1. This appeal is directed against a decree whereby Letters of Administration, in respect of the debuttar properties of the Bishunpur Raj, have been granted to the respondent, to continue during the minority of her son. The properties were admittedly in the possession of Raja Ram Krishna Singh a down to 1889, when he died leaving two widows, the senior Rani Dhajamoni and the junior Rani Prosonno Kumari. Upon his death, Rani Dhajamoni became the shebait and managed the properties till 1892 when she died. It is alleged that, shortly before her death, she executed in 1891 an arpannama or deed of gift in favour of one Nilmoni Singh, who was thus constituted the shebait of the debuttar properties. This arpannama has not been produced or proved in this case, and the Court is, therefore, not in a position to pronounce any opinion upon the question of the execution of the alleged deed of gift by Rani Dhajamoni and its true legal effect. It is stated, however, that upon the death of Rani Dhajamoni, Nilamoni Singh became the shebait and managed the properties till 1903, when he died, leaving a minor son, Ram Chandra Singh, and a widow, Churamoni. On the 1st January 1909, Churamoni applied for Letters of Administration, on behalf of her infant son Ram Chandra Singh, in respect of the debuttar properties. The application was opposed by Rani Prosunno Kumari, the junior widow of Raja Ram Krishna Singh, and in her turn, she applied on the 1st April 1909 for Letters of Administration to that very estate. The District Judge has taken evidence and has come to the conclusion that the title of Rani Prosunno Kumari has been extinguished by lapse of time, as the properties were in the possession of Nilmoni Singh from the time of the death of Rani Dhajamoni in 1892 to the time of his death in 1903 In this view, the District Judge has granted Letters of Administration to Churamoni for the benefit of her minor son, to continue till the latter comes of age. The District Judge has also dismissed the application for Letters of Administration by Rani Prosunno Kumari. The present appeal has been preferred by Rani Prosunno Kumari against the grant of Letters of Administration to Churamoni.
2. A preliminary objection has been taken to the hearing of the appeal on the ground that the memorandum is not in conformity with the provisions of the Code of Civil Procedure, inasmuch as a copy of the decree was not attached thereto. It has not been disputed on behalf of the appellant that this is a fatal defect and that the Court has no power under the Code to exempt the appellant from the production of a copy of the decree against which the appeal is preferred Hem Chandra Bakshi v. Jadab Chandra Bakshi 16 C.L.J. 116 : 17 Ind. Cas. 99; Binapani Debi v. Sashibhusan Sinha 16 C.L.J. 133 : 17 Ind. Cas. 119. An application has, however, been made on behalf of the appellant to the effect that a certified copy of the decree may now be received and allowed to be attached to the memorandum of appeal. It is competent to the Court to make an order of this description, if it is satisfied that the discretion vested in it under Section 5 of, the Limitation Act should be exercised in favour of the appellant. It has been explained in an affidavit that the copy of the decree now tendered was obtained before the appeal was lodged in this Court, that it was made over in proper time to the learned Vakil who filed the appeal but that by a mistake, the precise nature of which cannot now be explained as the learned Vakil has since then died, the decree was not attached to the memorandum of appeal when it was filed. We are of opinion that the appellant ought not to suffer by reason of what was very possibly an accidental mistake or oversight on the part of her Vakil. We, therefore, grant the application for extension of time and direct that the copy of the decree now produced be accepted and attached to the memorandum of appeal. We may add that a similar order was made by this Court in the case of Surja Kant Roy Chowdry v. Bihari Bholliachya (1910) R.A. No. 86 of 1908. The question next arises, whether the order for grant of Letters of Administration ought to have been made. In our opinion, it is obvious that the order cannot be sustained. In fact, this case illustrates bow statutory provisions may be abused and misapplied in a manner never contemplated by their framers. The application of the respondent to the Court below purports to be one for Letters of Administration in respect of debuttar properties, but there is manifestly no estate which stands in need of administration. Even if it be assumed, as was held in the case of Ranjit Singh v. Jagannath Prosad Gupta 12 C. 375 that Letters of Administration may be granted in respect of debuttar properties in certain events, though the contrary view was indicated in Jib Lal Gir v. Jaga Mohan Gir 16 C.W.N. 798 : 16 Ind. Cas. 453 there is clearly no occasion for a grant here. There is no suggestion that any creditors have to be paid or that any debts due to the estate have to be collected; in fact, no foundation is laid for a possible theory that the estate really needs what is technically meant by administration. This is confirmed by what we have already stated, namely, that Nilamoni Singh died in 1908 and the present application was not made till six years later; prima facie, therefore, there is no estate of which administration can be granted. But we may add that we are not satisfied that this is at all a case under Section 37 of the Probate and Administration Act of 1881. That section provides that where a person dies, leaving properties of which he was the sole or surviving trustee or in which he had no beneficial interest on his own account and leaves no general representative or one who is unable or unwilling to act as such, Letters of Administration limited to such property may be granted to the beneficiary or to some other person on his behalf. It has not been proved that the infant, on whose behalf the application has been made, is a beneficiary within the meaning of Section 37 and the case thus falls within the rule recognised in Jib Lal Gir v. Jagan Mohan Gir 16 C.W.N. 798 : 16 Ind. Cas. 453. We are further of opinion that the application for Letters of Administration in this case is a transparent device to secure from the Probate Court a decision upon a contested question of title to the debuttar properties. But, as laid down in Lakshmi Narain Chatterjee v. Nanda Rani Debi 3 Ind. Cas. 287 : 9 C.L.J. 116; Lalit Chandra Chowdhury v. Baikuntha Nath Chaudhri 5 Ind. Cas. 395 : 14 C.W.N. 463 : 15 C.L.J. 305 and Parsania v. Hari Charan 16 Ind. Cas. 588 the Court will not allow the provisions of the Probate and Administration Act to be misapplied for such a purpose. If there is any controversy between the parties as to the shebaitship of the disputed properties, they must seek for its decision in a title suit properly framed for the purpose.
3. The result is, that this appeal is allowed, the decree of the District Judge set aside and the application dismissed.
4. It is conceded that the other appeal (Regular Civil Appeal No. 148 of 1910) stands on precisely the same footing. In that appeal, however, the decree of the Court below will be affirmed and the application for Letters of Administration will stand dismissed. There will be no order for costs here or below, in either of these cases.