Das, J.:— The question as to the genuineness of the Will was in controversy in the Court below, but is no longer in debate before us. The only question is whether Murli Manohar is entitled to a grant of Letters of Administration with the Will annexed. It is well-settled that the right of administration follows the right to the property. Murli Manohar claims that in the events which have happened he is now solely entitled to the estate of the deceased. By his Will the testator devised his estate to his widow and his two daughters-in-law and then provided as follows;
In case the said three Musammats die, Murli Manohar, son of Ram Charan Lal, my brother's son, shall be the heir and possessor of the properties.
2. It is contended on behalf of the appellants that Section 124 of the Indian Succession Act is directly applicable and that the bequest in favour of Murli Manohar cannot take effect as the uncertain event specified in the Will did not happen before the period when the “fund” bequeathed was payable or distributable. Now, the “fund” in this case, the estate of the testator, was distributable on his, death and it is not disputed that all the three ladies survived him. The rule enunciated in Section 124 of the Succession Act is a rule of law and not a rule of construction and although it is not necessary for us to decide the point, it would appear that S. 124 operates so as to bar the right of Murli Manohar to take under the Will. But my opinion on this point does not decide this case. The estate has never been administered in due course of law and it is necessary that the validity of the Will should be established and the Estate administered. Murli Manohar is not a stranger. He is the nephew of the testator and in the words of Section 21 of the Probate and Administration Act
would be entitled to the administration of the estate of the deceased if he had died intestate.
3. The ladies are dead and there is no other applicant for Letters of Administration. In these circumstances Section 21 of the Probate end Administration Act would seem to apply. That section provides as follows:
When there is no executor and no residuary legatee or representative of a residuary legatee, or he declines or is incapable to act or cannot be found, the person or persons who would be entitled to the administration of the estate of the deceased if he had died intestate or any other legatee having a beneficial interest, or a creditor, may be admitted to prove the Will, and Letters of Administration may be granted to him or them accordingly.
4. It is contended by Mr. Naresh Chandra Sinha that his client Kamla Prasad is at least the sister's son of the last surviving widow and is in the position of the representative of the residuary legatee and so S. 21 will not operate in favour of Murli Manohar. There are two answers to this argument: first the ladies were not residuary legatees but universal legatees, and the representative of a universal legatee is not entitled to a grant of Letters of Administration; and, secondly, Kamla Prasad is not only not an applicant for a grant of letters of Administration, but has put it out of his power to make such an application. The position taken up by Kamla Prasad in his petition of objection is that the Will is a forgery and that the ladies were in possession not by virtue of the Will but adversely to the whole estate and had acquired a title to the estate by adverse possession. That being so, we must assume that he is incapable to act in the discharge of his duties as administrator even if the term “residuary legatee” in S. 21 includes universal legatee. In my opinion Section 21 of the Probote and Administration Act is clearly applicable and Murli Manohar is entitled to the grant.
5. It was then contended that Murli Manohar did not base his claim on the terms of Section 21 of the Probate and Administration Act. It is quite true that Murli Manohar claimed under the Will and so far as I can see his claim under the Will cannot be sustained. But the Will has to be established and the estate has to be administered, and we should not deprive Murli Manohar of his right to administer the estate if he is Otherwise entitled to the grant under Section 21 of the Probate and Administration Act.
6. Two other points were argued before us. First, that there is nothing whatever to administer and that the Court below should on this ground have refused the application of Murli Manohar and, secondly, that the grant of Letters of Administration was in the discretion of the learned Judge and that he should not have exercised his discretion in favour of Murli Manohar. The first point raises a question which was not raised in the petition of objection or in, the arguments in the Court below. Cases have been cited to us to show that the delay in the application should put the Court on an enquiry as to whether there is anything to be administered and the decision of the Calcutta High Court in Lalit Chandra Chowdhury v. Baikuntha Nath Chowdhury(1) was referred to. That was a case where the application was for Letters of Administration, not for letters of administration, with the Will annexed. The distinction is important and should not be overlooked. It is of paramount necessity that the Will should be established, and the establishment of the Will is one of the functions of the Probate Court, and the Probate Court cannot decline to exercise that function because the administration is complete. In this case the widows were in possession for many years without applying for letters of admistration. It is the case of Kamla Prasad that the Will is a forgery; that the widows acquired a title by adverse possession and that he, as the heir of the last surviving widow, as entitled to the whole estate. If we refuse to entertain the application, then the Will is put out of the way and there is nothing in the world to prevent Kamla Prasad from Claiming a title to the property adversely to the estate of the testator. In my opinion the argument is an impossible one and should not find favour in this Court.
7. The last contention is that the learned Judge in the Court below should not have exercised his discretion in favour of the applicant for Letters of Administration. This is a matter not for us but for the Court below and this Court will not interfere with the discretion exercised by the learned Judge unless it is satisfied that discretion was unreasonably exercised. I am not prepared to say that discretion was unreasonably exercised. On the contrary, having regard to the facts and circumstances of the case I am clearly of opinion that the discretion was properly exercised. The appeal fails and must be dismissed with costs. The appellant in P.A Ko, 264 of 1924 is the brother of Murli Manohar and he is anxious that nothing should be decided in these proceedings to affect his title to the estate. A grant of administration does not decide any question of title. It merely decides the right to administer. There is no substance in this appeal which must be dismissed with costs. Hearing-fee, five gold mohurs in each case.
8. Foster, J.:— I agree.
9. Appeal dismissed.