The property of a deceased person vests in the executor or administrator, as the case may be, immediately upon the death of the testator, and the grant of probate does not create the representative character of the executor or administrator, but merely establishes it.

Reuben, J.

1. This is an appeal by the plaintiff from a decision of the Additional Subordinate Judge, Muzafferpur, dismissing his suit for the declaration of his title to possession of certain property formerly belonging to his deceased father-in-law Sheopragash Singh and for recovery of possession thereof.

2. Sheopragash Singh died on 21-1-1925, leaving two widows, Munga Kuer, now deceased and Dharohar Kuer, defendant 1, six daughters, one of whom Krishna Kumari was unmarried, and a grandson Ramnaresh Singh, son of a predeceased daughter. By a registered will executed shortly before he died he created a life interest in favour of his two widows. He appointed the plaintiff his executor and gave certain directions regarding the management of the estate during the life time of his widows, which has been the subject-matter of much subsequent litigation. According to the plaintiff he is entitled under these directions to hold and to manage the properties of the testator, meet certain necessary expenses from the income thereof and apply the balance of the income to the support, comfort and well-being of the two widows. A declaration to this effect was obtained by him from this Court on 1-4-1942 on an application under Section 302, Succession Act, 1925 . The plaintiffs case is that he entered into possession of the property on the death of Sheopragash and that he remained in possession thereof in spite of the fact that Munga Kuer and after her death Dharohar Kuer got themselves recorded as proprietors in Register D, and that he was dispossessed on or about 7-6-1944 after his attempt to get himself registered in Register D had finally failed in the Land Registration Courts. The present suit was filed by him on 21-12-1944. The defendant denied the plaintiffs right under the will to hold and manage the property. Secondly, she pleaded that even conceding that the plaintiff had such a right, the plaintiff has not been in possession since Sheopragash died and his suit is, therefore, time barred. The Subordinate Judge decided in favour of the plaintiff as regards the right to hold and manage the property. As regards possession and limitation, he has de-tided for the defence.

3. Though Sheopragash died in January, 1925, the plaintiff did not apply for probate till the year 1938, alleging in explanation of the delay that the will was mislaid and was only found by him in 1936. By that time Munga Kuer whose daughter is married to the plaintiff had died and the defendant Dharohar Kuer was the sole opposite party in the probate proceeding. Probate was granted by the District Judge by his order Ex. N(4), dated 6-1-1939. The grant was, however, qualified by, a note that

"the executor will not be entitled on the strength of the probate to interfere with the life estate granted to Mt. Dharohar Kuer except by due processes of law."

His reasons for making this qualification are thus stated:

"It is clear from petitions filed in this Court that there had been recent disputes regarding the management of the estate. It is also clear that even on his story the executor can have made no satisfactory search for the will soon after the testators death or it would have come to light then. Even if the original will was not forthcoming he could have applied for copy from the registration department and taken early steps to obtain probate. It is also clear that for many years the executor has consented to the widows enjoying the estate. Sec.227, Succession Act, provides that probate of a will when granted establishes the will from the death of the testator and renders valid all intermediate acts of the executor as such. Sec.332 requires the assent of the executor to complete a legatees title to his legacy, but under Section 333 such assent may be implied from the conduct of the executor and the assent of the executor to specific bequest is sufficient to transfer the subjects of the bequest to the legatee. It is clear therefore that the executors conduct h