S.R. Das Gupta, J.
1. This is an appeal against an order of Shri G. P, Mukherjee, District Judge of Nadia, dismissing art application of the appellant for Letters of Administration to the estate of one Manua Khepa Baba deceased.
2. The appellant claims to be a creditor of the deceased Manua Khepa Baba. His claim is for the sum of Rs. 4325/-, due qn a hat chita. It appears that the said Manua Khepa Baba died at Benares on 21-10-1949. He had no heir and he left no Will. So under the law of the land his estate would escheat to the Government. The deceased left properties in the districts of Nadia and Burdwan. After his death as nobody applied for Letters of. Administration, the appellant on 16-6-1950 made the present application for grant of Letters of Administration to the estate of the deceased. The application was made on the footing that the applicant was a creditor of the said Manua Khepa Baba.
An objection to the said application was filed by State of West Bengal. In the written statement which was filed by the Government it was 'inter alia' stated that the allegations in the petition that the appellant as a creditor and the deceased, Manua Khepa Baba executed a hat chita for the sum of Rs. 4325/- on 16th Baisakh 1336 B.S. are not admitted and even if the appellant had got any claim against the estate of the deceased, he could very well file and prove the same before the Collector or in a Civil Court. The matter came' up for hearing before the District Judge of Nadia. Several issues were raised. All those issues related' to the question as to whether or not in view of the escheat proceedings which had already been started by the Collector in respect of the estate of the deceased, the present application was maintainable. That in substance is the implication of the issues which were raised before the learned District Judge. The District Judge also dealt with all the issues together and came to the conclusion that the appellant was not entitled to maintain the present application. The ground on which the learned District Judge based his aforesaid conclusion was that escheat proceeding was started by the Collector on 31-1-1950 & if the plaintiff had got any debt or claim against the estate of the deceased Manua Khepa Baba it was his business and duty to file and prove the same before the Collector in that escheat proceeding, because that proceeding was started long before the present application for the grant of Letters of Administration was filed.
He further held that the appellant had also got opportunities to bring a suit in Civil Court and to prove his claim and if he did not avail himselfof the said opportunities that was his fault and negligence and because of such Fault and negligence he could not claim as a matter of right to be entitled to the grant of Letters of Administration. With all respect to the learned Judge we are entirely unable to see the force of his reasoning. We do riot understand why a creditor mustprove his claim against the estate before the Collector although an escheat proceeding may have been started by the Collector. The Bengal Regulation 19 of 1810 and the general rules of the Bengal Practices and Procedure Manual, 1934, were placed before us in support of the views taken by the learned District Judge. But we are unable to see anything in those rules and regulations whichcan in any way support the said decision. The Bengal Regulation 19 of 1810 is a Regulation 'inter alia' for the custody and disposal of Nazul properties of escheats. Article 7 of the said Regulation to which reference was made on behalf of theGovernment simply lays down that the general superintendence of Nasul properties, of escheats is to be vested in the Board Of Revenue, which willdo certain things mentioned therein. Article 361 of the Bengal Practices and Procedure Manual to which also our attention was drawn on behalf of the Government 'inter alia' lays down that as the Board- is vestqd with the general superintendence of all escheat properties the. Collector should take immediate possession of such property on the part of the Government and take measures at the same time to invite claimants to the property as publicly as possible. These articles in our opinion lend no support to the view taken by the District Judge. They are regulations made for the purpose of maintaining the custody and for disposal of properties which would escheat to the Government; in other words, they are mere departmental directions for the purpose of administration of such properties. They do -not in any way govern the rights of third parties 'vis a vis' the Government. In our opinion the right of a creditor to obtain Letters of Administration in case there is no heir and there is no application by anybody for suchLetters of Administration, granted by the Succession Act (Section 218) is by no means taken away by I these regulations. If then the appellant has the right to obtain Letters of Administration, there having been no application either by the . Government or by anybody else for such administration, we fail to see how on the ground that escheat proceedings have been started by the Collector the said right could be defeated. In our opinion the judgment of the learned District Judge on this point cannot be supported.
3. We are also unable to accept the view taken by the learned Judge that as the appellant had opportunities to bring a suit in a civil Court and prove his claim he is guilty of negligence for not having availed himself of such opportunities and because of such fault and negligence he cannot claim as a matter of right to be entitled to the grant of Letters of Administration. The appellantundoubtedly could have gone to the Civil Court land got a decree in respect of his claim. He has also the right under Section 218, Succession Act to ap-ply for Letters of Administration. The fact that he had not taken recourse to a regular suit is in our opinion no ground for refusing to him if he is otherwise entitled to the same. This ground of the learned District Judge must also the overruled.
4. The learned Senior Government Advocate who appeared on behalf of the State then contended before us that the appellant has not proved his claim before the learned District Judge. He also drew our attention to a statement in the judgment of the District Judge, where he says that the appellant has not proved also that he is a creditor of the deceased Manua Khepa Baba. The question as to whether or not the appellant was in fact a creditor of the said deceased was not made an issue at the hearing before the District Judge and therefore the appellant had no reason to call any witness to prove that fact. It was not contested before the learned District Judge by the State of West Bengal that he was a creditor of the deceased. All the issues as I have indicated -related to the question as to whether or not in view of the escheat proceeding the application was maintainable.
5. In the circumstances we fail to see how it can be contended, not having raised any issue regarding the same, that the appellant has failed to prove that he is a creditor. The learned Senior Government Advocate then contended before us that his client had taken this ground in its written statement and therefore an opportunity, should now be given to its client to agitate the same. In view of the fact that the Government in its written statement did not admit that the appellant was a creditor, we are inclined to accede to this request of the learned Senior Government Advocate, but we shall do so on terms. We will award costs to the appellant not only of this appeal but also of all proceedings held in the lower Court.
6. The order we make is that the matter will be sent back to the trial Court for determination of the question as to whether or not the appellant is a creditor of the deceased Manua Khepa Baba. The State of West Bengal will pay to the appellant costs of this appeal and the costs of all proceedings held before the lower Court.
The hearing fee of this appeal is assessed at three gold mohurs.
7. I agree.