Posted On by &filed under High Court, Madras High Court.

Madras High Court
Manuel Louis Kunha vs Juana Coelho And Ors. And Manuel … on 28 January, 1908
Equivalent citations: (1908) 18 MLJ 158
Author: Wallis


Wallis, J.

1. This is an appeal from the judgment of the District Judge of South Canara dismissing the appellant’s petition for grant of letters of administration of the estate of Revd. A.J. Coelho, a Roman Catholic priest, with the will annexed by which the petitioner was made residuary legatee. A caveat was put in by one of the next-of-kin alleging in effect that the testator had bequeathed the estate to the petitioner subject to certain instructions as to how the property should be disposed of and that the petitioner had fraudulently suppressed the private instructions left by the testator in order to claim the estate for himself. The second issue raised was, whether the bequest was really intended for religious and charitable purposes and the fourth, whether the will had become uncertain and incapable of execution by reason of the plaintiff having suppressed the private instructions, if any, given him by the testator. The fifth issue was, whether the will had become null and void on the above grounds and the sixth to what relief is the plaintiff entitled. On these issues the District Judge has found that the will did not really express the intentions of the testator as the plaintiff undertook to dispose of the property in other ways explained to him by the testator. This finding is contested in appeal, but is, in my opinion, borne out by the evidence. The plaintiff was the only witness on his own side and his evidence is unsatisfactory and in some important matters is at variance with the evidence previously given by him in a suit relating to the same matter. On the other hand I see no reason for refusing to accept the evidence given by the two witnesses for the defence, the Revd. M.P. Collaco, another priest, and S.B. Mascarenhas who is translator to the District Court and had been educated and started in life by the deceased. According to the last witness the decision of the testator to leave his money to some one with private instructions as to how it was to be disposed of was arrived at after the decision of the High Court against the legality of bequests for Masses. This was Colgan v. Administrator-General of Madras (1892) I.L.R. 15 M. 424, decided in March 1892. The will in the plaintiff’s favour is dated the 8th October 1894 and the testator died on the 7th February 1901. The petition for letters of administration which has become the plaint in this suit was not filed until the nth October 1904 after a suit had been filed against the plaintiff to compel him to give effect to the alleged secret trusts of the will Although the defence evidence points to the plaintiff having been informed from the first of the intention of the testator in making this will in his favour, yet there is no direct evidence that he was so informed. But assuming that he was not so informed at the time when the will was executed, there is evidence that he was informed subsequently during the lifetime of the testator and that his conduct was such as to lead the testator to believe that he was prepared to carry out the instructions communicated to him by the testator. The Revd. M.P. Collaco who attested the will states that he was aware from the first of the testator’s intention that, the property should be disposed of according to his instructions, and that in August 1895 when the testator was ill the plaintiff told the witness that the instructions had not been completed – this shows that he was then aware of the testator’s intentions – and that the witness in the plaintiff’s presence took certain instructions and made a memorandum of them in his note-book, Exhibit II, but did nothing further as Mascarenhas, the defence second witness, arrived and the matter was left in his hands. Mascarenhas says that he spoke to the plaintiff about these instructions, that subsequently at the testator’s request he took down his instructions in Canarese and communicated them to the plaintiff who was put in possession of the written instructions.

2. In this state of the evidence the rule of English Law is clear. To borrow the language of Lord Westbury in McCormic v. Grogan (1869) 4 E. & I.A. p. 82 at 97: “If an individual on his death-bed, or at any other time, is persuaded by his heir-at-law, or his next-of-kin, to abstain from making a will, or if the same individual, having made a will, communicates the disposition to the person on the face of the will benefitted by that disposition, but at the same time says to that individual that he has a purpose to answer which he has not expressed in the will, but which he relies on the disponee to carry into effect and the disponee assents to it either expressly or by any mode of action which the disponee knows must give the testator the impression and belief that he fully assents to the request, then undoubtedly the heir-at-law in the one case and the disponee in the other will be converted into trustees simply on the ground that an individual shall not be benefited by his own personal fraud.” As explained in the same judgment a Court of Equity in order to prevent the Statute of Wills from being made an instrument of fraud does not indeed set aside the statute bit fastens on the individual who gets a title under it and imposes on him a personal obligation because he is seeking to apply the statute as an instrument for accomplishing a fraud. The important question we have to decide is whether this rule of equity is applicable in India. There is no direct authority, and in the only case in which it was raised so far as I know, Kali Charan Ghosal v. Ramchendra Mandal (1903) I.L.R. 30 C. 783, it was unnecessary to decide it. It has been contended for the appellant that it is not applicable, and the decisions in Balkishen Das v. W.F. Legge (1899) I.L.R. 22 A. 149; (P.C.) and in Kurri Veerareddi v. Kurri Bapireddi (1906) I.L.R. 29 M. 336 (F.B.) have been relied on. In the former of these cases it was held by the Privy Council that oral evidence was inadmissible to show that the parties to a deed of sale really intended to create a mortgage, as the case must be governed by Section 92 of the Indian Evidence Act and not by the cases decided by the Courts of Equity in England which have no application to the law of India as laid down in Acts of the Indian Legislature. The law of trusts in India is regulated by the provisions of the Indian Trusts Act, 1882, and the case now before us must, no doubt, be determined with reference to the provisions of that enactment. On behalf of the respondents who are the next-of-kin it has been argued that the provisions of Section 81 apply. That section provides that when the owner of property transfers or bequeaths it and it cannot be inferred consistently with the attendant circumstances that he intended to dispose of the beneficial interest, the legatee must hold the property for the benefit of the legal representative of the testator. If this section applied, the Indian legislature would have departed by the English rules of equity and created a resulting trust in the circumstances of the present case instead of enforcing the trusts accepted by the legatee in so far as they are for lawful purposes on the principles explained by Lord Westbury in the passage above cited and in numerous other cases. I am, however, of opinion that the present case does not come within the provisions of Section 81, and, on the other hand, I think that elsewhere in the Act we have statutory authority for applying the principles laid down in the English cases Section 5 which provides that no trust is valid unless declared in the manner therein provided is subject to the proviso that the rules therein contained do not apply where they would operate so as to effectuate a fraud. This is exactly the principle upon which the English cases have been decided and warrants the Courts in this country in imposing upon an heir or a beneficiary under a will who has induced the deceased not to make a will or not to revoke a will already made by assurances that he would carry out the instructions given him in trust for the carrying out of such instructions. Otherwise the provisions of Section 5 would operate so as to effectuate a fraud That this was intended to be the effect of the proviso is further shown by the fact that in Chapter IX the Act provides for the case in which instructions accepted by the legatee are unlawful and therefore cannot be enforced, but it would be inequitable to allow the legatee to enjoy the beneficial interest by creating in such case a resulting trust in favour of the testator’s legal representative. See Section 85 which provides that where during the testator’s life-time the legatee agrees with him to apply the property for an unlawful purpose the legatee must hold the property for the benefit of the testator’s legal representative. The section also provides that where property is bequeathed and the revocation of the bequest is prevented by coercion, the legatee must hold the property for the benefit of the testator’s legal representative.

3. It is, in my opinion, obvious that the case of the legatee pre, venting revocation by undertaking to carry out the lawful instructions of the testator was considered by the framers of the Act to have been dealt with elsewhere in the Act, that is to say, under the proviso to S5 which permits of such instructions being enforced as a trust, and as a further application of the same principles I should say that if the testator failed to give any instructions or such instructions could not be ascertained, the beneficiary would be compelled to hold for the benefit of his legal representatives. I may say further that if cases such as the present come within the proviso to Section 5 which embodies the English equitable rule, it follows that they cannot come within Section 81, and even if there were no such proviso, I do not think the language of Section 81 would cover them.

4. For the appellant it is argued that even on this view of the law he is entitled to administration because the testator’s instructions as spoken to by the defence witnesses shew that the testator intended him to benefit to some extent. Even if this is so his conduct in denying the instructions and taking possession of the whole estate for his own benefit has been such as to make it improper to grant him administration, and on this ground, I think, his appeal must be dismissed.

5. We, of course, decide nothing as to the right of other persons claiming to be entitled to apply for a grant of letters of administration, or as to a suit for administration of the estate by the Court itself. In the result, the appeal is dismissed with costs.

Sankaran Nair, J.

6. This is an appeal from the decree of the District Judge of South Canara dismissing an application under the Indian Succession Act for letters of administration.

7. The Rev. A.J. Coelho, Vicar of the Church of Buntwal, by his will, Exhibit I, dated the 8th of October 1894, gave all his property, moveable and immoveable, to the petitioner-appellant, Manuel Louis Kunha, Sexton of that Church “to have them, possess and enjoy as his own things.” After the testator’s death on the 7th February 1901, Louis Kunha applied, on the nth October 1904, for letters of administration with the will annexed as the sole legatee under the will, the executors being dead.

8. This application was opposed by the brother and nephew of the testator.

9. They stated by their answer that the testator’s desire was to leave the bulk of his property to the Church, but as he feared a will leaving property to the Church for Masses for his soul might be declared invalid, he left all to the plaintiff Louis Kunha, with private instructions giving pecuniary legacies to certain parties and the bulk of the property to the Church.

10. The Judge has found that there is clear and definite evidence that while the testator intended something for the legatee and certain other persons he intended the bulk for the Church and that these private instructions left by the testator have been suppressed by the appellant. He held accordingly that the will is null and void and incapable of execution and therefore rejected the appellant’s claim.

11. The appellant’s pleader contends the evidence does not support the conclusions of the lower Court.

12. Father Collaco, now Vicar of Cordel Church, formerly Assistant priest at Buntwal under the testator and an attesting witness deposes that the testator was under the impression that a bequest to the Church for saying Masses would be invalid and, therefore, was anxious to leave the property to some person who would carry out his instructions; that the testator even thought of making his will in favour of this witness but abandoned that idea on account of the contingency of his transfer and finally executed the will in favour of the appellant. The witness himself made notes of these instructions which were given some time after, in the presence of the appellant in his diary, a copy of which was forwarded to the Bishop on the testator’s death. The second witness, Mascarenhas, translator of the District Court also deposes that he wrote a will for the deceased in Canarese leaving to the Church all his property, and out of the interest thereof Masses were to be said for his own soul, and doubting the legality of that will, after a decision of the Madras High Court, he executed this will in favour of the appellant, leaving private instructions in the handwriting of this witness in Canarese as to how the property was to be disposed of. This paper was with the appellant. These instructions according to the witness were also communicated to the executor, Father Patrao, who was the brother-in-law of this witness. I see no reason to distrust the evidence of these witnesses whom the. Judge has believed. It is pointed out that the notice of the first witness and the instructions given to the second witness, so far as he is able to remember them, do not agree in many respects, and that the witnesses are interested as valuable property is left to the Church and a darkhast land to the second witness. These reasons are not of sufficient weight for rejecting their evidence. The probability is, as the Judge has pointed out, in favour of its truth. According to this evidence the bulk of the property was left to the Church. What the appellant was to get is not clear. The first witness states it was to be Rs. 500. The second witness states that, a thousand rupees and a house and compound were left to him according to the written instructions. The house and compound were afterwards given to the Church, and, in lieu thereof, the legacy to the appellant was increased to two thousand and another thousand was given to his son-in-law.

13. This is the extent of the appellant’s interest in the property of the testator according to the secret instructions which he has suppressed.

14. By Section 50 of the Indian Succession Act all wills must be signed by the testator or by some person in his presence, and by his direction, and attested by at least two witnesses in the presence of the testator. If any other document then actually written is referred to as expressing any part of the testator’s intentions, it may be treated as a part of the will.

15. It is quite clear, therefore, that these instructions cannnot be treated as a part of the will. There-is no trust therefore by a will, nor is there a trust by a non-testainentary-instrument, as it is not, and cannot be, contended that these instructions declared any trust so as to place the subject-matter beyond the control of the testator and deprive him of his ownership. Nor can it be successfully contended that these instructions engrafted a trust upon the legal estate already well devised by Exhibit as I the will operated only after death and the instructions in writing must have already passed – if they created a trust – the interest intended to be conveyed thereby though not necessarily an immediate interest in possession.

16. To defeat the appellant’s claim under the will, the respondents, however, rely upon the rule of law that the Court will enforce a trust when the testator leaves the estate to the devisee on his undertaking to carry out the intentions of the testator and also upon Section 81 of the Trusts Act.

17. The rule of English law relied upon may be briefly stated thus. If the heir or legal representative of a person competent to make his will undertakes to carry into effect his wishes that may be communicated to him and on the faith of that undertaking that person did not dispose of his property by will, then the Court will compel the heir or legal representative to carry into effect all such instructions that may have been given to him. So again, if a legatee promises the testator that upon the testator’s leaving the property to him by a regular will, he will carry out all such wishes as are confided to him by the testator and relying upon that promise the testator makes a will in his favour or if having made a will a person at any time before his death communicates the disposition to the legatee and states to him that he has not expressed in the will all his intentions which he confides to the legatee and that he depends on the legatee to carry them into effect and the legatee either expressly assents to it or by his – silence or conduct leads the testator to believe that he will abide by the instructions so communicated to him then the legatee will be treated as a trustee and he will be compelled to carry out the instructions confided to him. The reason is that but for such assent, express or implied, the testator would not probably have left the property to him, or the will, if made, might have been revoked. It would be fraud on his part not to give effect to the testator’s intentions, and no man shall be benefited by his own personal fraud, and if the Statute of Frauds or the Statute of Wills gives him the title the Court, fastens upon his conscience a personal obligation to carry into effect the wishes of the testator confided to him – see Wallgrave v. Tebbs (1855) 2 K. & J. 313; Mc Cormick v. Grogan (1869) 4 L.R.H.L. 82 at 88 In re Boyes : Boyes v. Carrits (1855) 26 Ch. D. 531; Fones v. Badley (1868) 3 Ch. Pp. 362; In re Pitt Rivers-Scott v. Pitt Rivers (1902) 1 Ch. 403; In re Maddock; Llewelyn v. Washington (1902) 2 Ch. 220.

18. Thus the jurisdiction of the Court is founded upon fraud and the Court interferes to prevent the perpetration of fraud. The property is not affected except by reason of the personal obligation binding on the devisee. If there is no personal obligation or fraud, then there is no trust. Therefore “if he renounces, or disclaims, or dies in the lifetime of the testator, the persons claiming under the memorandum can take nothing against the heir-at-law or next-of kin or residuary devisee or legatee. – Cozens Hardy L.J. in In re Maddock, Llewelyn v. Washington (1902) 2 Ch. 220.

19. Thus the instructions are not treated or enforced as a part of the will. The instructions after acceptance create an obligation on the devisee and confer title on the beneficiaries dehors the will. Lord Westbury said in Cullen v. Attorney-General for Ireland (1866) 1. H.L. at p. 198 “Where there is a secret trust or where there is a trust created by a personal confidence reposed by a testator in any individual, the breach of which confidence would amount to a fraud, the title of the party claiming under the secret trust or claiming by virtue of that personal confidence, is a title dehors the will, and which cannot be correctly termed testamentary.” See also In re Maddock. Llewelyn v. Washington (1902) 2 Ch. 220. For this reason a test is pointed out by Lord Cairns in Fones v. Badley (1885) 2 K. and J. 313 to consider the case as unaffected by the Statute of Wills. Thus the trust, if any, in the case before us not being created by any instrument of a testamentary character is unaffected by the provisions of the Indian Succession Act.

20. In England Section 7 of the Statute of Frauds declares that a trust must be proved by a will or be manifested and proved by some writing signed by the author of the trust or else the trust shall be void. Resulting and constructive trusts are exempted from the operation of this section by Section 8. The trust in question is not proved by a will or writing signed as required. But the English Judges got out of the difficulty by deciding that even an Act of Parliament shall not be used as an instrument of fraud. This is undoubtedly taking a bold step to compel justice to be done, and though it is a sound rule of law that when a statute is enacted to prevent fraud it shall not be used to cover the perpetration of fraud, unless by express words or necessary implication the Courts are restrained from interference, it can hardly be doubted that if this doctrine had not been already enforced in a long and uniform course of decisions it is not likely that it would now be accepted and enforced in courts of law.

21. Has the principle then been accepted in India, or are we now to apply it in the case before us?

22. The trust, if any, in such cases is treated as an exception to the rule that parol trusts cannot be declared upon an estate devised by a will, and is not a resulting or constructive trust in English law. So we may disregard for the present Chapter IX of the Trusts Act which deals with such trusts. The definition of the word ‘trust’ also excludes such trusts. But such definition, in my opinion, clearly includes this case. The obligation arises out of a confidence reposed in and accepted by the appellant, the owner of the property, for the benefit of himself partly and of the persons to whom he has undertaken to deliver certain properties or pay various sums of money.

23. Section 5 of the Trusts Act, corresponding to Section 7 of the Statute of Frauds, similarly enacts that no trust in relation to immoveable property is valid unless declared by a will or in writing signed by the author of the trust. The same rule applies to moveable property unless the ownership is transferred to the trustee. The exception (Section 8 of the Statute of Frauds) in favour of resulting and constructive frauds is unnecessary in the Indian Act as the definition of the word ‘trust’ excludes them and they are fully dealt with separately in Chapter IX. It will be noticed that trusts in cases of fraud, as the one before us, are not in terms exempted from the operation of the seventh section though the English Courts, as I have already stated, treat them as an exception. But in the Indian Trusts Act there is a proviso to Section 5 to the effect that these rules as to the validity of a trust “do not apply where they would operate so as to effectuate a fraud.” This is the ground on which English Courts have introduced the exception and created by reason of the devisee’s fraud what was a purely moral into a legal obligation. This proviso, therefore, to my mind places it beyond doubt that the Indian Legislature deliberately adopted the rule laid down by English decisions. Mr. Whitley Stokes who drew the bill which became the Trust Act is of the same opinion. In his “Anglo-Indian Codes” he states “these rules do not apply where they would operate so as to effectuate a fraud, as, for example, where a father having power to bequeath certain land is induced not to make a will of that land by the promise of his heir-presumptive that he will provide thereout for his relatives ” and cites Sellack v. Harris 5 Vin. Abr. 521 and other cases cited by Lewin, 8th Edition, page 6 which declare the English law as above explained or in other words the proviso was intended to preserve the rule of English law. The provisions of the Statute of Frauds as to trust were in force in the Presidency towns and there can be little doubt that the decisions of the English Courts on those sections must have been followed by the Indian Courts, and when-they were repealed by the Indian Trust Act there would have been some indication in the Act to alter the law as then understood if that had been the intention, but we find words which, to my mind, are clear the other way and certainly do not favour the inference of vany departure from the law as then understood. A careful consideration of the various sections in Chapter IX of the Act, as will be shown when I consider the operation of Section 81 of the Act also strongly confirms this view. Any change in that direction is unlikely as the Indian Courts are Counts of equity and good conscience. Under the Indian Trusts Act the beneficiary has no estate or interest in the subject-matter of the trust. He has only a right to proceed against the trustee and the parties are more easily brought, therefore, under the jurisdiction of an Equity Court.

24. I have discussed the question at some length on account of the hesitation expressed by the learned Judges of the High Court in Kali Charan Ghosal v. Ram Chendra Mandal (1903) I.L.R. 30 C. 783, and I have no hesitation in coming to the conclusion that the law in India in this respect is the same as in England and that trusts as proved by the oral evidence are valid. The appellant is, therefore, only a trustee for the persons named by the testator as beneficiaries.

25. If I am right in this view, then Section 81 of the Trusts Act which relates to resulting trusts and gives the property to the heir of the testator has obviously no application. But if such is not the law in India, or if fraud is not proved so as to bring the case within that rule, the question arises whether the appellant is entitled to keep the property or he is only a trustee for the testator’s legal representatives. Where the will declares the trust, where it is lawful (Section 85) the, law is clear. Where the will itself shows that the devisee is only a trustee though there is no beneficial interest created by the will it is a case of resulting trust (S. 83.) Does it make any difference then that it is by extrinsic evidence that it is proved that the devisee is only intended to be a trustee and no beneficial interest is created by the will when such extrinsic evidence is permitted bylaw? Section 81 of the Trusts Act runs thus – “Where the owner of the property transfers or bequeaths it and it cannot be inferred consistently with the attendant circumstances that he intended to dispose of the beneficial interest therein, the transferee or legatee must hold such property for the benefit of the owner or legal representative. “This clearly permits proof of the attendant circumstances to show that the testator did not intend to dispose of the beneficial interest, going further, I think, than the English law which allows only evidence of the trust to be given when the gift is made in absolute terms or when the will may even state that the gift is not by way of trust. But once the evidence is admitted and it is proved that the devisee is only a trustee the law seems to be clear. The general rule is that when a transferee or devisee has only the legal estate and is made out only to be a trustee he takes no beneficial interest in the property The Lord Chancellor after finding that the bequest in the case before him was one on trust said in Briggs v. Penny (1851) 3 Mac. And G. 557: “If so, that is sufficient to-exclude Miss Penny from taking the beneficial interest. Such views and wishes may be left unexplained, such trust be left undeclared, but still in such case it is clear a trust was intended and that is sufficient to exclude the legatee from a beneficial interest. Once establish that a trust was intended, and the legatee cannot take beneficially. If a testator gives upon trust, though he never adds a syllable to denote the objects of that trust, or though he declares the trust in such a way as not to exhaust the property or though he declares it imperfectly or though the trusts are illegal, still in all these cases, as is well known, the legatee is excluded and the next-of-kin take.” – Briggs v. Penny (1851) 3 Mac. And G. 557.

26. Similarly, under Act II of 1882 where there is a valid bequest to any person of the beneficial interest the trustee of course holds it for his benefit, or where any property is bequeathed upon trust and no trust is declared or the trust is incapable of execution or executed without exhausting trust property (Section 83) or where it is for an illegal purpose or there is an agreement to apply it to an unlawful purpose (Section 85) or where the revocation of the bequest is prevented by coercion the devisee must hold it in trust for the benefit of the testator’s legal representatives. The omission of the case of the testator not revoking his will on account of fraud is only due to the fact, that it has been already provided for, as I have pointed out by Section 50. It would be in harmony with these provisions to hold that where the testator intends only the legal estate to be conveyed to the devisee though such intention is not expressd therein, then under Section 81 he takes no beneficial interest therein. According to the illustration to Section 83, the will itself must show that the devisee is only a trustee; Section 81 applies where the attendant circumstances prove it.

27. But it is suggested that Section 81 does not apply where it is the intention of the testator to pass the beneficial interest in the property to certain other persons though not by the transfer or devise in question. If the testator has in law disposed of the beneficial interest, if the transferee is only a benamidar, then no question arises, as the appellant would be a trustee for that beneficiary. Even if the testator intending to dispose of the beneficial interest to others leaves his estate to the devisee, I am of opinion that the section applies. As pointed out by Mr. Whitley Stokes in his notes to these sections they are generally intended to reproduce the English law except in one instance, see Section 83 illustration (c). The illustrations even are taken from the decided cases given in Lewin on Trusts. The rule of English Law is quite clear. The only question to be considered is “whether the grantee, devisee or legatee was intended to take the legal estate merely.” See Lewin Chapter IX, Section I, § I, p. 150. The judgment of the Lord Chancellor, already referred to, also makes it clear. It seems also reasonable. When we have to consider the rights of a transferee or devisee, the question is what are the rights conveyed to him, and the fact that certain rights are intended by the transferor to be conveyed to other persons is only useful to show his intention not to convey such rights under this transfer. The grantor’s intention to convey the beneficial interest subsequently to somebody else cannot avail the appellant.

28. In one respect this is, undoubtedly, a departure from the English law. As I have already stated, where secret instructions are left by the testator without being communicated to the devisee in circumstances* that would raise a presumption of fraud then according to English law the devisee takes it absolutely, whereas I if my construction of the section is right, the legal representative would take it. But this argument loses much of its force when we consider that when such instructions simply show that the testator gave the devisee the legal estate only and not the beneficial interest without showing anything else, then this section clearly gives the estate to the legal representative though the English law in that case also would give it to the devisee. A deviation from that law was made when the section admitted proof of the attendant circumstances and placed a bequest on the same footing as a transfer, where it will be presumed in some cases, say in the absence of consideration, that the transferee held in trust for the transferor. It has also to be noticed that the appellant’s case involves a wide departure from the English law when communication of the testator’s wishes to the devisee and consequent fraud on his part is proved. Even according to that law where the devisee admits that he is only a trustee though the will is absolute in its terms and it clearly appears that the testator’s intention was to dispose of the beneficial interest in favour of certain persons which intention could not be carried into effect on account of the failure of the testator to communicate it in his lifetime to the devisee, it has been held that there is a resulting trust and the next-of-kin, not the devisee, takes the estate. Thus in In re Boys, Boyes v. Carrit (1884) 26 Ch. D. 531 the testator as here left the entire property by his will to Carrit but it appeared clearly from the evidence that he was to have only the legal estate and the testator intended to dispose of the beneficial interest in favour of a certain lady and child. That trust failed, but as Carrit admitted that he was only a trustee he was held to be a trustee for the next-of-kin of the testator and not entitled to take the property himself. This appears to me to be precisely the effect of Section 81. The only difference is as to the mode of proof. What in England can be proved only by the admission of the party is allowed to be proved by this section by other evidence. In England, as already stated, evidence appears to be admissible only to prove a trust but not to prove that the legal estate alone passed, though the law recognizes the principle that where the legal estate alone passes the devisee, as already stated, must hold only as trustee.

29. In principle it seems difficult to find any reason for giving the property absolutely to the devisee who was really intended only to be a trustee and not to the legal representative of the testator. The danger in allowing extrinsic evidence cannot be a reason, as it is-admitted that Section 81 clearly permits it for certain purposes. Nor is this a revocation of the will any more than it is in the case of the other resulting or constructive trusts. The will is good and vests the legal estate in the devisee.

30. I am, therefore, of opinion that the words “intended to dispose of the beneficial interest therein” in Section 81 have reference to the disposal of the beneficial interest by the transfer or will. For these reasons I hold that the appellant is only a trustee for the legal representatives if there are no trusts to be executed or for the beneficiaries if there are trusts.

31. Further I agree with Cozens Hardy L.J. in In re Maddock, Llewelyn v. Washington (1902) 2 Ch. 220 in holding that the case is one of contract and estoppel. The appellant agreed for consideration with the deceased to dispose of the properties according to his wishes communicated to him, and. the representatives of the deceased, who are respondents before us, are entitled to contend that the plaintiff should be given possession of the estate only on his undertaking to carry out its terms and that he is estopped from claiming the estate unconditionally as the testator abstained from revoking his will by his representation.

32. The appellant has, therefore, not proved his right to administration as universal legatee. In appeal it is contended before us that as a trustee or as legatee, having a beneficial interest though not to the extent claimed, letters of administration ought to be granted to him. If he had claimed in that capacity and disclosed the trusts he might have been entitled to it. But when he claims as universal legatee, and suppresses the secret instructions given by the testator without stating what they are, with the evident intention of retaining the estate himself, it is clear that the letters of administration would enable him to commit fraud and ought not therefore to be granted. The case is entirely different where the will itself declares the trust, or where on the face of the will it is apparent that the appellant is only a trustee For these reasons, I would dismiss the appeal with costs.

33. Judgment in Section A. 229 of 1906.

Wallis, J.

34. It follows from our decision in A.S. No. 72 of 1906 that the plaintiff in this case can only be entitled to succeed by virtue of a trust imposed upon the defendant as legatee under the will by reason of his having undertaken to carry out the testator’s instructions in the plaintiff’s favour, and so induced him not to alter his will. The plaintiff therefore claims through the defendant, the legatee named in the will, but under Section 187 of the Indian Succession Act no right as legatee can be established without a grant of probate or letters of administration. So in England a legacy cannot be recovered without administration of the testator’s estate, mid there cannot be administration without a personal representative before the Court – Rowsell v. Morris (1873) L.R. 17 Eq. 20. There has been no grant of probate or letters of administration in this case and, in my opinion, the plaintiff’s suit therefore fails. The appeal, in my opinion, should be allowed, the decree reversed and the suit dismissed with costs throughout. As my learned brother differs, the appeal must be dismissed with costs.

Sankaran Nair, J.

35. For the reasons above given, I would dismiss this second appeal also with costs.

36. The plaintiff is one of the persons to whom, Louis Kunha, who is the defendant, appellant in this appeal has been directed by the instructions given to him by the deceased to pay a certain sum of money for which he has now been sued. It is found by the lower Courts that the appellant has been paying interest to the plaintiff for the amount that has to be paid to him.

37. I am unable to accept the contention urged on behalf of the appellant that Section 187 of the Indian Succesion Act is a bar to the claim. The suit is not brought to establish the plaintiff’s claim as legatee. The legacy, i.e., the entire property of the deceased vested in the defendant on the death of the testator, Sections 91-106. The law, I have already held, makes him a trustee to carry out the instructions he has received. The suit is therefore by a beneficiary to enforce the trust so far as he is concerned. Nor does he seek to establish ‘any right’ of the defendant under Section 187. A suit to enforce the defendant’s obligation or liability can scarcely be called an attempt to establish the defendant’s “right”. As universal legatee the defendant will get letters of administration when he discloses the trusts and undertakes to carry out the terms of the trust, and he cannot be allowed to set up his own fraud in not taking out letters of administration to defeat the claims of the beneficiaries. It is true no right of action accrues to the defendant until he has obtained letters of administration – Section 187, But though his title does not come into existence until the grant of administration, when granted, it relates back to the time of the death of the testator and it is only the intermediate acts “tending to the diminution or damage of the interstate” that are not binding. Where the act is done by a party-who afterwards becomes administrator for the benefit of the estate or to fulfil the wishes of the testator, the relation back subsists and the act is valid.

38. Futher the defendant is in possession of the substantial portion, if not the entire property of the testator. He is clearly an executor de son tort (Section 265) and as he is both an executor de son tort and the universal legatee, he has all the liabilities that belong to the character of executor and universal legatee in this case and cannot therefore plead that he has not obtained letters of administration.

39. As neither the plaintiff nor any other beneficiary is entitled to obtain letters of administration and no other person is interested in administering the estate and carrying out the trusts, it would seem, if this suit is dismissed, that the beneficiaries have rights without any remedy.

40. In the case of this plaintiff, an additional ground is urged that there is a contract between the parties. But it is then necessary to consider whether a request will be implied in fact or in law on the part of the defendant to make the bequest of the legal estate or the pecuniary legacy by the testator to him a consideration under the Indian Contract Act for the promise made by the defendant to the plaintiff. It is unnecessary to consider this in the view I take of the other questions.

41. I would dismiss the second appeal with costs.

42. This second appeal is dismissed under Section 575 of the Civil Procedure Code, with costs.

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