Rajadhyaksha, J.
1. The facts that have given rise to this appeal may be stated in. a very narrow compass, and they are as follows:
One Mohanlal died on April 17, 1940, leaving three sons and a widow. The sons were minors and the widow was their natural guardian. Thereupon the widow on her own behalf and as the guardian of her three minor sons applied for letters of administration of the moveable property of Mohanlal consisting mainly of shares in joint stock companies and certain deposits. There was no opposition to the application, but the learned Judge was of opinion that the application ought to have been made in respect of the whole property, both moveable and immoveable, and further that court-fee was chargeable on the whole of the estate. In this appeal it is contended, firstly, that the learned Judge was wrong in holding that an application should have been made with respect to the whole of the property, and, secondly, that the lower Court was in error in coming to the conclusion that the property was not exempt from court-fee, although the property in the hands of Mohanlal was a joint family property.
2. There has been no appearance for the opponents-respondents, but as the decision of both the questions arising in this appeal was in some measure likely to affect the public revenue, a notice was ordered to be issued to the Government Pleader.
3. As regards the first contention, the question is whether letters of administration can be issued limited only to a part of the estate of the deceased who was a manager of the joint family property, viz. that part which consists of shares in joint stock companies. The learned Government Pleader has not been able to cite any provision of law or any decision of any High Court which requires that if such an application is made it must be made with respect to the whole of the joint family property of the deceased. There is no doubt as to what the legal position is with respect to the personal property of the deceased. Under Section 273 of the Indian Succession Act 'letters of administration have effect over all the property-moveable or immoveable-of the deceased throughout the province in which the same is granted and is conclusive as to the representative title against all the debtors of the deceased and all persons holding property which belonged to him'. Section 278 lays down the requirements of an application for letters of administration. Under Clause (d) of Sub-section(2) the applicant has to state the amount of assets which are likely to come to the petitioner's hand. When the letters of administration are granted, they are, under Section 290, granted in the form prescribed in Schedule VII and that schedule says
I, the District Judge of...hereby make known that on the...day of...letters of administration of the property and credits of.late of.,deceased, were granted to...of the deceased, he having undertaken to administer the same and to make a full and true inventory of the said property and credits and exhibit the same in this Court.
It would appear from these provisions of the Indian Succession Act that when representation is taken out to the assets of the deceased person, it is taken out with respect to all his assets and not with respect to only a part of them. There are other provisions of the Indian Succession Act which enable letters of administration to be taken out limited by certain circumstances; for instance, under ch. II letters may be taken out which are limited in duration. Letters may also be taken out for specific purposes, but there is no provision, except in Section 290 and in Section 255, which enables letters being taken out only with respect to a part of the assets of the deceased person. The implication, therefore, is that in every case the representation must be taken out with respect to all the assets of the deceased person. That this is so can be seen by contrasting the provision relating to the letters of administration with those relating to the grant of a succession certificate. Under Sch. VIII to the Indian Succession Act when a succession certificate is issued, it is issued with respect to certain specified debts and securities only, and the succession certificate operates only with respect to those debts and securities. Then there is a provision made in Section 376 for the extension of succession certificates to cover other debts and securities. The absence of provisions similar to these with regard to the grant of letters of administration would suggest that when letters are taken out they must be taken out in respect of all the assets of the deceased and, therefore, there is no occasion either for specifying the details of the assets in the application or for the extension of the letters of administration. Although this is the position so far as the personal assets of the deceased are concerned, the position is not quite the same when the deceased dies in possession of the joint family properties. In the case of a joint family property both the legal and the beneficial interests vest in the whole body of coparceners, and on the death of the manager or the father as the case may be his interest becomes extinct, and the property passes by survivorship to the remaining body of coparceners. In the case of a joint family property, therefore, there is no occasion for taking out letters of administration because the legal title has already passed on the death of the manager or the father to the whole body of coparceners. But in the case of shares of joint stock companies which stand in the name of the manager or the father, the legal title vests in the manager or the father and the beneficial interest thereof remains in the whole body of coparceners. In such a case the joint stock companies require that letters of administration must be taken out; for in the case of shares the legal title to the shares vests vis-a-vis the companies in the person in whose name the shares stand. It is the exclusive property of the registered shareholder and letters of administration are taken out in order to enable the company to transfer the shares from the name of the deceased person to the name of the person representing the estate of the deceased. This was decided in the case of Bank of Bombay v. Ambalal Sarabhai I.L.R (1900) Bom. 350: 2 Bom. L.R. 467. The learned Chief Justice observed as follows (head-note);
For a share in the Bank, for the purpose of devolution or survivorship, must be deemed, as far as the Bank was concerned, the exclusive property of its registered holder, and that, therefore, the sole surviving coparcener of a deceased Hindu cannot demand that the Bank of Bombay should by reason of his survivorship register him as a shareholder in respect of shares in the Bank which stand in the name of his deceased coparcener.
Referring to the argument that the beneficial interest in the share also passed by survivorship and the share would not, according to the words of Section 4, vest in the executor or the administrator, the learned Chief Justice observed as follows (p. 358):.this argument is founded on an obvious fallacy; it confuses the legal title and the beneficial interest, and assumes that because the beneficial interest has survived, the legal title must follow suit. But as I have pointed out, it is with the legal title alone that we are concerned, and that has not survived.
It is for this reason that letters of administration are taken out in order to obtain representation to the assets of the deceased manager or the father in respect of the shares in the joint stock companies. This very point was considered in a full bench ruling of the Lahore High Court in Sri Ram v. Collector, Lahore A.I.R [1942] Lah. 173., and the question was framed as follows: Whether in view of the admitted fact that the deceased was a member of a joint Hindu family with the petitioner and others letters of administration could at all be granted to the petitioner or any other person in respect of any part of the property held by him in coparcenery with his sons, and the answer of the full bench was that they could be so granted. With respect, we are in agreement with the view taken by the full bench of the Lahore High Court and we are of opinion that when a Hindu manager of a joint Hindu family or the father dies possessed of the joint family properties and also of certain other properties of which (although members of the coparcenery have beneficial interest in it) the legal title vests in him, it is competent to take out letters of administration limited to that part of the property, the legal title of which vested in the manager or the father. When, therefore, as in the present case, the applicant applied for letters of administration with respect to all the shares of the joint stock companies standing in Mohanlal's name, the legal title to which (as distinct from the beneficial interest in them which belongs to the whole body of coparceners) vested in him, she was asking for letters of administration in respect of the assets of the deceased ; for under Section 217 of the Indian Succession Act, letters of administration can be taken out only with respect to the assets of the deceased in the case of intestate succession. The beneficial interest in the other joint family property had already passed by survivorship and was no longer an asset of the deceased to which representation was required to be taken out. There is, therefore, nothing irregular in asking for letters of administration with respect to the shares in the joint stock companies without mentioning in the application all the other property belonging to the joint Hindu family. In fact this is the practice which is invariably adopted ; and even if we are wrong in the view we take, we should be most reluctant to change the practice which has been in vogue for so many years and which has received the implied recognition of this Court in various cases. I have already referred to the case of Bank of Bombay v. Ambalal Sarabhai. In the case of Collector of Kaira v. Chunilal I.L.R (1904) Bom. 161: 6 Bom. L.R. 652 an application for letters of administration was entertained only with respect to the shares in the joint stock companies without it being made obligatory on the applicant to include in the application all other joint family properties in the possession of the deceased person. Further in the full bench case of Keshavlal v. Collector of Ahmedabad : AIR1924Bom228 it was held that
where, in a joint Hindu family governed by the Mitakshara, on the death of the father, the son applies for limited letters of administration to the family property, standing in the name of the father, the grant of letters [of administration] is exempt from payment of Court-fees.
It is true that the decision in that case mainly related to the liability to the payment of court-fees, but the learned Chief Justice in the course of his judgment observed that there was no dispute about the right to the letters of administration. There also the estate included certain shares of various companies registered under the Indian Companies Act, and the application for letters of administration was entertained from the two sons in respect of the shares which came to their share on a partition after the death of the father. We are, therefore, of opinion that in the present case the application as it stood originally,-confined as it was to the property in the form of share certificates and bank deposits,-was in order and that the learned Judge was in error in directing the applicant to include all the other property of which the deceased died possessed though that property was a joint family property the beneficial interest of which had already passed to the survivors on the death of Mohanlal.
4. The second question is whether any court-fees were payable in respect of the properties mentioned in the original application. It has been held by a full bench of this Court in the case to which I have just referred, viz. Keshavlal v. Collector of Ahmedabad, that
where, in a joint Hindu family governed by the Mitakshara, on the death of the father, the son applies for limited letters of administration to the family property, standing in the name of the father, the grant of the letters [of administration] is exempt from payment of Court-fees.
That ruling would fully apply to the facts of this case and thus the application would toe exempt from the payment of any court-fee, The learned trial Judge, however, has distinguished that case from the one with which we have to deal and considered that the ruling did not apply because the applicant No. 1, viz. the widow of the deceased, was an heir and was not legally a coparcener. It is true that applicant No. 1 was not a coparcener in the joint Hindu family during the lifetime of her husband. She could not have asked for a partition during the lifetime of her husband although she could have obtained a share if there was a partition in the family. Section 3(2) of the Hindu Women's Rights to Property Act, 1937, however, provided that
when a Hindu governed by any school of Hindu Law other than the Dayabhag school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3), have in the property the same interest as he himself had.
The interest of the widow, therefore, comes into existence after the death of her husband and during the lifetime of the husband she has no interest in the property. The position resulting from the Hindu Women's Rights to Property Act, 1937, is summarised in the latest edition of Mulla's 'Principles of Hindu Law', 9th edn., at p. 26-a, as follows:
The statute was enacted to enlarge the rights of women, or as it says, to give better rights to them and there is no indication that, except for this limited purpose, the Legislature intended to interfere with the established law relating to succession or to a joint family. The provision that the widow of a member of a joint family is to have the same interest in the joint property as her deceased husband, and further the provision that she is entitled to claim partition, would seem to indicate that mere devolution of the husband's interest would not otherwise affect the joint family status as such, or to confer upon the widow all the rights of a male coparcener other than those necessary for enforcing the rights expressly conferred on her.
Therefore, until the husband died the property was a joint family property and according to the full bench decision it was in the nature of a trust property. It is to such a property that Section 19-D of the Court-fees Act applies irrespective of the fact that after the death of the husband applicant No. 1 got by the Special Act a right on par with the other members of the coparcenery, but which she did not share with them during her husband's lifetime. If necessary we could even say that Mohanlal was a trustee, in the sense of the full bench decision, of the interest of the other coparceners and of the contingent interest of his own wife-but a trustee all the same. We must have regard to the nature of the property in the hands of the deceased at the time of his death and not to what rights come into being after his death. Section 19-D refers to 'the moveable or immoveable property whereof or whereto the deceased was possessed; or entitled, either wholly or partially as a trustee '. It is the character of the property in his hands that determines the liability to the payment of the court-fees. If that property in his hands is in the nature of the trust property, the application for letters of administration with respect to that property is exempt from the payment of court-fees. In view of the full bench decision referred to above, it must be recognized that the holder of a joint Hindu family property governed by the Mitakshara law can be said to have died possessed of such family property as a trustee. That is the view of the full bench of the Lahore High Court also in the case to which I have already made a reference, It has already been held in Collector of Kaira v. Chunilal that
the exemption of trust estates from the payment of ad valorem court-fee is not conditional on the circumstance that there had been a previous grant of probate or letters of administration on which a court-fee had been paid. The exemption has reference to the character of the property and not to the procedure adopted.
5. We must, therefore, allow this appeal, set aside the order of the lower Court and direct that the letters of administration should issue to the petitioners free from the liability for the payment of any court-fees in respect of the property which was originally included in the petition.
6. There will be no order as to costs.
Macklin, J.
7. I agree, and accept the reasoning of my learned brother and have nothing to add on the legal question involved. I note that there is undoubtedly a well-established practice of permitting applicants for letters of administration to take out letters for a limited purpose. Whether that is or is not a practice which ought to be permitted on general principles it is not for me to say. But I have been unable to find anything in the Indian Succession Act or elsewhere which can be said to be definitely inconsistent with such a practice, and I think it would in any event be too late to challenge the practice now. We must stand by the decisions (of which there are plenty) in which the practice has been recognised. I note also that there is a practice by which court-fee is not paid for letters of administration to property of which the deceased was a trustee. I have some doubts as to whether Section 19-D of the Court-fees Act justifies such an exemption in every case. Prima fade the section means that if letters have been taken out which do not cover the trust property, still the holder of the letters would be allowed to deal with the trust property. But whatever the meaning of Section 19-D, it is clear that it is as a matter of practice interpreted as giving a right to the administrator of the trust property to obtain letters without paving court-fee; and if during his lifetime the deceased was a trustee of that property, it cannot, so far as I can see, make any difference that after his death the applicant for letters of administration had herself a beneficial interest in the property, provided that all she is asking for is letters of administration and she is not asking for possession.