1985 PLP 2202 (CLC)

This is a Misc. Application under section 151, C.P.C. made by the applicant in probate proceedings. The probate was granted on 27-1-1985 by the Honourable Chief Justice to be issued to the applicant in accordance with rules. The office demanded from the applicant administration bond with two sureties. The applicant thereupon has made the above application that he being Christian was exempted from furnishing any bond of security.

2. The Honourable Chief Justice while entertaining the said application observed as follows:- "The point involved is likely to be raised in many cases. In these circumstances, I issue notice to Attorney-General to appear and assist the Court in deciding the following question:- Whether a Court while issuing probate in respect of the deceased Christian and in favour of the living Christian can demand security from the person in whose favour probate is granted."

3. I have heard Mr. G. A. Raymond, learned counsel for the applicant and Mr. Liaquat Merchant, Deputy Attorney-General, on Court notice.

4. The only point for consideration is whether the applicant who is a Christian can be called upon to furnish a bond with two sureties for the probate granted to him on 27-1-1985 in respect of Will, dated 23-11-1980 of a Christian. On perusal of the office note it appears that in S.M.A. No. 66/83 the learned Chief Justice on an application under section 151, C.P.C. for exemption from furnishing bond with two sureties ordered that the applicant will only submit his personal bond whereas in S.M.A. No. 89/83 Mr. Justice Ajmal Mian ordered that the applicant will furnish one surety instead of two sureties or furnish the bungalow in question as security in terms of rule 400 with personal bond. Mr. G.A. Raymond submits that the above-said orders were passed by the learned Chief Justice and the learned Single Judge of this Court without considering any of the provisions of the Succession Act, 1925 or the case-law on the point. His submission was that the applicant being Christian stood exempted under section 291 from furnishing any bond. The section reads as under:- (1) "Every person to whom any grant of letters of administration, other than a grant under section 241, is committed, shall give a bond to the District Judge with one or more surety or sureties, engaging for the due collection, getting in, and administering the estate of the deceased, which bond shall be in such form as the Judge may, by general or special order, direct. (2) When the deceased was a Hindu, Muslim, Buddhist, Sikh or Jaina or an exempted person:- (a) the exemption made by subsection (1) in respect of a grant under section 241 shall not operate; (b) the District Judge may demand a like bond from any person to whom probate is granted."

5. Section 291(1) as quoted above envisages the grant of letters of administration on furnishing sureties in cases other than falling under section 241 of the Act, whereas clause (a) of subsection (2) of the said section provides that in cases where the deceased was a Hindu, Sikh, Buddist, Muslim or Jaina, the Letters of Administration shall be issued on furnishing sureties. Therefore, according to the contention of Mr. Raymond Christians not having been mentioned in section 291(2)(a), the applicant stood exempt from furnishing the surety bond. He also referred to sections 228 and 241 of the Act and submitted that under section 228 the Court grants Letters of Administration without further proof of Will, whereas under section 241 the Will has to be proved.

6. Section 228 is found in Chapter I of Part IX of the Act .which contains general provisions regarding the grant of probate and Letters of Administrations and it provides that :- "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."

7. Section 241 forms part of Chapter II which makes provision for limited grants and it provides that:- "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."

8. In support of his contention Mr. Raymond relied on the following cases:- (1) Rev. L.T. Dineen v. Emperor A I R 1938 Lah. 151. (2) In the matter of Sir Rogerthomas P L D 1962 Kar. 744. (3) Edward Waston Caleston v. Mrs. Theresa Chitty and others AIR 1934 All. 1053. (4) Adwait Nath Sil Petitioner In the Goods of Alexander James Milne late of Aberdean. Scotland A I R 1948 All. 351 (5) In the matter of Goods' of Edward Carmichael McCankie. In re-Wilfrid Hazel Sell A I R 1940 Mad. 680.

9. In the first above-named case A I R 1938 Lah. 151 facts were that on an application for the grant of probate of the estate of the deceased Christian, the original Court granted the probate for which it called upon the petitioner to pay probate duty, required an inventory and accounts to be filed, and added a clause that the petitioner should furnish security. On appeal it was held that as the deceased was a Christian, security should not be demanded under section 291 and there was no other section under which the Court had power to demand a bond.

10. In the second case, P L D 1962 Kar. 744 Sir Roger Thomas, a Christian died on 19th of September, 1960, having made a will in respect of which probate was granted on 28th June, 1961 by the High Court of Justice in the District Probate Registry at Carmarthen. Later on, an application was filed in the erstwhile High Court of West Pakistan Karachi Bench by Mr. R.F. Spickerell who held a power-of-attorney on behalf of the executor of the will who was absent from the province for the grant of probate for him. The question arose whether a will having been proved in England, letters of administration would be granted to the attorney of the absent executor under section 228 of the Succession Act or under section 241 of the said Act. It was, then, held that in the circumstances of that case grant of letters of administra tion with an authenticated copy of the will annexed was to be made to the attorney of the absent executor under section 228 of the Act, on condition that he executes a bond as required by section 291 of the Act.

11. The third case A I R 1934 All. 1053 appears to be entirely on a different point and is of no application at all to the facts of the instant case.

12. In the fourth case A I R 1948 All. 351 a Full Bench Judgment, one Alexander James Milne died in Scotland on 6th April, 1947 leaving property both in India and in the United Kingdom. By his Will dated 29-3-1946 he appointed one Allan Hay his executor, who obtained confirmation of the will in the Sheriff Court Aberdeen, Kincardine and Banff at Aberdeen, on 13th June 1947. The executor then appointed Adwaita Nath Sil, as his attorney for the purpose of applying to the proper Court in India for letters of Administration with an authenticated copy of the will annexed. The said attorney applied to the Allahabad High Court for a grant. The question arose as to which of the two sections namely section 228 or 241 of the Act was applicable. It was held that it was section 228 which applied in that case.

13. In the fifth case A I R 1940 Mad. 680 one Edward Carmichael McCankie, possessed of property in India, died in England leaving a will by which he appointed a person to be his executor who, after obtaining probate of the will in England, executed a power-of-attorney in favour of person in India to enable him to apply as his agent. It was held that the said agent was entitled to the letters of administration on an application under section 241 with a copy of will annexed. It was further held that furnishing of security was not a condition precedent to the granting of probate as section 228 in such a case had no application.

14. As would appear from the case-law cited above, the question of the execution of the administration bond is shown to be linked with the consideration whether the application made for the grant of probate falls within the purview of section 228 or section 241, for, the Court if acting under section 228 grants the administration, the execution of the bond with surety will be necessary whereas if the grant of administration is made under section 241 of the Act no bond shall be necessary if the deceased was a Christian. A comparative study of section 228 and section 241, makes it clear that section 228 does not make provision for the grant of administration to an agent or attorney, while section 241 assumes production of the original will by the attorney. Furthermore, section 228 applies to a case where the will has already been proved in the Court of competent jurisdiction situated beyond the] limits of the province, whether within or beyond the limits of Pakistan, whereas in a case under section 241 the will has not been proved at all. Under section 228 it is only an authenticated copy of the will which is produced and the letters of administration is granted with a copy annexed without further proof of the will, whereas under section 241 original will is to be produced and has to be proved.

15. Section 291 of the Act, which falls within the Chapter IV provides that:- (1) "Every person to whom any grant of letters of administration, other than a grant under section 241, is committed, shall give a bond to the District Judge with one or more surety or sureties, engaging for the due collection, getting in, and administering the estate of the deceased, which bond shall be in such form as the Judge may, by general or special order, direct. (2) When the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person; (a) the exemption made by subsection (1) in respect of a grant under section 241 shall not operate; (b) the District Judge may demand a like bond from any person to whom probate is granted." A plain reading of the above section makes it clear that every person to whom any grant of letters of administration has been made shall give a bond to the Court with one or more surety or sureties. The only exception applies to a case when the deceased was not a Hindu, Muslim, Buddhist, Sikh or Jaina or an 'exempted person' as provided under section 3(3) of the Act. The outcome of this excepting provision is that if the deceased was a Christian or a Parsi, the exception made by subsection (1) of section 291 will apply, if the grant of letters of administration has been made under section 241 of the Act. Section 1 241, as observed above, provides administration of estate with will annexed, to an attorney of absent executor. It thus provides for a situation that if any executor is absent from a province in which applica tion is made, and there is no executor within the Province, 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 its principals for a limited duration until he shall obtain probate or letters of administration granted to himself. In the instant case it is apparent that the application was filed under section 276 by the executor himself with the will annexed, which having been proved, a grant of probate was made in favour of the applicant. The circumstances of the present case, as would appear from the facts stated in the application, do not attract the provisions of section 228 or 241 inasmuch as no will has been proved in another Court as envisaged by section 228 or that no attorney for the executor absent from the Province has filed the present application for a limited duration. The instant case would thus neither fall under section 228 nor under section 241, so as to attract the provisions of section 291(1)(2)(a) of the Act and therefore, the decision as reported in P L D 1962 Kar. 744, A I R 1948 All. 351 and A I R 1940 Mad. 680 are not applicable to the facts of the present case.

16. However, it is not correct to say, as submitted by Mr. Raymond,' that a probate granted under section 276 upon a will having been proved, in favour of the executor himself is analogous to the provisions of section 241, which aims at granting of letters of administration with the will annexed in favour of an attorney or agent of the absent executor for the use and benefit of his principals for limited duration until he has obtained probate or letters of administration granted to himself. The requirement of proving the will on an application filed under section 276 alone is not enough to attract the provisions of section 241 of the Act, as in section 276 it is also the permanent nature of the probate with unlimited duration by the executor himself, which is another factor dissimilar to the provisions of section 241 of the Act.

17. Mr. Raymond further submitted that there is no other provision in the Succession Act whereby the petitioner, as executor of the will of the deceased, can be called upon to execute a bond for the due administration of the estate of the said deceased whether with or without sureties, and in this respect he referred to the decision reported as Rev. L.T. Dineen v. Emperor A I R 1938 Lah. 151 noted above. With respect, I could not persuade myself to agree with the said judgment, for the simple reason that it neither discusses any case-law on the subject nor give any cogent reasons for the view expressed therein. It is also not clear whether the learned Judge was considering an application under section 241 or

276. It appears, reliance has been placed on section 291 with "some change under the new Act" which was "pointed out in the commentary by Mr. Sen Gupta" the relevant paragraph of which has not even been quoted.

18. However, the said commentary by Mr. Gupta being available in this Court Judges' Library I had an opportunity of looking into it. The comment under section 291 made by the learned author appearing, at page 928 of 1928 Edition, reads as under:- "This section (section 291) combines the provisions of the corresponding sections of the old, Succession Act and the Probate and Administration Act between which there were two points of difference. Under the Succession Act of 1865 no bond could be demanded of an executor, nor of the attorney of the executor where he took out administration as such under section

241. But under the probate and Administration Act the exception in favour of the attorney did not exist and even in the case of the executor the Court could in its discretion ask for an administration bond. This difference is retained in this section, so that in the case of Hindus, Muhammadans, Buddhists, Sikhs and Jainas, attorney's have to execute the bonds and executors, may be called upon to execute a bond at the discretion of the Court; in other cases bonds may not be demanded of the executor or his attorney.

19. It further reads:- "Except in case of a grant under section 241, the bond is comuplsory and cannot be dispensed with."

20. As would also appear from the said comment, in case an application is made under section 241, the Hidds, Muslims, Buddhists, Sikhs and Jainas have to execute the bonds whereas, in other cases, say, in' case of Christian or a Parsi, a bond may not be demanded, but except in case of a grant under section 241, as aforesaid, the bond is compulsoryE and cannot be dispensed with in the matter of Letters of Administration as provided in section 291(1) of the Act.

21. Mr. Liaquat Merchant learned Deputy Attorney-General, on the other hand, referred to rule 400 of the Chief Court of Sind as applicable to the original side of this Court and submitted that it was discretionary with this Court to order for the execution of a bond with two or more sureties for the amount of the value of the property for which the grant has been made by the Court. The said rule reads as under:- "Unless otherwise ordered by the Court or in non-contentious matters by the District Delegate, an administration bond or succession certificate bond shall be given with two or more sureties, approved by the Nazir, for the amount of the value of the property for which the grant is made or succession certificate issued: Provided that, if the value is under Rs. 500, one surety only may be taken."

22. Mr. Liaquat Merchant further submitted that clause (b) of subsection (2) of section 291, which is to be read independently, gives discretion to the Court to demand a bond from any person to whom probate is granted. He, however, submitted that the discretion shouldbe exercised in a reasonable and judicial manner. In this respect, he placed his reliance on a D.B. decision of Rangoon High Court reported as Zubeda Khatoon v. Muhammad Zakaria and another (1938) 74 I C 421.

23. Mr. Liaquat Merchant also submitted that the purpose of the bond is to safeguard the interest in the property, for example, in case some other person may claim an interest in the property, or the probate is found void at a future date or the estate is not managed in accordance with the probate.

24. Mr. Liaquat Merchant lastly submitted that there should be no distinction between a Christian and a non-Christian in the matter of furnishing administration bond on grant of probate.

25. Mr. Raymond, in reply, submitted that clause (2)(b) of section 291 is not to be read independently. It is to be read with clause (2)(a) which ends with a semi-colon. The idea underlying subsection (2)(a) seems to be that in respect of a grant under section 241 when the deceased was a Hindu, Muslim, Buddhist, Sikh or Jaina or an exempted person, the grantee shall give a bond with one or more sureties, engaging for the due collection, getting in and administering the asset of the deceased, whereas in the case of gaurantee, under section 241, other than a Hindu, Muslim, Buddhist, Sikh or Jaina, say Christian or a Parsi, no bond is required to be furnished. Mr. Raymond pointed out that there are a number of other provisions such as sections 4, 34, 29, 31, 57, 58, 211, 212, 213, 218, 219 and 264 which recognise and make a distinction between a Christian on the one hand and some other religious communities living in India, on the other. As the Succession Act, 1925 is a pre-independence enactment made by British Rulers of this Sub-continent, the distinction is understandable.

26. Clause (b) of subsection (2) may, however, be interpreted in two ways: if it is to be interpreted in conjunction with clause (a), as submitted by Mr. Raymond, in the cases other than a Hindu, Muslim, Buddhist, Sikh or Jaina or an exempted person, the Court may demand a like bond from such other person to whom the probate is granted. It would also include Christians and Parsis in its fold. If clause (b) is interpreted independently, as contended by Mr. Merchant, the interpretation of clause (a) would be that when the deceased was a Hindu, Muslim, Buddhist, Sikh or Jaina or an exempted person the bond for the grant of Letters of Administration shall be given by a person to whom a grant is made, and that no bond shall be required from a person other than those mentioned in clause (a). Consequently, a Christian or a Parsi or for that matter any person other than those' mentioned in clause (a) shall not be required to give any bond for a grant under section

241. Clause (b), reading independently, gives its discretionary power to the Court to demand a bond with one or morel sureties from any person, irrespective of any caste and creed to whom the probate is granted, other than under section

241. The last interpretation, seems to be more suitable to the Scheme of the Act, and acceptable to me as it is beneficial to the public at large and is of general application. I, therefore, agree with Mr. Liaquat Merchant that clause (b) is to be read independently.

27. Mr. G. Raymond lastly submitted that there is a difference between an administrator appointed by the Court to administer the assets of the deceased and an executor appointed under the will by the testator. It is true that in case of letters of administration the administrator is appointed by the Court, and the Court insists as a condition precedent to the grant of letters of administration that the administrator funishes a bond with one or more sureties, for the due collection, getting in and administering the asset or such part or portion of the asset as may be necessary in the case of grant of letters of administration. Butl it is nowhere provided that the probate in the case of a Christian is to be issued necessarily without a bond. The grant of probate with or without a bond is discretionary not only in case of a Christian but in favour of all, as provided in clause (b) of subsection (2) of section 291, referred to above. For this view I am supported by a Division Bench decision of the Calcutta High Court in Surrender Nath Pramanik v. Amrita Lal Pal Chaudhuri and others A I R 1920 Cal.

584. Though this case was decided under the provisions of old Act, but the said case is of some relevance. Let me first quote the provisions of section 78 of Probate and Administration Act, 1881 on which this decision is based. It reads as follows:- "Every person to whom any grant of letters of administration is committed, and if the Judge so direct, any person to whom probate is granted shall give a bond to the Judge of the District Court, to ensure for the benefit of the Judge for the time being, with one or more surety or sureties, 'engaging for the due collection, getting in and administering the estate of the deceased, which bond shall be in such form as the Judge from time to time by any general or special order directs."

28. It was thus observed in the said case that: "Under this provisions (section 78) the Probate Court is bound to take a bond in the case of administrators, but has a discretion in the case of executor."

29. I may also refer to a decision reported in ('47) 1947 Rangoon Law Report 307 (310) (D. B.) referred to in A I R Manual, Vol. 15, II Edition, page 197 (Foot-note) (5) which reads as under:- "The grant of probate is a judgment in rern, while the order to furnish security is a matter of discretion. The Court may under S. 291 (2)(b), dispense with security altogether. A District Court which passes an order for a grant of probate on furnishing security can vary the order for security, provided it does so in a reasonable and judicial manner."

30. In my view the rationale behind this distinction, between the grant of Letters of Administration and the probate seems to be that in matters of the grant of Letters of Administration there is no Will annexed and the Administrator is appointed by the Court, whereas in matters of Probate the Will of the deceased is annexed, appointing the Executor by the testator himself. That is why the furnishing of bond with sureties in matters of the grant of Letters of Administration is compulsory and in matters of Probate it is discretionary with the Court.

31. The probate is in the nature of administration for the purpose of administering the estate in terms of the will and for the purposes of due execution and performance of the will. I would, therefore, agree with Mr. Liaquat Merchant that to order the execution of the administra tion bond with sureties is discretionary and particularly more so in a non-contentious matter like the present one wherein all the next of kin, who are mentioned in paragraph 9 of the application, have filed affidavits waiving the notices and stating that they have no objection to the grant of the administration.

32. The real object which the Probate Court must always keep in mind is the due and proper administration of the asset of the deceased and the interest of the parties beneficially entitled thereto. The bond H is taken to ensure the due administration of the estate of the deceased.

33. For the reasons stated above, it will be proper and judicious to order the applicant who holds an exalted position of Archbishop of the Romon Catholic Church at Karachi, to execute only a personal bond, without any surety, for the due performance of the Will in respect of which probate has already been granted. I, therefore, order accordingly. The application is allowed to that extent only. H. B. T. Order accordingly,