P L D 1962 (W (PLP)

(a) in Provinces where there is a Board of Revenue, that Board ; (b) in Provinces where there is a Revenue Commissioner, that Commissioner ; (c) in (the Punjab) the Financial Commissioner and (d) else‑where, such authority as, in relation to matters enumerated in List 1 in the Seventh Schedule to the Government of India Act, 1935, the Central Government, and in relation to other matters, the Provincial Government, may by notification in the Official Gazette appoint." Let the office send notice of the application to the Chief Cont‑IA rolling Revenue Authority for the local area of this Court.

5. In this case office has sent notices to the Collectors of Karachi and Mirpurkhas. The Collector Mirpurkhas has sent his report of no objection, while no report has been received from the Collector, Karachi. I may however mention that no notice was necessary under section 19‑H to the Collector. As the application has been made to the High Court the report of the Collector is unnecessary.

6. So far as this Court is concerned under section 19‑I of the Court Fees Act all that it has to, see is that the petitioner has filed in the Court a valuation of the property in the form set forth in the Third Schedule and the Court is satisfied that the Court‑fee mentioned in, No. 11 of the First Schedule has been paid on such valuation. The applicant has valued the property in form set forth in the Third Schedule of the Court Fees Act and has paid the Court‑fee as mentioned in No. 11 of the First Schedule of the said Act.

7. It may be that the valuation of the property put by the petitioner is under valued. It would appear to my mind from List 2 of the Application that Bungalow No. 66, Clifton, Karachi has been valued at Rs. 84,000 only. It is however for the Chief Controlling Revenue Authority to find out the correct valuation of the properties given by the petitioner so that the Government revenue does not escape. The Chief Controlling Revenue Authority under section 19‑B of the Court Fees Act where any person has estimated the estate of the deceased as of less value than it is found to be can recover the deficit Court‑fee with penalty.

8. The next important question for consideration in this case is when a will has been proved, in England, Letters of Administration with a copy of the authenticated copy of the will annexed may be granted to the attorney, of absent'' executor under section 228 of the Succession Act or under Section 241 of the said Act. After‑giving my careful consideration I. have come to the conclusion that in the circumstances of the present case a grant of Letters of Administration with a copy of the authenticated copy of the will annexed be made to the attorney of the absent executor under section 228 of the Act. The question no doubt is not free from difficulty. It has been the practice in Bombay, Calcutta and Madras High Courts to apply section 241 of the .Act in such circumstances. The importance of the application of section 241 of the Act lies in the fact that the person to whom the Letters of Administration is granted does not have to execute an administration bond with one or more sureties in accordance with the provisions of section 291 of the Act.

9. Section 228 is in Chapter 1 of part IX of the Act. That Chapter contains general provisions with regard to grant of probate or Letters of Administration. Section 241 deals with limited grant. In order to appreciate the point for decision it would be useful to reproduce these two sections. They run as under :‑ "

228. 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 His Majesty's dominions, and a properly authenticated copy of the Will is produced, letters of administration may be granted with a copy of such copy annexed.

241. 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."

10. It is apparent that there is some difficulty in the application of either section to the case before me. Section 228 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. Letters of Administration with a copy of the authenticated copy of the will has to be granted. Mr. Noor Muhammad, the learned Advocate for the petitioner, relied on a Division Bench case of Wilfred (I L R 1940 Mad. 820) where in similar circumstances they held that section 241 of the Act applied, and that it was not necessary to call upon the applicant to furnish security under section 291 of the Act. 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 inter pretation 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 Ayyanger, 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 present 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.

11. On the other hand, Mr. Noor Muhammad, the learned Advocate for the applicant, candidly placed before me the Full Bench case of Adwait Nath Sil (A I R 1948 All. 351). It has been held in that case in similar circumstances that section 228 of the Act applied and not section 241.

12. Under section 291 every person to whom a grant of Letters of Administration other than a grant under section 241 is committed shall give a bond to the Court with one or more surety or sureties engaging for the due collection, getting in, and administering the estate of the deceased. As I have held that section 241 does not apply to the circumstances of the present case, I would order that Letters of Administration with a copy of the authenticated copy of the will annexed be granted to the applicant on condition that he executes a bond as required by section 291 of the Act. A. H. Order accordingly.