A person who would have been entitled to an original grant of letters of administration is entitled to letters of administration de bonis non to administer the unadministered estate of a deceased person.

FACTS: - One Rattanshaw, a Parsi inhabitant in Bombay, died intestate on October 9, 1950. He left him surviving his mother Meherbai and a brother Hirjibhoy (applicant). On March 22, 1951, Meherbai applied for letters of administration to the estate of her son Rattanshaw, which were granted to her on May 2, 1951. Before she could fully administer the estate, Meherbai died on December 6, 1951.

The applicant applied, on May 14, 1952, for grant of letters of administration de bonis non to administer the unadministered estate of his, brother Rattanshaw.

Coyajee, J., who heard the application, rejected it, on July 31, 1952, observing that under S.259 the grant was only to be made to those persons only to whom the original grants might have been made and that inasmuch as the grant had already been made to the mother Meherbai, the estate was the estate of Meherbai, and in those circumstances the petitioner must in due course take out letters of administration to the estate of the mother and the fact that in doing so extra probate duty was to be paid, was incidental to the construction to be properly put on sections 259 and 219 and that on a proper reading of section 259 he was not prepared to depart from the precedents in the office in similar circumstances, namely that letters de bonis non cannot be issued to the petitioner but that he must proceed to take out representation to the estate of his mother for the purposes of due administration. Further he also directed costs of the petitioner of the application as between attorney and client to come out of the estate and assessed the costs of the Advocate-General who appeared as amicus curiae at Rs.250 to be also paid out of the estate. The applicant appealed.

. CHAGLA, C.J.: - One Rattanshaw died on October 9, 1950. He left behind him his mother Meherbai and a brother Hirjibhoy, who is the appellant before us. He also left children of a predeceased brother and a predeceased sister. On 2-5-1951, Meherbai applied for letters of administration to the estate of Rattanshaw and letters were granted to her. Meherbai died on 6-12-1951, and it is common ground that when Meherbai died the estate of Rattanshaw was not fully administered. Thereupon the appellant applied for letters of administration de bonis non to the estate of Rattanshaw. This application was rejected by the learned Judge below on the ground that the appellant should have applied for letters of administration to the estate of Meherbai, his mother, and not to the estate of his brother Rattanshaw, and the ground on which the learned Judge based his rejection was that Meherbai was the sole heir of Rattanshaw and as such she became entitled to the estate of Rattanshaw and therefore letters of administration should have been sought to the estate of Meherbai and not Rattanshaw. Now, with very great respect to the learned Judge, the whole judgment proceeds on a fallacy and on a misapprehension of the correct effect of S.259, Succession Act. That section provides that

"in granting letters of administration of the estate not fully administered, the Court shall be guided by the same rules as apply to original grants, and shall grant letters to those persons only to whom original grants might have been made."

Therefore, the original grant was made under S.259 to Meherbai, she being the mother and the heir of Rattanshaw. If the estate had been fully administered by her, then undoubtedly she would have been entitled to whatever Rattanshaw left, and if an application had been made to administer the estate of Meherbai, then duty would have had to be paid not only on what Meherbai left but on what was inherited by her from Rattanshaw. But the position here is that the estate of Rattanshaw is not still fully administered, and therefore what the appellant is seeking is not to administer the estate of his mother Meherbai but to administer the estate of his brother Rattanshaw. Now, it is difficult to understand why in law he is prevented from a