1. This is a petition for letters of administration to the estate of the deceased Mahadev Ramji Kalzunker. The petitioner is the widow of the deceased, who died on 18th April, 1938, leaving behind him, the petitioner, his widow, a son who is four years old and three unmarried daughters of the ages of 16, 14 and 8 respectively. The caveator claims that the property left by the deceased was joint family property and the petitioner is therefore not entitled to the grant. This is the only ground mentioned by him in the affidavit filed in support of the caveat. On behalf of the caveator it is urged that pending his contention no letters of administration should be granted. In support of that 14 Bom LR 10311 is relied upon.
2. It is conceded that it is not the province of the testamentary Judge to determine whether the property covered by the will or for which letters of administration are asked for was the property of the deceased or not or was the joint property belonging to the deceased and some one else during his lifetime. In 28 Bom 6442 at the hearing of a petition for letters of administration to the estate of a deceased person, Jenkins, C.J, held that it was not the province of the Court to go into the title of the property to which the letters of administration referred. It appears from the judgment that it was argued there that this was a sufficient ground to prevent the grant of letters of administration, but the Court refused to accept that contention. When the matter first came before Russell, J., the caveat which was filed on this ground was dismissed with costs and letters of administration were directed to issue to the petitioner saving all just exceptions. On appeal the same contention was urged on behalf of the appellant unsuccessfully and the Court dismissed the appeal. In that way the order of the trial Court dismissing the caveat with costs and directing the letters of administration to issue to the petitioner was confirmed. From the judgment of the appeal Court it further appears that the argument that the property in the hands of the administrator may be in danger and therefore the Court should withhold the grant was also rejected. It was pointed out that on the grant of letters of administration adequate security would be taken and the argument therefore must fail. This decision of the appeal Court which is binding on me does not appear to have been noticed in the judgment of Davar, J. in 14 Bom LR 1031. That learned Judge in the matter before him, having regard to the particular circumstances, considered that no grant should issue and made the order in the following terms (p. 1034):
I direct that the will and the codicil…..be delivered to the testamentary registrar to be by him lodged in the registry. After a declaration is obtained that these two documents are not operative and are invalid in law, I shall be ready to entertain any application that may be made to me for an order of the nature prayed for in the present petition. In fact I see no difficulty in renewing the application on the present petition supported by a decree of this Court declaring the will and codicil inoperative and invalid.
3. On this ground the learned Judge declined to make the order for letters of administration at that stage. With all respect I consider that practice not justified by what has been in existence before or since. The decision of Jenkins, C.J, shows that Russell, J. as testamentary Judge had ordered the grant, of letters of administration and dismissed the caveat in which the contention was that the property was not of the testator. In my opinion a testamentary Court dealing with the question of issuing a grant of probate is concerned to see whether the will is duly executed as required by law by a testator of sound and disposing state of mind. In case of grant of letters of administration the Court has to see that the person properly entitled to represent the estate of the deceased according to the Succession Act has come to Court, and is given the grant. It is no part of the duty of the testamentary Judge to consider the question of title to property. Section 211 of the Succession Act, expressly provides that the issue of probate or letters of administration does not vest in the executor or administrator, as the case may be, the property which is claimed to belong to a joint family of which the deceased was a member. In my opinion a caveat cannot be sustained on the mere ground that the property which is attempted to be disposed of by the deceased by the will or in respect of which letters of administration are asked for is joint family estate. I understand that to be the uniform practice on the testamentary side, and I see no reason to differ from it. In my opinion this practice is based on sound reason. The caveat in this case which is based on this ground alone is therefore dismissed. This is not likely to prejudice in any way the caveator because he has the right to file a suit to establish his title to the property, and if adequate grounds are made out, to obtain the appointment of a receiver or an injunction against the administrator.
4. Letters of administration to issue to the petitioner on her satisfying the usual requirements of the testamentary registrar and saving all just exceptions. Petitioner's costs to come out of the estate. I order the caveator to bear his own costs as there was a semblance of justification for his caveat on the basis of the reported judgment in 14 Bom LR 1031. But for that, I would have ordered him to pay the costs of these proceedings.
5. Order accordingly.