1. This appeal arises out of an order of the learned District Judge of Dacca, dated the 13th September 1915. By that order the learned District Judge dismissed an application for a succession certificate in respect of certain promissory notes, on the ground that there was a Will relating to those notes and that the provisions of Clause (4), Section 1, of the Succession Certificate Act applied to the case.
2. Mr. Bepin Behari Ghose has appeared for the appellant and contended that in the circumstances the clause referred to has not the effect of preventing issue of a succession certificate.
3. The Will in question is dated 22nd January 1912. The testator was a gentleman of considerable wealth and the Will relates only to a portion of the property which he left. By paragraph 5 of the Will, he gave his widow certain rights in respect of some of the promissory notes in question. By paragraph 12 he gave similar rights in respect of other of the promissory notes to his widowed daughter-in-law. By paragraph 20, he gave his daughter an interest in one of the promissory notes for Rs. 10,000.
4. It appears that the widow in the first instance applied for Letters of Administration with a copy of the testator's Will annexed. That application was made on the 6th July 1915. On the 16th August 1915, she filed another petition withdrawing her application for Letters of Administration and consenting to the issue of a succession certificate to her grandsons, testator's heirs, in respect of the securities mentioned in her previous application. The grandsons accordingly applied for a succession certificate and it is that application which has been dismissed in the Court below.
5. The learned District Judge appears to have been of opinion that a right could be established to the promissory notes under the Will. He does not, however, indicate whether in his opinion such a right could be established on behalf of the widow, or on behalf of the daughter-in law and the daughter or on behalf of the grandsons.
6. It has been contended before us by the learned Pleader for the appellants that regard being had to the terms of the Will, the rights conferred upon the widow and the daughter-in-law, leaving the daughter out of consideration for the moment, are merely contingent rights and that the contingency has not yet arisen which would entitle them to claim those rights.
7. As regards the grandsons, it has been argued that they can establish no title under the Will; and that any rights which they have, are rights to which they are entitled not under the Will but as the testator's heirs.
8. As regards the daughter, the interest given to her by the Will is in respect of one of the promissory notes for Rs. 10,000. It is not now disputed that the interest so given is a present interest to which a right might be established by the Will.
9. We have not had the advantage of hearing any learned Pleader in opposition to the learned Pleader for the appellants, The widow is represented but she is on the side of the appellants.
10. As we understand the matter, so far as the revenue is concerned, it makes no difference whether Letters of Administration or a succession certificate is granted in respect of these promissory notes. There is no question of evading the payment of any duty or fee. The question is merely whether in the circumstances the applicants should apply for Letters of Administration or for a succession certificate.We are disposed to adopt the construction of the Will for which Mr. Ghose has contended and to accept the view which he has pressed upon us that, in the circumstances, Clause (4) of Section 1 of the Succession Certificate Act does not stand in the way of grant of a succession certificate to the appellants.
11. That being so, the appeal is allowed. We accordingly set aside the order of the learned District Judge, except so far as regards the promissory notes in which the daughter is interested, and direct that a succession certificate be granted to the applicants in respect of the first eight promissory notes entered in the schedule of their application. The certificate will be granted under Section 8 of the Act and will only empower the applicants to receive interest on the notice.
12. Nothing that we have said in this judgment will be understood as preventing the widow or other persons interested from applying for Letters of Administration in respect of the Will, should a change of circumstances make such a course advisable in their interests.
13. We make no order as to costs.
14. I agree.