1880

In re GRISH

CHUNDER

MITTER.

In the other case, in which a grant was made of letters of administration, as under an intestacy, of the property and credits of a deceased Hindu, limited for the purpose of collecting the rent of a house, it was held, that although the administrator was precluded from dealing with the property in any other way than Statement. simply to receive the rent, still the administration was in respect of the property.

So far I have considered this question without reference to the Hindu Wills Act (XXI of 1870), and which Mr. Justice KENNEDY seems to consider to have no bearing on the general grants of administration made by the High Courts. With this view also I am unable to agree. The Hindu Wills Act, in its preamble, refers to the expediency of providing rules for the execution, attestation, revival, interpretation and probates of the wills of Hindus, and by section 3 it says that "nothing herein contained shall affect any law of intestate succession." As to the preamble it must be borne in mind that it is no part of the Act, and where the terms of the executing clause are clear and positive, the preamble cannot be resorted to. It is nothing unusual for the enactment to go beyond the preamble-Dwarries on Statutes, p. 655. Then the question arises, does section 3 do away with the provisions of section 179 of the Succession Act, so that the Act cannot be considered applicable to a case of intestacy? The words "intestate succession" can be argued as meaning the rights of parties beneficially interested in the property of an intestate, and such rights, the Act says, cannot be affected. To contend that the Hindu Wills Act in no way applies to cases of intestacy, is to do violence to its language. For instance, in section 191 the word "intestate" must be read as "testate," and "administrator" in section 179 as administrator with the will annexed. Chapter XXXI of the Succession Act, as restricted by the Hindu Wills Act, empowers the District Courts to grant either probates or letters of administration with a copy of the will annexed only, but this provision does not cut down the power of the High Court to grant general letters under the charter,although in Hindu cases administration is not in the first instance necessary in cases of intestacy (on this point see Moharanee Essadah Bye vs. E. I. C., Taylor and Bell 290; Lall Chand Ramdayal vs. Gumtibae, 8 Bombay O. C. J, 140, which was before Act XXI of 1870 came into force; Lallubhai Bapubhai vs. Mankuvarbai, I. L. R., 2 Bombay, 407; Jogendro Narain Deb vs. Temple, 2 Ind. Jur. N. S., 234). Still if once a grant is made by a High Court, then by section 179 of the Succession Act, incorporated into the Hindu Wills Act, the whole property of the deceased vests in the administrator as such. See Brojanath Dey Sircar vs. Anandamoyi Dossee, 8 B. L. R., p. 220. The Hindu Wills Act does not limit this section to administrators with a copy of the will annexed, nor to cases coming under that Act, and it seems to me to contain

1880

In re GRISH CHUNDER

It thus appears from these cases and the others which have been cited, that in the case of Hindus there is no distinction between moveable property and immoveable property; that both are equally liable to debts; that both pass to the administrator, Statement. and that letters of administration may even be granted limited to immoveable property.

MITTER.

Further, it should be pointed out that in every case, whether European or Native, the grant of letters of administration following the terms of section 255 of the Indiau Succession Acts, is of "the property and credits," and not, as formerly, of "the goods, chattels, credits, and effects." Section 22 of the Charter, 14 Geo. III,-Belchambers's Rules and Orders, p. 11. a general statement of the law on the point. Section 191 also, embodied in the Hindu Wills Act, declares that the administrator is entitled to all rights of the "intestate" as from the death. Now as in case of intestacy there can only be a general grant. It seems to me that the Hindu Wills Act does contemplate such a grant being made, although perhaps not by the District Courts, otherwise the word "intestate" has no meaning. Therefore I think, no matter how things stood before the Hindu Wills Act, that that Act puts the question beyond doubt, and that landed property passes to the administrator under grants from the High Court, with reference to letters of administration granted to the Administrator-General in Hindu estates. Section 17 of Act II of 1874 gives the High Court power to direct that official to apply for letters of administration in case danger is to be apprehended of the misappropriation, deterioration, or waste of assets, which are defined to include immoveable as well as moveable property. In such a case it might happen that the only asset was immoveable property, say, a house tumbling down or about to be sold for ground rent. Although the Court would have power to direct the Administrator-General to apply for a grant of administration in respect of it, yet, if Mr. Justice KENNEDY is right, this property would not pass into his charge under the grant made by the same Court which enabled him to apply for it. Such a thing seems absurd, and certainly I would maintain that Mr. Justice KEMNEDY's decision cannot apply to the Administrator-General acting under section 17 of Act II of 1874. As to the powers of the Administrator-General acting under this section, see 8 Bom., 140. The Administrator-General was to put in motion in Buttokisto Dass' estate under section 17, and bearing in mind the limited power of an administrator in Hindu estates, I thought it advisable to get the order of Court to enable me to sell. As to the powers of such an administrator, see Bourke's report, Pt. 11, p. 38; 2 B. L. R., O. C., 1; 8 Bom., 140; I. L. R., 3 Bom., 407; Moore's Ind. App, 579, 308.

1880

In re

GRISH

MITTER.

The bond, too, as now given by an administrator under section 256 of the Succession Act, is for "the collection, getting in and administering the estate." See form of administration bond adopt- CHUNDER ed under section 256, Belchambers's Rules and Orders, p. 469. This important alteration in the form of letters of adminis- Statement. tration and of the administration bond, was made under rule 65, Belchambers's Rules and Orders, p. 89, which was passed under the provisions of section 37 of the Letters Patent, 1865.

Whatever may be the legal effect of letters of administration, granted as under an intestacy in native estates, it is clear that in the form in which they are now granted they purport to be in respect of the entire estate so long as they are granted in this form, without any limitation. No part of the estate can properly be exempted from the ad valorem fee leviable under the Court Fees Act, schedule 1, clause 12.

As to the necessity for obtaining probates or letters of administration, and the effect thereof, see sections 2 and 18 of Act XXVII of 1860.

The reference was heard by GARTH, C.J., and PONTIFEX and MORRIS, J. J.

Paul (Advocate-General) appeared for the Government.

Piffard, who appeared for the estate, referred to the case of In the goods of Hewson, in 4 C. L. R., 42, and In the goods of Ram Chund Seal, 4 C. L. R., 290, in which latter case it had been held by PONTIFEX, J., that if Hindus take out letters of administration at all they must take out general letters. As the weight of authority seemed against him, he left the matter in the hands of the Court.

The judgment of the Court (1) was as follows:

We think it quite clear that in this case, and, as a rule, in all cases, general letters of administration of a Hindu's estate must be taken out for the immoveable as well as the moveable property, and that duty must be paid upon the value of the whole. Limited administration can only be granted under special circumstances.

(1) Garth, C.J., PONTIFEX and MORRIS, J.J.

1880

In re GRISH CHUNDER MITTER.

The real point in the case decided by Mr. Justice KENNEDY in the case of Kadumbinee Dossee vs. Koylash Kaminee Dossee and others, I. L. R., 2 Cal., p. 430, is beside the present question; and the opinion there expressed by the learned Judge seems Judgment. not to have been necessary for the purposes of his decision.

END OF VOL. VII.

The mode of citation of volumes of the CALCUTTA LAW REPORTS will be as follows:-

1 C. L. R., 100.

INDEX.

Account in Foreclosure and Redemp-Act-continued.
tion Suits, Withdrawal from. See

XX of 1865, section 13-Act XVIII of
the matter of OODOY CHUEN MITTER, I. L. R., 1879-Muktear. Appearing" and Acting"
as.] The plaintiff, who had not been admitted
or enrolled as a mukteur, was employed by the
defendant for the purpose of looking after á
regular appeal preferred by him, and also of