BAI PARVATIBAI Vs. RAGHUNATH LAKSHMAN

JUDGEMENT

(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 April 18, 1938, leaving behind him, the petitioner, his widow, a son who is four years old and three unmarried daughters of the ages of sixteen, fourteen and eight 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 In re Dhuramsi Morarji (1912) 14 Bom. L.R. 1031 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 someone else during his lifetime. In Ochavaram Nanabhai v. Dolalram Jamietram (1904) I.L.R. 28 Bom. 644: s.c. 6 Bom. L.R. 966, 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 In re Dhuramsi Morarji (1912) 14 Bom. L.R. 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. 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.