1. This is an appeal against an order granting Probate of a Will dated the 3rd June 1885. The testator died sometime between 1885 and 1892.
2. By his Will he gave 4 annas of his estate to his widow, 4 annas to each of his two daughters, and the remaining 4 annas to one Joy Hari Das, who is described as his foster-nephew, with the direction that on the death of any one of them, his or her share would devolve on the survivors. There is also a provision in the Will that 12 bighas of land shall be appropriated for the purpose of the worship of the deities and other religious ceremonies, for the entertainment of guests and the payment of annual pronami to the guru. The Will was a registered one, but no application for Probate, was made until the year 1914. It appears that on the death of the widow and daughters of the testator, Joy Hari, the surviving legatee under the Will, had some litigation with the nephews, i.e., the brother's sons of the testator, some of whom are the appellants before us in the present case. That litigation was compromised, the nephews of the testator taking one half of the estate and Joy Hari taking the other half. That was sometime before the present application was made by one Krisnadhan Sarkar, who was appointed executor (by implication) under the Will. The appellants, who are the nephews of the testator, opposed the applications on the ground that the Will was not genuine and secondly, that there was no estate left to be administered.
3. The Court below has found upon the evidence that the Will is genuine. That finding has not been assailed before us in argument.
4. What has been contended before us is that as there are no debts due to, or by the deceased, and the legatees under the Will having been in possession according to the directions contained in the Will for such a long period no Letters of Administration ought to be granted. We have been referred to the cases of Nursing Chunder Bysack In the goods of 3 C. W.N 635, Lalit Chandra Chowdhury v. Baikuniha Nath Chowdhury 5 Ind. Cas. 395: 14 0, W. N. 46: 15 C. L. J, 305, Lakshmi Narain Chatterjee v. Nanda Rani Debi 3 Ind. Cas. 287: 9 C. L. J. 116 and Ghandi Charan Mandal v. Banke Behari Mondal 10 C W. N. 433.
5. The first two cases, however, related to applications for Letters of Administration in case of intestate succession and in such a case, it is the duty of the Court in granting Letters of Administration to consider whether there is any estate to be administered or whether the estate had not been fully administered. The third case no doubt was one in which there was a Will but the Will had already been proved, and Letters of Administration with copy of the Will annexed had been granted. Subsequently the widow, to whom Letters of Administration had been granted, made an application to the Judge under Section 90 of the Probate Act for permission to raise money by sale of certain properties. It was held that Section 90 of the Act has no application where the estate has been fully administered, all the debts collected and all legacies paid. In the last case also the Will had already been proved and, Probate granted and all. that this Court held was that after the estate dealt with by the, Will had passed to the widow and more than twenty years, had passed since the Will was proved, the Court could presume that the estate was administered and on that ground refused Letters of Administration to the reversioner who applied for them after the death of the widow. Those oases, therefore, have no application to the present case, where it is absolutely necessary for the legatees or persons claiming through them to have their title established under the Will by proving the Will.
6. It is contended on behalf of the appellants that if the legatees have already acquired statutory title independent of the Will or if other interests have been acquired in the estate since the death of the testator, Probate ought not to be granted. But we do not know whether any statutory title has been acquired, and it is not open to the Probate Court to go into such matters. We do, not express any opinion as to how far (if at all) the interests of other persons would be affected by this grant of Probate, but we do not think that there is anything to preclude the Probate Court from granting Probate in a case like this where the Will was really execrated by the testator.
The appeal is dismissed with costs, two gold mohurs.