JUDGMENT

White, J. - This is an appeal against a decision of the District Judge of Sylhet, dismissing an application of the appellant upon a preliminary ground and without going into the evidence.

2. The appellant's application is contained in a petition which states that Gunga Gobind Misser died on the 9th November 1877, having previously made his will on the 31st July 1877. The testator is alleged to have bequeathed by that will all his moveable and Immovable properties to the petitioner, who is a sapinda and kinsman to the testator, and also to the testator's widow and two daughters. The petition further alleges that the will is in the possession of Sarbamangala Debi, the widow. The petition was accompanied by a copy of the will, but of course not by the will itself. The application was two fold: first, praying that the original will should be called for from Sarbamangala Debi; and secondly, that letters of administration under the Act should be granted to the petitioner.

3. The petitioner claims, indeed, to be only one of the residuary legatees beneficially entitled to the testator's estate. But, supposing the will not to have been revoked by the testator, and that the will is either produced and proved, or if not produced, its contents can be satisfactorily proved, and the petitioner upon such proof appears to be one of the residuary legatees, he, failing executors named in the will, may obtain a grant of letters of administration either jointly with the other residuary legatees, or solely if the latter are unwilling to join in the grant, and such grant would be either with the will annexed or with a copy of the will or its proved contents annexed, as the case may be.

4. The answers put in by the widow and the daughters of the deceased were also in the shape of petitions. They admit that the deceased did make a will giving the petitioner certain rights in the deceased's property, but allege that the will was, by the orders of the deceased, torn up and destroyed as being contrary to his intentions. The widow further denies that she has with her any will of the deceased.

5. The judgment of the lower Court is very brief. The District Judge disposed of the case without going into evidence, considering that it was unnecessary to do so; and he did this upon a ground which it is not easy to understand. His words are these: "By Act XXI of 1870, the provisions of Section 209 of the Wills Act do not apply to the will of a Hindu that has been lost, as Act XXI says, that only as regards applications with the will annexed do the provisions of Chap. XXX apply." After making these remarks, the District Judge proceeds to dismiss the case with costs to be paid out of the estate of the deceased.

6. We think that the Judge was in error both in the construction which he has put upon Act XXI of 1870, and also in dismissing the application without going into the evidence.

7. We may observe in the first place that the District Judge assumes that the will was lost. The petitioner asserts that it is still in existence. And this, which is the first question in dispute between the parties, can only be decided by hearing the evidence. Again, neither party asserts that the will has been lost, but one of them, the widow and daughters, pleads that it was destroyed by the deceased with the intention of revoking it.

8. The question whether Section 209 of the Indian Succession Act applies to Hindus does not really arise until it has been decided that the will has been destroyed. Supposing that to be proved, and it also is shown that the destruction was not caused by the testator or his orders with the intention of revoking the will, we have no doubt but that Section 209 may be applied.

9. The will was executed after the first of September 1870, and the 2nd Section of the Hindu Wills Act (XXI of 1870) enacts, that so much of Part XXX of the Indian Succession Act as relates to probates and letters of administration with the will annexed shall apply to such a will. S