The determination of the residuary legatee and the entitlement to the office of shebait under the Probate and Administration Act.

JUDGMENT

1. This appeal is directed against an order for the grant of letters of Administration, with copy of the Will annexed, to the estate left by one Bidhumani Debi. The lady made a testamentary disposition of her properties on the 29th November 1898 and died on the 16th December 1898; she directed the expenditure, of Rs. 600 on the occasion of her obsequious ceremonies and Rs. 1,400 in the, payment of specified amounts as legacies to various persons. The residue, she directed, would be devoted to the maintenance of the worship of the idol Sri Sri Iswar Lakshmi Janardan established by the ancestors of her husband. The executor named in the Will did not take out Probate and it was not till the 5th November 1904 that one Rajendra Nath Roy, a first cousin of the lady, came forward to take out letter of Administration with copy of the Will annexed. We are not now concerned with the history of the management of the estate by the administrator. It is sufficient to state that on his death, one Makhanlal Mookerjee, the priest of the testatrix, applied for betters of Administration. In the first instance, an ex-ptrte order was made in his favour; this was subsequently re-called and the case was re-heard in the presence of Kali Krishna Ray and Satis Chandra Ray who are the grandsons of the brothers of the testatrix and have come forward to obtain letters of Administration. The District Judge has made a grant in favour of the priest u/s 21 of the Probate and Administration Act. We are now called upon to consider whether this order can be sustained.

2. Section 21 is in these terms:

When there is no executor and no residuary legate or representative of a residuary legatee, or he declines or is incapable to act, or cannot be found, the person or persons who would be entitled to the administration of the estate of the deceased if he had died intestate, 01 any other legatee having a beneficial interest, or a creditor, may be admitted to prove the Will, and fetters of Administration may be granted to him for them accordingly.

3. The District Judge has made an order in favour of the priest on the ground that he was the residuary legatee. In our opinion, this position cannot be supported; and, indeed, in the course of argument, the view that the priest was the residuary legatee has been abandoned. The Will directs the payment of a legacy of Rs. 50 to the priest; this clearly does not make him the residuary legatee. But it has been admitted before us that this sum has already been paid to take priest the estate. estate. He cannot, consequently, be regarded as a legatee having a beneficial interest in the estate. The residuary legatee is unquestionably the idol established by the ancestors of the testatrix. It is to the idol that the lesidue of the estate is bequeathed, and, u/s 89 of the Indian Succession Act, which is applicable to Hindus u/s 2 of the Hindu Wills Act, a residuary legatee may be constituted by any words that show an intention on the part of the testator that the person designated should take the surplus or residue of his property. Consequently, the person entitled to letters of Administration, as residuary legatee, u/s 21 of the Probate and Administration Act, is the shebait of the idol. It cannot be suggested that the priest is the shebait. The shebait appointed the purohit to conduct the worship, but that does not transfer the management of the debutter estate from the shebait to the purohit, Maharanee Indurjeet Kooer v. Chundemun Misser 16 W.R. 99; Najar Chandra Chatterjee v. Kailash Chandra Mondal 62 Ind. Cas. 510 : 25 C.W.N. 201. Where the appointment of a purohit has been at the Will of the founder, the mere fact that the appointees have performed the worship for several generations will not confer an independent right upon the members of the family so appointed, and will not entitle them as of right to be continued in office as priest; Nanabhai v. Trimbak (1878) P.J. 103; Narayna v. Ranga 15 M. 183 : 2 M.L.J. We are conse