SHANKAR GANPAT LELE Vs. DAMODAR BHUKANDAS

JUDGEMENT

(1.) The petitioners applied for Letters of Administration de bonis non with a copy of the Will annexed of one Bandoba Vithoba who died on the 11 March 1896. The petition was opposed by Damodhar Bhukandas, the son of one of the persons appointed Panchas by the Will. The Will directed six persons to be Panchas of whom one was to supervise the work of administration. The Panchas were given power to appoint other Panchas. That power coula only be exercisea by the whole body of Panchas and when Bhukandas asserted his right to appoint his son to succeed him by his Will he was attempting to do what was not authorised by the terms of the Will of Bandoba. Evidently the testator had neve intended that Panchas should have the power to appoint other Panchas by Will because it was intended by the testator that they should exercise that power as a body. That would exclude any power to appoint by Will. It follows then that Damodhar Bhukandas has no inherent right to be considered as executor of the Will. At the most he would be a person who might apply for Letters of Administration de bonis non. Whether the petitioners are proper persons to be appointed administrators has not been decided by the Court below. Therefore, we allow the appeal and the case must go back to the lower Court for the decision of the question whether the petitioners or any other person should be appointed adminsitrators de bonis non with the Will annexed.

(2.) The petition of Damodhar Bhukandas for Probate which was granted by the lower Court has no foundation in law. The petition ought to have been dismissed. First Appeal No. 122 of 1921 will be allowed and the petition dismissed.

(3.) Costs in both appeals to be costs in the cause.