Venkataramana Rao, J.
1. This appeal arises out of an application for probate of a will left by one Varadappa Chetti. The application was contested by his widow Unnamalai Ammal and it was therefore registered as a suit under the Indian Succession Act. The plaintiff in the suit and his brother Subramania Chetti since deceased were the sons of the brother of the first wife of the said Varadappa Chetti and they were being brought up by Varadappa Chetti as their parents were dead. The will propounded is dated the 4th April, 1930 and under it there were bequests in favour of the plaintiff and his brother and also in favour of Unnamalai Ammal. Unnamalai has put the plaintiff to proof of the will and the validity of the dispositions and also contended that the plaintiff was not entitled to probate on the ground that he was not appointed executor expressly under the will nor an executor by necessary implication and that in any event as Subramania Chetti died before the testator she was entitled to all his interest under the will as on intestacy. The learned District Judge framed several issues including the issue whether the will relied on was true and validly executed. He found that the will was genuine and validly executed by the testator. Then he went into the respective rights of the parties under the will and declared that Unnamalai was entitled to a life estate under the will and that it was only after her life that the plaintiff and his brother Subramania Chetty were to enjoy the property devised under the will. He also held that in regard to the interest of Subramania Chetti there was an intestacy and with regard to this it seems to us that inasmuch as Subramania Chetti died before the will the testator must be deemed to have died intestate. But the question is not whether or not there was an intestacy with regard to the interest of Subramania Chetty but the question is, the will having been proved who is entitled to either probate or letters of administration with the will annexed for the administration of the estate left by the testator. We are satisfied that on the construction of the will the plaintiff would neither be a residuary legatee nor an executor by necessary implication. The only question therefore is, who is entitled to grant of letters of administration with the will annexed. Under Sections 234 and 235 of the Succession Act the person who would prima facie be entitled to letters of administration would be the widow Unnamalai. It seems to us that the learned Judge was not warranted in dismissing the suit with costs of the first defendant for the simple reason that the plaintiff had come to Court for establishing the will. The will having been established it is the duty of the Probate Court to direct letters of administration with will annexed, in cases where no executor had been appointed, to such persons as are under the Act competent to administer the estate, thus avoiding further expense and litigation. We therefore think that letters of administration with will annexed ought to be issued to the widow.
2. In regard to the question of security Mr. Raghava Rao represents to us that Unnamalai was appointed receiver in the lower Court and that she has given security and that the mundi business which was one of the items bequeathed under the will was wound up and the sale proceeds have been realised and deposited into Court. It is open to the lower Court to take this matter into consideration and fix such security as is necessary in the circumstances of the case before directing letters of administration to issue.
3. In regard to the other questions gone into by the learned District Judge which relate to the respective rights of parties under the will, we think it is unnecessary to go into them and we therefore set aside the findings of the learned Judge on those issues and leave the questions raised by them open.
4. As the plaintiff had to come to Court to establish the will the learned Judge was not warranted in depriving him of his costs. The usual practice in cases where a plaintiff seeks to establish a will under which he has been given a legacy and where the will has not been attacked but the plaintiff is merely put to proof of it, is to award costs to both parties from and out of the estate.
5. In the result, we set aside the order of the lower Court and direct the issue of letters of administration with will annexed to Unnamalai on taking security as aforesaid. The costs of both parties here and in the lower Court will come out of the estate.