similar to the preset)t case. There is nothing in section 228 of the Act to debar an attorney of the absent executor to apply for Letters of Administration with a copy of the authenticated copy of the Will annexed."

14. The learned Judge, however, followed the Full Bench case of Allahabad High Court in Adwait Nath Sil (AIR (35) 1948 All 351) wherein the Full Bench considered the above referred case of Wilfrid Hazell Sell of Madras High Court and Mootham, J. , while delivering the main opinion of the Court observed as follows:‑ "It is apparent that there is some difficulty in the application of either section to the case which we have to consider, for section 228 does not make provision for the grant of administration to an agent or attorney, and section 241 assumes production by the attorney of the original Will; but looking at the scheme of the Act it appears to me that if either section is applicable the more appropriate is section

228. The two sections are in my opinion intended to apply in very different circumstances, the former where the Will has been proved abroad and the latter where it has not been proved at all; and accordingly a Court in India will, when acting under section 228, grant administration without further proof of the Will, whereas on a petition under section 241 the Will has to be established and its authenticity may be disputed."

15. Distinguishing the case of Madras High Court it was held that the decision was in part based on admission by the counsel that section 228 did not permit an application being made by an agent and further it was based on practice as was pointed out by Lionel Leach, C.J. I may hereinbelow quote further observations of Mootham, J:‑ "Sir Lionel Leach C.J. pointed out that since 1865 it had been the practice of the Madras High Court in such circumstances to grant letters of administration with a copy of the Will annexed without requiring security to be furnished, and Krishnaswami Ayanger J. , stated that but for the uniform practice of the ,Court he would have ' been inclined to agree with the opinion of Somayya, J. , from whose decision the appeal had been filed, and of this Court in 1905 A.W.N.251, In the goods of William Ashton, that the appropriate section was section

228. In view however of the long‑standing practice of the Court and in the absence, in the view of the Court, of any other appropriate section, the conclusion was reached that the grant should issue under section 241.

16. Dealing with the provisions of section 241 of the Act, the learned Judge (Mootham, J.) observed:‑ "The provisions of section 241 were not in my opinion, intended to apply, nor are they appropriate, to the case in which a grant of probate has already been obtained in another Court. The section which is applicable in such cases is section 228; and in the absence therefrom of any provision to the contrary I am of opinion that under that section the Court may grant letters of administration, with a copy of the authenticated copy of the Will annexed, to the agent or attorney of he executor, and I would answer the question propounded accordingly.

17. The question again came up before Madras High Court before a Full Bench thereof in Laurence Claude Levack (supra) and the learned Judges of the Full Bench preferred to follow the decision in Wilfrid Hazell Sell (supra) which affirmed a long‑standing practice of their Court extending very nearly to a century‑ and observed as follows: "In our opinion sections 228 and 241 should not be read as if they provided for separate circumstances and they were mutually exclusive. On the other hand, we think that in a proper case they could be read together. It is true that the objects of these two sections differ. The real object of section 228 is to dispense with the production of the original Will and proof thereof for a very good reason, viz. , that it had already been proved and had been deposited in a Court of competent jurisdiction. The real object of section 241 is to dispense with an application by the executor himself when he is absent from the province in which the application is made. We do not see why both these sections cannot apply to a case where (1) the Will has been proved and deposited in a Court of competent jurisdiction, and (2) the executor is absent from the province in which the application is made. In such a case section 228 would dispense with production and proof of the Will and section 241 would enable an attorney of the executor to make the application. If the attorney of the executor applies in a case where the Will has not been proved before, then his application would come only under section 241, and the applicant will have to produce and prove the Will.

18. It is again clear from this case that the decisions of Madras High Court are based on long practice which also prevailed in Calcutta and Bombay High Courts.

19. In the case of Charles Gardner (AIR (36) 1949 Calcutta 560) cited by Mr. Ahsan Zahir Rizvi, learned counsel for the petitioner, the learned Single Judge of Calcutta High Court, namely, Das; J. , had rejected the application made by Charles Gardner for an order that the Letters of Administration with a copy of the Will annexed to the properties, and credits of the deceased, Sidney Thomas Mathison, do issue to the said Charles Gardner as attorney until the Lloyds Bank Limited shall apply for probate of the said Will and that such letters of administration be limited to the Province of Bengal.

20. Das, J. rejected the application on the ground that for every grant of letters of administration with a copy of the Will annexed the original Will must be produced and proved, that the essential pre‑requisite of a grant of letters of administration is the production and proof of the original Will and that the procedural requirements of section 276 of Succession Act, namely, that the original Will must be produced and proved, must be complied with.

21. On an appeal, Derbyshire, C.J. , sitting with another learned Judge based his opinion on long practice. In paragraph (9) he observed: "That practice in 1875 was of some standing. Apparently it was made under the provisions of the two sections of the Succession Act of 1865 to which I have referred. That practice was certainly in existence in 1912 because there was a case in this Court before Fletcher J., In the Goods of William Renni, 40 Cal. 74: (18 IC 907) where an application was made for letters of administration on a power of attorney granted, and refused because the power of attorney did not justify a grant of letters of administration. In the course of his judgment Fletcher J. , said: "In British India the practice differs from that of other parts of the British Empire. In other parts of the British Empire the Colonial Probates Act applies and the practice is not to make a grant of letters of administration with copy of the Will annexed, but to send an exemplification of the probate granted in any part of the United Kingdom and this exemplification is resealed by the Court to which it is sent. The matter is of great convenience. It saves all the trouble of getting administration with Will‑ annexed and of obtaining sureties in the different colonies and dependencies of the Crown. That practice and Act have not been extended to British India and the practice here is to require administration with Will annexed to the estate of a deceased British subject who left property here. " In paragraph (10) of the judgment, the learned Judge further observed: "In my view there has been no change in the law from 1875 which has altered the law with regard to grants of letters of administration in cases like the present. lit my view section 228 stands apart from the other sections relating to grants of ,letters of administration and read with section 241 provides, for the present case."

22. Last case cited and to be considered is that of a learned single Judge of this Court, namely, His Eminence Cardinal Joseph Cordoiro (supra), but in this case the learned Judge held that the facts disclosed in the application did not attract the provisions of section 228 or 241 inasmuch as no Will had been proved in another Court as envisaged by section 228 or that no attorney for executor absent from the province has filed application for limited duration. This case is, therefore, not relevant.

23. Now, the question is whether I should follow the views taken by Madras, Calcutta and Bombay High Courts or the view taken by the Full Bench of Allahabad High Court which has been followed by Mr. Justice Inamullah in the case mentioned herein before.

24. Since, the views of Madras, Calcutta and Bombay High Courts are based on long practice while the view of Allahabad High Court is based on consideration and interpretation of the relevant provisions, I prefer to follow the Allahabad Court's view, more so when it has been followed by a learned single Judge of this Court as long back as 1962, and accordingly, grant Letters of Administration prayed for. The Letters of Administration as prayed will be issued to the attorney of the absent executor on compliance of the rules as to execution of bond and furnishing sureties as would have been done B if the executor had himself applied for the Letters of Administration in accordance with the provisions of section 276 read with section 291 of the Act. M.B. A /M‑389/K Order accordingly.