Judgement

Appeal (No. 95 of 1929) from an order of the High Court (December 9, 1925) setting aside a decree of the Additional Subordinate Judge of Ellore (March 6, 1922) and remanding the suit for trial.

The order appealed from was made consequent upon a judgment of the Full Bench dated March 21, 1925, delivered by Kumaraswami Sastri J., Coutts Trotter C.J. and Philips J. concurring, and reported at I. L. R. 49 M. 261. The judgment held that in the case of wills to which the Hindu Wills Act, 1870, does not apply, the estate vests in the executor, if he has accepted office, from the date of the death of the testator, and he has the powers given by the Probate and Administration Act, 1881, although probate has not been obtained.

The present appeal was in effect an appeal from that decision. The facts appear from the judgment of the Judicial Committee.

1931. Nov. 19, 21. E. B. Raikes K.C., Narasimham and W. Lakshmanna Rao for the appellants (plaintiffs). The Probate and Administration Act, 1881, applies only if probate has been obtained; it is an enabling Act. That is indicated by the preamble. That s. 4 applies only where a grant has been made is shown by the heading of chapter II.,