1. This is an appeal from a decision of the District Judge of Chittagong in an application for grant of letters of administration with the Will annexed to the estate of one Ram Das Dutta who died in 1879. The learned District Judge has made a partial or limited grant to the applicants in respect of the properties comprised in Schedules 3 and 4 of the Will. The applicants appeal on the ground that they desire a grant which would cover Schedules 1 and 2 as well. The matter is one of some complication and a good deal of misconception seems to have encrusted round it.
2. The Will of Ram Das divided his properties into five schedules. The 5th Schedule property was left to his nephew Ram Kumar, and in 1915 a grant of letters was made to Ram Kumar limited to properties comprised in Schedule 5. So far as understand the only power to grant letters of administration with the Will annexed, limited to certain specific assets, is the power conferred by Section 42 of the Probate and Administration Act. Whether this was or was not a proper order in this case is not a matter on which this Court need at this time of day pronounce. The nature of that order, however, is a matter of some importance in these proceedings but it has not been produced before us and is in no way discussed in the lower Court. What the exact form of it was I do not know but I presume that the learned Judge was satisfied that the Will was a Will duly made and was merely desirous of limiting the intromissions of Ram Kumar with the testator's estate to this particular schedule. In these circumstances whether in order to establish the title of a legatee to other property it is in the least necessary for some one else to get another grant is a question. There having been a grant limited under Section 42, any other application for grant of letters to this estate would, I should have thought, come under Section 44 which deals with the case:
Whenever a grant with exceptions of probate or letters of administration with or without the Will annexed has bean made, the person entitled to probate or administration of the remainder of the deceased's estate may take a grant of probate or letters of administration, as the case may be, of the rest of the deceased's estate.
3. If there is one thing which requires to be stopped peremptorily, it is the idea that different people are going to get individual grants of letters of administration limited to the particular property which they happen to claim and that is a course which seems to have been adopted as the correct course in the District Court at Chittagong, so far as this estate is concerned. For myself I protest against it entirely. The only application that I should be prepared, in the absence of extraordinarily strong facts, to entertain would be an application under Section 41 for a grant of letters of administration to the rest of the testator's estate.
4. It appears that Ram Das Dutt, the testator, died leaving a widow, three daughters and a sister's son called Becharam. The widow died long ago, apparently towards the end of the nineteenth century. The three daughters were first of all Satyabati, Rukmini and Tirteswari. Rukhmini's daughter is Biroja and Tirteswari's daughter is Girija. The present applicants for letters are the daughter Satayabati and the two grand-daughters or daughters' daughters Biroja and Girija. Biroja like Satyabati is a sonless widow. Neither Biroja nor Girija as daughter's daughter is next of kin. The learned District Judge has disposed of this application without taking any evidence. There are two petitions but there is no evidence at all in any proper form, it being stated that all the facts are admitted.
5. By the Will of Ram Das he loft the property mentioned in Schedule 1 to his widow with certain instructions that she should not alienate it without the consent of one Kali Kinkar and with the direction that if any portion of it remained till her death, then his legal heirs would get the same. There are other provisions in the case of a son, which I need not mention. Schedule 2 dealt with other lands and provided that no one would be entitled to transfer the land; if he had no son, then these properties would be in charge of his wife, but such of his sapindas who resided after the death of his wife in his dwelling house would hold and enjoy the same equally. Before the word sapinda there is apparently a part of the original Will, which is torn. There seems to be no reason whatever to supply that gap with the words 'daughters or daughters' daughters.' Schedule 3 is not disposed of by the Will. The Will says that
the lauds of Schedule 3 below have been given to my daughter Rukmini by the kabala dated 26th Falgun 1239 B.S.
6. So they do not pass under the Will at all. The same is true if the lands of Schedule 4 which were given to Satyabati by a kabala, dated 28th Aghrayan 1239. As regards lands of Schedule 5 I have dealt with these already.
7. After the death of the testator various litigations occurred : some of them are pending still, It seems, to begin with, that there was a suit commenced in 1911 by one Matanga, to whom Becharam, claiming to be a raversioner on the death of the widow had sold properties comprised in Schedules 1 and 2; and in 1911 Matanga brought a suit against the present applicants to insist upon her right of possession. That suit was first dismissed. After remand it was decreed in 1914 and that decree was upheld by the High Court in 1917. At the time that suit was started there had been no probate of this Will at all. And in the end in this Court apparently it was not thought that the letters granted to Ram Kumar could be availed of on behalf of the defendants.
8. Thereupon an application was made to get letters of administration with this Will annexed. The grant was directed to issue and the grantees thereupon, being the present applicants, brought a suit against Manindra Lal Singha, the transferee from Matanga, to recover possession of the lands which they had lost by the former suit. That suit succeeded in the first Court and an appeal is still pending in that matter in this Court.
9. Then the grant of letters was attacked by Manindra Lal. The learned District Judge revoked the grant and that matter came up on appeal to this Court. This Court took the view that the District Judge was right to revoke the grant, but it also seems, to my surprise, to have taken the view that the District Judge ought not to have contented himself with ordering a revocation. This High Court in effect by its order set the parties by the ears once again directing that the original application for grant of probate should be restored in the presence of Manindra and should be continued. That is the matter which is now before this Court on appeal from the judgment of the learned District Judge.
10. The learned District Judge has dealt with the matter in this way : He says first of all that Manindra does not object to a grant being made in respect of the properties of Schedules 3 and 4 and so he lets the applicants to have a grant in respect of these two schedules. In my opinion that is wrong. First of all the properties of Schedules 3 and 4 did not pass under the Will and nobody requires the Will to make out a title to them. They passed by kibalas which this Will for convenience happens to mention. Secondly, the learned District Judge has not considered that as there has been partial grant in1 this estate already, it would seam unreasonable that there should be any other grant save with reference to the rest of the estate. Thirdly, he has not considered that even if we treat the three applicants as in the position of legatees (they certainly are not legatees and they merely claim to be in the shoes of legatees), there is a plain direction in the Probate and Administration Act, which prevents the Court giving administration with the Will annexed to a legatee unless a citation has been issued calling upon the next of kin to accept or refuse letters of administration.
11. In the last place he does not appear to have considered that if he was intending to act under the power given by Section 41, it was for him to be satisfied that it was necessary or convenient that he should make a grant to these particular applicants in respect of this estate in order that it might be administered. In my opinion that part of the learned Judge's order was made merely because no one who appeared before him objected. On this appeal I consider that we have power to discharge it.
12. Now, the main object of the applicants was a grant in respect of the properties in Schedules 1 and 2. So far as can be ascertained, Biroja claimed some right to the properties in Schedule 2 on the hypothesis that the missing words in that schedule may be of some use to her. It is perfectly certain that she was not a sapinda. Satyabati as regards Schedules 1 and 2 has no claim at all, direct or indirect, under this Will so far as it is possible to make out. Biroja appears to claim part of the properties in Schedule 1 as being purchaser for legal necessity from Renuka. Now the position is this : The learned Judge as to that part has dismissed the application on the ground that the purpose of the applicants was to re-open the litigation between Matanga and themselves. He says that they were bound to prove that there was as proper probate of this Will at the time Matangi or Manindra was suing them for possession. But not having done this in time they are estopped by the judgment in that suit from re-opening the matter by these administration proceedings. To my mind that reason is wrong. As regards everything apart from the properties in Schedule 5 there has been no administration of this estate at all. The caw is one under the Hindu Wills Act and Section 85 of the Probate and Administration Act applies. It is not a case in which it is open to the Court to put its foot down and to order that no administration grant shall be male to this estate On the other hand if persons who are not next of kin and are not legatees come before the Court asking for grant, then the Court is entitled under Section 41 to say that a proper case must be made out for making such a grant to parsons to whom ordinarily no grant is made. Section 41 says that
when a parson dies intestate or leaving a, Will, of which there is no executor, and it appears to the Court to be necessary or convenient to appoint some parson to administer the estate or any part thereof other than the person who under the ordinary circumstances would be entitled to a grant of administration, the Judge may in his discretion having regard to the consanguinity and amount of interest, the safety of the estate and probability that it will be properly administered appoint such person as he thinks fit to be administrator.
13. Under that section of the Probate and Administration Act, it appears to me that the applicants have made no case at all and that any case adumbrated on their behalf is supported by no evidence. In my judgment the proper order which the learned Judge should have made on this application is the order which we now make in this appeal, namely that it is entirely dismissed. There is no necessity to act under Section 41 of the Probate and Administration Act. So far as I can see the applicants are in no way entitled under any of the other sections. The order of the learned Judge is set aside and the application is dismissed. Save as aforesaid this appeal is dismissed. We make no order as to costs either in this Court or in the Court below.
14. I agree.