1. This is an appeal against a decision of the District Judge of Sylhet, dismissing an application of the appellant upon a preliminary ground and without going into the evidence.
2. The appellant's application is contained in a petition which states that Gunga Gobind Misser died on the 9th November 1877, having previously made his will on the 31st July 1877. The testator is alleged to have bequeathed by that will all his moveable and immoveable properties to the petitioner, who is a sapinda and kinsman to the testator, and also to the testator's widow and two daughters. The petition further alleges that the will is in the possession of Sarbamangala Debi, the widow. The petition was accompanied by a copy of the will, but of course not by the will itself. The application was two fold: first, praying that the original will should be called for from Sarbamangala Debi; and secondly, that letters of administration under the Act should be granted to the petitioner.
3. The petitioner claims, indeed, to be only one of the residuary legatees beneficially entitled to the testator's estate. But, supposing the will not to have been revoked by the testator, and that the will is either produced and proved, or if not produced, its contents can be satisfactorily proved, and the petitioner upon such proof appears to be one of the residuary legatees, he, failing executors named in the will, may obtain a grant of letters of administration either jointly with the other residuary legatees, or solely if the latter are unwilling to join in the grant, and such grant would be either with the will annexed or with a copy of the will or its proved contents annexed, as the case may be.
4. The answers put in by the widow and the daughters of the deceased were also in the shape of petitions. They admit that the deceased did make a will giving the petitioner certain rights in the deceased's property, but allege that the will was, by the orders of the deceased, torn up and destroyed as being contrary to his intentions. The widow further denies that she has with her any will of the deceased.
5. The judgment of the lower Court is very brief. The District Judge disposed of the case without going into evidence, considering that it was unnecessary to do so; and he did this upon a ground which it is not easy to understand. His words are these: 'By Act XXI of 1870, the provisions of Section 209 of the Wills Act do not apply to the will of a Hindu that has been lost, as Act XXI says, that only as regards applications with the will annexed do the provisions of Chap. XXX apply.' After making these remarks, the District Judge proceeds to dismiss the case with costs to be paid out of the estate of the deceased.
6. We think that the Judge was in error both in the construction which he has put upon Act XXI of 1870, and also in dismissing the application without going into the evidence.
7. We may observe in the first place that the District Judge assumes that the will was lost. The petitioner asserts that it is still in existence. And this, which is the first question in dispute between the parties, can only be decided by hearing the evidence. Again, neither party asserts that the will has been lost, but one of them, the widow and daughters, pleads that it was destroyed by the deceased with the intention of revoking it.
8. The question whether Section 209 of the Indian Succession Act applies to Hindus does not really arise until it has been decided that the will has been destroyed. Supposing that to be proved, and it also is shown that the destruction was not caused by the testator or his orders with the intention of revoking the will, we have no doubt but that Section 209 may be applied.
9. The will was executed after the first of September 1870, and the 2nd Section of the Hindu Wills Act (XXI of 1870) enacts, that so much of Part XXX of the Indian Succession Act as relates to probates and letters of administration with the will annexed shall apply to such a will. Section 209 is one of the sections in Part XXX, and so also is Section 208, which, supposing the will to be destroyed but unrevoked, is the section more applicable to the present case, for the petitioner has annexed a copy of the will, and according to the latter section limited probate may be granted of the copy.
10. We must reverse the decree of the lower Court, and remand the case to that Court for retrial. In trying the case the first question to be determined will be whether there was a will of the testator in existence at his death. If there was such a will, and it is proved to be in the custody of the widow, or under her control by being in the hands of her servants or agents, she must produce it, and the further hearing of the applicant's petition must be adjourned to allow of its being produced. If the will is produced, the question raised by the widow and the daughters as to its revocation by destruction, will be disposed of, and if the will does, as the petitioner alleges, bequeath the property to himself and the widow and daughters, the Court should grant letters of administration with the will annexed to all the residuary legatees, or if the others refuse to join, to the petitioner alone.
11. If the will is not shown to be in existence, then the Court will have to consider whether it had been destroyed by the testator, or by his orders with the intention of revoking it as alleged by the widow and daughters (see Section 57 of the Succession Act). If it has been so destroyed, of course there will be an end of the matter, and the petitioner's application must be dismissed. But if the destruction of the will was not intended by the testator to be a revocation of it, the petitioner will be at liberty to prove that the copy, which he has annexed to his application, is a true copy of the will, in which case he alone, or jointly with the widow and daughters, if they are willing to join him, will be entitled to grant of letters of administration with a copy of the will annexed, limited until a properly authenticated copy of it is produced (see Section 208).
12. The lower Court will take evidence on the issues that are raised by the petition and the counter-petition of the parties, and, having regard to the observations now made by this Court, decide these issues and dispose of the petitioner's application upon the merits.
13. We observe that some evidence has been already recorded in this case, but it appears to be directed chiefly to the proof that testator executed a will before his death, a point upon which both parties are agreed. The real points in dispute are as to whether that will is in existence, and whether it has been revoked. Both parties will be at liberty to adduce such further evidence as they may be advised.
14. The costs of this appeal will abide the result of the remand.