Sarada Prasad Tej and Others vs Triguna Charan Roy

Mullick, J.—The testatrix Bhubanmani had a daughter named Annapurna, who left three sons, Sarada, Barada and Annada. The respondent Triguna is the adopted son of Bhubanmani''s husband. Annapurna died on the 21st November 1907 and Bhubanmani on the 2nd of September 1910.

On the 8th February 1901 a Will is alleged to have been made by Bhubanmani in respect of a four-anna share in Touzi No. 2456, by which she bequeathed a two-anna share to her daughter and a two-anna share to Triguna.

On the 2nd June 1912 Nityanand, the father of Sarada, Barada and Annada applied on their behalf for Letters of Administration with Will annexed in respect of the two-anna share to which Sarada, Barada and Annada were entitled as the heirs of Bhubanmani. Triguna filed a caveat, but on the 12th December 1912 a compromise is alleged to have been made between him and Nityanand in consequence of which Nityanand was allowed to take Letters of Administration in respect of an one-anna share in the property. Sarada attained majority in October 1913, Barada and Annada are still minors.

On the 21st February 1916 an application was filed by Sarada on behalf of himself and as guardian of his two minor brothers for revocation of the Letters of Administration for just cause. The learned District Judge is of opinion that no just cause has been established and that the application is not maintainable.

In our opinion the learned Judge''s order cannot be maintained. The Probate Act (V of 1881) contains no provision for giving Letters of Administration in respect of only a part of the testator''s estate. It is true that an executor who has been appointed by the testator for the administration of a particular fund is competent to take out Probate limited to that particular fund; but where there is no direction as to any particular fund and where, as in this case, the applicants apply in their capacity as heirs, I know of no provision of law which empowers the Court to refuse administration of the whole estate and to limit it to a fractional undivided portion thereof.

The learned Vakil for the respondent relies upon the principle of equitable estoppel and contends that having on behalf of him-self and his brothers taken out Letters of Administration in respect of the one-anna share, Sarada is now completely debarred from impeaching his own act. He urges that the real object of the petitioners is to go behind the compromise.

It may be that the effect of revoking the grant will be to set aside the compromise, but that is not a matter with which a Probate Court has any concern. In a Probate proceeding the Court has no concern with the devolution of the property. The only issue before it is whether the Will has been proved to be genuine and duly executed. It can record a contract or agreement made between the parties in consideration of the withdrawal of the caveator''s objection but it is wholly powerless to enforce such contract or agreement.

Here the objection was withdrawn and the Will duly proved. It became, therefore, the duty of the Court to give Probate or Letters of Administration, as the case might be, in respect of the whole property and nothing less. But the learned Vakil for the respondent contends that as Nityanand, the father of the appellants before us, him-self applied for only administration of half the property, the Court was not competent to give him administration of more. I cannot accede to this argument, If Nityanand was unwilling to administer the whole the Court should have dismissed the application altogether.

As for the principle of equitable estoppel upon which the learned Vakil for the respondent relies, it clearly cannot operate against the minors. It is true that although Nityanand got an order for Letters of Administration he did not take out the Letters himself and that it was Sarada who, on attaining majority, took out the same on behalf of himself and his brothers, It is also true that he thereafter did certain acts which warrant the inference that he ratified the limited grant, but no ratification by him can bind the minors, who are entitled to the protection of the Court when a clear illegality is proved.

It is then urged that Sarada having acted as the natural guardian of the minors, it is no longer open to them to question the grant. I fail to see the force of this argument, because it is always open to a minor to repudiate the act of his guardian if it can be shown that the act was clearly illegal. Here, in our opinion, the order of the District Judge granting Letters of Administration of only one quarter of the property was illegal and there was just cause for revocation within the meaning of Section 50 of the Probate Act. That being so, the minors through Sarada are entitled to a revocation of that order.

The learned Vakil for the appellant has drawn our attention to the case of Janakbuti Thakurain v. Gajanand Thakur 87 Ind. Cas. 12; I P.L.J. 377 : 20 C.W.N. 986 : 1P.L.W. 41, which indicates the extent to which a compromise made in a Probate proceeding is a bar to a future application to set aside the Probate. There is nothing in that decision which debars the minors here from applying for revocation of an illegal order. The order of the learned District Judge is, therefore, set aside and grant of Letters of Administration in respect of an anna share in the estate in favour of Sarada and his two minor brothers is hereby revoked and set aside.

The result of this order will be that until a fresh application is made in respect of the whole, no one will be competent to administer the estate of the testatrix. It will be open to the beneficiaries to apply either jointly or severally and upon proof of the Will to take out administration of the whole.

The appeal succeeds and is decreed with costs.

Atkinson, J.

I agree.