W. Comer Petheram, Knight, C.J. and Ghose, J.
1. The judgment of the Subordinate Judge, so far as the facts found by him are concerned, is not impeached before us. But what was contended for the appellants was that, in so much as, under Section 179 of the Succession Act, the plaintiff is the legal representative of Hurro Mohun, and all the property left by him has vested in him, and because, under Section 187 of the Succession Act, he was not competent to establish his right in a Court until letters of administration were obtained, and that such letters have been obtained within twelve years before suit, the plaintiffs were entitled to have the declaration asked for. It was also argued that the letters of administration granted to the plaintiffs should be taken to have a retrospective effect, as if they were granted at the time of the death of Hurro Mohun, and that, therefore, he was entitled to claim the properties in question notwithstanding the unlawful possession of the sons of Hurro Mohun for more than twelve years. It was further contended that, regard being had to the provisions in the will that the grandsons should not get possession until their arrival at the age of thirty, and also to the provisions of Article 140 of the Limitation Act, the plaintiffs were within time. It will be observed, in the first place, that the will of Hurro Mohun bears date the 16th Magh 1273 (February 1867), that is to say, before the passing of the Hindu Wills (Act XXI of 1870), by which certain portions of the Indian Succession Act were made applicable to all wills and codicils made by any Hindu, Jain, etc., on or after the first day of September 1870; subsequently, however, by the Probate Act (V of 1881), it was provided that Chapters II to XIII of the Act which contain provisions similar to those in the Succession Act, which, by the Hindu Wills Act, were made applicable to Hindus etc., should apply to the case of every Hindu, Mahomedan etc., dying before, on, or after the first day of April 1881: so that, as it has been held by a Division Bench of this Court (Norris and Ghose, JJ.), in Krishna Kinkur Roy v. Rai Mohun Boy I.L.R. 14 Cal. 37 an application may be made, and probate or letters of administration granted in respect of wills executed before the first day of September 1870. But then Section 187 of the Succession Act, which, by Section 2 of the Hindu Wills Act, was made applicable to wills subsequent to the 1st September 1870, has not been incorporated in the Probate Act, and it follows from this, that although it is fully competent to a Court to grant probate or letters of administration in respect of wills antecedent to the 1st September 1870, still it is not obligatory upon executors or persons claiming letters of administration to obtain such probate or letter of administration before they can establish their right in respect to any property of the deceased in a Court of Justice. In regard, therefore, to the will of Hurro Mobun, there was nothing to prevent the executors named therein to sue to recover possession from the hands of the sons of Hurro Mohun; and there was nothing also to prevent the grandsons from bringing a suit for the same purpose upon their arrival at majority.
2. It was pressed upon us that, until letters of administration were granted to the plaintiffs, there was no person in existence capable of suing, and therefore no cause of action could exist before such administration was granted. But it is quite clear that under the will of Hurro Mohun, which was executed before the Hindu Wills Act, the estate was vested in the grandsons; and that it was quite competent to the executors and the grandsons to bring a suit without any probate or letters of administration. The cause of action arose when the sons of Hurro Mohun took unlawful possession; and the executors were bound to have sued within the statutory period from the date of the said cause of action. As to the point raised with reference to the provisions in the will, that the grandsons were not to get possession until their arrival at the age of thirty, it appears to us that it is equally untenable.
3. The estate fell into possession within the meaning of Article 140 of the Limitation Act, when Hurro Mohun died. Under the terms of the will the estate vested in the grandsons with this qualification, that so long as they did not attain the age of thirty, their manager (for the persons named in the will were nothing more than managers) was to hold it for them and for their benefit. It was incumbent upon those managers to have taken possession on behalf of the grandsons; and if they did not do so, and allowed somebody else to remain in adverse possession for more than twelve years, the right of the grandsons must be taken to have been extinguished.
4. But, apart from these considerations, it seems to us to be clear that the suit must fail. Under the terms of the will, an eight annas share of the property devolved upon the plaintiffs, and the other eight-annas upon the sons of Rai Mohun. The share of the property mortgaged to the defendant No. 1, is evidently not the plaintiffs' eight-annas share, but the other eight annas which devolved upon the sons of Rai Mohun, and the latter dealt with it as his own, viz., eight annas. It follows, therefore, that the plaintiffs are in no way affected by this mortgage, and indeed they have no cause of action.
5. The result, therefore, is that this appeal will be dismissed with costs.