The grant of probate is decisive only of the genuineness of the will and of the right of the person to whom the grant is made, to represent the estate. Such grant is no bar to the determination of any question of title or to a suit for construction of the will.

P. B. MUKHARJI, J.

( 1 ) THIS is an application for the discharge of a caveat to the will of Nandalal Sett, deceased, under Ch. 35, Rule 27 of the Original Side Rules of this Court. The application is made by Sm. Basana Dutt, the sole executrix and trustee of the last will of Nandalal Sett deceased, dated 26-12-1052. The applicant applied to this Court on 15-12-1953 for the grant to her of the probate of the will of Nandalal Sett. The caveator is Gobinda Lal Sett, a brother's son of the deceased testator who filed his affidavit in support of his caveat on 2-1-1954.

( 2 ) THE reason why the caveat is sought to be discharged is that the affidavit in support of the caveat does not disclose legal grounds of objections to the grant of probate.

( 3 ) UNDER Rule 25 of Ch. 35 of the Original Side Rules the caveat requires to be supported within eight days of the lodging of the caveat, by an affidavit which shall state first the right and interest of the caveator and secondly, the grounds of the objections to the application for the grant of probate. The caveator in his affidavit has disclosed his right and interest as an heir of the testator Nandalal Sett. But the other requirement of Rule 25 of Ch. 35 of the Original Side Rules about the grounds of the objections to the grant of probate is, it is contended, not satisfied by the affidavit in support of the caveat. The only ground shown is in paragraph 9 of the affidavit of Gobinda Lal Sett in support of the caveat affirmed on 2-1-1954. The ground is taken in these terms:"in the circumstances aforesaid and in the interest of justice, I submit that the probate should not be granted to the said Sm. Basana Dutt in respect of the trust fund and for properties declared and created by Prosanna Kumar Sett in his will, dated 11-11-1913, but the same should be granted to me as heir of Prosanna Kumar Sett. "

( 4 ) TO appreciate this objection a brief account of the family history is essential. Prosanna Kumar Seth, a predeceased brother of the testator Nandalal Sett, had made his will on 11-11-1913, the probate of which was granted on 25-4-1917 to the widow of Prosanna as the executrix and sole beneficiary thereunder. Prosanna by his will created a trust of his residuary properties for certain charities with power to her to appoint a trustee. She died without appointing a trustee and the testator Nandalal Sett, as the sole surviving brother and reversionary heir, applied for and obtained from this Court Letters of Administration de bonis non', in respect of Prosanna's estate. The testator Nandalal Sett by his will appointed the applicant, as the trustee of the trust fund created by Prosanna. The testator claimed to do so by virtue of his position as Administrator 'de bonis non' and in fact, the testator says in his will "as such Administrator as aforesaid, I am now the sole trustee of the said charitable trust and competent to appoint a trustee to succeed me in that office on my death". The testator Nandlal Sett by his will appointed the applicant, his grand daughter, not only the sole executrix of his estate but also appointed the applicant by Clause 11 of his will the trustee of Presanna's will, dated 15-11-1913.

( 5 ) ACCORDING to the affidavit in support of the caveat the caveator Gobinda Lal Sett's case is that in the will of Prosanna Kumar Sett, date3 11-11-1913 no provision was made for the appointment of a trustee or trustees and, therefore, the testator Nandalal Sett has no power or authority, express or implied, to nominate and appoint or constitute a trustee or trustees and in every event any such appointment or nomination by the testator Nandalal Sett in his will dated 26-12-1952, is in contravention of the trust declared by Prosanna and as such bad, illegal, inoperative and of no effect. In fact, the allegation is made that the testator Nandalal Sett, deceased, committed a breach of Prosanna's trust by appointing the applicant a trustee of the trust fund created by Prosanna's wil

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