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Jadeja Pravinsinhji Anandsinhji vs Jadeja Mangalsinhji Shivsinhji And ... on 6 September, 1961
cites
P. Rama Naidu (Deaceased) And Ors. vs Rangayya Naidu And Ors. on 19 August, 1932
10. The above view which I have taken has also been taken by Mr. Justice Venkatasubba Eao and Mr. Justice Eeilly in Rama Naidu v. Rangayya Naidu, ILR 56 Mad 346 : (AIR 1933 Mad 114). I respectfully agree with the view taken in this Madras decision.
Sarat Chandra Banerjee vs Nani Mohan Banerjee on 17 May, 1909
In the case before Mr. Justice Harrington, the executor who was also the residuary legatee under the will died pending proceedings for probate and an application for substitution in the place of the executor w'as made by the widow and heir of the executor claiming a beneficiary interest in the estate of the deceased as the heir of the residuary legatee. While refusing the application of the widow, Mr. Justice Harington observed as above. With respect, I am unable to agree with the view expressed by Mr. Justice Harington, for that would be attaching importance to the form rather than to the substance of an action of an application for probate by an executor. The reasoning in this case was also dissented from by the learned Judges of the Madras High Court in ILR 56 Mad 346 : (AIR 1933 Mad 114) referred to above. Mr. Justice Reilly at p. 385 of the report (ILR Mad) : (at p. 117 of AIR) observed that the consideration of the substance of an action in which an executor applies for a probate was overlooked by Mr. Justice Harington.
Vencatanarayana Pillai vs Subbammal And Anr. on 26 March, 1909
In the case of Venkatanarayana Pillai v. Subbammal, reported in ILR 38 Mad 406 : (AIR 1915 PC 124), it was held by the. Privy Council that on the death of a presumptive reversioner, the person next entitled to the reversion can be substituted in his place, on the ground that the presumptive reversioner's suit must be deemed to be a representative one. Therefore, even though a suit may not strictly fall under Order 1, Rule 8 of the Civil Procedure Code, if it is found that the suit is in substance a representative one by the plaintiff, in other words, that the plaintiff has filed the suit to prosecute a common interest between himself and others, then there would be no bar for those who have common interest with the plaintiff to come on record and intervene on a proper case being made out at any stage of the proceedings.
Edward Waston Coleston vs Mrs. Theresa Chitty And Ors. on 13 August, 1934
14. Next, my attention was drawn by Mr. Nanavaty to the case of Edward Waston Coleston v. Mrs. Theresa Chetty, AIR 1934 All 1053, where the Court observed that no person, who had not been named in the will either expressly or by necessary implication, could be granted probate of the will and further where the executor, who had originally applied, has died since the proper course to be adopted is to proceed under Section 232. In the case before the Allahabad High Court, the executor appointed under the will of the testator, who had applied for probate, was refused probate on the ground that he was an unfit person by reason of his bad financial position and the learned trial Judge appointed the Administrator General as the executor and the administrator of the estate and ordered that the probate should be granted to him of the will and of the first codicil. The appellate Court held that the learned trial Judge had no jurisdiction to order probate to be granted to the Administrator General, who had not been named as an executor in the will. To this statement of law no exception can be taken, for there was no justification to appoint the Administrator General as an executor of the will in place of the one appointed by the testator and then to further grant him probate. At the appellate stage it was found that the executor named in the will, one Mr. Nitchell had died. Appeals were filed against the grant to the Administrator General by the legatees and other litigants and the Court observed that the proper course to adopt was to proceed under Section 232, under which, when an executor dies after having proved the will but before having administered all the estate of the deceased, a universal or a residuary legatee may be admitted to prove the will, and letters of administration with the will annexed may be granted to him of the whole estate, or of so much thereof as may be unadmi-nistered and that the question of granting letters of administration can be considered when a proper application is made by such a person.
Section 2 in The Indian Succession Act, 1925 [Entire Act]
Chandramani Maity vs Bipin Behari Sasmal And Ors. on 8 May, 1931
These observations were based on the decision of Mr Justice Harington in ILR 36 Cal 799 referred to above. But having made these observations, the learned Judges proceeded to say as follows : -
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