[1946] EACA 77

## ORIGINAL CIVIL

#### Before HORNE, J.

In the matter of an application by EBRAHIMJI GULAMHUSEIN ANJARWALA as an Administrator of the estate of HUSSENABAI MUSAJEE,

# deceased

#### and

In the matter of Civil Procedure Rules, 1927. Order XXXIV

## Civil Case No. 247 of 1946 (O. S.)

Intestacy—Administration of estate—S. 90 Probate and Administration Act (V of 1881)—Administrator a trustee for sale—Trustee Ordinance, 1929—Trusts of Land Ordinance, 1941—Power of administrator to sell—Permission of Court required.

An administrator intestate of an estate desiring with the consent of the beneficiaries to have the immovable property belonging to the estate sold applied to the Court by originating summons to have the following questions decided:

Is the administrator a trustee for sale of the immovable property and is he bound to obtain the Court's permission to sell under S. 90 of the Probate and Administration Act?

### $\dot{H}$ eld (17-12-46).—(1) That an administrator is a trustee for sale.

(2) That whatever the powers of trustees under the Trustee Ordinance, 1929, and the Trusts of Land Ordinance, 1941, an administrator of an estate under the Probate and Administration Act is subject to the provisions of that act and by S. 90 thereof may not without the previous sanction of the Court sell any immovable property vested in him.

#### Nazareth for the Applicant.

RULING.—Madam Hussenabai Musajee, who died in 1946, owned certain immovable properties. She left her husband, who is the administrator intestate of her estate, and some major children. The deceased was a Bohora Mohammedan and the distribution of her estate will be governed by the Shiah law. The administrator and the other beneficiaries desire to have the immovables sold and the proceeds distributed accordingly.

The summons poses the following question: Is the administrator a trustee for sale of the immovable property, or is he bound to obtain the Court's permission under Section 90 of the Probate and Administration Act (V of 1881)?

The argument of Mr. Nazareth is to the effect that an administrator becomes a trustee for sale by reason of Section 10 of the Trusts of Land Ordinance, 1941, and the powers given to trustees for sale under that Ordinance are so wide that an application to the Court under Section 90 of the Probate and Administration Act is redundant and that the Trusts of Land Ordinance should be considered to be impliedly repealed.

The argument is based on Section 10 of the Trusts of Land Ordinance which provides that any land which under or by virtue of any Ordinance or other instrument is or becomes limited to or in trust for any persons by way of succession shall be deemed to be settled land and the Ordinance or other instrument under which the same is so limited is to be referred to as a settlement or the settlement. It is submitted that the Probate and Administration Act is "an "Ordinance" by virtue of which the land in question is limited to or in trust for persons by way of succession; alternatively if that Act is not an Ordinance it is an instrument having the same effect by reason of the definition of instrument in Section 2 of the Trusts of Land Ordinance. Instrument is there defined as "not to include an Ordinance or statute unless such Ordinance

or statute creates a settlement within the meaning of Part III of this Ordinance". The argument that the Probate and Administration Act is a statute and creates a settlement is too tenuous for me to accept. I think it is unsound. I can see nothing in the Probate and Administration Act which can cause me to hold that it creates a settlement, and the proposition put forward that land which has not been settled in the owner's lifetime becomes settled on an intestacy and thus the administrator becomes a trustee for sale seems to me to be based upon a misconception of the Trusts of Land Ordinance. Land which becomes vested in a personal representative in trust firstly for the purposes of the administration and secondly in trust for the benefit of the shares in a Muslim deceased's estate is not land "in trust for any persons by way of succession". That phrase denotes successive interests, and here there are no such interests. Wide as Section 10 is, it requires always an instrument or instruments creating a settlement before land can be deemed to be settled land. Moreover, there is no necessity to strain the provisions of Section 10—which is a definition of settled land—in order to make an administrator a trustee for sale. An administrator being a personal representative was already a trustee for sale before that Ordinance was enacted.

Section 2 of the Trustee Ordinance, 1929, contains a definition of "trust" and "trustee" as extending "to the duties incident to the office of personal representative"; and a definition of "trust for sale" which I need not quote; and a definition of "trustees for sale" as meaning "the persons (including a personal<br>representative) holding land on trust for sale". Part II of the Trustee Ordinance contains a considerable amount of law on the powers of trustees and personal. representatives.

The Probate and Administration Act is not a general law as to trustees, it. is a special law dealing with the administration of the estates of deceased Hindusand Mohammedans and others made subject to it, and Section 90 (3) provides. that "and administrator may not, without the previous permission of the Court. by which the Letters of Administration were granted-

(a) mortgage, charge or transfer by sale, gift, exchange or otherwise any $\alpha$ immovable property for the time being vested in him under Section 4, or

(b) lease any such property for a term exceeding five years".

Whatever powers trustees in general may have under the general law as: stated in the Trustee Ordinance, 1929, and the Trusts of Land Ordinance, 1941. those powers in the special cases covered by the Probate and Administration Act. must nevertheless be exercised subject to the provisions of that Act. For it would be contrary to principle to say that a later general law abrogates an earlier special one by mere implication (see Maxwell 8th Edition 156).

Whether an estate is administered under the provisions of the Indian. Succession Act or the Indian Probate and Administration Act, the personal'. representative is a trustee of all the property movable or immovable vested in. him by either Act for the special purposes of the trust of administration. The primary purpose is of course the payment of debts and the personal representative must sell so much of the property as may be necessary for that purpose; and subject to the trusts in favour of creditors the personal representative isconstituted a trustee for the persons beneficially entitled to the property of the deceased. Accordingly as under the Trustee Ordinance, 1929, an administrator may be a "trustee for sale", he will also have such powers of a "trustee for sale" under the Trusts of Land Ordinance as he may be able by the nature of hisduties, to make use of; and that position is conserved, it appears to me, by Section. 56 of the Trusts of Land Ordinance which states that:-

"The provisions of this Ordinance relating to trustees for sale of land apply to personal representatives holding land upon trust for sale but without: prejudice to their rights and powers for the purposes of administration."

I quite agree that it seems quite redundant in the present case, where all the parties are sui juris and desire the land to be sold, to come to Court and ask for permission to sell. I would however point out that, according to the notes on Section 90 in Mr. Kenney's work on the Probate and Administration Act, it has been held by the Calcutta High Court that the Section has no application where the estate has been fully administered (see page 178). It would therefore appear that an administrator in such a case can take the risk which is apparently negligible of not applying for permission. It must not, however, be overlooked that although the administrator is a trustee for sale, he is, under the Probate and Administration Act, an administrator having control of property which is subject to the various rules for distribution of the various classes; and there may well be cases where the necessity to obtain the consent of the Court will act as a safeguard both to creditors and beneficiaries.

For the reasons above stated I am unable to hold generally that an administrator of an estate of any of the classes covered by the Probate and Administration Act is by reason of the Trustee Ordinance and/or the Trusts of Land Ordinance freed from the obligations imposed on him by Section 90 (3) of the Probate and Administration Act. The answer to the first part of the question is yes; and to the second part, yes.