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Government has, with the previous sanction of the GovernorGeneral in Council, by a notification in the official Gazette, authorised it to do so 1.'.
Sec. 3 is an interpretation clause.
4 is = sec. 179 of the Succession Act with the following clause added : ‘But nothing herein contained shall rest in an executor or administrator any property of a deceased person which would otherwise have passed by survivorship to some other person?' The correspondence of the two Acts may be exhibited in the following table:
PROBATE AND ADMINISTRATION Acr. Hec. 124
sec. 137 secs. 180, 181, 182
secs. 5,6, 7. 183
8, omitting the words nor to s married woman without the consent of
her husband.' The reasons for making the husband's consent a condition precedent to the grant of probate or letters of administration to his wife do not apply to Hindús and Muhammadans. 184, 185, 186, 188
omitted. The Act is thus a purely permissive measure. 189
13, oinitting the words por to a married woman without the previous
consent of her husband.' 190
Notifications under this proviso estate may be vested in an executor (which was introduced at the desire who at the same time cannot obtain of the then Secretary of State) have probate.' But this is not, as he sugbeen issued by the Lieut.-Governor gests, the fault of the Legislature, bat of Bengal (Calcutta Gazette, 6th of the Local Governments in not April, 1881), the Lieut.-Governor of issuing notifications under the second the Panjáb (Panjáb Gazette, 6th Oct. proviso of sec. He also says 1881), and the Chief Commissioners that the statute-law determining of Assam (Assam Gazette, 20th Aug. whether an executor takes the property 1881), and of the Andaman and of a testator is contradictory in prin. Nicobar Islands (Gazette of India, ciple,' and quotes in support of this 28th May, 1881). But no other local opinion the third paragraph of sec. 21 Government appears to have done so. of Act XXI of 1870 and the second The result is that Act V of 1881 is paragraph of section 4 of Act V of fully in force only in the Lower 1881. But he omits to mention that Provinces, the Panjáb, and the Chief the former paragraph was expressly Commissionerships of Assam, Burma, repealed by Act V of 1881, s. 154 and the Andamans; and Mr. Justice Where, then, is the contradiction ! West is therefore entitled to say
suggested by Mr. (Digest of the Hindú Law, 3rd ed., Mayne, Hindu Law and Usags, $ 349. p. 225) that by sec. 4 coupled with See 1o Bom. H, C. 139: 12 ibid. Becs. 2 and 3 it appears that the 229.
PROBATE AND ADMINISTRATION ACT. 191-199
23. When the deceased has died intestate, administration of his estate may be granted to any person who, according to the rules for the distri. bution of the estate of an intestate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased's estate.
When several such persons apply for administration, it shall be in the discretion of the Court to grant it to any one or more of them.
When no such person applies, it may be granted to a creditor of the
deceased. It would have been impossible to apply secs. 200-207, as they are in part based on a law of intestate succession differing from that of the classes for which Act V of 1881 is intended. The rule here laid down for those classes is that the grant shall follow the interest : that when several persons inheriting portions of the estate claim administration, the Judge may grant it to any or all of them as he thinks fit, and that when no such person applies, he may grant it to a creditor. 208-211
28–31, 'agent' being substituted for
32, the words 'bas attained his majority' being substituted for · have
completed the age of eighteen years.' 217
33, extended to minors. 218, 219
34, 35, 'agent,' in the latter section,
being substituted for attorney.' 220-235, 235 A-338
56, 57, 58. 342
59, except that the proviso runs thus : *Provided that probates and letters of administration granted by a High Court established by Royal Charter or by the Chief Court of the Panjáb, or by the Court of the Recorder of Rangoon, shall, unless otherwise directed by the grant, have like effect
throughout the whole of British India.' 242 A, 243-246, 246A, 247-253, 60-77.
253 A, 253 B, 253C, 254, 255. 256
78, but the Judge is given a discretionary power to require bonds from
persons to whom probates are granted. So in England the Chancery Division will compel an insolvent executor to give security. 257-262
PROBATE AND ADMINISTRATION ACT.
85, 'Notwithstandinganything herebefore contained, it shall in cases to which the Hindú Wills Act, 1870, applies, be in the discretion of the Court to make an order refusing, for reasons to be recorded in writing, to grant any application for letters of
administration made under this Act.' 263, 264
86, 87. 265, 266
88, substituting for 'to distrain for all rents,' the words 'may exercise the same powers for the recovery of
89, omitting illustration (6). 369
90, 'An executor or administrator has power, with the consent of the Court by which the probate or letters of administration was or were granted, to dispose of the property of the deceased, either wholly or in part, in such manner as he thinks fit :
Provided that the Court may, when granting probate or letters of administration, exempt the executor or administrator from the necessity of obtaining such consent as to the whole or any specified part of the assets of the deceased.'
In illustration (6) the words ' with the consent of the Court'are inserted
after deceased.' It was thought unsafe to entrust to Native executors and administrators in the Mufassal the full powers conferred by the Succession Act. 270-280
103, adding the words 'according to
their respective priorities, if any." 282
104, omitting the words by reason that his debt is secured by an instrument under seal, or on any other
account.' 283, 284
omitted. The reason for the omission is this: the rule that in the case of a deceased person not domiciled in British India his moveable property should be applied to the payment of his debts in accordance with the law of the country in which he was domiciled, could not be applied to Orientals domiciled in countries such as Afghánistán and Nepál, where either there was nothing that could be called law applicable to the matter in question, or such laws as exist are merely personal laws. In the case of such persons the matter is subjected to the law of British India without reference to domicile ; in other words, the law of the situs of the assets prevails here as it does in the case of distributing assets under a bankruptcy. 385-304
PROBATE AND ADMINISTRATION ACT. 305
126, substituting six per cent. for
four per cent. 308-312 .
132, substituting six per cent. for
four per cent. Six per cent. is the ordinary court-rate and the lowest usual rate among Natives. 314, 315, 316, 317, 318, 319, 320 133, 134, 135, 136, 137', 138, 139,
substituting the words 'as the High Court may, by any general rule to be made from time to time, prescribe' for 'as would have been given by the
High Court in an administration suit.' 321
140, omitting the words within two years after the death of the testator or one year after the legacy has
been paid.' 322-328
141-147 Of the remaining sections of the Probate Act two may be mentioned : sec. 148, which declares that in chapters viii, ix, x, and xii the provisions as to an executor shall apply also to an administrator with the will annexed (a declaration accidentally omitted in the Succession Act), and sec. 150, which declares that no proceedings to obtain probate of a will, or letters of administration to the estate of, any Hindú, Muhammadan, Buddhist or person exempted under sec. 332 of the Succession Act shall be instituted except under the Probate Act.
The Succession Act was framed by the Law Commissioners in England and carried through the Council by Mr. (now Sir Henry) Maine. It has now been in force for more than twenty years and has worked smoothly, though its arrangement is not very scientific, though some of its provisions might be more clearly and accurately expressed ?, though its illustrations are lacking in local colour, and though it provides hardly any of the common forms necessary to give effect to its provisions as to probate and administration. The two great changes which it effected—the abolition of the distinction between the devolution of land and that of moveables, and the abolition of the doctrine that by the mere fact of marriage the husband acquires certain interests in his wife's property and the wife acquires a right to dower out of her husband's land
This section also embodies sec. 124 provision that the provisions in Parts of the Succession Act.
XXXV, XXXVI, XXXVII, and See sec. 50 for example. For slips XXXIX as to executors shall apply in drafting see secs. 217, 272, 287, also to administrators with the will 304, and 312. The omission of any annexed is another serious slip. VOL, I,
have greatly simplified titles and produced none of those social calamities which were so confidently prophesied by opponents of the Bill. As to Hindús and Buddhists, the law relating to wills, probate and administration is still throughout the greater part of India in a very unsatisfactory condition. The evils would to some extent be removed if the Local Governments of Madras, Bombay, the North-west Provinces, Oudh, the Central Provinces, Ajmer, and Coorg issued the notifications mentioned in sec. 2 of Act V of 1881. But even then the law would remain bulky and confusing. The proper course is to consolidate Acts I of 1865, XXI of 1870, V of 1881, and VI of 1881, repealing the Certificate Act, XXVII of 1860, and the Bombay Regulation VIII of 1827, stating clearly under each section to what classes of the population the new Act applies, and for the present exempting Natives from the necessity of taking out probate or administration. There should also be a schedule of forms of the affidavits, bonds, citations, consents, inventories, renunciations, and grants needed in working such a law. As soon as this measure is understood by the people, its necessary effect in quieting titles and obviating litigation as to the ownership of property will induce them to avail themselves largely of its provisions. One result of this would be that they would voluntarily tax themselves to the same extent that all persons whose property is dealt with under the Succession Act or Hindú Wills Act are now taxed: that is to say, property covered by the grant and exceeding Rs. 1000 in amount or value would pay a Court-fee of two per cent. ; but property not exceeding that sum would be exempt. People would thus voluntarily and usefully pay to the public treasury a part of the money which they now voluntarily and often uselessly spend in litigation; and the problem of levying a tax on successions to wealthy Natives' estates would thus, to some extent, be solved without hardship to the taxpayer or trouble to the Government.