JUDGMENT Henderson, J.
1. This is an appeal from the decision and decree of the learned District Judge of Midnapur by which he rejected the appellant's application for Letters of Administration with the copy of the will of one Madan Mohan Bera attached. The respondents took the usual objections to the effect that the will was forged and that the testator had no testamentary capacity. Accordingly, issues 1 and 3 were framed by the learned Judge. At the trial, these issues were abandoned by the respondents who admitted that the will was genuine and that the testator had testamentary capacity. The only thing which remained for the learned Judge to decide was issue 2. That issue is in these terms: "is the petition for Letters of Administration barred by acquiescence and waiver?" It is not very easy to appreciate what point this issue was intended exactly to raise nor is the judgment of the learned Judge very clear either. He refers to a question of a family arrangement and the effect which such an arrangement would have upon the provisions of the will. No such arrangement was ever even alleged by the respondents. In dealing with it (assuming that such a matter can be investigated on an application for probate) it would be necessary to examine whether this arrangement was in agreement with the terms of the will or opposed to it. Different consideration would arise in either case. It would also be necessary to examine who were the parties to it. On this part of the learned Judge's judgment, we need only say that the question does not arise at all.
2. Then the learned Judge referred to considerations which would arise on an application for Letters of Administration on intestacy. On behalf of the respondent Mr. Bose contended that there was no difference between such an application and an application for probate of a will. On an intestacy, Letters of Administration are an expensive luxury. In the case of a will, they are an absolute necessity and until probate is taken out or Letters of Administration granted, effect cannot be given to the terms of the will. My learned brother in the course of his judgment will refer to a decision which, in my opinion, is exactly similar to the present case.
3. Mr. Bose has made it clear what the objection of the respondents to this grant really is. He has said that there is nothing to administer and that a grant would be redundant. In such a case it is difficult to see why the appellant should be so anxious to obtain the grant and why the respondents should be so anxious to prevent him from doing so. In fact this case is really quite inconsistent with another allegation made by the respondents to the effect that the application was a mere dodge to help the appellant in a partition suit.
4. Of course it is impossible to say that there is no estate to administer. There is an estate and it has never been administered in terms of the will. As far as I have been able to follow the arguments, the case of the respondents is that as a result of the law of intestacy, the position at the present moment is that the result is exactly the same as that provided by the terms of the will. I am not going to say that in my opinion if this were established, it would be any ground for refusing the present petition. The case in Sankar Nath Mukerji v. Biddutlata Debi AIR 1918 Cal 41 is of quite a different character. There probate had been taken out. In the present case it never has and unless the will is proved no title would be given to anybody on the basis of the will. But we are simply not in a position to say whether this contention is well founded. I have already noted how difficult it is to explain the behaviour of the parties. It seems to be highly probable that the will affect the actual distribution of the estate. But no such case really arises on the issues framed. On the framing of issue 2, the appellant could not possibly know that he would be expected to bring evidence to show whether the present possession and title are in accordance with the arrangement made in the will. We are left completely in the dark on this point and cannot express any opinion one way or the other; nor could we come to any finding on other questions which were raised, such as whether the respondents or other heirs or third persons, have, since the death of the testator, obtained a title which will hold good against that of the person administering the estate. In my opinion, the decision of the learned Judge refusing to grant probate cannot be upheld.
5. Then Mr. Bose contended that the appellant was not entitled to apply for Letters of Administration. This objection was overruled by the learned District Judge. He held that the petitioner was entitled to do so under the provisions of Section 234, Succession Act. We agree with that contention. The petitioner is certainly the representative of Baikuntha who was in the position of a residuary legatee. But supposing he failed under this section, there remains Section 218. On this point Mr. Bose's contention was that the appellant was not entitled to Letters of Administration, because he was in the position of a sakulya and a daughter of the testator named Anna was still alive. This is a matter of evidence and no evidence was given in the trial Court. It seems to us that the point has really been taken for the first time in this Court. Although the appellant did not categorically say in his petition that Anna was dead, he says so by implication; on the other hand the respondents did not say that she was alive. On the contrary by implication they say that she is dead. We are therefore certainly not prepared to send the matter back to be investigated on evidence. The result is that this appeal must be allowed. We set aside the decree of the District Judge and direct that Letters of Administration with a copy of the will of the late Madan Mohan Bera annexed be granted to the appellant. The appellant will have his costs in this Court and in the Court below from the respondents. We assess the hearing fee in this Court at five gold mohurs.
6. I agree. It is difficult to support the judgment of the learned District Judge either on authority or in principle. Mr. Bose appearing on behalf of the respondent has done his best, but he has failed to persuade us that the District Judge was right. There was no question in this case of the genuineness of the will or of due execution, nor was there any denial of the testamentary capacity of the testator. The locus standi of the petitioner was challenged, but the learned District Judge saw no merits in that objection and rightly turned it down. As this point was raised again before us, I might just say a few words to dispose of it at once. Mr. Bose's contention was that the petitioner did not bring himself within the terms of Section 234, Succession Act. He said that the petitioner was not residuary legatee, nor was he a representative of a residuary legatee. Neither was he a person who would be entitled to the administration of the estate of the deceased if he had died intestate, nor was he a legatee himself. From the terms of the will it appears that no executor was named in it. The whole estate of the testator was, however, given to three brothers, Dwarka, Baikuntha and Gopi Nath, subject to the proviso that if any one of them died during the lifetime of the others, his share would pass to the survivors. Admittedly, Gopi Nath had died in the lifetime of the testator. Accordingly, the two sole beneficiaries under the will were Dwarka and Baikuntha. The petitioner is the son of Baikuntha. Although Dwarka and Baikuntha were not named as residuary legatees, still having regard to the fact that between them they were entitled to the whole of the estate, I think that they might very well be regarded as residuary legatees for the purposes of 8. 234. No particular mode of expression is necessary to constitute a residuary legatee (S. 102). In this view of the matter, Durgapada Bera as representative of Baikuntha would undoubtedly be entitled to apply: see Sections 232 and 233. Apart from this, it is difficult to see how that petitioner fails to come within the words person or persons, who would be entitled to the administration of the estate of the deceased if he had died intestate. As to who are the persons so entitled, will appear from Section 218. Under this section administration may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of the deceased, would be entitled to the whole or any part of such estate. There can be no question that Durgapada is in the list of heirs to Madan Mohan Bera under the Hindu law of intestate succession. He does not come within the category of sapinda, having regard to the remoteness of relationship to the deceased, but he is a sakulya, and in the absence of a sapinda, he would certainly be entitled to inherit. Mr. Bose suggested that there was a sapinda still alive who would exclude Durgapada, and on that basis he asked that the case should be remanded to the trial Court for the purpose of deciding whether or not Durgapada was really an heir. Mr. Bose pointed out that on the petitioner's own showing there was a daughter of the testator still living namely, Anna. We were referred to a paragraph in the petition where this is stated, namely para. 8. We have read this and also the objectors' answer to that paragraph contained in para. 9 of their written statement. Beading the two together, we have not the slightest doubt that it was common case that Anna had died in the lifetime of the testator, otherwise there would be no point in expressly referring to the fact that another daughter of the testator, Taramoni died intestate without leaving any issue, and in mentioning the names of the sons and grandsons of Anna as her heirs. There is, therefore, no point whatsoever in remanding the case to the learned District Judge for a finding on a question of fact which was practically admitted on both sides.
7. The petitioner's right to apply for Letters of Administration being thus established, it is difficult to see on what other grounds the application could be refused, Admittedly there was considerable delay in applying. The will was dated 21st Magh 1295 B.S., corresponding to 2nd February 1888. The testator died on 1st May 1899. Not until 1935, that is to say 36 years later, was an application for administration of the estate made for the first time. This application was made by Baikuntha, one of the legatees under the will, but as Baikuntha died during the proceedings, that application abated and thereupon the present application was filed by his son Durgapada, the appellant before us. The grant was opposed by the sons and grandsons of Baikuntha's brother Dwarka, another legatee under the will. This long delay in applying for administration seems to have exercised the learned Judge considerably, and supplies the background of his decision. The fact that no application had been made for administration for 36 years, coupled with the fact that in the meantime in 1917 the Record of Rights was published showing the estate to be in the possession of Dwarka and Baikuntha in equal shares, led the District Judge to the conclusion that the estate must have been fully administered, and this was a circumstance which, in his opinion, would be ground enough for refusing the grant. The learned Judge further held that this belated application was not made with the object of administering the estate which alone would justify the grant, but was merely a device to obtain a decision of the probate Court on a question of title which might be of use to the parties in some other litigation. Thirdly, the learned Judge held that Letters of Administration ought to be refused, because rights had been in the meantime created in the estate in whole or in part in favour of third parties.
8. As to delay, it may be pointed out that applications for probate or for Letters of Administration with the will annexed (as well as applications for revocation of probate or of Letters of Administration) are not governed by the law of limitation. This question is now covered by authority, and we might refer among others to the decision In the matter of the petition of Ishan Chunder Roy (1881) 6 Cal 707, which was a case of an application for probate, and to the decision in Kashi Chunder Deb v. Gopi Krishna Deb (1892) 19 Cal 48, which was a case of revocation of probate. There are decisions also in other High Courts to the same effect, among which may be mentioned the case in Bat Manekbai v. Manekji Kavasji (1883) 7 Bom 213, and Gnanamuthu Upadesi. v. Vana Kopipillai Nadan (1894) 17 Mad. 379. As Muttusami Ayyar, J. put it in the last mentioned case, the reason why applications for probate are exempted from the operation of the Limitation Act probably is that such an application is in the nature of an application for permission to perform a duty created by the will or for recognition as a testamentary trustee, and the right to apply continues so long as the object of the trust exists or any part of the trust, if really created, remains to be executed. Long delay in making an application for probate, or for Letters of Administration with the will annexed is no doubt a circumstance which may be properly taken into account in determining the question of the genuineness of the will, but that is about the only purpose for which it is relevant in such a proceeding. Cases are not unknown in the reported decisions where probate or Letters of Administration have been granted many years after the death of the testator. One such case is that of Ishan Chandra Roy In the matter of the petition of Ishan Chunder Roy (1881) 6 Cal 707 already referred to. Another is the case in Khageswar Sarma v. Someswar Bhattacharya AIR 1921 Cal 334. It is not necessary to refer to other instances.
9. This being the general position, let us now examine the specific points on which the learned Judge proceeded to dispose of the case. As regards the first point, viz. that as the estate had been fully administered, no grant should be made because this would be merely lending assistance by the Court to a futile proceeding. Mr. Bose has relied on the case in Lalit Chandra v. Baikuntha Nath (1910) 14 C W N 463; he might have cited other cases as well, for instance, In the goods of Nursing Chunder Bysack (1899) 3 C W N 635, Lakshmi Narain v. Nanda Rani Debi (1909) 9 C L J 116 and Prosonno Kumari v. Ram Chandra (1913) 17 C L J 66. But none of these cases is in point. Here we have got to deal with a case where a person left a will: the question is whether probate or Letters of Administration with the will annexed ought to be granted. In some of the cases to which I have just referred, there were no wills and the question was whether a person was entitled to a grant as a matter of right, even though it was found that the estate had been fully administered in intestacy. The learned Judges very rightly pointed out that in such a case it was the duty of the Court in granting Letters of Administration to consider whether there was any estate left to administer. In some of the other cases, probate or Letters of Administration with a copy of the will annexed had already been granted, and then years after, applications were made on behalf of the executor or the administrator for permission to alienate part of the estate under Section 90, Probate and Administration Act, 5 of 1881. In dealing with such applications the Court went into the question as to whether or not there was any estate still left to administer and where it was found that there was none, the permission was refused. This is quite intelligible, and certainly in dealing with an application for permission to sell or otherwise dispose of part of the testator's property under Section 90, one of the material points to consider would be if administration had or had not been completed, because permission would be granted only if it were necessary for the purpose of administration, not otherwise.
10. An effective answer to Mr. Bose's argument is furnished by the decision of this Court in the ease in Adwaita Chandra Mondal v. Krishnadhan Sarkar AIR 1918 Cal 1035, to which I drew his attention during argument. That was a case exactly in point except that instead of being an application for Letters of Administration with the will annexed, the application was for probate. This however would not make any difference in principle. In this case the application was opposed by the objectors on the ground that the will was not genuine, and secondly that there was no estate left to be administered. On the first point it was held on the evidence that the will was genuine and that finding was not attacked. As regards the second point, it was contended on the authority of the case of Lalit Chandra v. Baikuntha Nath (1910) 14 C W N 463 and the other cases some of which I have already mentioned in that connection, that no Letters of Administration ought to be granted. Chatterjea, J. pointed out very rightly, if I may say so with respect, that the cases of In the goods of Nursing Chunder Bysack (1899) 3 C W N 635 and Lalit Chandra v. Baikuntha Nath (1910) 14 C W N 463 related to applications for Letters of Administration in case of intestate succession, and said that in such a case it was the duty of the Court in granting Letters of Administration to consider whether the estate had or had not been fully administered. Referring to the case of Lakshmi Narain v. Nanda Rani (1909) 9 C L J 116, his Lordship pointed out that no doubt this was a case in which there was a will, but the will had been already probated and Letters of Administration with a copy of the will annexed granted. Subsequently, the widow to whom the grant had been made applied to the Judge under Section 90, Probate and Administration Act, for permission to raise money by sale of certain properties. It was held that Section 90 of the Act had no application where an estate had been fully administered, all the debts collected and all legacies paid. In another case also cited in the judgment, namely Chandi Charan Mandal v. Banka Behari Mandal (1906) 10 C W N 432 the will had already been proved, and what the Court held was that after the estate had been dealt with by the executor for more than twenty years, it could be presumed that the estate had been administered, and on that ground the grant was refused to a reversioner who made a subsequent application after the death of the widow. Chatterjea, J. concluded:
Those cases 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.
11. There can be no question that under Section 213, Succession Act, it is necessary to obtain probate or Letters of Administration with copy of the will annexed in order to establish rights under the will. Apart from this, even if it were assumed for the sake of argument that the principle contended for by Mr. Bose would apply in the case of testamentary succession in my opinion, it will still have to be shown that the administration of the estate had been in accordance with the provisions of the will. Admittedly this was not so in the present case. Mr. Bose's explanation was that there was a family arrangement by which the will had been superseded, and that it would be sufficient in that view if it was merely shown that the estate had been administered in accordance with the wishes of the parties concerned. We do not think that a consideration of this nature is at all relevant in a proceeding for grant of administration. Supposing it was open to the parties concerned by mutual arrangement to supersede the will, that will be no bar to a grant of probate or Letters of Administration, because even after such a grant, a point like this might easily be raised. We do not think that we should be justified on the materials on the record in this case in coming to a conclusion one way or the other on the question of such a family arrangement. There are indeed several disputed questions of fact involved as regards the title in which actual possession was held by the parties. It appears that Dwarka, one of the three legatees under the will, was taken in adoption by Fakir, the brother of the testator. Admittedly Fakir was not alive at the time of the death of the testator. As to whether this adoption was or was not a fact, or as to when it took place, these are questions on which there is no evidence. It seems that the date on which the adoption took place, if at all, would materially affect the rights of the parties. It cannot be said, therefore, with any precision that the shares which the parties were actually purporting to hold represented their legitimate shares. Be that as it may, it is not necessary to go further into this aspect of the matter because, as I have already indicated, it is a question which is wholly irrelevant for the present purpose. It is enough to point out that in para. 7 of the petition of objection the objectors themselves stated that the properties had been administered on the basis of intestacy.
12. Turning now to the second point taken by the learned District Judge, he refers to the case in Prosonno Kumari v. Ram Chandra (1913) 17 C L J 66, and holds, in the words of that decision, that the present application was a transparent device to secure from the probate Court a decision upon a contested question of title to the properties mentioned in the schedule. This was a case of an application for Letters of Administration, where there was no will, In such a case it may be sometimes necessary for the applicant to establish his title to the estate, and a decision on such a question of title may conceivably be of use to the parties in other litigations. But, where there is a will, it is difficult to see how a decision in a probate Court can at all operate to help the parties one way or the other in a contested title suit. The grant of probate or of Letters of Administration is decisive only of the genuineness of the will and of the right of the person to whom the grant is made to represent the estate. Section 273, Succession Act, says that the grant shall be conclusive as to the representative title of the person to whom the grant is made against all debtors of the deceased, etc. It is impossible to say, therefore, that the grant of probate or Letters of Administration with a copy of the will annexed would be at all a bar to the determination of any question of title or to a suit for construction of the will. If authority is needed for this proposition, reference may be made to the cases in Hormusji Navroji v. Bai Dhanbaiji (1888) 12 Bom 164, Bal Gangadhar Tilak v. Sakwarbai (1902) 26 Bom 792, Arunmoyi Dasi v. Mohendra Nath (1893) 20 Cal 888 and Jagannath Prasad Gupta v. Ranjit Singh (1898) 25 Cal 354 at p. 369. These cases also furnish an answer to the third point raised by the learned Judge; the fact that third parties may have acquired rights in the properties purporting to be disposed of by the will can be no ground for refusing probate or Letters of Administration, as the one cannot prejudice or be prejudiced by the other.
13. None of the objections urged by the learned District Judge is therefore of any substance. He has wholly misconceived the nature and scope of such a proceeding and introduced considerations which were wholly irrelevant. In this view of the matter, I agree therefore that the decision of the District Judge must be set aside and order made for the grant of Letters of Administration to the petitioner.