JUDGMENT
Reuben, C. J.
1. This is an appeal by the plaintiff from a decision of the Additional Subordinate Judge, Muzafferpur, dismissing his suit for the declaration of his title to possession of certain property formerly belonging to his deceased father-in-law Sheopragash Singh and for recovery of possession thereof.
2. Sheopragash Singh died on 21-1-1925, leaving two widows, Munga Kuer, now deceased and Dharohar Kuer, defendant 1, six daughters, one of whom Krishna Kumari was unmarried,
and a grandson Ramnaresh Singh, son of a predeceased daughter. By a registered will executed shortly before he died he created a life interest in favour of his two widows. He appointed the plaintiff his executor and gave certain directions regarding the management of the estate during the life time of his widows, which has been the subject-matter of much subsequent litigation. According to the plaintiff he is entitled under these directions to hold and to manage the properties of the testator, meet certain necessary expenses from the income thereof and apply the balance of the income to the support, comfort and well-being of the two widows. A declaration to this effect was obtained by him from this Court on 1-4-1942 on an application under Section 302, Succession Act, 1925. The plaintiff’s case is that he entered into possession of the property on the death of Sheopragash and that he remained in possession thereof in spite of the fact that Munga Kuer and after her death Dharohar Kuer got themselves recorded as proprietors in Register D, and that he was dispossessed on or about 7-6-1944 after his attempt to get himself registered in Register D had finally failed in the Land Registration Courts. The present suit was filed by him on 21-12-1944. The defendant denied the plaintiff’s right under the will to hold and manage the property. Secondly, she pleaded that even conceding that the plaintiff had such a right, the plaintiff has not been in possession since Sheopragash died and his suit is, therefore, time barred. The Subordinate Judge decided in favour of the plaintiff as regards the right to hold and manage the property. As regards possession and limitation, he has de-tided for the defence.
3. Though Sheopragash died in January, 1925, the plaintiff did not apply for probate till the year 1938, alleging in explanation of the delay that the will was mislaid and was only found by him in 1936. By that time Munga Kuer whose daughter is married to the plaintiff had died and the defendant Dharohar Kuer was the sole opposite party in the probate proceeding. Probate was granted by the District Judge by his order Ex. N(4), dated 6-1-1939. The grant was, however, qualified by, a note that
“the executor will not be entitled on the strength of the probate to interfere with the life estate granted to Mt. Dharohar Kuer except by due processes of law.”
His reasons for making this qualification are thus stated:
“It is clear from petitions filed in this Court that there had been recent disputes regarding the management of the estate. It is also clear that even on his story the executor can have made no satisfactory search for the will soon after the testator’s death or it would have come to light then. Even if the original will was not forthcoming he could have applied for copy from the registration department and taken early steps to obtain probate. It is also clear that for many years the executor has consented to the widows enjoying the estate. Section 227, Succession Act, provides that probate of a will when granted establishes the will from the death of the testator and renders valid all intermediate acts of the executor as such. Section 332 requires the assent of the executor to complete a legatee’s title to his legacy, but under Section 333 such assent
may be implied from the conduct of the executor and the assent of the executor to specific bequest is sufficient to transfer the subjects of the bequest to the legatee. It is clear therefore that the executor’s conduct has amounted to an assent to the life estate given to the widow Mt. Dharohar Kuar and her title to the estate is complete. The grant of probate in this case will, therefore, not affect the title of the objector Mt. Dharohar Kuer to that life estate.”
This note was directed to be expunged by the High Court by its order Ex. 16(a) dated 13-8-1940 in First Appeal No. 56 of 1939 on the ground that a Court of probate is in no way concerned with any question other than whether the will, of which probate is asked, has been proved to the satisfaction of that Court or not.
4. The decision of the High Court was followed soon after by a proceeding under Section 144, Criminal P. C., in which the Sub-divisional Magistrate of Hajipur, by his order Ex. N, dated 26-12-1940, made the rule absolute against the plaintiff executor. The relevant portion of his order is:
“Now there is dispute regarding possession over the properties covered by the will. It may be noted that the name of the widow Mt, Dharohar Kuer was duly recorded in Register D. She has been paying revenue and has filed challan. She has been suing tenants for rent and has obtained decrees. She has paid rents to landlords and obtained receipts. “She filed petition for reduction of rent under Section 112A, B. T. Act, and obtained decree. In short she has been exercising her right over the properties and has been in possession over the same. It is now contended on behalf of the second party that the second party having obtained probate he should in the eye of law be deemed to be in possession since the death of the testator and I have been referred to Section 227, Succession Act. The grant of probate only proves the title of the executor to administer the estate. In this particular case there is difficulty in the way of executor as it is a question whether he consented to the legacy and thus allowed Mt. Dharohar Kuar to have management of her life estate. This can only be decided by a competent court. As far as the criminal court is concerned it comes in only to maintain peace between the parties. There is paddy standing on some land and there may be breach of peace in reaping the same. Therefore the rule is made absolute against the second party who has a claim to possession but who, in my opinion, is not in actual possession.”
5. At about the same time the executor had applied for the mutation of his name in Register D in place of that of Dharohar Kuer. His application for mutation was dismissed by the Land Registration Deputy-Collector by his order Ex. L(1), dated 20-1-1941. He summed up his reasons thus:
“The testator died some 14 years ago and the applicant has now come forward to get his name mutated in place of the testator. But the name of the testator no longer stands recorded in Register D. His name was cancelled long ago and now Mt. Dharohar Kuer’s name stands. From the judgment of the District Judge it is clear that it is Mt. Dharohar Kuer who is in possession of the property & Register
D also proves this. If the applicant wants to get his name entered in place of Mt. Dharohar Kuer he should first go to civil court for his claim. After the entry of Mt. Dharohar Kuer’s name in Register D the property ceased to be the estate of the testator and became the property of the Musammat and I do not see any ground to allow the prayer of the applicant.”
The appeal against this decision was dismissed on 11-3-1941 (Ex. L), the appellate Deputy-Collector observing:
“The appellant has not yet exercised any act of management or possession in respect of any portion of the disputed properties. It is the respondent who has been in possession of the disputed properties since the death of the testator (Sheo Pargash Singh), and whose name was mutated in place of the testator long ago.”
The executor moved the Commissioner in revision and was again unsuccessful (Ex. N(3), dated 19-7-1941). In giving his reasons for dismissing the petition in revision the Commissioner observed :
“It is not in my view the business of the courts administering the Land Registration Act to enter into discussions of the exact legal position of the petitioner as an executor I consider that it has been sufficiently proved in this case that Mt. Dharohar Kuer is in Possession of the property and I agree with the findings of the Land Registration Deputy Collector that it is for the petitioner) to establish his claim in a civil court if he desires to do so.”
6. It was after this that on .4-2-1942 the executor filed his petition, Ex. O, under Section 302, Succession Act, 1925, asking the High Court to “allow the petitioner to manage the properties and give such other direction or directions to your petitioner as may be deemed fit and proper”. The first four paragraphs of his petition give the substance of the will so far as it was relevant to the case and speak of the proceedings in probate. Paragraph 5 then continues:
“That after the judgment of this Hon’ble Court the petitioner began to manage the properties but he was obstructed by the men of the opposite party in the management and possession of the properties as a result of which a proceeding under Section 144, Cr. P. C., was started and the rule was made absolute against the petitioner, and discharged against the opposite party. Thus the petitioner was prevented from managing the bakashta and Kashta lands.”
The judgment of the High Court as I have mentioned, was delivered on 13-8-1940, that is, over fifteen years after the death of the testator. It is significant that in this petition the executor said nothing about the possession of the property between the death of Sheo Pragash and the order of the High Court. On the contrary his statement that after the judgment of the High Court he ‘began’ to manage the properties suggests that up to that time he was not managing them, an inference which is contrary to his present case, which is that since the death of Sheo Pragash he has been managing the properties, that he performed the sradh ceremony of Sheo Pragash and of Munga Kuer and that it was he who met the expenses of the marriage
of Krishna Kumari. At the hearing of the petition it was explained on behalf of the executor that he was not seeking from the Court an order directing delivery of possession of the estate to him, but was merely asking for the interpretation of the will. Accordingly, Agarwala, J. as he then was, by his order Ex. 16, dated 1-4-1942, declared that
“on a proper construction of the will the testator intended the management of the estate to be in the hands of the executor.”
It is not necessary for the purposes of this case to consider whether a declaration of this kind is covered by the provisions of Section 302, Succession Act, 1925.
7. Having succeeded in getting this declaration from the High Court the executor again applied for mutation (Ex. S, dated 12-7-1942). The relevant portion of his petition runs:
“It is submitted that Babu Sheo Pragash Singh the father-in-law of this applicant died after executing a registered will, dated 10-6-1924 and under the will Babu Sheo Pragash Singh aforesaid appointed the applicant as executor for the management of the entire movable and immovable properties constituting his inheritance. Accordingly the applicant obtained a probate of the said will on 6-1-1939 and by report (probate?) be acquired title to the movable and immovable properties of Babu Sheo Pragash Singh as executor. The applicant tried to get his name registered in Register D in place of Mt. Dharohar Kuer but was unsuccessful. Thereafter the applicant filed a petition under Section (under punch?) 302 (sic), Succession Act, in the Hon’ble High Court of Judicature at Patna in which an objection petition was filed on behalf of Mt. Dharohar Kuer and after hearing both the parties it was adjudicated and ordered by the High Court that Mt. Dharohar Kuer had no right to manage the inheritance of Babu Sheo-pragash Singh, aforesaid and that the applicant had every right to manage the said property. In fact, the applicant was appointed manager on 1-4-1942 by the High Court for the management of the entire movable and immovable properties inherited from the said Babu Sheopragash Singh, deceased. Accordingly the applicant has been managing the estate of Babu Sheopragash Singh aforesaid as executor-manager since 1-4-1942.”
It is significant that he says nothing about possession following the death of Sheopragash Singh. According to his petition he was appointed manager by the High Court on 1-4-1952, & has been managing the property since that date. His petition succeeded before the Land Registration Deputy Collector and the appellate Deputy Collector, but was dismissed in revision by the Commissioner by his order Ex. N(2), dated 2-9-1943. The ground given by the Commissioner for his order is important. The Commissioner says:
“There has been no official delivery of possession and it is not disputed that Mt. Dharohar Kuer is still in possession. In these circumstances, I think, it is wrong for the lower courts to record the present respondent. So far he has merely got an order that he is entitled to possession. It is for him to get possession before he can be recorded. It is to be noted that this is not a case which was referred to the civil court under Section 55 of the Act, and
there is no direction of the civil court that the respondent be put in possession. Before he can be recorded he must get an order of the civil court giving him possession or else he must obtain possession by negotiations with a lady.”
Apparently, before the Commissioner Dharohar Kuer’s possession over the property was not disputed.
8. In support of her claim of possession Dharohar Kuer has put in evidence rent receipts and counterfoil receipt books, ‘jamabandis, siahas’ and other village account books, ‘chaukidari’ receipts, a ‘kabuliyat’, a certified copy of a writ of ‘dakhaldehani’, a rent reduction schedule, certified copies of rent decrees, land revenue ‘chalans’ and other papers. On the other side the plaintiff has proved (1) two lists of the testator’s debts, & one list of the testator’s properties, which lists, to the Subordinate Judge, appeared not to look as old as they should have done and which might have been prepared by the plaintiff in ordinary course to help his mother-in-law Munka Kuer, who was the senior widow and recorded in Register D as the proprietor after the death of Sheopragash; (2) a ‘jamabandi’ and a produce book which had not been produced in Court before; (3) rent counterfoil books, the realisation shown one of which, according to the Subordinate Judge, does not tally with the plaintiff’s account book for 1342 Fasli and (4) ‘Jamakharach’ books written by the plaintiff’s brother although there is a patwari’ for the estate and which refer to the brother in terms which he was unlikely to use with reference- to himself. The Subordinate Judge was not impressed with the oral evidence of possession adduced by the plaintiff and a perusal of the evidence given by the plaintiff in the witness-box is very unconvincing. In these circumstances, the finding of possession was advisedly not seriously attacked by counsel for the appellant.
9. The appeal was principally pressed on the ground that the finding of the Subordinate Judge regarding limitation is incorrect. A doubt has been urged as to the Article of the Schedule to the Limitation Act applicable to the suit and it has been suggested that the Subordinate Judge was wrong in applying Article 142 relating to a suit
“for possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession.”
It is pointed out that the plaintiff is not claiming title to the property as such but only the right to manage it. For myself, I do not see why this should make a difference to the applicability of Article 142. But even if the contention is accepted, it seems to me that the plaintiff would not be in a better position, for limitation in that case would be governed by Article 120 and would be six years from the time “when the right to sue accrues” instead of twelve years from “the date of the dispossession or discontinuance.” Whichever Article applies the point which arises for determination is when the right to possession accrued. I should note here that there never was any bar to the institution of a suit by the plaintiff for recovery of possession on the basis of the will, because it is well settled that an executor appointed under a will can sue to enforce a right arising under the will at any
time after the death of the testator, and it with be sufficient for the purposes of Section 213, Succession Act, 1925, if probate is obtained before the passing of the decree in the suit — ‘Jansetji Nassarwanji v. Hirjibhai Naoroji’, 37 Bom 158 (A); vide also — ‘Chandra Kishore v. Prasanna Kumari’, 38 Cal 327 (B); — ‘Charu Chandra v. Nahush Chandra’, AIR 1923 Cal 1 (C); and –‘Dwarka Nath Singh v. Mt. Raj Rani’, AIR 1932 Oudh 85 (D). The contention, however, is that under the terms of the Indian Succession Act, 1925, title in the testator’s estate did not vest in the executor till probate was granted and that till that time there was no legal representative of the testator against whom limitation could run.
10. The contention is based on Section 213, Succession Act, 1925, the relevant portion of which is:
213. (1) No right as executor or legatee can be established in any court of justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.”
Other relevant provisions of the Act are: (After quoting the provisions of Sections 2 (a), (c) and (f), 119, 174, 211, 216, 220, 221, 222, 227, 273, 291(1), 305, 307 and 338, the judgment proceeds as follows:)
11. Under Section 213 a right as executor or legatee cannot be established in a Court of Justice unless probate of the will or letters of administration in respect of the will have been obtained. On the face of it this appears to be a rule of evidence similar to Sub-section (1) of Section 212 which provides that no right to any part of the property of a person who has died intestate can be established in a Court of Justice unless letters of administration have first been granted by a court of competent jurisdiction. Probate, as defined in Section 2, is merely a copy of the will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator. The effect as explained by Section 273, is to provide a ready means of establishing the genuineness of the will conclusively against all the world. The definition in Clause (a) and (c) of Section 2 distinguishes between an administrator and an executor, the executor being appointed by the testator, whereas the administrator is appointed “by competent authority”. This is the reason why under Section 222 probate can be granted only to the executor appointed by the will. The distinction is recognised later by the court being directed by Section 291 to insist on the execution of an administration bond and the furnishing of security by administrator while no such provision is made in respect of an executor. An administrator by definition requires an order appointing him. He, therefore, comes into existence only when there has been a grant of letters of administration. The definition of executor makes no reference to a grant of probate and there is no reason to read such a reference into the definition. The executor, therefore, comes into existence as soon as the will becomes an operative document, that is to say, when the testator dies,
12. It is Section 211 and not Section 213, which deals, with the vesting of the property of a deceased person, and it says, without any specification as to time, that the executor or the administrator, as the case may be, is the legal representa-
tive of the deceased for all purposes and the property of the deceased person vests in him as such. The corresponding provisions in the former statutes, namely, the Indian Succession Act, 1865, and the Probate and Administration Act, 1881, were contained in the Chapter of those Acts dealing with the grant of probate and letters of administration. This fact was relied on in some reported decisions as an argument supporting the proposition that the vesting in the executor occurs when probate is granted. Section 211, however, occurs in Part 8 of the Act entitled “Representative Title to Property of Deceased”, while Part 9 deals with Probate, Letters of Administration and Administration of Assets of the Deceased.” This argument is, therefore, no longer available. On the terms of Section 211 there is no reason to limit the vesting of the property in the executor in the manner contended for. The section being in general terms which speaks of the property as vesting in the executor or the administrator “as such”, the vesting would occur as soon as there is an individual answering to the description of an executor or administrator as the case may be. This happens in the case of an administrator when he is appointed by a competent authority and in the case of the executor when the testator dies. Had it been intended that the vesting of property in the executor would be dependent on the grant of probate the necessary provision would have been made in the statute as was done by Section 220 relating to letters of administration in cases of intestacy. This section is in strong contrast to Section 213 dealing as it does with rights, whereas Section 213 deal’s with evidence. The reason lor this difference is that in the case of succession under a will Section 211 had already provided for the vesting of the property of the deceased. The Calcutta view, to which I shall refer later, was that the property vests on the grant of probate, but the vesting dates back to the death, of the testator. In this connection there is a difference to be noted between the provisions of Section 220 relating to an administrator in intestacy and Section 227 relating to an executor. The vesting in the former case is a vesting by an order of the Court and is subject to Section 221 that is to say, letters of administration do not render valid intermediate acts of an administrator tending to the diminution or damage of the intestate’s estate.
13. Sections 119 and 174 show that the vesting of property immediately on the death of the testator, independently of the grant of probate or letters of administration, as the case may be, is not foreign to the Act. Under the former section a bequest in respect of which the lagatec is not entitled to immediate possession vests in the legatee on the testator’s death. Under the latter section an annuity provided for any person under the will vests on the testator’s death and commences from the date of his death (‘vide’ Section 338).
14. Section 273 dealing with the effect of probate and letters ot administration provides that they shall be conclusive as to the representative title of the executor or the administrator, as the case may be. They thus establish the representative character of the executor or the administrator, but in no way do they create that representative character. The creation is the work of the statute itself and it arises under Section 211. I am supported by the terms of Section 307,
which speaks of the property of the deceased being vested in the executor or the administrator as the case may be “under Section 211” and which in Clause (i) of Sub-section (2) contemplates the possibility of the executor before the grant of probate disposing of immovable property “so vested in him”. Section 273 should be read along with Section 227 which provides that probate of a will, when granted, establishes the will from the death of the testator and renders valid ail intermediate acts of the executor as such. In some of the reported cases the reasoning has been put forward about the corresponding provision in former statutes that it shows that the title of the executor prior to the grant of probate is imperfect and is validated by the probate. The answer is given by Sir George Lowndes in the passage which I reproduce below:
“Section 12, Probate and Administration Act, no doubt implies that until probate is granted the will is not ‘established,’ and it validates all intermediate acts of the executor. It is contended for the appellants that this necessarily leads to the inference that before probate there is no valid will and no authority in the executor. This was the view taken by West, J. in — ‘Fatma v. Shaik Essa’, 7 Bom 266 (E), but which failed to find acceptance on appeal: — ‘Shaik Moosa v. Shaik Essa’, 8 Bom 241 (F). It is, their Lordships think, based upon a misconception of the object of the section. Before the grant, it is obvious that in every case where either the will itself, or anything done under it by the executor, is challenged, proof of execution and capacity on the part of the testator, and of the appointment of the executor, would be required. The object of the section is only to get rid of this multiplication of proofs. Probate once granted authenticates the will against all the world; it affords a ready means of proof of the contents of the will: See Sections 41 and 91, Evidence Act; and it is a complete answer by the executor to any challenge of his authority as such. The provisions of the section do not, in their Lordships’ opinion, suggest that before probate the executor had no title, but are only intended to simplify the proof of his title as dating from the testator’s death.” — ‘Venkata Subamma v. Ramayya’, AIR 1932 P C. 92 at p. 94 (G).
15. The absence of qualification as to time which I have noticed in respect of Section 211 also applies to Section 305 under which all cases of action that survive the deceased accrue to the executor or administrator, as the case may be, & there is nothing to prevent the running of limitation against the executor in respect of such causes of action between the death of the testator & the grant of probate. Limitation in such a case would be governed by Section 17 Sub-section (1), Limitation Act, which provides that where a person, who would if he were living have a right to institute a suit or make an application, dies before the right accrues, the period of limitation shall be computed from the time when there is a legal REPRESENTATIVE of the deceased capable of instituting or making such suit or application. Under the terms of Section 211 the executor is the legal representative of the deceased person from the date of his death and limitation would run against him from this time. In contrast limitation would run against
the administrator from the date of grant of letters of administration. It is difficult to hold that limitation would run against the executor from the earlier date if the title did not vest in him from the earlier date.
16. Having considered these provisions of the Succession Act of 1925 there seems to me to be no doubt that an executor is a creature of the will and that his title as such vests in him when the testator dies. This was the view taken in — ’37 Bom 158 (A)’, a decision under the Succession Act, 1865, the relevant provisions of which were substantially similar to those of the Act of 1925. An administrator, on the contrary, is a creature of the order of the Court and his title vests oh the issue of letters of administration. This distinction between the respective positions of an executor and an administrator was drawn by Lord Parker in — ‘Meyappa Chetty v. Subramanian Chetty’, AIR 1916 P. C. 202 (H), and was applied to the Straits Settlements. In that case one Subramanian Chetty died at Singapore in 1904, having by will appointed Ramasamy Chetty as executor. Probate in the Straits Settlements not having been taken out by Ramasamy Chetty, one Meyappa Chetty, on behalf of the testator’s widow, obtained letters of administration ‘pendente lite’ and filed a suit in March, 1911, in that capacity in the Supreme Court at Singapore relying, for saving limitation, on a provision similar to Section 17 Sub-section (i), Limitation Act. Their Lordships of the Judicial Committee held that the will was capable of probate in the Straits Settlements, that the vesting of the title of a testator as such was independent of the grant of probate and occurred when the testator died, and, therefore, within the terms of the provision relied on, limitation ran from the date of the death of the testator and the suit was barred. They explained the difference in the respective positions of an executor and an administrator in the following words:
“It is quite clear that an executor derives his title and authority from the will of his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testator’s death, and the consequence is that he can institute an action in the character of executor before he proves the will. He cannot, it is true, obtain a decree before probate, but this is not because his title depends on probate, but because the production of probate is the only way in which, by the rules of the Court, he is allowed to prove his title. An administrator, on the other hand, derives title solely under his grant, and cannot, therefore, institute an action as administrator before he gets his grant.”
17. The point arose for consideration in –‘Ramiah v. Venkata Subbamma’, AIR 1926 Mad 434 (FB) (I), in the following circumstances. One Subbamma executed a will in 1914 appointing his wife as executor, giving her certain instructions about dealing with his property and directing in particular that his debts be paid out of the proceeds of one thousand bags of paddy in store. He died in 1916 and, the paddy being no longer available, his wife sold some land for the purpose of satisfying his debts. Probate was not taken out. His daughter’s son, to whom a one-third share of the property was left under the will, challenged the transfer.
The question arose whether under the Probate and Administration Act of 1881 title vested in the executor before the grant of probate, or whether her position till the grant of probate was merely that of a manager. Kumaraswami Sastri, J. delivering the decision of the Full Bench in a learned judgment, referred to the difference in views on this point between the Bombay and Madras High Courts on the one side and the Calcutta High Court on the other, and following the view of Bombay and Madras held that the title vested in the executor from the moment of the testator’s death. In support of this view he cited among other authorities the decision in — ‘AIR 1916 P. C. 202 (H)’.
18. In — ‘Gopal Lal Chandra v. Amulyakumar’, AIR 1933 Cal 234 (J), the contrary view was taken and this decision has been strongly relied on by Counsel for the appellant before us. The facts were that on 14-4-19:21, the heir of a cosharer landlord of a ‘dar mourasi mokarrari tenancy along with his other co-sharers sued for the arrears of rent of the tenancy. The plaintiffs obtained a decree for the arrears and purchased the tenancy in execution of the decree. The executors of the deceased co-sharer landlord obtained probate after the filing of the rent suit. In a suit by a mortgagee of the tenancy to enforce his mortgage it was argued that the title of the mortgagee was not affected by the sale in execution of the decree for arrears of rent on the ground that the title vested in the executors from the death of the co-sharer landlord and to that extent the landlord’s share was not represented in the suit and, therefore, the decree obtained therein was a money decree as distinguished from a rent decree. Reliance was placed for this contention on — ‘AIR 1916 PC 202 (H)’, but the decision was distinguished by their Lordships on the ground that it represented the view of the English law on the point. Their Lordships noticed that other High Courts in India took a different view on the point from that taken by the Calcutta High Court, particularly mentioning — ‘AIR 1926 Mad 434 (FB) (I)’ and observed that they “should be content to adopt the view which this Court has taken”. They cited in support of the view taken by them ‘Administrator-General of Bengal v. Premlal Mullick’, 22 Cal 788 (PC) (K);’ — ‘Sarat Chandra v. Bhupendra Nath’, 25 Cal 103 (L) and — ‘Kurrutulain Bahadur v. Nazbat-ud-Dowla Abbas Hossein Khan’, 33 Cal 116 (PC) (M) They also referred to — ‘Basunta Kumar v. Gopal Chunder’, AIR 1915 Cal 207 (N).
19. ’22 Cal 788 (K)’ related to a Hindu will of 1889 probate of which was granted in 1891 after which the executor transferred the estate to the Administrator-General of Bengal, professing to act under Section 31, Administrator-Generals Act, 1874. The only question which arose for decision in the case was whether the executor of a deceased Hindu is a “private executor” within the meaning of that section. In the course of the decision holding that such an executor came within the terms of the section Lord Watson pointed out that before the Hindu Wills Act of 1870 the position of an executor under a Hindu Will was different from that of an English executor, his powers & functions being those of a manager & that title in the estate did not vest in him even after he got probate. After the Act, his Lordship observed, a Hindu executor who took advantage of its provisions was
“on precisely the same footing as the executor of an Anglo Indian testator, in so far as concerned the taking out of probate and the vesting in him of the estate of the deceased.” The position of such an executor in the event of probate not being taken out did not arise for consideration.
20. ’25 Cal 103 (L)’ related to a Hindu will of 1857. No probate was obtained and the executors transferred a portion of the estate of the deceased testator in 18G4. The case was, therefore, governed by the law previous to the Hindu Wills Act of 1870 when the position of the executor of a Hindu will was that of a manager whether probate was taken out or not. ’33 Cal 116 (PC) (M)’ related to a will executed in 1893 by a Muhammadan lady. Probate of the will was obtained in 1900. The facts are sufficiently stated in the head-note. By the will the testatrix confirmed a release, which she had executed in favour of the principal defendant, who had been for some years in her household as her confidential agent and manager of her affairs, by which she declared that certain property he had obtained from her was a free and absolute gift and that neither she nor her heirs had any claim or demand on him in respect of it. Pending the probate proceeding which was opposed by her heirs the heirs instituted the suit out of which the appeal before the Judicial Committee arose to set aside the release and asking for an account and for two-thirds share of the property of the testatrix which was outside her testamentary capacity under the Mu-hammadan law. It was held by the Judicial Committee that the grant of probate did not, under the provisions of the Probate and Administration Act, create an estoppel so as to prevent the plaintiffs from denying the validity of the confirmation of the release to the defendant contained in the will. The question of the date of the vesting of the property in the executor did not arise for consideration.
21. ‘AIR 1915 Cal 207 (N)’ belongs to another line of decisions relating to the power cf persons other than the executor to represent the estate of a deceased testator prior to the grant of probate or letters of administration. In that case the father of the plaintiff having purchased a ‘raiysti’ holding in execution of a decree & naving given notices under Section 167, Bengal Tenancy Act, his son as his heir sued to eject under ‘raiyats’ from the property. It was held that his right to represent the estate of his father was not affected by the fact that his father had left a will which was still unprobated. Their Lordships followed the decision in — ‘Prosunno Chunder v. Kristo Chytunno’, 4 Cal 342 (O) in which Markby J. said:
“I think that until some other claimant conies forward, the party who takes possession of the estate of a deceased Hindu must, in the present state of the law, be treated for some purposes as his representative and a judgment obtained against such a representative is not a mere nullity.”
The principle of the decision was that unless this was so the remedy of a creditor against the estate might be barred by an intentional delay in taking out probate. As stated in — ‘Bibhuti Bhusan v. Narendra Narayan’, AIR 1951 Cal 228 (P), the essential question to be considered in such cases is whether the estate of the deceased person was sufficiently represented by the legal
representative who has been brought on the record. The decisions belonging to this catena are really an application of Section 213, Succession Act, 1925. Till probate or letters of administration are obtained there is nobody who can establish in court his right under the will to represent the estate. Till this is done, therefore, the Court has to determine, on the circumstances of each case, whether the person impleaded is tae proper legal representative. This is recognised by Section 216 of the Act which expressly provides that after the grant of probate or letters of administration no person other than the one to whom the grant had been made shall have power to sue or prosecute a suit or to act as representative of the deceased until such probate or letters of administration have been recalled or revoked.
22. The difference in views between the Bombay and Madras High Courts on the one side and the Calcutta High Court on the other was finally resolved by the decision of the Judicial Committee in — ‘AIR 1932 PC 92 (G)’ affirming in appeal the decision of the Full Bench of the Madras High Court in — ‘AIR 1926 Mad 434 (FB) (I)’. Their Lordships endorsed in high terms all that was said by Kumaraswami Sastri J.:
“The authorities have been discussed at length by Kumaraswami Sastri J. who delivered the judgment of the Full Bench, and their Lordships think that nothing can be added by them to his careful examination of the case law on this subject.”
The decision in this case and that in — ‘AIR 1933 Cal 234 (J)’ relate to cases governed by the Probate and Administration Act, 1881, under which the taking out of probate was not compulsory, and it was open to the executor to establish his title under the will in the suit itself. For this reason I have been at some pains to consider the question at length in relation to the present law. The decisions, however, would appear not to be deprived of their authoritative character by the enactment of the Indian Succession Act of 1925. The object of this Act, as stated in the preamble is
“to consolidate the law applicable to intestate and testamentary succession.”
There was no intention to amend the law. Hence, unless the intention to amend the law appears very clearly, we must take it that the decision of the Judicial Committee in — ‘AIR 1932 PC 92 (G)’ represents the correct view of the Jaw under the present Act. The one substantial difference between the Probate and Administration Act of 1871 and the Indian Succession Act of 1925 is that under the former Act the taking out of probate was not compulsory. This difference does not exist between the Indian Succession Act of 1865 and that of 1925. A perusal of the judgment of the Judicial Committee shows that they did not attach any importance to the fact that under the Probate and Administration Act the taking out of probate was optional. Their summing up of the reasons in support of the view they took may usefully be reproduced as it applies ‘mutatis mutandis’ to the position under the present law. In the extract below I have, for facility in applying the reasoning to the present law, shown in brackets against each section of the Probate and Administration Act the number of the corresponding section in the Indian Succession Act of 1925:
“There can be no doubt that in England the title of an executor is derived from the will and not from probate, though it is probate alone which authenticates his right: see Williams on Executors, Edn. 12 p. 1226. Section 12 (= 227), Probate and Administration Act, is a reproduction of Section 188, Succession Act of 1865, and it has always been recognised that the latter Act was largely based on English Law. It is not suggested that this doctrine is for any reason inapplicable to the wills of Hindus and their Lordships think that the material parts of Sections 4 and 90 (= 211 & 307), which are set out above, afford a strong indication in themselves that the legislature intended to adopt it.
Section 4 (= 211) makes no reference to probate nor does the definition of ‘executor’ in Section 3 (=2) (again a reproduction from the Act of 1865) suggest that probate is any part of his title–he is merely the person to whom the testator has confided the carrying out of his depositions.
So, too Section 90(2) (= 307(2) ) clearly conceives of an executor not clothed with probate being able to dispose of the property “vested in him under Section 4 (= 211)”. It makes such power subject to any restriction imposed by the will “unless probate has been granted,” in which case the Court may relieve him from the restriction. In view of the terms of this section their Lordships think it would be impossible to hold that before probate nothing vested in the executor, and that he had no power of disposal at all.”
23. ‘Mahabir Das v. Udit Narain’, AIR 1938 Pat 613 (Q), which has been relied on by counsel for the appellant is not inconsistent with the conclusion to which I have come. The observation of Manohar Lall J. that no rights whatever can be founded upon an unprobated will was made in a suit by the landlord of an agricultural tenancy for the ejectment of the defendants first party who claimed under an unprobated will of the deceased tenant Chaturbhuj. As the will was not probated, the title of the defendant first party under the will could not be established in Court, and in saying what he did Manohar Lall J. was merely applying Section 213, Succession Act. Nor does — ‘Durgapada v. Atul Chandra’, AIR 1937 Cal 595 (R), to which a reference has been made help the appellant in any way. There is ample authority for the proposition that applications for probate are not governed by the law of limitation. The decision contains nothing to suggest that till probate is obtained limitation will not run in respect of the causes of action which have accrued to the executor as such.
24. Finally an attempt has been made to postpone the commencement of the running of limitation in this case by a reference to the terms of the will itself. The testator says: "I appoint my son-in-law Babu Rarncharan Singh as executor for the management of my entire movable and immovable properties. Alter the death of me, the executor Babu Ramcharan Singh aforesaid shall obtain probate and shall manage my entire movable and immovable properties till the life-time of my wives............" The argument is that the testator intended the executor to take possession and to manage the property only after he had obtained probate
and, therefore, his cause of action in this suit arose when he obtained probate. I do not think that the testator intended that there should be a particular sequence of time between the obtaining of probate and the taking of possession of the property by the executor. The will indicates that he was unwilling that his property should be in the direct possession and management of his wives and he cannot have contemplated that following his death they should remain in possession until in due course his son-in-law obtained probate. The directions in his will about obtaining probate and about managing the properties are two separate directions, not connected with each other. He was aware that in the usual course, if the executor was to act under the will at all, he would have to take out probate, and he was merely emphasizing the necessity for the probate in directing his son-in-law to take out probate. He was certainly not making the taking of possession of the estate by his son-in-law dependent upon the son-in-law first obtaining probate.
25. For the reasons I have given the appeal fails and I would dismiss it with costs.
Sarjoo Prosad J.
26. I agree.