The Present Application Has Been ... vs State And Others Reported In
2023 Latest Caselaw 1210 Cal/2

                                        1


                     IN THE HIGH COURT AT CALCUTTA

                (Testamentary & Intestate Jurisdiction)

                             ORIGINAL SIDE

Present:

The Hon'ble Justice Krishna Rao



                              GA 3 of 2023
                                   In
                             PLA 14 of 2020


                            In The Goods Of :
                        Kalpana Shukla, Deceased




           Mr. Jishnu Chowdhury
                                            ...Advocate



Hearing concluded on     : 15.05.2023

Judgment on              : 18.05.2023

Krishna Rao, J.: -


1.

The present application has been filed by the petitioner praying inter

alia that he may be exempted from furnishing an administration bond

with two sureties in terms of the order dated 9th January, 2023, where

under Letters of Administration have been granted in favour of the

petitioner in respect of the estate of the deceased Kalpana Shukla.

2. The petitioner Upendra Kumar Shukla, who is a Class II heir under

the Hindu Succession Act, 1956 of the deceased Kalpana Shukla had

filed an application under Section 278 of the Indian Succession Act,

1925, praying for grant of Letters of Administration in respect of the

estate of the deceased Kalpana Shukla. The said petition was

uncontested and by an order dated 9th January, 2023, this Court has

granted Letters of Administration in respect of the estate of the

deceased in favour of the petitioner subject to furnishing personal

bond of Rs. 16 lakh with two sureties within eight (8) weeks from date.

3. By an order dated 13th February, 2013, on the prayer made by the

Counsel for the petitioner, time to furnish the personal bond in terms

of order dated 9th January, 2023 was extended for a further period of

six (6) weeks.

4. Mr. Jishnu Chowdhury, Learned advocate representing the petitioner

submits that the petitioner is settled at United States of America and

as such it is not possible for the petitioner to arrange for two sureties

as per the order passed by this Court dated 9th January, 2023. He

submits that as the petitioner is a resident of United States of

America, any surety would have to make an application to the Reserve

Bank of India and obtain approvals under the Foreign Exchange

Management Act, 1999 as a surety to the administration bond.

5. Mr. Chowdhury further submits that it is almost impossible for

administrative reasons for the petitioner to obtain permission from the

Reserve Bank of India expeditiously or within the time granted by this

Court.

6. The present application has been filed by the petitioner praying that

the petitioner may be exempted from furnishing sureties for the estate

of deceased on the plea that surety is required to be furnished to

safeguard the ultimate interest of the heirs and in the instant case,

there is no legal heirs and the beneficiaries of the estate of the

deceased except the petitioner in respect thereof, Letters of

Administration have been granted and nobody has came forward to

raise any objection for grant of Letters of Administration to the estate

of the deceased to the petitioner who has been authorised to

administer the estate of the deceased. The Learned Counsel for the

petitioner has relied upon the following decisions:

           i.     Sanjay Suri -vs- State and Others reported in
                  2003 (71) DRJ 446.
           ii.    Richa Pardeshi -vs- State reported in 2012 SCC
                  OnLine Del 2978.

iii. Unreported judgement passed by Hon'ble High Court at Delhi in TEST. CAS.13/2013, I.A.

                  723/2018, I.A. 8060/2020 Ishan Kapur                  -vs-
                  State and Others dated 22nd February, 2021.
           iv.    (2023)   10 SCC 83 General Manager -vs- Ikbal
                  and Others.

7. The Indian Succession Act, 1925 is a self-contained Code insofar as

the question of making an application for grant or refusal of probate,

and for grant or refusal to grant letters of administration or an appeal

against the decision of the probate court. The grant of probate by a

court of competent jurisdiction is in the nature of proceedings in rem

as long as the order of probate remains in force. It is conclusive as to

the proper execution and validity of the will, unless it is duly revoked

as per law. A probate order not only binds all the parties impleaded in

the proceedings, it also binds other persons in all proceedings arising

out of the will or connected therewith. Similarly, in the case of

intestate succession, the letters of administration granted in favour of

the administrator is the court's imprimatur to him to administer the

estate of the deceased by paying full expenses, duties, legacy, recover

the dues to the estate and retain the residue of the estate. Once the

residue has been determined, the administrator is under an obligation

to pay the residuary legacy to the legatee(s) maintain true and correct

accounts and an inventory of the assets of the deceased and

thereafter, file the accounts in discharge of his duty.

Before considering the request of the petitioners for being

exempted from furnishing a surety, it would be relevant to examine

the provisions of Section 291 of the Act, which is reproduced herein

below for ready reference : -

"291. Administration-bond.-(1) Every person to whom any grant of letters of administration, other than a grant under section 241, is committed, shall give a bond to the District Judge with one

or more surety or sureties, engaging for the due collection, getting in, and administering the estate of the deceased, which bond shall be in such form as the Judge may, by general or special order, direct.

(2) When the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person-

(a) the exception made by sub-section (1) in respect of a grant under section 241 shall not operate.

(b) the District Judge may demand a like bond from any person to whom probate is granted."

Section 291 of the Act stipulates that but for exceptional

circumstances as specified in the said provision, every person in

whose favour letters of administration are granted, must furnish an

Administration Bond. The objective of executing an Administration

Bond is to secure due and proper administration of the estate of the

deceased and the executors and administrators are required to

discharge the duties cast upon them in relation to the said estate and

to ensure that after the estate has been administered, its residue is

paid to the legatee or the next of kin.

The aforesaid aspect was examined in some depth by a Single

Judge of Delhi High Court in the case of Sanjay Suri (Supra), where

counsel for the petitioner had argued that the requirement of

execution of a bond should not operate in the case of a sole

beneficiary under a will to whom letters of administration are granted.

After taking into consideration the requirement for execution of an

Administration Bond as prescribed under the statute, the petitioner

therein was exempted from furnishing the same in the light of the

following observations : -

"21. The crux of the matter arising for consideration is whether a sole beneficiary under a Will, which has been duly proved, should be required to execute an administration bond for the administration of an estate, which is bequeathed to him and to which there are no other claimants. It is only on account of statutory bar under Section 222 of the Act, the said sole beneficiary and natural heir not being an executor, is not being granted the probate. It is not in dispute that had he been appointed the executor, there would have been no requirement or insistence on furnishing a surety or administration bond.

22. It would be seen that none of the duties of the Administrator as noticed in the preceding para-16 are required to be performed by a person, who is the sole beneficiary under the Will. It appears to me that the requirement of furnishing of administration bond or surety bond for administration of an estate belonging to oneself is wholly redundant and could not have been intended to be covered by the statutory provision, namely, Section 291 of the Act.

23. On a question of proper interpretation of Section 291 of the Act, reference is invited to the following paras from Halsbury's Laws of England : -

Paragraph 898 at page 551 of Volume 44: "The construction of ancient statutes may be elucidated by what in the language of the Courts is called contemporanea expositio, that is, by saying how they were understood at the time when they were passed." Paragraph 860 at page 524 of Volume 44: "Where the main object and intention of a statute are clear, it should not be reduced to a nullity by a literal following of language, which may be due to want of skill or knowledge on the part of a draftsman, unless such language is intractable."

24. Following are the well recognised principles of interpretation:- Statutes must be so construed as to make them operative. If it is possible, the words of a statute must be construed so as to give them a sensible meaning. A statute must, if possible, be construed in the sense which makes it operative and does not defeat the manifest intentions of the legislature and nothing short of impossibility so to construe it should allow a court to declare a statute unworkable.

If the Court is to avoid a statutory result that flouts common sense and justice, it must do so not by disregarding the statute or overriding it, but by interpreting it in accordance with the judicially presumed parliamentary concern for common sense and justice. But the possibility of injustice which leads the Court to adopt a particular construction must be a real one.

25. There are instances, where the entitlement though fully covered under the statute has been denied on ground of public policy. In R v. National Insurance Commissioner, ex parte Connor "reported in (1981) 1 All ER page 770 was a case under the Social Security Act, 1975. A widow though entitled to the insurance as per condition of the statute for grant of social security was denied the allowance on public policy as she had created a status of widowhood by killing her husband. This is a case, where on ground of public policy the applicant fulfilling the entitlement under the statute was denied relief on grounds of public policy.

26. Reference at this stage may also be made to the Maxwell on interpretation of statutes with regard to the "golden rule". The learned author noticed as under:

"The So called 'golden rule' is really a modification of the literal rule".

27. It was stated in this way by Parke B:

"It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further".

28. Considering the nature of the Testamentary and Intestate succession, the object and purpose sought to be achieved by Section 291 and thus applying the aforesaid principles of interpretation of statutes, it would be seen that Section 291 of the Act is not intended to cover within its ambit the cases of a sole beneficiary and legal heir under a Will being required to furnish administration/surety bond. One cannot administer the estate or his own estate against himself, for which he be required to give an indemnity or administration bond. Besides, none of the purposes and objectives of Section 291 of the Act are covered or fulfilled by the execution of an administration/surety bond by the sole inheritor or beneficiary under the Will duly proved. Such an exercise would be an exercise in futility. In the instant case if the petitioner's grand son was to mismanage or maladminister, he would be doing so only against his own and personal interests. A right that clearly vests in him by virtue of

the bequest. Hence insistence of furnishing the administration bond in the present case would not only be meaningless and without any purpose, but inconsistent with succession. Section 291 in the light of the foregoing principles of interpretation, as noticed, has to be interpreted so as not being applicable to a case of a sole beneficiary and legal heir, under a duly proved Will insofar as requirement of furnishing an administration bond is concerned."

8. In line with the aforesaid decision is the judgment in the case

of Richa Pardesi (supra), where the petitioner had sought grant of letters of

administration in respect of the estate of her deceased father. Being the sole

legatee, the Court had exempted the petitioner from furnishing an

Administration Bond by holding that any decision to give effect to Section

291 which prescribes that an Administration Bond be furnished by a sole

beneficiary or a sole legatee, would lead to an absurd consequence, for the

reason that such a beneficiary/legatee would stand as a surety for the estate

of the deceased, which has exclusively devolved upon him and it would be

paradoxical to hold that a person can stand surety for himself.

9. On a conspectus of the above legal position on the requirement of

furnishing a surety and Administration Bond, it may be noted that in a

majority of decisions, it has been held that where a sole beneficiary/legatee

is involved, the requirement of offering an indemnity bond/surety bond is

dispensable for the simple reason that it would be an exercise in futility to

call upon a sole beneficiary/legatee under a will that has been duly proved,

to furnish an Administration Bond/Surety Bond when the estate of the

deceased has been bequeathed in favour of the very same person. Even

when it comes to cases where petitions are filed for grant of letters of

administration under a will, on account of the bar imposed under Section

222 of the Act that stipulates that probate can be granted only to an

executor appointed by the will, the courts have ordinarily adopted a liberal

approach and have taken a pragmatic view by holding that judgments

pronounced in exercise of testamentary and intestate succession are in the

nature of proceedings in rem and the statutory provisions and rules are

framed to realize the ultimate objective of succession.

10. Therefore, wherever probate has been sought of the bequest in favour

of the natural heirs, and the petitioners have sought exemption from

furnishing Administration Bonds/Surety Bonds they have ordinarily been

exempted, reason being that a person, who is the sole beneficiary under a

will, is not required to undertake duties of an administrator who in the said

capacity, is expected to maintain true accounts and a complete inventory of

the estate of the deceased and administer the said estate. The aforesaid line

of thought has been expressed in the cases of Sanjay Suri (supra)

and Richa Pardeshi (supra).

11. The same view finds resonance in cases where there are more than

one beneficiary/legatee of the estate of the deceased. While reiterating the

principle that the objective of testamentary and intestate jurisdiction is to

enable the Court to accord legitimacy and authenticity by giving its seal of

approval to succession of the estate of the deceased, the courts have

observed that the ultimate objective is of grant of succession and to realize

the said objective, the statutory provisions and rules ought to be interpreted

in a manner that are in furtherance to realizing the intention of the

deceased, instead of obstructing it by getting hyper technical. At the same

time, the courts have been cautious in cases of intestate succession for the

reason that a greater degree of care is required to be taken when an

administrator is to be appointed with a surety and security taken for due

administration of the estate of the deceased.

12. In the present case, the petitioner is the only Class II heir of the

deceased late Kalpana Shukla. None has came forward to raise any

objection for grant of Letters of Administration to the estate of deceased to

the petitioner and accordingly by an order dated 9th January, 2023, this

Court had granted Letters of Administration to the petitioner. Now, the

petitioner seeks exemption from filing the surety bond.

13. The Letters of Administration have been granted to the petitioner in

the absence of any contest, this Court is of the opinion that the condition of

filing a Security Bond for entire value of the estate of the deceased, assessed

at Rs. 16 lakh would be extremely onerous upon the petitioner. In view of

the above, it is crystal clear that to hold that Section 291 envisages the

furnishing of an administration bond by a sole beneficiary or a sole legatee

would lead to absurd consequences. The sole beneficiary or a sole legatee

would then be standing as surety for the estate of the deceased, which has

exclusively devolved upon him, and it would be paradoxical to hold that a

person can stand surety for himself.

14. In the above circumstances, the petition is allowed by exempting the

petitioner from furnishing an Administration Bond with surety but the

petitioner shall furnish an indemnity bond of Rs. 10 lacs without any surety

within a period of four weeks from date.

15. G.A. No. 3 of 2023 is thus allowed to the above extent.

(Krishna Rao, J.)