P.C. Mallick, J.
1. This is an application by Sm. Gopi Debi Memani for grant of Letters of Administration to the estate of Meghraj Kothari, who died on April 18, 1953. The petitioner is the only daughter of Meghraj who died leaving no son, but the petitioner as his only daughter and a widow named Gahar Bai. The widow at the time of the death of Meghraj was of unsound mind. She was not, however, adjudged a lunatic, nor has a manager been appointed by the Court of her estate. Meghraj left also other relations whose names are set out in paragraph 3 of the petition. They are three brothers -- Chunilal, Hiralal and Kanhaialal -- and two nephews by a predeceased brother as also the father's mother. The present petition was presented on May 26, 1953 and there was an order directing notice to be served on the caveators to file affidavits. Special citations were ordered to be issued to the relations named in paragraph 3 of the petition. The caveators referred to are the three brothers and a nephew. It is alleged that the properties Meghraj died possessed of are separate properties. The deceased was separated from the coparcenary before his death. It is further alleged that the widow of Meghraj -- Gahar Bai --is a lunatic since 1944 and that either Gahar Bai or the petitioner has become in law entitled to the estate left by Meghraj. The assets have been valued at Rs. 2,50,000/-. It is to be noted that though in the petition the title of the widow to inherit the estate hag not been categorically denied, in the affidavit of assets the petitioner describes herself as 'the only daughter and heir and legal representative of Meghraj Kothari who died intestate.' She does not state however that she is the sole heir.
2. The grant is being contested by the three brothers -- Chunilal, Hiralal and Kanhaialal --and the nephew Srigopal. They are the defendants in this action. They filed a joint affidavit in support of caveat. It is alleged that Meghraj died after having executed a will dated October 6, 1952, whereby the three brothers have been appointed executors. A copy of the will is annexed to the affidavit. It is also alleged that an application for grant of probate has already been made on June 5, 1953. It is further alleged that apart from the self-acquired properties, Meghraj died possessed of joint property which has devolved by survivorship on the other coparceners, including one Giridharilal who was adopted as a son by Meghraj on October 2, 1952. Girdharilal is the son of Chunilal a brother of Meghraj and a defendant. Gopi Debi's title has therefore, been disputed. Another ground on which Gopi Debi's title is disputed is that by custom prevailing at Bikaner a married daughter can never inherit the father's property. It is admitted that Gahar Bai' is a lunatic, as alleged. It is submitted that citation should be issued to Giridharilal who is vitally interested in the estate. Apart from being one of the legatees under the Will in respect to self-acquired properties, Gopi Debi's title to the estate has been disputed. It is contended that the application is misconceived and has been brought mala fide and the applicant is not entitled to the grant.
3. In due course, both the proceedings in the above goods, namely, the proceeding for grant of probate and the proceeding for the grant of Letters of Administration were marked as contentious cause. According to the Rules, they have been registered and numbered as suits. The probate suit was heard by me first. The suit was not proceeded with by the alleged executors. By my order dated August 17, 1961, the application for grant of probate was dismissed with costs. The other application for grant of Letters of Administration to the daughter on the basis of intestacy is now before me.
4. The learned Standing Counsel appearing for the caveators took a preliminary point by way of demurrer. His contention is that Section 246 of the Indian Succession Act will apply to the facts of this case. On the basis of intestacy, Gahar Bai, the widow, is solely entitled to the estate of Meghraj and she is admittedly a lunatic. Section 246 of the Succession Act, is therefore attracted. The section provides that if a person who is solely entitled to the estate of the intestate is a minor or a lunatic. Letters of Administration shall be granted to the person to whom the care of the estate has been committed by competent authority, or, if there is no such person, to such other person as the Court may think fit to appoint for the use and benefit of the minor or the lunatic until he becomes of sound mind. In the instant case, Gahar Bai has not been adjudged a lunatic and no manager of her estate has been appointed by a competent Court. The Court, therefore, in the first instance, should appoint a fit person and then grant Letters of Administration to him to administer the estate for the use and benefit of the lunatic. In the absence of prior appointment of the petitioner as a fit person to administer the estate for the use and benefit of the lunatic, the application is not maintainable and should be dismissed in limini. Reliance is placed on the decision of Woodroffe, J., in In the goods of Nirojini Debi, ILR 34 Cal 706. In the cited case, the husband made an application for grant of Letters of Administration in respect to the Stridhan properties of the wife's mother 'for the use and benefit of his minor wife as the preferential heiress to her deceased mother'. A preliminary objection was taken that the applicant was not the duly assigned guardian to his wife by a competent Court and the matter could not proceed any further till it was done. Woodroffe, J., upheld this objection and adjourned the application to enable the applicant to apply to be the assigned guardian. The point of distinction to be noted between the cited case and the instant case is that in the cited case the application was for grant 'for the use and benefit of the minor wife'. In other words, it was expressly made under Section 33 of the Probate and Administration Act which is the same as Section 246 of the present Succession Act. In the instant case, however, the application is not an application, for grant for the use and benefit of the lunatic mother. The application in form is not an application under Section 246. In the petition it is claimed that either the lunatic mother or the petitioner -- her daughter --is solely interested in the estate. In the affidavit of assets the petitioner claimed to be an heiress. In that state of affairs, I am unable to hold that the present application has been made on the basis of Section 246 of the Indian Succession Act and the decision relied on does not compel me to adjourn the application and not to proceed with the application any further till a guardian of the lunatic is appointed.
5. Mr. Subimal Roy, learned Counsel appearing for the applicant, challenged the learned Standing Counsel to stipulate and admit on behalf of his clients that the lunatic widow is the sole heiress. The learned Standing Counsel, of course, did not and indeed he could not, accept the challenge and stipulate on behalf of his clients that the widow is the sole heiress. He, on the other hand, would reserve full liberty to challenge her title. This, however, in my judgment, does not prevent the learned Standing Counsel from raising the preliminary point by way of demurrer. In this submission the learned Standing Counsel is perfectly right. A further point was raised by Mr. Sidhartha Roy, the learned junior of Mr. Subimal Roy, that the objection can only claim interest in the estate of Meghraj on the basis of testacy as executors. On the basis of intestacy they have no interest in the estate. Having regard to the fact that I have pronounced against the will, they have no further interest in the estate and no right to take part in the proceeding. It is true that on the basis of intestacy of Meghraj the defendants cannot claim any present interest in the estate. But, as rightly pointed out by Mr. Mahadev Hazra, learned counsel for the defendants, they have some interest nevertheless. If and when the widow dies intestate, they may become entitled to the estate of Meghraj as heirs, provided Gopi Debi and her son or daughter are not alive to inherit. Their position is, therefore, akin to that of a Hindu reversioner, same as that of Gopi Debi's, except that they are one degree removed from Gopi Debi. Mr. Hazra, therefore, submitted that the defendants cannot be dismissed from the proceeding under Order 1 Rule 10 of the Code, which, according to him, does not apply to testamentary proceedings. A testamentary proceeding is not really a suit, but is given the form and trapping of a suit and so far as possible the provisions of the Civil Procedure Code will apply. In order to dismiss a caveator from the proceeding, I must discharge the caveat and that order of discharge can only be passed before the proceeding is marked as a contentious cause (See Chapter XXXV, Rule 10). The proceeding has already been marked as a contentious cause and under the rules it cannot now be discharged. In any event, the caveat has not yet been discharged and the caveators have not yet been dismissed from the proceedings by an order of the Court. They have been cited by the petitioner herself and are parties uptil now and they are certainly entitled to take all objections that a party is entitled to take. Therefore, they are free to take the preliminary objection already taken. The last contention of Mr. Hazra I accept. The caveators are still on record as defendants and so long as they are there, they have a right to take the preliminary objection. In that view of the matter, the respective contentions of Mr. Roy and Mr. Hazra above stated on the point need not be further canvassed.
6. In order to sustain the preliminary objection taken by way of demurrer, it must be shown first that the application is made under Section 246 of the Indian Succession Act, that is, that the sole beneficiary in the estate is admitted in the petition to be a lunatic and that grant for administration is claimed for the use and benefit of the lunatic. This is not so in the instant case. It is not admitted in the petition that the lunatic widow is the sole beneficiary of the estate. The daughter claims a title to the estate. An adjudication of title is, therefore, necessary before an order of dismissal can be made. Secondly, the applicant does not purport to ask for grant to administer the estate for the use and benefit of the lunatic. Ex facie, therefore, the application is not under Section 246 of the Indian Succession Act. In such a case, the preliminary objection cannot be sustained by way of demurrer. If I adjudicate that the petitioner had no title to apply. I will dismiss the application on merit, but not upholding the plea of demurrer. In my judgment, the preliminary objection fails.
7. On going through the pleadings carefully, I am not satisfied that the petitioner as the only daughter of Meghraj is entitled to the estate. The widow has a preferential claim. The widow is, however, a lunatic and is debarred from obtaining a grant, nor has anybody applied for grant under Section 246 of the Indian Succession Act for the use and benefit of the lunatic widow. If and when such an application is made, the Court will have to consider it. It is alleged in the affidavit in support of caveat that Meghraj, prior to his death, took Girdharilal, a son of Chunilal, in adoption. This is a bare assertion and I have no evidence of adoption, apart from this affidavit evidence. The petitioner Gopi Debi disputes this adoption and as such did not implead him as a party or caused special citation to be issued to him. Girdharilal could have either applied for grant in an independent proceeding or, in any event, come to the Court and asked to be cited and/or added as a party. He did neither. Nevertheless, there is a notice of Giridharilal's claim and this notice of claim cannot be wholly ignored. Assuming there is no adoption, the present petitioner is the heir presumptive and would be entitled to the estate on the death of the lunatic mother. She has, therefore, an interest in the estate and having regard to the lunacy of the mother, she as the next preferential heir, claims to be entitled to the grant.
8. In this proceeding I am not required to go into questions of title and I do not propose to do so. But in order to make a grant, I will have to determine the right of the grantee and to a certain extent I have got to look to the prima facie title of the parties. My attention has been drawn to a passage in Tristam and Coote where it is stated that if the person entitled to grant is a lunatic the next presumptive heir is entitled to the grant. The petitioner has claimed that either her mother or she herself is entitled to the estate. If she is entitled to the estate, she is competent to apply and obtain a grant. If, again the mother is entitled in preference to herself, she as the next presumptive heir is entitled to grant. She is not, however, to administer for her use and benefit in such event. In my judgment, in a case like the present, the Court is required to make an appointment under Section 254 of the Act. Title to the estate being in dispute and the widow who is prima facie entitled to apply in the ordinary way being a lunatic and therefore incompetent to apply, the Court has full discretion to appoint a fit person to administer the estate. This order under Section 254 does not rule out an application that can always be made under Section 246 of the Act by a certificated manager of the lunatic's estate or any other fit person so found by the Court for grant of administration for the use and benefit of the lunatic. If and when such an application is made, the Court will consider whether the lunatic is the sole beneficiary of the estate and the other conditions laid down in the section are satisfied and then pass an appropriate order. No such application has been made up till now. The duty of the Court in such circumstances is to make an appropriate order in the pending petition for grant. The estate must be preserved and protected and Section 254 is the appropriate section under which an order should be made. In making an appointment under Section 254, the Court will have regard to consanguinity, amount of interest, safety of the estate and the probability that it will be properly administered. The applicant as the daughter, to whom in all reasonable probability the estate would vest after the death of the mother, appears to me to be the fittest person. It is, however contended by the defendants that having regard to the fact that she has denied the title of the mother who is prima facie the heir-at-law, she is disqualified to be so appointed. As indicated before, the petitioner as the only daughter of the deceased is apt to think that lunacy is a bar to inheritance and in consequence the daughter is the heir-at-law. On that basis, the petitioner has contended in various affidavits that subject to the right of residence and maintenance of her lunatic mother, the petitioner is entitled to the estate by inheritance. In that view of the matter, it is contended by the learned Standing Counsel that the interest of the lunatic mother is adverse to that of the petitioner and as such I would not be justified in making an order for grant to the petitioner, when the beneficial interest in the estate is in the lunatic mother. Though the argument is not convincing, yet I cannot wholly brush aside that argument. The lunatic is under the protection of her brother Gangadas Binani, Gangadas Binani has been appointed guardian-ad-litem of the lunatic in this proceeding. He has stated in his affidavit that he has been looking after the lunatic ever since her lunacy and she is under his protection and care. This fact is not being disputed by anybody. On his behalf it is stated that he has no objection to the grant being made to the petitioner. He is also himself willing to take the grant. He is already appointed guardian for the purpose of the suit because of his relationship and because of his looking after and taking care of the lunatic ever since she became a lunatic. It seems to me that he is the fittest person to whom the grant should be made. The petitioner not only does not object but has herself asked that the grant be made in favour of Gangadas Benani.
9. It is strenuously contended by the learned Standing Counsel that by reason of his agreeing to the grant being made to the petitioner, who has set up a title adverse to that of the lunatic, Gangadas is disqualified from obtaining the grant. This argument does not impress me. I do not consider that the conduct of the petitioner or her attitude towards her mother calls for even a mild rebuke. Having regard to the circumstances, the conduct of the petitioner is not such that one having the welfare of the lunatic in mind should have objected to the grant being made to the only daughter of the lunatic mother. I do not, therefore, disqualify Gangadas Benani on that ground. No other question as to fitness of Gangadas Benani has been raised by the learned Standing Counsel. It is stated by the learned Standing Counsel that the defendants are not interested in taking out Letters of Administration and they are not asking for grant. Having regard to this submission of the learned Standing Counsel, it is not necessary for me to state the reasons why, I consider, no grant should he made to them. The defendants have made strong comments on the conduct of the petitioner. I cannot refrain from recording my view that the conduct of the defendants is such that they can never be thought of being entrusted with the administration of the estate of Meghraj Kothari. They propounded a Will which they did not make any attempt to prove at the hearing. They held up an order for administration for years by setting up a spurious will. Mr. Roy is justified in imputing motive to the defendants for their conduct. Their conduct so far as the probate proceeding is concerned is improper in its inception, improper in its continuance and improper in its termination cannot help making this observation.
10. The fact that I am making this order for grant in favour of Gangadas Benani and not in favour of the petitioner should not be construed as a decision on my part that the petitioner is considered to be unfit to get the grant. I consider her to be fit having regard to consanguinity and other factors, A very strong reason why I am making this order for grant in favour of Gangadas Benani is the request conveyed by the petitioner through her Counsel that I should make a grant in favour of Gangadas Benani.
11. There will be an order accordingly. In the facts of this case, I direct that the Kothari defendants do pay the costs of this suit both to the petitioner and Gangadas Benani; certified for two Counsel.