SANTOSH KUMAR BOSE Vs. JALADSASHI DEVI

JUDGEMENT

(1.) This is an appeal from an order of the District Judge of Bhagalpur overruling the objections of the appellant to the grant of letters of administration to the respondent.

(2.) The circumstances under which the grant was made were these: One Babu Prasanna Kumar Mukherjee died on 22 June, 1924 leaving a will. By this will he bequeathed all his properties, both moveable and immovable, in the town of Muzaffarpur to the respondent who was his wife with the condition that after her death the said properties would devolve on his grandsons. The other properties were left to certain other relations. The testator died on 22 June, 1924 and one Babu Upendra Nath Mukhorjee, who had been appointed an executor under the will duly obtained probate of the will. It appears that one of the properties of the testator was a mortgage decree for Rs. 4201 which was obtained in the Court of the Subordinate Judge of Muzafferpur against the father and an elder brother of the appellant. It is common ground that the property in that mortgage suit Was situated in the town of Muzaffarpur and that in satisfaction of the mortgage decree the testator got a mortgage bond executed by Ramanath, father of the appellant on 16 January 1922.

(3.) On the basis of this bond the executor instituted a mort gage suit before the Subordinate Judge of Muzafferpur. The executor however died on 15 November 1938 while the suit was still pending and so the respondent applied under Section 258, Succession Act, for letters of administration. An objection petition was thereupon filed by the appellant against the grant of the letters of administration to the respondent. The main objection was that the respondent was not a residuary legatee under the will but merely a specific legatee of the mortgage decree and that the mortgage decree having been subsequently adeemed during the life time of the testator by the execution of a fresh mortgage bond the- respondent could not apply for letters of administration. The learned District Judge however overruled this objection and granted letters of administration to the respondent. Hence this appeal.