N.R. Chatterjea, J.
1. This appeal arises' out of an application for Probate of the Will of one Bhayaharini Debi, dated the 2nd Agrahan l288.
2. By her Will she appointed her husband's brother's sons Girindra and Harendra, her daughter Lambodari and her husband Tara Nath, her executors. It was also provided in the Will that Sankar Nath (the appellant), who was the son of another brother of Tara Nath, when he attained majority, would be able to act as executor: and that in case Tara Nath, was willing and able to act as sole executor, he would be entitled to do so. Bhayaharini died two days after the execution of the Will: and as Tara Nath was not willing to apply for Probate, Girindra, Harendra and Lambodari applied for, and obtained, Probate in January 1882 and went on administering the estate until April 1S88 when Tara Nath having applied for Probate, he was appointed executor.
3. In the year 1893, Girindra, Harendra and Narendra as also Sankar Nath and his two minor brothers represented by their mother were called upon to state whether they would accept the bequest in their favour, which consisted of certain immoveable property subject to an annuity of Rs. 2,400 a year in favour of Lambodari. Girindra, Harendra and Narendra filed a petition in Court giving up the legacies. In 1894, there was an agreement between Tara Nath and her daughter Lambodari and daughter's son Mohini Mohan, under which Lambodari and her son gave up their right to certain properties and also the annuity given to her under the Will, and Tara Nath gave certain properties to her absolutely. Tara Nath died in 1908, and in 1910 Girindra and Harendra applied for Probate. Notice was served upon Sankar and he stated that he could not apply for Probate owing to ill health but that he would do so later on.
4. It appears that after the death of Bhayaharini, Tara Nath married a second wife and had a son Baroda Bhusan, who died sometime before 1910 leaving a widow Biddutlata, who is the respondent before us. In August 1910 Biddutlata, who was a minor, filed an application through her father for revocation of the Probate granted to Girindra and Harendra and the grant was accordingly revoked.
5. Then the present application was made by Sankar on the 9th March 1894 for the Probate of the Will of Bhayaharini. The application has been refused by the Court below and Sankar Nath has appealed to this Court.
6. The testatrix died more than 35 years ago, and presumably the estate has been fully administered. But it was contended on behalf of the applicant in the Court below as well as in this Court that there were certain debts and legacies unpaid, and that it was necessary to grant administration to manage the properties dedicated for deba sheba provided for in the Will of Bhayaharini.
7. As regards the debts, it appears that there was a mortgage bond executed by Bhayaharini on the 25th Falgun 1283. The mortgages obtained a decree against Tara Nath apparently as executor. On the 1st Ashar 1311 Tara Nath mortgaged certain properties in lieu of the debt due under the mortgage decree obtained by the creditor, asserting his own right to the properties, presumably based upon the ekrar with Lambodari. The properties mortgaged appear to have formed part of the estate left by Bhayaharini, but Tara Nath took over the liability of the debt upon himself and the creditors chose to take the properties to which Tara Nath asserted his own right, as security. In these circumstances, we do not think that a fresh Probate should be granted on the fresh grounds
8. Then as to the legacies under the Will, we have seen that Harendra, Girindra and Narendra refused to accept the bequest hardened with the annuity in favour of Lambodari. It is contended on behalf of the appellant that there is no evidence that notice was served upon Sankar. On the other hand, we were referred on behalf of the respondent to a finding of the District Judge in a previous revocation case as showing that Sankar had been served with notice: and it is also contended on her behalf that Sankar having in 1897 stated in his deposition that Tara Nath was in possession and had got his own name registered as proprietor, any claim for the bequest was barred by limitation. But these questions cannot be gone into by the Probate Court and we do not think that we should consider them. It appears that specific property or rather a share in a certain specific property was bequeathed to Sankar and his brothers, and they can enforce the right against the persons in possession if they have any subsisting right. We do not think it necessary or proper to grant Probate 35 years after the death of the testatrix in order that Sankar may get the property bequeathed to him, when the genuineness of the Will and the right of the parties under the Will have been established by the grant of Probate previously made.
9. The last point relates to deba sheba and the contention is that the sheba is to be carried on by the executors. This contention was raised in another appeal to this Court arising out of the application made by Biddutlata for revocation of the Probate granted to Girindra and Harendra Nath Mookerji. Mr. Justice Coxe in disposing of that contention observed as follows : As regards the idol it is argued that the sheba has to be performed for ever and that consequently the estate cannot have been completely administered. It appears to us that this argument amounts to reductio ad absurdmrn. The Will provides that: 'If any of the aforesaid executors died, his successive male descendants will be able to act as executors.' But it is impossible to hold that the estate can never be completely administered and that the heirs of the executors will be entitled to apply for Probate of this Will till the end of time. The appellants held the Probate of the Will for seven years. They had full opportunities for making all necessary arrangements for the sheba of the idol. In Ranjit Singh v. Jagannath Prosad Gupta 12 C. 375 : 6 Ind. Dec. (N.S.) 255, the executor had been empowered to appoint a Shebait and had failed to exercise that power. But in the present case all that was done was to leave certain property to certain idols, and there is nothing to show that the idols, are not in the full enjoyment of the property.' Vide Respondent's Book, page 51.
10. We agree with those observations and also with the observations made by Brett, J., as to the position and duties of an executor in Taran Singh Hazari v. Ramratan Tewari 31 C. 89 at pp. 92, 93. 'The position and duties of an executor in this country are not very well understood, and considerable confusion exists as to duties of the executor, in administering the estate. The duties of the executor are to administer the estate of the deceased only so far and so long as to enable him to carry out the terms of the Will of which he is executor. After the property has ceased to be the estate of the deceased and has become the property of the residuary legatee under the Will, the executor as such has no an authority to manage the estate on his behalf. Under the Will, the beneficial interest in the property vested in the minor as soon as the testator died, and Gouri Debi was appointed as executrix to manage the property till the minor attained majority. In describing her as executrix for this purpose, there has, in our opinion, been a confusion or misinterpretation of the term 'executrix.' What was intended appears to us to be that she should as, executrix administer the estate and see that the terms of the Will were carried out, and, this being done, that she should manage the property covered by the Will, not as executrix under the Will and administratrix of the deceased's estate, but as manager for the minor till he attained majority. The intention clearly was to appoint her to be manager of the minor's estate. We think that in interpreting the Will, we must have regard not merely to the words used but to the evident intention of the testator.'
11. We think under the circumstances that it is not necessary to grant Probate, for the administration of the estate as the estate really does not require what is technically meant by 'administration.' If there is any controversy between the parties as to the Shebaitship of the disputed property, they must seek for a decision in a title suit framed for the purpose. In this view of the case, it is unnecessary to consider' whether the appellant had any locus standi to make the application for Probate.
12. The appeal accordingly fails and is dismissed with costs, five gold mohurs.
13. I agree.