JUDGMENT -KARNIK D.G., J.:---In this appeal, the appellant challenges the judgment and order of remand dated 20th April, 1992 passed by the learned Additional District Judge, Sangli setting aside the judgment and order dated 7th December, 1984 passed by the Joint Civil Judge, Senior Division, Sangli in Miscellaneous Application No. 111 of 1981 granting letters of administration with the will annexed thereto in favour of the appellant in respect of the last Will and testament dated 16th November, 1975 executed by late Shankar Babaji Dhor (Shinde).

2.Shankar Babaji Dhor (Shinde) (hereinafter referred to as the testator) died on 4th December, 1975 leaving behind his last will dated 16th November, 1975. The appellant being the grand son and a beneficiary under the Will, filed an application for letters of administration of the said will dated 16th November, 1975. Sons and daughters of the testator challenged the said Will and opposed the grant of letters of administration on the ground that the alleged Will was fradulent, executed in suspicious circumstances and that the thumb impression of the testator was obtained on the said will by undue influence and fraud. They also contended that the property which was bequeathed under the Will was not the self acquired or separate property of the testator but, was the property of the joint family of which the testator was only a karta and therefore, he had no right to execute the Will in respect of whole of the said property; at the most of the testator could have executed the Will in respect of his undivided share in the property.

3.The trial Court framed the issues to consider whether the testator had made the Will on 16th November, 1975, and whether the Will was valid and legal and whether the appellant was entitled to the letters of administration. The trial Court did not frame an issue as to the power or authority of the testator to bequeath the whole of the property nor was an issue framed whether the property was self acquired or joint family property. After considering the evidence before him, the trial Court held that the testator had legally and validly executed the Will on 16th November, 1975 and in view thereof passed an order granting letters of administration in respect of the said Will to the appellant.

4.The respondents challenged the said judgment and order passed by the Civil Judge, Senior Division, Sangli by filing an appeal in the District Court, Sangli. The learned Additional District Judge held that the lower Court erred in granting letters of administration to the Will without ascertaining the nature of the properties in the hands of the testator. The learned Additional District Judge held that the trial Court ought to have examined whether the property bequeathed by the Will was the separate property or whether it was jointly owned by the testator and his descendents or members of joint family. The learned Additional District Judge held that it was necessary to examine the power and the authority of the testator to make the disposition and to what extent he could have disposed of the property under the Will. In view of this, the Additional District Judge set aside the order of the trial Court and remanded the matter back to the trial Court with a direction to decide the matter afresh after framing the relevant issues regarding the nature of the property and the power and the authority of the testator to make a disposition in respect of the same. The learned Additional District Judge however, did not record any finding on the issue whether the Will dated 16th November, 1975 was legally and validly executed by the testator.

5.In my opinion, the learned Additional District Judge clearly erred in remanding the matter back to the trial Court for enquiry as to the nature of the property and the power or authority of the testator to bequeath it. The Court which considers whether probate or letters of administration should be granted or not (hereinafter referred to as the proba

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