Authored By : John Freeman Norris, S.C. Ghose

John Freeman Norris and S.C. Ghose, JJ.

1. The learned Government Pleader, who appeared for theCourt of Wards, did not, as we understood him, question in the course of hisargument, the conclusion of the Court below that it was not proved that theminor was the adopted son of Kirti Chandra.

2. As regards the appellants in the other appeal, we areclearly of opinion upon a consideration of the neog-puttro that they were notby that instrument appointed shebaits as directed by the will executed by RaneeAnnapurna, and so they also have no locus standi, and on this ground, which iscommon to both appellants, we should have felt inclined to dismiss both theseappeals. But considering the importance of the points raised by the learnedGovernment Pleader, and having in view the provisions of Sections 83 and 86 ofthe Probate and Administration Act (V of 1881), we think it proper to deal withthem.

3. Baboo Annoda Prosad Banerjees main contentions were thatthe application of Jagannath did not properly fall within the scope of theProbate and Administration Act, and that therefore the District Judge had nojurisdiction to deal with the matter and grant letters of administration; andthe applicants proper course was to bring a regular suit to establish his right,and for the appointment of a shebait.

4. These contentions were not raised in the Court below, butwe allowed them to be argued at the bar, as they involved important questionsdeserving careful consideration.

5. As already observed, Ranee Annapurna by her willdedicated certain Immovable properties to the sheba of certain idols,constituting Anundmoyee as shebait, and empowering her to appoint the nextshebait. The will also by implication appointed Anundmoyee an executor, and assuch executor, she took out probate. During her life-time, she fullyrepresented the estate, both as a trustee for the idols, and also as anexecutor under the will; but she died without appointing in her place a shebaitwho could administer the estate in accordance with the directions of the will.

6. Now, looking at the scope and policy of the Probate Act,it is apparent that it was the intention of the Legislature that an estateshould not be left unrepresented; and to this end provisions are made for thegrant of a probate and letters of administration in a variety of cases.

7. In the present case, there being an endowment created bythe will in favour of the idol, the trust is of a perpetual character, andtherefore the necessity of administration of the endowed property did not andcould not cease with the death of the shebait Anundmoyee. So long as anadministrator is not appointed, the estate would be wholly unrepresented, andthe idol would run the risk of its sheba being not properly preformed, and itsproperties being wasted or mismanaged.

8. Bearing these considerations in view, let us now considerwhether the Probate Act has provided for an administration being granted in acase like the present. Section 45 of the Act provides: "If the executor towhom probate has been granted has died, leaving a part of the testators estateunadministered, a new representative may be appointed for the purpose ofadministering such part of the estate."

9. In the present case what has happened is, that theexecutor appointed by the will has died; and the estate of the testator, forreasons already explained, has yet to be administered. In this view it wouldseem that administration might well be applied for and granted under the Act.We may also refer to Section 37 of the Act as bearing upon this matter.

10. That section runs as follows:

When a person dies, leaving property of which he was thesole or surviving trustee, or in which he had no beneficial interest on his ownaccount, and leaves no general representative, or one who is unable orunwilling 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.

11. Upon the death of Ranee Annapurna, the propertiesmentioned in the will became the idols, and Anundmoyee became the sole trusteefor the idols. But she died, as already observed, without appointing anothertrustee, and leaving, as far as we are aware, no general representative, who,by virtue of his or her being such representative, could take charge of theidols estate. That being so, the administration, according to the wordings ofthe above section, devolves upon the idol, the cestuique trust; but it beingimpossible for the idol to take the management, somebody else on its behalf mayapply for administration.

12. It may be doubtful whether in using the word"beneficiary" in the above section, the Legislature ever contemplatedthe case of an idol. But regard being had to what has for a number of yearsbeen understood in our Courts to be the true position of an idol in regard todedicated properties, we do not see why, as a cestuique trust, an idol may notbe a beneficiary within the meaning of that section.

13. It has also been contended that it was never theintention of the Legislature that letters of administration should be grantedon the death of each trustee to the next succeeding trustee, and that if thatwere so, the trust estate might be swallowed up by the Court fees that wouldhave to be paid for the taking out of letters of administration. We are unableto accept these contentions; for, as already observed, if no administration isgranted, the estate would be wholly unrepresented until the decision of aregular suit, which might take a considerable time, and in the second place theCourt Fees Act, Section 19c (chapter IIIA) provides that "if a probate orletters of administration has been granted in respect of an estate or part ofan estate, and the fee chargeable under the Act has once been paid, no feeshall be chargeable when a like grant is made in respect of the sameestate."

14. Upon these considerations, we are of opinion that thecase now before us falls within the scope of the Probate Act, and the learnedJudge had ample authority to deal with it.

15. This disposes of the other question raised by thelearned Government Pleader that the applicant ought to have recourse to aregular suit for the declaration of his right, for, if the Judge had authorityto deal with the case under the Probate Act, he would equally have the power todeal with such questions as might arise as to the relative rights of theseveral claimants before him for administration, either as heirs of RaneeAnnapurna, or otherwise.

16. The next question that arises is, whether the applicantis entitled to the administration. With reference to this question, we desireto say, in the first place, that upon the death of Anundmoyee withoutappointing a Shebait or manager, the said office reverted to the heirs of RaneeAnnapurna, who made the endowment see Jai Bansi Kunwar v. Chatter Dhari Singh 5B.L.R. 181 The Probate Act after laying down in Section 45 that in cases wherethe whole of the estate has not been administered by the executor, a newrepresentative may be appointed for administration, provides in Section 46 thatin such cases the Court, in granting letters of administration, shall be guidedby the same rules as apply to original grants, and shall grant administrationto such persons only to whom the original grants, might have been made.

17. Now, it has been found by the learned District Judgethat the applicant is the adopted son of the Ranee Annapurnas sister; andagainst this finding no question has been raised before us in appeal. The onlycontention in connection with this matter was that the Judge was wrong tosuppose that in the Nosipoor family, the Asura form of marriage prevailed, andto presume that the Ranee was married according to that form, and to hold thattherefore the applicant being the Ranees sisters son was the preferential heirto her stridhan. We are of opinion that it is not material to consider whetherthe Ranee was married in the Asura form or not; because, whether she wasmarried in that form or in any of the approved forms of marriage, the applicantas sisters son would seem to be an heir according to the Hindu law, and beentitled to inherit the Ranees stridhan property, in default of any otherpreferential heirs; and in this case it does not appear that there are any suchheirs. The Ranee was governed by the Benares school of law; and although theMitakshara is silent as to the class of heirs to whom the stridhan of a womanmarried according to one of the approved forms devolves in default of issue,her husband, and his kinsmen, yet we have authority for saying that the sistersson, as one of her kinsmen on the fathers side, is an heir. The ViraMitrodaya, which as the Privy Council has said in the two cases of TheCollector of Madura v. Mootoo Ramalinqa Sathupathy 12 MI.A. 397 : 1 B.L.R.P.C.1 and Girdhari Lall Roy v. The Bengal Government 12 MIA. 448 : 1 B.L.R.P.C. 44is a treatise of special authority in the Benares school, and is properlyreceivable as an exposition of what may have been left doubtful by theMitakshara, and declaratory of the law of the Benares school,--distinctly laysit down, following a text of Vrihusputty, that the woman stands in the positionof a secondary mother to her sisters son, and that the latter is an heir toher. That seems also to be the case in the other schools of law (see Vira Mitrodaya,p. 243; Dayabhaga, chapter IV, Section 3, verses 35; to 37; Smriti Chandrika,chapter IX, Section 3 verse 36; Vavahara Mayukha, chapter IV, Section 10, para.30; West and Buhler, volume I, pp. 242-245; and Vivada Ratnakara, chapter onthe Property of a Childless Woman). It is not necessary in this case to examinewhat may be the true position of the sisters son as an heir of a woman; for,as already observed, the persons who contested the heirship of the applicanthave been found to have no hens standi at all, and it does not appear thatthere are any heirs of the Ranee, save and except the applicant.

18. If then the applicant is heir of the Ranee, he isentitled to hold the office of a shebait of the idol, and it seems to us clear,looking at the language of Section 46, read in connection with Sections 18 to23, that he is entitled to administration; for, as heir, the original grant inrespect to the debutter property might have been made to him.

19. We are also of opinion that if the case falls withinSection 37 of the Act referred to above, the applicant is a fit and properperson to obtain letters of administration; for, as already observed, theoffice of manager has reverted to him, as heir of Ranee Annapurna who made theendowment, and also because he is one of those persons who was authorized inthe will of the Ranee to supervise the acts and conduct of the shebaitappointed by her.

20. There is only one other matter which we need notice,viz., as to whether the dwelling-house mentioned in the will of the Ranee wasby that instrument dedicated to the idol. The Judge has held that it was givento Anundmoyee even if only for life estate. We are not prepared to accept thatview; we are rather inclined to hold, reading the document as a whole, and bearingin mind that the house is the same where the idol was lodged, that it could nothave been the intention of the testator to give it to Anundmoyee, even if onlyfor life, in any other capacity than that of a shebait of the idol. But it isperhaps immaterial to express any decided opinion on this point, because, evenif it was bequeathed to Anundmoyee for her life, it reverted on her death tothe legal heirs of the testator, and therefore the applicant being an heir ofthe testator under the Hindu law, and there being nobody else who is shown tohave a better claim, the applicant is entitled to administration.

21. Upon all these considerations, we are of opinion thatthe order passed by the District Judge is right, and ought to be affirmed withcosts.

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Ranjit Singh and Ors.vs. Jagannath Prosad Gupta(11.09.1885 - CALHC)