S.P. Das Ghosh, J.
1. The suit out of which this appeal arises was for granting letters of Administration with a copy of the will annexed to the plaintiff-appellant, Durga Charan alias Durgadas Sardar. One Kali Kumar Naskar was the owner of various properties. He had two brothers, Nabin and Abhoy. Tarak is the son of Nabin. Nanilal and Charan are the sons of Abhoy. Kali Kumar had adopted a son named Phani Bhusan, son of Abhoy. He had a daughter named Gourimani who was married with one Kirtibas Sardar. The plaintiff-appellant Durgadas as well as Madhusudan, Jiban Krishna, Hirendra and Narendra are the sons of Gourimani. Kali Kumar left a will dt. 8-6-1932, corresponding to 25th Jaistha 1339 B. S., bequeathing some of his properties to Gourimani and after her death to her son, son's son and heirs in succession and to his adopted son, Phani Bhusan and making provisions for his widowed sister-in-law, Smt. Fulmani Dasi. His wife Jnanada Mani was appointed as executrix and his son-in-law, Kirtibas was appointed as executor of this will. This will was registered. After the execution of this will, Kali Kumar died in Jaistha 1341 B. S. His wife Jnanda Mani died in Pous 1358 B. S. His son-in-law Kirtibas died in Agrahayan 1359 B. S. His daughter Gourimani died in Phalgun, 1371 B. S. After the death of the executrix and the executor of the will as well as Gouri Mani, an application was made on 8-3-1972 by the plaintiff-appellant in the court of the Munsif, Baruipur, for granting him Letters of Administration along with a copy of the will annexed. This application, being contentious, was filed in the court of the District Judge, Alipore, on 18-9-72 and was registered as a suit. The suit was subsequently disposed of by the learned Additional District Judge, 12th Court, Alipore, who was pleased to dismiss the suit on contest with costs. Being aggrieved by this judgment and decree of the learned Additional District Judge, the present appeal has been filed by the plaintiff-appellant.
2. The case of the plaintiff-appellant is that the will dt. 8-6-32 was the last will of Kali Kumar. The appellant is one of the legatees mentioned in the will. The will was found out in a box along with other papers in December, 1971. This will and the other papers were originally in the custody of his father, Kirtibas. The executrix or the executor did not apply for probate of the will. As such, the petitioner prayed for granting him the Letters of Administration with a copy of the will annexed on valuing the properties of Kali Kumar at Rs. 10,000/- in an affidavit filed along with the application for grant of Letters of Administration alleging that most of the assets of Kali Kumar were lost before the filing of the application for grant of the Letters of Administration.
3. The case was contested by Phani Bhusan and later on by some of his heirs. The defence was that the apellant had no locus standi to file the suit. It was alleged that the will was never duly executed and was never duly attested. It was further alleged that Kali Kumar had no mental and physical testamentary capacity. It was also alleged that the registration of the will was done collusively and fraudulently behind the back of Kali Kumar. The defence was that during the revisional settlement operations, Phani Bhusan got the properties recorded in his name. Phani Bhusan sold many properties to different persons during his lifetime to the knowledge of the plaintiff appellant. He was in possession of the entire properties of the deceased Kali Kumar and after his death, the heirs of Phani Bhusan were in occupation of all the properties left by Phani Bhusan. The appellant had examined three witnesses. P. W. 1, Nirmal Ch. Das is one of the attesting witnesses of the will, Ext. 1. P. W. 2, Durgadas Sardar is the plaintiff-appellant. P. W. 3, Monoranjan Mondal was examined to say that his father and uncle purchased some properties from Kali Kumar by a kobala, Ext. 2. It is in this kobala, Ext. 2, that there is a recital that Kali Kumar executed, read, signed and registered one piece of will on 25th Jaistha, 1339 B. S. and had appointed his wife and son-in-law as Executrix and Executor. Two witnesses were examined for the contesting respondents. They were D. W. 1, Beharilal Mondal, who spoke about the absence of mental capacity of Kali Kumar to execute any will. D. W. 2. Bholanath Naskar, was one of the contesting defendants of the suit.
4. On a consideration of the evidence of the aforesaid P.Ws and D.Ws and other materials on record, the learned Additional District Judge was of the opinion that the will was not duly executed or attested by the testator and that the appellant was not entitled to get a probate of the will. The reasons weighing with the learned Additional District Judge for dismissing the suit were absence of left thumb impression of Kali Kumar in the will executed in 1932 though there was left thumb impression of Kali Kumar in the subsequent kobala, Ext. 2, executed in 1933, non-examination of any other attesting witness besides Nirmal Ch. Das and delay in making the application for grant of the Letters of Administration on 8-3-72 after the alleged execution of the will on 8-6-32.
5. On a careful consideration of the evidences of the P.Ws. and D.Ws, we are unable to accept the contention of the teamed Additional District Judge that the will was not properly executed or attested. It is in the evidence of both P.Ws. 1 and 2 that the other attesting witnesses of the will are dead. It is in the evidence of D.W. 2 that they had no enmity with Nirmal Ch. Das (P.W. 1). As the other attesting witnesses of the will are dead, the examination of P.W. 1 only for proving the execution and attestation of the will leads to no adverse inference regarding execution and attestation of the will, in view of the provisions in Section 68 of the Evidence Act. When Kali Kumar had himself given out in the subsequent kobala. Ext. 2, that he had executed, read, signed and registerd one will on 25th Jaistha, 1339 B.S. there should be no adverse inference against the due execution and attestation of the will. As for delay in filing the application for grant of the Letters of Administration, it is to be stated that the learned Additional District Judge was no doubt justified to observe that the brother of the appellant had not been examined to speak about the finding of the will in the box in December, J971, though the evidence of P.W. 2 is that his brother knew about the finding of the will and none else knew about it. Even then, the delay in filing the application for grant of the Letters of Administration has relevance so far as the genuineness of the will is concerned. As the testator Kali Kumar had himself admitted the due execution of the will by him and due attestation of the will has also been proved by P.W. 1, the delay in filing the application for grant of Letters of Administration should not be a ground for dismissing the suit. Though we are unable to agree with the finding of the learned Additional District Judge that the will was not properly executed and attested, we are to dismiss, this appeal on a different consideration. As already stated, one of the defence in the suit was that the appellant had no locus standi to file the suit.
6. Mr. Mukherjee appearing for the appellant has drawn our attention to the case of Durgapada v. Atul Chandra, 41 Cal WN 1204 : (AIR 1937 Cal 595) and has argued that when due execution and attestation of the will have been proved, this Court cannot but grant Letters of Administration with a copy of the will annexed, when a difference has been maintained in the Indian Succession Act, 1925, (hereinafter referred to as the Act for the sake of convenience) between grant of Letters of Administration simpliciter and grant of Letters of Administration with a copy of the will annexed. On a perusal of the case of Durgapada v. Atul Chandra, 41 Cal WN 1204 : (AIR 1937 Cal 595), we are unable to subscribe to the view 6f Mr. Mukherjee that when due execution and attestation of the will have been proved by the plaintiff-appellant, he is entitled as a matter of course to get Letters of Administration with a copy of the Will annexed. Undoubtedly, there is no question of limitation for filing an application for grat of probate or Letters of Administration. Nevertheless, a person is to be either a legatee or a person entitled to a part of the estate of the deceased testator, before applying for grant of Letters of Administration. Chapter I of Part IX of the Act deals with grant of probate and Letters of Aministration. Under Section 218 of the Act, if the deceased died intestate, any person, who according to rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased's estate, could apply for grant of letters of Administration. The plaintiff-appellant does not come within provision of Section 218 of the Act. It is the case of the appellant in the petition filed in the Court of the District Delegate that Kali Kumar was governed by Dayabhaga School of Hindu Law. The Will was executed on 8-6-1932, long before the coming into operation of the Hindu Succession Act, 1956. The appellant was not entitled to any part of the estate of Kali Kumar under the rules of succession prevailing in this country prior to the enforcement of the Hindu Succession Act, Neither can the plaintiff appellant come under Section 232 or 234 of the Act. The plaintiff-appellant is not a universal or residuary legatee. He is not also a legatee, on a construction of the Will. It has been held by a Division Bench of this Court in the case of Bhupati Charan v. Chandi Charan, 39 Cal WN 390 : (AIR 1935 Cal 154) that the probate court is entitled to construe a Will in order to see whether the applicant for Letters of Adminsitration is entitled to letters as a universal or a residuary legatee. The relevant terms in the Will for finding out whether the applicant is a legatee or not are contained in paras 7, 18 and 22 of the Will. Para 7 of the Will is to the effect that after the death of Kali Kumar and the death of his wife, his daughter Gourimoni Dasi, would get half share of the property mentioned in Schedule (Ka) of the Will and all the lands, including trees etc., with all rights in Schedule (Kha) and thereafter her son, son's son etc. and heirs in succession should get these properties. Para 8 of the Will contains provision for the widowed sister-in-law of Kali Kumar named Fulmoni Dasi. Para 9 of the Will contains provision regarding the properties mentioned in Schedule (Gha). Under para 10 of the Will, the appellant was to get a grocery shop. Under para 11 of the Will, disposition has been made regarding the land mentioned in Schedule (Chha). Para 13 of the Will is to the effect that the executrix and the executor of the Will shall run the grocery shop (mentioned in para 10 of the Will) in the manner and fashion set out in para 13 of the Will to the effect that Dudh Kumar Mondal of Dalia would get the half portion of the net profit after deducting debts, dues, losses etc. and the testator would get the entire surplus. Para 16 of the Will contains provision regarding lands mentioned in Schedule (Jha), reading also as Schedule (Ka). There are other concerned. We are mainly concerned in this appeal, so far as locus standi of the appellant, is concerned, with paras 7 and 22 read with para 18 of the Will. Under para 18, all the moveable and immoveable properties and business of Kali Kumar were to go to Phani Bhusan and in his absence to his son, son's son etc., in succession absolutely, after leaving aside the lands and the jama mentioned in previous paragraphs of the Will. In paragraph 22 of the Will, it is stated that the executrix and the executor would preserve the estate of Kali Kumar and should, after the death of the wife of Kali Kumar, hand over the entire estate to the adopted son, Phani Bhusan, and on his death to his sons to their satisfaction. Though under para 7 of the Will, the appellant could be a legatee after the death of his mother in respect of half share of the 'Ka' schedule properties and the 'Kha' schedule properties of the Will, para 22 of the Will is specific that the entire estate of Kali Kumar should be handed over by the executrix and the executor, Jnanada Moni and Kirtibas, to the adopted son, Phani Bhusan, and thereafer, on the death of Phan Bhusan, to the sons of Phani Bhusan. Section 88 of the Act is to the effect that where two clauses or gifts in a Will are irreconcilable, so that they cannot possibly stand together, the last shal prevail. In view of this provision in Section 88 of the Act, the provision contained in para 13 or 22 of the Will is to prevail over the provision contained in para 10 or 7 of the Will with the result that the plaintiff-appellant cannot be a legatee. When the plaintiff-appellant is not a heir of Kali Kumar under Section 218 of the Act or a universal or residuary legatee under Section 232 of the Act or even a legatee under Section 234 of the Act, the plaintiff-appellant cannot have any locus standi to file the application for grant of Letters of Administration.
7. Mr. Mukherjee has contended that the Court cannot construe the effect of the Will in the aforesaid manner as a probate court cannot decide questions of title. It is no doubt true that questions of title cannot be decided by a probate court. There are some questions of title so far as the Will of Kali Kumar is concerned. These questions are as to whether the Will so far as the alleged 'Jha' schedule properties are concerned, will be void for uncertainty or not on the basis of Section 89 or provisions in the Will with which we are not S. 78 of the Act or Whether 'Jha' schedule properties should actually be read as 'Ka' schedule properties, in the absence of any schedule 'Jha' in the Will. Under para 1 of Schedule III of the Act a testator is not authorised to bequeath property which he could not have alienated inter vivos. A perusal of the different schedules of the Will shows that in respect of some properties, it is stated that these properties or part therof belonged to the grand-son or grand-sons of Kali Kumar. For instance, as regards Dag No. 23 of Khatian No. 117 of Mouza Gorabacha it is staled that half portion belongs to the testator's daughter's sons. In Schedule (Nga) of the Will, it is stated that 87 decimals of land described in that schedule belonged to the appellant and that some other lands measuring 33 decimals remained with the appellant. It is for the proper court and not the probate court to decide as to whether Kali Kumar is entitled to include these properties belonging to the appellant or his grand-sons (daughter's sons) in the schedule of the Will. It was also for the proper court and not the probate court to decide whether the executor or executrix took any legacy on the basis of the provisions in Section 141 of the Act, in the absence of any evidence to show that the executrix or executor bore any funeral expenses of Kali Kumar or manifested any intention to act as executrix or executor. In deciding as to whether the plaintiff-appellant is a legatee or not, the probate court is not entering into any discussion of such questions of title. It is only discussing this question for the purpose of finding out as to whether, on the basis of the provisions in the Act itself, the appellant has any locus standi to apply for grant of Letters of Administration. The probate court is entitled to decide this question in view of the decision of this Court in the case of Bhupati, 39 Cal WN 390 : (AIR 1935 Cal 154), already referred to. There is no conflict between this decision in the case of Bhupati, 39 Cal WN 390 : (AIR 1935 Cal 154) and the case of Durga Pada 41 Cal WN 1204 : (AIR 1937 Cal 595), where there was no question of genuineness of the Will or of due execution of the Will. In that case, there was no denial of the testamentary capacity of the testator. The locus standi of the petitioner of that case was challenged. The learned District Judge, who had decided that case, turned down the objection regarding locus standi. This Court also was of the view that this objection regarding locus standi was rightly turned down by the District Judge as even under Section 218 of the Act, the petitioner of that case was entitled to apply for grant of Letters of Administration. Moreover, the petitioner, Durga Pada, of that case, as representative of one Baikuntha, was also entitled to apply on the basis of the provisions in Sections 232 and 233 of the Act. When objection regarding locus standi of the petitioner did not stand in that case of Durga Pada, the only question for determination in that case was Issue No. 2 framed in that suit to the effect whether the petition for Letters of Administration was barred by acquiescence and waiver on the basis of an alleged family arrangement. Their Lordships were of the view that considerations that the Will had been superseded by family arrangement were wholly irrelevant before a probate court. It was decided in that case that where there was a Will, it was not a valid ground for refusing an application for probate or Letters of Administration with a copy of the Will annexed that the application wsa a device for securing a decision on a question of title which would be useful in other limitation or that third parties had acquired rights in the properties. We are not concerned in this appeal with the evidences of D.W. 2 about alleged possession of all the properties of Kali Kumar by Phani Bhusan and sale of most of these properties by Phani Bhusan and thereafter by D.W. 2 himself. We cannot but be concerned in this appeal with the other question as to whether the appellant had locus standi to file the application for grant of Letters of Administration. Once it would have been established by the petitioner that he had locus standi to file the application, he would have been entitled to obtain Letters of Administration with a copy of the Will annexed in spite of alleged possession of all the properties of Kali Kumar by Phani Bhusan, the alleged recording of all these properties of Kali Kumar in the name of Phani Bhusan. during the revisional settlement operations and the alleged sale of most of these properties of Kali Kumar prior to the filing of the application for grant of Letters of Administration. When the appellant has failed to show his focus standi to file the application, he cannot succeed. The appeal is, accordingly, to fail, though on an entirely different ground.
8. The appeal is, accordingly, dismissed on contest with costs to the contesting respondents and without contest and without costs against the rest. The O.S. No. 3 of 1974 in the Court of the Additional District Judge, 12th, Court, Alipore, is dismissed on contest with cost, as ordered by the learned Additional District Judge, though on a different ground.
G.N. Ray, J.
9. I agree.