KAVASJI SORABJI AIBADA Vs. BAI DINBAI

JUDGEMENT

(1.) An executor called upon by citation to accept or renounce is clearly compellable, if he accepts, to take out probate within a limited time. If he does not do so Letters of Administration with copy of the will annexed may be granted to any competent applicant. This is the principle of the decisions in the cases of Motibai v. Karsandas Narayandas (1893) 19 Bom. 123 and Dayabhai Tapidas v. Damodar Tapidas (1895) 20 Bom. 227 The lower Court has decided, this as a preliminary point against the applicant and decided it wrongly.

(2.) There is a further question of fact to be answered. The opponent denies that the applicant is a beneficiary under the will or has any interest whatever in the estate of the deceased. If that be so, he would clearly have no Locus standi in any such proceedings as these. But that question must be dealt with by the learned Judge below.

(3.) We set aside his order and remand the application to be disposed of in accordance with the foregoing observations.