PABITRA KUMAR BANERJEE, G. N. RAY, JJ.

( 1 ) THIS appeal arises out of the judgment and decree passed in O. C. Suit No. 7 of 1959 (Letters of Administration) of the Court of the learned District Judge, Jalpaiguri, wherein an application for grant of Letters of administration was made by the petitioners Sohan Ali and Abed Ali through their certified guardian mother Naharbi Bewa. The said minor petitioners prayed for Letters of administration to the estate of the decased Dhanbi Bewa on the basis of the last Will and testament made by her bequeathing all her properties to the said petitioners who were also appointed executors under the said Will. One Jabed Ali died leaving two wives, namely, Dhanbi Bewa and Naharbi Bewa. The said Jabed Ali had another wife named dhando Bibi who had pre-deceased her husband leaving a son Abdul Jubbar who was alive. Dhanbi Bewa was childless and she died on the 9th Karticl, 1364 B. S. leaving behind the Will in question in respect of which the aforesaid Letters of administration had been prayed for. By the aforesaid Will, the said Dhanbi Bewa had bequeathed all her properties to the sons of Naharbi Bewa. One Dhane Ali who was the uterine brother of the deceased Dhanbi Bewa and her other heirs contested the aforesaid application for Letters of administration by filing two separate sets of written objections. One of such set of written petition of objections was filed by Dhane Ali himself. It was contended by the said objectors including Dhane Ali that the alleged Will annexed to the Letters of administration was not the last Will and testament of the deceased Dhanbi Bewa and that the said Dhanbi Bewa had never excecuted any such Will and had not authorized any person to write her name on such Will nor did she put her thumb impression in any such writing. It was also contended that the applicant was not entitled to get Letters of administration. The objectors further contended that the alleged Will was forged, collusive and concocted and Dhanbi Bewa was old and very ill and had no testamentary capacity at the time of the execution of the alleged Will.

( 2 ) THE learned District Judge after hearing the materials on the record ad evidence adduced by the parties allowed the said application for grant of Letters of administration and directed that Letters of administration with the copy of the said Will annexed should be granted to Naharbi Bewa on behalf of the minor applicants until the said minor applicants had attained majority on furnishing an administration bond by the said Naharbi Bewa for such amount as would be determined by the Court after obtaining the Collector's report as to valuation of the estate of the deceased and on payment of duty according to the valuation of the estate of the deceased.

( 3 ) THE objectors being aggrieved by the judgment and decree passed in the said O. C. Suit No. 7 of 1959 preferred the instant appeal to this Court.

( 4 ) MR. A. C. Roy, the learned Advocate appearing for the appellants contended that on the face of the alleged Will no Letters of administration should have been granted by the Court inasmuch as such Will purporting to bequeath the entire estate of the deceased in favour of some co-sharers was opposed to Mohammedan law and as such the said Will was void ab initio Mr. Roy contended that when such Will should not grant any Letters of administration on the basis of a void Will. It was no longer necessary for the Probate Court to decide the cases of the parties on merit because the alleged will being void under the Mohammedan Law, the application for Letters of administration on the strength of a void Will should have been thrown in limine. In this connection, Mr. Roy referred to Mulla's Mohammedan Law and submitted that without the consent of an heir, a Mohammedan is not entitled to bequeath his or her estate to another co-sharer in its entirely and any Will purporting to bequeath the entirety of the estate of a Mohammedan in favour of an heir without t

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