G.N. Ray, J.
1. This appeal arises out of the judgment and decree passed in O. C. Suit No. 7 of 1959 (Letters of Administration) of the Court of the learned District Judge, Jalpaiguri, wherein an application for grant of letters of adminis-tratinn was made by the petitionersSohan Ali and Abed Ali through their certificated guardian mother Naharbi Bewa. The said minor petitioners prayed for letters of administration to the estate of the deceased Dhanbi Bewa on the basis of the last will and testament made by her bequeathing all her properties to the said petitioners who were also appointed executors under the said will. One Jabed Ali died leaving two wives, namely, Dhanbi Bewa and Naharbi Bewa. The said Jabed AH had another wife named Dhado Bibi who had pre-deceased her husband leaving a son Abdul Jubbar who was alive. Dhanbi Bewa was childless and she died on the 9th Kartick, 1364 B. S. leaving behind the will in question in respect of which the aforesaid letters of administration had been prayed for. By the aforesaid will, the said Dhanbi Bewa had bequeathed all her properties to the sons of Naharbi Bewa. One Dhane Ali who was the uterine brother of the deceased Dhanbi Bewa and her other heirs contested the aforesaid application for letters of administration by filing two separate sets of written objection. One of such sets of written petition was filed by Dhane Ali himself. It was contended by the said objectors including Dhane Ali that the alleged will annexed to the letters of administration was not the last will and testament of the deceased Dhanbi Bewa and that the said Dhanbi Bewa had never executed any such will and had not authorised any person to write her name on such will nor did she put her thumb impression in any such writing. It was also contended that the applicant was not entitled to get letters of administration. The objectors further contended that the alleged will was forged, collusive and concocted and Dhanbi Bewa was old and very ill and had no testamentary capacity at the time of the execution of the alleged will.
2. The learned District Judge efter hearing the materials on record and evidences adduced by the parties allowed the said application for grant of Letters of administration and directed that letters of administration with the copy of the said will annexed should be granted to Naharbi Bewa on behalf of the minor applicants until the said minor applicants had attained majority on furnishing an administration bond by the said Naharbi Bewa for such amount as would be determined by the Court after obtaining the Collector's report as to valuation of the estate of the deceased and on payment ofduty according to the valuation of the estate of the deceased.
3. The objectors being aggrieved by the judgment and decree passed in the said O. C. Suit No. 7 of 1959 preferred the instant appeal to this Court.
4. Mr. A. C. Roy the learned Advocate appearing for the appellants contended that on the face of the alleged will no Letters of administration should have been granted by the Court inasmuch as such will purporting to bequeath the entire estate of the deceased in favour of some co-sharers was opposed to Moham-maden law and as such the said will was void ab initio. Mr. Roy contended that when such will cannot be lawfully made under the Mohammaden law the Probate Court should not grant any letters of administration on the basis of a void will. It was no longer necessary for the Probate Court to decide the cases of the parties on merit because the alleged will being void under the Mohammaden Law, the application for letters of administration on the strength of a void will should have been thrown in limine. In this connection, Mr. Roy referred to Mulla's Mohammaden law and submitted that without the consent of an heir, a Mohammaden is not entitled to bequeath his or her estate to another co-sharer in its entirety and any will purporting to bequeath the entirety of the estate of a Mohammaden in favour of an heir without the consent of the other heirs is void, being opposed to Mohammaden law. Mr. Roy also referred to the decisions reported in ILR 46 Allahabad 28: (AIR 1924 All 20) and : AIR1964Ker204 wherein it has been held that a will purporting to bequeath in favour of an heir the entire estate of the testator without the consent and approval of other heirs is contrary to the principles of Mohammaden law and as such not operative. Mr, Roy next contended that in any event, the legatees and the executors under the alleged will were admittedly minors and the said minors were applicants for the grant of letters of administration. Mr. Roy referred to Sections 244 and 245 of the Indian Succession Act and contended that the minors could not be the applicants for grant of letters of administration. Under the aforesaid provisions the certificated guardian of the minorg could make an application for grant of letters of administration for the period for which the executors would not attain majority. In the instant case, however, the minors themselves were applicants and as such their applica-tion should have been thrown in limine for being not maintainable in law. Mr. Roy also challenged the judgment and decree granting letters of administration to the certificated guardian of the minors on the ground that the alleged will was not genuine and was fraudulently made at the instance of one Abhoy Charan Roy and the said will was never executed by the deceased Dhanbi Bewa out of her free volition and the said will was also not properly executed and/or attested.
5. Mr. Pal the learned Advocate appearing for the respondents however contended that it was not for the Probate Court to decide the question of title and the Probate Court's duty was precisely to consider whether the will had been genuinely made by the testator out of his or her free volition and the said will had been properly executed and attested in accordance with law and the testator had testamentary capacity to execute the will in question. Mr. Pal submitted that whether under the Mohammaden law, the disposition of the entire estate in favour of an heir was valid or not and whether by such will the legatee did not derive any title, was not the question to be decided in a proceeding for the grant of letters of administration. Mr. Pal submitted that the decisions referred to by Mr. Roy had not considered the aforesaid question and in all those decisions it will appear that the title wag challenged because of invalid will in a suit and not in any probate proceeding or in a proceeding under letters of administration. In this connection, Mr. Pal refers to the decision made in AIR 1935 Cal 154 and submits that this Court did not entertain the contention in a probate proceeding that under the will the title had not passed because such will was opposed to law. Relying on this decision Mr. Pal submitted that a will may not be permissible under the Mohammaden Law and valid title may not pass because of some infirmity in the will under the Mohammaden law but such contention is foreign to the scope of probate proceeding or a proceeding for grant of letters of administration and the party may agitate such question separately in a suit if he so desires. In our view, Mr. Pal is right in his submission and in the instant proceeding viz. the proceeding for grant of letters of administration we should not confine our attention as to whether the legatee under the will in question really derived any valid title to the properties bequeathed by the said will in view of bar of making such will under theMohammaden law without consent of heirs. Accordingly, we hold that the trial court was quite justified in considering the application for grant of letters of administration on merit and not throwing the same simply on the view that the will in question was opposed to Mohammaden taw. Mr. Pal further submitted that letters of administration was granted to the guardian of the minors and not the minors themselves. Such grant was made to the guardian because the minors happen to be the executors under the will. It is only because the guardian represents the minor executors, the grant of letters of administration was made in her favour for a limited period and it is quite obvious that such grant of letters of administration to a guardian was not made on an independent consideration of the claim of the guardian but because of her being the guardian of the minors. Mr. Pal submits that there is no bar under Sections 244 and 245 of the Indian Succession Act that the minor executors duly represented by a guardian should not make any application. It has only been provided that in such circumstances, letters of administration should be granted to the guardian of the minor executor and such grant of letters of administration to the certificated guardian of minor executor will remain valid for the period during which the minor executor would not attain majority. Mr. Pal further submitted that under the provisions of Order 32 Rule 5 of the Civil P. C., the minor can make an application when duly represented by his or her guardian and in the instant case also, the minors made an application for grant of letters of administration through their certificated guardian. Mr. Pal further submitted that in any event there is no difference in substance between an application for grant of letters of administration by a certificated guardian representing the minor executor and an application by the minor executor through the certificated guardian and difference, if any, between two such applications is of mere technicality. We are inclined to accept the contention of Mr. Pal and we hold that the application made by the minor executors duly represented by their certificated guardian is maintainable and there is no bar under Sections 244 and 245 of the Indian Succession Act to make such application.
6. Mr. Roy lastly contended that the Will was a forged and fabricated one and the same had never been executedby the testatrix on her free volition and in any event the said Will had not been executed and attested in accordance with law. Mr. Roy referred to the statements made by various witnesses examined both on behalf of the applicants and the objectors and submitted that it is quite apparent from the depositions made by different witnesses that the testatrix had no testamentary capacity at the relevant time and she was very ill and unconscious and that she had not executed the Will. Mr, Roy also pointed out that there were serious discrepancies in the depositions of various witnesses examined on behalf of the applicants and if properly scrutinised, the said depositions will clearly establish that the testatrix had not executed the Will and the story of execution of the will as made by the applicants is not worthy of any credence. We have carefully considered the submissions of Mr. Roy and the counter-submissions of Mr. Pal and have also scrutinised the evidences given in the proceeding and we are of the view that Mr. Roy's contention should be upheld. There are serious discrepancies in the depositions made by various witnesses examined on behalf of the applicants. P. W. 1 Abhoy Charan Roy against whom strong allegation was made in the written objection happens to be an Am-mukhtar of Naharbi Bewa and the testatrix. The said P. W. 1 stated that as per instruction of the testatrix, he called Hangsadhar Sarma, a Deed writer, and when the Will was written by the said Hangsadhar according to the instructions of the testatrix, the testatrix signed the said Will after the said Will had been read over to her. The said Abhoy Charan does not speak about any draft Will prepared by the said Hangsadhar Sarma on the basis of which the final Will was made, but P. W. 2 Hangsadhar, P. W. 3 Daliruddin and P. W. 4 Naharbi Bewa speak about draft Will and P. W. 3 Daliruddin even states that the draft Will had been taken away by Abhoy. The said draft Will was not produced at the hearing. Further it is admitted by Hangsadhar that he was never a Deed writer and he did not write any document or Will excepting the impugned Will at any point of time and even before writing the impugned Will he did not see any Will or specimen form of any Will. It further transpires from evidences on record that there are other deed writers in the locality and it is not understood why Hangsadhar Sharma whois admittedly a priest and has no other occupation was called for by Abhoy Cha-ran as a Deed writer. We are inclined to believe that it is at the machination of Abhoy Charan along with other persons the will was fabricated with the help of Hangsadhar. Further while the other witnesses for the applicants state that the testatrix called one Daliruddin and when the said Daliruddin came, she asked him to bring some witnesses from the locality, but P. W. 3 Daliruddin speaks that the testatrix had been personally to his house to call the said witness and told him that she would make a Will and as such the witness should go and call witnesses. This evidence of P. W. 3 Daliruddin is in complete contradiction with other evidences on this aspect given by the witnesses examined on behalf of the applicants. It further transpires from the evidences given on behalf of the objectors that the testatrix had been suffering from dropsy and dysentery for the last two years and became unconscious for the last 10 or 12 days before her death. This statement of D. W. 1 about the nature of illness of the testatrix is amply corroborated by the depositions made by D. W. 2 Janulla Mohammed and D. W. 3 Chhaber Ali Mollah. It is very pertinent to point out in this connection that the alleged Will stated to have been executed on 4th of Kartick 1364 B. S. and the testatrix died shortly thereafter viz. on 9th Kartick, 1364 B. S. We are inclined to believe the evidences made by the witnesses examined on behalf of the objectors and we hold that the testatrix was seriously ill and was not in proper senses to execute the Will on 4th Kartick as alleged on behalf of the applicants. Accordingly, we hold that the impugned Will had not been executed by the testatrix in accordance with law and the said Will is void.
7. In the facts and circumstances stated hereinbefore, this appeal succeeds and the judgment and decree passed in O C. Suit No. 7 of 1959 (Letters of Administration) by the learned District Judge, Jalpaiguri, are set aside and the Letters of Administration granted in the said O. C. Suit is cancelled. In the facts of the case, we allow this appeal with costs. Hearing fee assessed at 10 G. Ms.
P.K. Banerjee, J.