JUDGMENT
1. This is an application for the grant of Letters of Administration to the estate and effects of General Balmukund Dube, who died at Indore on 7th of September 1918. He left no will. The application is limited to two items of property consisting of 17 shares of Port Canning and Land Improvement Company and five shares in Messrs. Harvey & Sabapathy Company, Madras. (both with the Imperial Bank of Cawnpore) of the aggregate value of Rs. 15,450. General Balmukund Dube at the time of his death was a member of a joint Hindu family with his five sons including the applicant. The petition states that he left real property over which there is no dispute:
But besides the real property the deceased held as part of the joint Hindu family property certain shares in two limited liability companies amounting to about Rs. 15,450 as exhibited in annexure-A.
2. This application was made on 20th April 1929 and is supported by an affidavit of Mr. A.P. Dube in which it has been averred that the property set out in the annexure aforesaid is a part of the property belonging to a joint Hindu family. The reason for the application is that the two limited liability companies are not desirous of transferring any shares without any Letters of Administration from a Court of competent jurisdiction. Para. 7 of the petition which deals with this matter is not very happily worded and ought to have been clearer and more specific. The Articles of Association of either of the two companies are not before us; nor have any portions of the said Articles been reproduced in the application. We are informed by the learned advocate for the applicant that the Articles of Association of the companies provide that the executors or administrators of a deceased shareholder are the only persons who are recognised by the companies as having a title to the shares.
3. It is not within the legal competence of any company or companies, incorporated or otherwise to lay down any condition regulating the grant of Letters of Administration in contravention of any statutory enactments relating thereto.
4. Where the property belongs to a joint family, a person, claiming by survivorship, is not entitled to a grant of the letters of Administration to any portion of such property. The reason for the rule is obvious. There is no estate or assets which descended from the deceased.
5. In the Probate and Administration Act of 1881 (Act 5 of 1881) "Administrator" has been defined to mean a person appointed to administer the estate of a deceased person when there is no executor. Section 4 of this Act provided as follows:
The executor or administrator, as the case may be, of a deceased person, is his legal representative for all purposes, and all the property of the deceased person vest in him as such.... But nothing herein contained shall vest in executor or administrator any property of a deceased person which would otherwise have passed by survivorship to some other person.
6. The rule of law could not have been expressed in 'clearer terms and the provision is emphatic that the property of a joint Hindu family which passes by survivorship does not and cannot vest in an executor or administrator. This rule is applicable to cases where the property is admittedly joint. If the application, however, stated that the property was separate, the Court will not enquire into the question of its being joint or separate. Raghunath Misser. v. Mt. Pate Kuer [1902] 6 C.W.N. 345. The grant of a Letters of Administration is not conclusive on the question of a disputed title. The prima facie value of the grant is no more than this that if the deceased had left any separate property, the applicant was entitled to it. In Ajudhya v. Mt. Ramdaiya [1908] 11 O.C. 101 Chamier and Evans, JJ., referred to Section 4, Probate and Administration Act, and held that it was clear from that provision that it was not the intention of the legislature that Letters of Administration should be granted in respect of joint family property. The same view was taken by Das and Adami JJ. in Kali Kumar v. Mt. Munabati, Kumari A.I.R. 1923, Pat. 96. The same question was considered by Beasley, J., in Rama Giri v. Govindammah A.I.R. 1924, Rang. 329. This was not a case of an intestate succession. It was held in this case that a coparcener cannot make a will of his undivided share in a joint Hindu family and when he dies he cannot be said to have died intestate. An application under Section 23, Probate and Administration Act, was therefore held to be incompetent. In Gura Charya v. Svamiray Acharya [1878] 3 Bom. 431 it was held that the property about which administration was sought being the undivided property of Gura Charya and his deceased son Ana Charya, an administrator could not be legally appointed to have charge of the undivided shares of Ana Charya's sons in the family property.
7. The trend of authorities is therefore against the grant of a Letters of Administration to a coparcener emhracing the joint family estate in whole or in part.
8. Act 5 of 1881 was amended by the Succession Act of 1925 (Act 39 of 1925). It is important to note that the last mentioned Act was an Act to consolidate the law applicable to intestate and testamentary succession, in British India. The definition of "Administrator" as given in Act 5 of 1881 has been maintained. His duty is to administer the estate of a deceased person. In a joint Hindu family, where upon the death of a deceased person, the entire estate vests in other members of the family by rule of survivorship, it is obvious that there is no estate belonging to the deceased, which calls for administration.
9. Section 211 [1908] 11 O.C. 101, Act 39 of 1925 enacts as follows:
When the deceased was a Hindu... nothing herein contained shall vest in an executor or administrator any property of the deceased which would otherwise have passed by survivorship to some other person.
10. It has further been provided that Section 212 shall not apply in the case of the intestacy of a Hindu. To allow the grant of a letters of administration in the case of property which has vested in a joint family by rule of survivorship will be subversive of the scheme and policy underlying the entire Act. Section 250 provides that:
Where a person dies leaving property of which he was the sole or surviving trustee, or in which he had no beneficial interest, on his own account, and leaves no general representative, or one who is unable or unwilling to act as such, letters of administration, limited to such property, may be granted to the beneficiary, or to some other person on his behalf.
11. The karta of a joint family does not hold any property acquired by him in his own name with joint family funds as the sole and surviving trustee of the said property. Such a notion is entirely repugnant to the constitution of a joint Hindu family which is governed by the Mitakshara. It is eqally impossible to maintain that the joint family property is divisible into a legal estate and an equitable estate, or that the legal estate with reference to such property vests in the karta or that the beneficial estate vests in the members of the joint family or that on the death of the karta, letters of administration may be applied for and obtained with reference to any supposed legal estate in the property. Sections 217 and 218 of the aforesaid Act are conclusive on the point. The law requires that the administration of the assets of the deceased in cases of intestate succession shall be made or carried out in accordance with the provision of part 9 of the Act and it has been imperatively laid down that the deceased should have left some assets. Section 218 provides for the grant of the administration of the estate to a person who according to the rules for the distribution of the estate applicable in the case of such deceased would be entitled to the whole or any part of such deceased's estate. A comparison of the texts of the two Acts of 1881 and 1925 makes it abundantly clear that the legislature has maintained in its integrity all the essentials of the old Act relating to the grant of the letters of administration in case of intestacy. The legislature must have been cognizant of the existence of decisions based upon Section 4 of the Act of 1881, in which it had been held that no letters of administration could be granted with reference to joint family property. These decisions applied equally to ancestral property and to property acquired by a member of the family with joint family funds. Where the section of an Act which has formed the subject of judicial interpretation in a number of cases has been reproduced in a consolidating Act of a later date without any modification, this must be taken to be a clear indication that the judicial interpretations have been accepted by the legislature.
12. Section 4, Act 5 of 1881, is in certain respect pari passu with Section 4, Succession Certificate Act (Act 7 of 1889). The latter section has been incorporated into the Succession Act of 1925 and has found a place in part 10 as Section 370. In Mathura Prasad v. Durgawati [1914] 36 All. 380 where an applicant stated in his application that he was a member of a joint Hindu family with the deceased to whose estate he had succeeded by survivorship, it was held that no succession certificate could be granted and the application must fail.
13. The applicant contends that there is no legal bar to the grant of the letters of administration where property consists of shares of a company acquired by a member of a joint Hindu family with joint family funds. The applicant has not been able to refer to us to any Act of the legislature in support of his contention. He has cited a number of cases but these cases appear to us to be entirely beside the mark. Bank of Bombay v. Ambalal Sarabhai [1900] 24 Bom. 360 contains a special rule of law founded upon a construction of Sections 20, 22 and 23, Presidency Banks Act (Act 11 of 1876). It was observed by Jenkins, C.J.:
For the purpose of the Act, the share was the exclusive property of the deceased holder on his death the legal title did not survive, but it devolved on his legal representative, so that Section 23 of the Act applies.
14. A special title appears to have been created by force of a special statute which prevailed within a circumscribed area. In the matter of Dasu Manavala Chetty [1910] 33 Mad. 93 the main question was whether or not the property was subject to the payment of a particular duty under the Court-fees Act, Incidentally, the question was raised as to whether or not the Coparcener was the person who might apply for letters of administration with reference to the undivided share of a deceased coparcener. Miller, J., answers the question in the affirmative:
I have no doubt that the appellant is a person to whom letters of administration may be granted under Section 23, Probate and Administration Act. He is a person who would be entitled to the whole or part of the estate of the deceased. He would take his father's property if his father died intestate leaving property.
15. We entirely dissent from this view. A coparcener cannot deal with his undivided share in the joint family property without the concurrence of the other members of the family. If he dies, during the continuance of the coparcenary, his estate vanishes and no property descends to the other members of the family from him either as his assets or his estate. If in the Presidency of Madras the undivided estate of a coparcener descends to his heirs as his separate property giving the heirs a right to a distributive portion in the Same, all that we need say is that such a state of things is not in accord with the constitution of a joint family in northern India wherever the authority of the Mitakshara prevails.
16. The question now in controversy did not arise In the goods of Bhubaneshwar Trigunait A.I.R. 1925 Cal. 1201. Bhubaneshwar Trigunait who was the karta of a Mitakshara joint family died intestate leaving him surviving a brother and two sons. He had to his credit a large sum of money in the floating account with the Calcutta Branch of the Allahabad Bank. The Bank having refused to pay the money to the survivors unless they produced letters of administration or a succession certificate, the brother and one of the sons applied for the grant of a letters of administration. The applicants claimed that the deceased was the sole trustee and no sum was payable under Article 11, Sch. 1, Court-fees Act. All that was decided in this case was that the question was purely a question of procedure, that the report of the Taxing Officer upon the point was final and conclusive and that the applicants were not liable to pay any duty. This case is, therefore, no authority on the question in controversy. A judicial decision is an authority for the proposition which was actually decided in the case. To find out the actual decision we have to fasten our attention to the point or points in issue which emerge from the pleadings and to the findings of the Court upon such point. It is undesirable and unsafe to extend the frontier by having recourse to rules of analogy or to rules of logic. It the last mentioned case, the entire decision proceeds upon the assumption that an application for letters of administration could be made by a coparcener with reference to joint family property. The point was not raised in the case nor decided by the Court. The case is, therefore, no authority on the question in issue before this Court.
17. We are clearly of opinion that the present application is incompetent and should be dismissed.
18. The two companies referred to in the annexure cannot insist upon the applicant obtaining a letters of administration regarding property which was not the separate estate of General Balmukund Dube. At the same time, the companies may be justified in refusing to recognize the claim of the applicant and his brothers in the absence of satisfactory evidence to prove that they were members of a joint Hindu family with their father, that the shares had been acquired by the father with joint family funds and that the father had died during the continuance of the joint family. If the companies dispute or deny the title of the sons without any just cause, they may expose themselves to the risk, trouble and expense of a declaratory suit by the sons. This aspect of the matter need not be further discussed. We are not called on to decide and we do not decide what remedy is available to the applicant. The only point we decide is that the application made to this Court is misconceived and should be rejected.
19. We dismiss this application.