B.B. Ghose, J.
1. This is an appeal by the applicant for the grant of letters of administration with a copy annexed of what is alleged to be a will of one Upendra Nath Ray, dated the 5th July 1907. Upendra died in 1914 leaving a widow Damayanti. That lady obtained letters of administration of the estate of Upendra Nath Ray with a copy annexed of the document which was described in the grant as a trust-deed in 1916. The widow died in 1924 and the appellant thereupon applied for letters of administration with the document annexed on the allegation that on the death of the widow he was entitled to obtain letters of administration. The objector is the heir under the Hindu law of Upendra Nath Ray. This matter came up before the Subordinate Judge of Burdwan for hearing and he dismissed the application by an order dated the 3rd December 1925. The argument that was addressed to the learned Judge in the Court below on behalf of the appellant was that after the death of the widow of the executant of the document under the terms of the deed of trust, he was entitled to be a trustee of a certain portion of the property mentioned in the deed and thus he was entitled to letters of administration. Various objections were raised by the opposite party. But it is unnecessary to state them in detail as the learned Subordinate Judge has only sustained the plea that the application by this person was not maintainable. It was contended before the Subordinate Judge that the application was maintainable under the provisions of Section 37, Probate and Administration Act, 1881, now replaced by Section 250, Succession Act, 1925. The Subordinate Judge did not accept that contention and he has dismissed the application on the ground that the petitioner before him had no right to maintain the application.
2. It is contended on behalf of the appellant that the petitioner had a right to maintain the application with reference to the provisions contained in the deed of trust of 1907 and that the Subordinate Judge was wrong in holding that the applicant could not maintain this application. The respondent on the other hand contends that the document, on the basis of which the application is made, is riot a will and therefore the applicant was not entitled to come to the probate Court in order to ask for letters of administration with the copy of the document annexed. The contention of the respondent is that under the document the property was conveyed to the different grantees and there was no testamentary disposition which was to be given effect to after the death of the testator. That being so, the application for letters of administration with the copy of the document annexed is not maintainable. In order to see what the document is it is necessary to recite some of the provisions of the document. It begins by making the usual recital as regards the necessity for making the provisions for his property as he was old and as he had no son of his own. The executant of the deed described the document as niynmnibandha patra, that is, a deed of trust. It then states that whoever would be his heir in future might raise a dispute with regard to the property and that in that view it was extremely necessary that a noyampatra (deed of trust) should be made with regard to the mode in which the moveable and the immovable properties should be enjoyed in future....
It is not necessary to state anything with regard to para. (1) as no argument was addressed upon it. Para. (2) makes a present dedication of certain properties in favour of his ancestral deity Sri Sri Iswar Sridhar Jieu Deb and the objector is appointed a shebait after the death of the grantor. The next important passage is contained in para. (7) and with reference to that paragraph the appellant claims that there has been a testamentary disposition and he is entitled, according to the tenor of that paragraph, to ask for letters, of administration of the estate with the will annexed. The relevant passage runs thus:
I give (Arpan karilani) to the H.I. Charitable Dispensary according to the following provisions the aforesaid properties together with the government securities and furniture and loan business etc. described in schedule cha. After my death my wife Sreematy Damayanti Dasi will be the trustej of the said properties.... In the absence of all those (persons) 'Sreeman Umacharan Bose (the present appellant)...and his sons grandsons...will act like my wife.
3. The next important passage is in para. (12) which runs thus:
I shall myself enjoy the properties which I shall acquire subsequently other than those which are hereby dedicated and made over for the said debsheba and the dispansary.
4. It is not contested by the appellant that the gift to the idol was a gift in presenti. What is contended for is that the gift to the charitable dispensary was a testamentary disposition. It is difficult to say that it is so. The words mean 'present gift' and under the terms of the gift the charitable dispensary would be the beneficial owner of the property from the date of the document. If there was any doubt as regards the meaning, it is made clear by the statement in para. (12) which I have already quoted. It also appears that it was the intention of the executant of the document that the document should operate as a present gift, and this is evident from the fact that the document was stamped upon the full value of the properties given in the document itself. That would not be so if the intention was that the gift should come into effect after the death of the testator or, in other words, if it was intended that the document should take effect as a testamentary document. It was, however, contended by the appellant that the fact that the widow obtained letters of administration with the document annexed in 1916 shows that the document was treated by the learned Judge who happened to be my learned brother on the bench, as a testamentary document. But this does not appear to be so. It is not clear whether the matter was contested before him at the time when letters of administration was granted. But it was clearly put in the order for the grant of letters of administration (with the trust-deed) and it should be noted that the document was not mentioned as a will. Letters of administration was granted of the properties and credits of Upendra Nath Ray; and lower down the order runs thus:
The trust-deed is created in the life-time of the deceased and therefore, no Court-fee is payable. The value of the personal properties is Rs. 1403 odd as stated by the petitioner and probate duty has bean paid on the present property only.
5. So it was clearly brought to the notice of the Court that the trust-deed had effect from the date of its execution and proper order was made with regard to it. The mere fact that the trust-deed was mentioned as part of the grant does not make the document a testamentary document or a will. Why it was mentioned in the order it is difficult to say at this distance of time and as the other documents relating to the proceedings are not on the record. But in my opinion, even if the document had been described as a will, that would not make it a judgment in rem under the provisions of Section 41, Evidence Act. But it is unnecessary to pursue that point further because I am clearly of opinion that this document was not treated as a will at the time of the grant of letters of administration to the widow of the executant.
6. It is next contended on behalf of the appellant that the fact that in the document a provision is made for the appointment of a future trustee after the death of Upendra Nath Ray makes this document a testamentary one and therefore, the document is testamentary in its disposition. But that would not make the document a will as defined in Section 3, Probate and Administration Act, now replaced by Section 2, Succession Act, 1925. This question is not free from authority and it was held in two cases in our Court that the mere provision in a document for the appointment of succeeding she baits would not make the document a will according to the Probate and Administration Act. The cases referred to above are those of Chaitanya Gobinda Pujari Adhikari v. Dayal Gobinda Adhikari  32 Cal. 1082 and Jagadindra Nath Roy v. Madkusudan Das Mokunt  20 C.L.J. 307. On this ground I am of opinion that the document not being a will the petitioner is not entitled to apply for letters of administration to the probate Court. Whatever right he has he may enforce it by a regular suit.
7. The next question that has been urged is that the learned Judge in the Court below has, in awarding costs to the respondent, given pleader's fees on the value of the property, which he was not entitled to do under the circular orders of this Court. This proposition is not contested by the respondent.
8. The result, therefore, is that this appeal must be dismissed with costs, the only variation in the decree of the lower Court being that in place of the costs allowed in the lower Court for pleaders fees, namely, Rs. 324, only Rs. 80 will be given.
9. We assess the hearing-fee in this Court at five gold mohurs.
10. I agree.