1. The estate of the late Harish Chandra Chowdhury is the subject of the litigation resulting in this appeal.
2. Harish died in the year 1875 (1282 B.S.). His widow, however, survived him up till Ashin 1314 (1907). Thereupon, the parties before us put in their respective applications to obtain a grant of Letters of Administration to the estate of Harish Chandra.
3. No issues were framed by the District Judge and the question decided by him was as to which of the parties were the preferential heirs, and that question was further narrowed down to the sole issue whether Broja Nath and Padamalabh were One and the same person or two different persons.
4. It is conceded that Atmaram was the common ancestor of the parties but, whereas, according to the defendant, Atmaram had two sons, Brojo Nath and Padmalabh, the else for the plaintiffs was that Brojo Nath was a mere alias of Padmalabh. In accordance with these respective contentions, the parties led their evidence. The principal items of evidence were a copper plate which was relied upon by the defendants-appellants in the present appeal, and the three documents reciting certain relationships, which were produced from the sarishta of the Maharaja of Danajpur and which were relied upon by the plaintiffs.
5. The District Judge has held, in accordance with the case for the plaintiffs, that Padmalabh and Broja Nath being the same person, the plaintiffs were the nearest heirs of Harish and, therefore, entitled to Letters of Administration. As a necessary result of this decision, the cross-application of the defendants was refused.
6. Now in appeal by the defendants, it has been argued, first, that the estate of Harish was fully administered during the long life-interest of his widow, that there is no necessity to grant Letters of Administration to any one for any purpose, and that the application is not within the scope of the Probate and Administration Ace (V of 1881), and secondly that, on the merits, the District Judge has arrived at a wrong conclusion in holding that Padmalabh and Brojo Nath were one and the same person.
7. We think, in the circumstances, that we ought to permit the defendants to raise the first contention though it was not raised at ah earlier stage as it ought to have been. We must decide it because it goes to the very root of the litigation. The consequences would be serious to both the parties if it were not permitted to be raised. Furthermore, we can decide the contention without remanding the case because it arises on a consideration of the pleadings.
8. No doubt Section 64 of the Probate and Administration Act (V of 1881) merely contemplates an application for Letters of Administration specifying the amount of assets which are likely to come to the petitioner's hands: It is not necessary for the Probate Court to decide what assets are likely to come to the hands of the petitioner for the purposes of administration, but it is the duty of the Court in granting Letter's of Administration to con-consider whether there; is any estate whatever to be administered. The duties of an administrator are mentioned in Chapter VII of the Act. Among them, it is his duty to collect the properties of the deceased and the debts due to him at the time of of his death; and after administration on the familiar lines, it is his duty to pay the residue to the person ultimately entitled, as for instance, to the residuary legatee, if any has been appointed by the Will (Section 145).
9. This was the view adopted in the original side of this Court by Mr. Justice Sale, in the case of in the goods of Nursing Chander Bysack 3 C.W.N. 635, where the fallacy was pointed out of the prevalent idea once an administrator, always an administrator. The facts of that case were not so strong as these before us in the present appeal, because, there, administration had been granted, and it was hold that when the widow was in possession as heiress and not as an administratrix because the administration had been completed, she was no longer amenable to the directions of the Court and she could deal with the estate in her capacity as heiress and on her own responsibility without invoking the permission of the Court under Section 90 of the Probate and Administration Act.
10. In the case before us, no administration was ever granted during the long series of years during which the widow was in possession of the estate of Harish and when the debts, if any, must have been paid up and all other necessary action been taken in connection with the administration of that estate. It is quite clear to us, on this consideration, that the application of the respondents was incompetent and misconceived. Some stress has been laid by the learned Vakil for the plaintiffs on an observation in Raghu Nath Misser v. Musammat Pate Koer 6 C.W.N. 345, but that case was, a very different one and is no authority against the view we now adopt. The decision of Mr. Justice Sale has been approved of in a more recent decision of this Court, Lakshmi Narain Chatterjee v. Nanda Rani Debi 90 L.J. 116 at p. 118 : 3 Ind. Cas. 287.
11. It is evident that the real object of this litigation is not to administer the estate of Harish (for that, as we have mentioned, must have been administered already) but to obtain a declaration of heir ship so as to fortify the successful party in any regular suit that may hereafter be instituted. We cannot permit such a course to be adopted, or to enlarge the scope of the Probate and Administration Act.
12. We, therefore, allow the first contention raised on behalf of the defendants-appellants, and, having regard to the circumstances of this case, we think it unnecessary to go into the second question as to whether Padmalabh and Brojo Nath were one and the same person. That issue, if the parties are so advised, may be agitated independently in a suit framed for that purpose.
13. The appeal is allowed. In the circumstances as both the parties appear to us to be in fault, we make no order for costs. The parties will bear their own costs throughout.