Dinshaw D. Davar, Kt., J.
1. Mr. Dhuramsi Morarji Goculdas, a very well-known and wealthy merchant of Bombay, died on the 13th of May 1912. He left him surviving a widow and three sons. During his lifetime he was in possession and management of a very large estate consisting both of inoveable and immoveable properties.
2. On the 4th of April 1902 Mr. Dhuramsi executed a will which was prepared in the office of Messrs. Craigie Lynch and Owen and the will is duly attested by Mr. Craigie and his clerk. By this will he appointed Sir Narayan Ganesh Chandavarkar and Messrs. Tribhowandas Varjiwandas, Bhagwandas Narotamdas, Gopaldas Liladhar and Pritamlal Dhirajlal, the executors and trustees thereof. On the 10th of August 1903 Mr. Dhuramsi executed a codicil whereby he revoked the appointment of Gopaldas Liladhar and in his place substituted his brother Mr. Narotam Morarji Goculdas as the executor and trustee of his will and in all other respects he confirmed the said will by the codicil. In the third paragraph of his will, Mr. Dhuramsi declares that all the property, both immoveable and moveable, which he possessed was his own absolute property, and he then proceeds to deal with and dispose of the whole of that property by the said will. In his will he gives legacies to his relatives, servants and cows. He then directs that a school or college and failing that an orphanage should be established at an outlay of Rs. 1,25,000 and that such institution should bear his name. He creates a trust of Rs. 1,50,000 in favour of his wife Ruttonvahu and after making various other provisions he deals with and disposes of the residue of his estate. Two of Mr. Dhuramsi's sons are adults, the third is a minor. The eldest son Mr. Ruttonsi has presented a petition to this Court headed ' In its Testamentary and Intestate Jurisdiction.' In that petition he states that his father the late Mr. Dhuramsi and his sons were members of a joint Hindu family and that the entire property which he died possessed of was joint and ancestral property. He claims that he is now the eldest male member of the joint family and manager of the property and that as such he is entitled to administer that part of the joint family property which stands in the name of Dhuramsi Morarji. He has annexed to his petition a schedule enumerating certain shares in Joint Stock Companies, Government Promissory Notes, Municipal Bonds, &c;, but has omitted to give any schedule of immoveable properties which I was told at the hearing are of the value of more than twenty lacs of rupees. In this petition he says that Letters of Administration to the estate of the said Dhuramsi Morarji Goculdas limited to such property as he held as a member of joint Hindu family may be granted to him having effect throughout the Bombay Presidency and that such property may be exempted from payment of Probate Duty.
3. On the presentment of this petition the Testamentary Registrar directed citations to be issued to all the executors. The citation called upon the executors named in the will and the codicial to appear before the sitting Judge in Chambers and produce the will and the codicil and to accept or refuse the office of executor thereunder and otherwise to show cause why administration as prayed should not be granted to the petitioner. [His Lordship after referring to certain facts not material to this report proceeded as follows-]
4. And now as to the merits of this application : I have no reason whatever to doubt that the statements made in the petition are wholly correct and it is possible that the petitioner would later on be entitled to ask me to make the order he seeks by his present petition. The difficulty that faces me now is: Can I make this order at this stage in the face of the will and the codicil This application is made to me in my capacity as Testamentary Judge. A Judge exercising testamentary and intestate jurisdiction of the High Court of Bombay has no power to declare that a will made by a testator is invaild or inoperative in law by reason of the testator having no power to make such a will and dispose of the property mentioned therein by that will. The testamentary Judge can adjust no civil rights to property between the parties. I have now produced before me a will in which the testator declares that the property in question is his own absolute property. The petitioner contends that . that is an incorrect statement and that the property was joint ancestral property and has devolved upon him and his brothers by survivorship. The will gives numerous legacies and directs a charitable institution to be established and creates several trusts. If I accede to the petitioner's request and make the order that he prays for, I would in effect be making a declaration that the will and the codicil are inoperative and invalid in law. As a Testamentary Judge, I have no power to make any such declaration and it would bind no one. Besides this, I feel that I cannot ignore the existence of the will and direct letters to issue in the absence of pronouncement by a Court of competent jurisdiction that the will is in effect invalid and inoperative. Such a declaration can only be made by the High Court in the exercise of its Original Civil Jurisdiction, and until that declaration is made I feel bound to withhold making the order such as is asked for. The will and the codicil have been produced before me by Mr. Craigie who appeared for Mr. Narotam Morarji Gaculdas, whose instructions to him were that he was to say or do nothing that would in any way embarrass the petitioner or his brothers and he has carried out those instructions. While the matter was being argued by Mr. Setalvai, it struck me that perhaps an Originating Summons would have best served the purpose which the petitioner has in view, but on further consideration I doubt whether that would be an effective procedure. However, that is a matter entirely for the consideration of the advisers of the petitioner. Although none of the executors are willing to act in the matter it must be remembered-that the will seeks to establish a large charity and there are numerous beneficiaries under the will and I cannot, in testamentary proceedings, make an order to their prejudice and without their having an opportunity of being heard in support of the will. Until in properly constituted legal proceedings a declaration is obtained from a Court of competent jurisdiction that the late Mr. Dhuramsi Morarji Goculdas had no power to make a testamentary disposition of the properties that were in his possession during his lifetime and that the will and codicil executed by him are invalid inoperative in law, I feel that I would not be justified in granting Letters of Administration as prayed in the present petition and ignoring the will and the codicil that are produced before me. I direct that the will and the codicil produced by Mr. Craigie and handed in to me be delivered to the Testamentary Registrar to be by him lodged in the Registry. After a declaration is obtained that these two documents are not operative and are invalid in law, I shall be ready to entertain any application that may be made to me for an order of the nature prayed for in the present petition. In fact I see no difficulty in renewing the application on the present petition supported by a decree of this Court declaring the will and codicil inoperative and invalid.
5. I must, under the circumstances, decline to make the order asked for at this stage.