JUDGMENT

Trevelyan, J. - This case came before me for settlement of issues.

2. Several issues, which I will afterwards mention, were raised, but before referring to them I must decide the question whether Mr. Bonnerjee is entitled to raise in this suit the following issue, proposed by him, namely, "Did Nobocoomar Mullick leave a will or did he die intestate?"

3. Nobocoomar Mullick died on the 16th of March 1856.

4. On the 29bh of March 1856, the late Supreme Court in the exercise of its ecclesiastical jurisdiction granted to Shama Churn Mullick and Badamcoomary Dossee, the widow of the deceased, probate of an alleged will of Nobocoomar Mullick, dated the 15th of March 1856.

5. This probate has never been revoked. The present suit is brought for the administration of trusts which were established by Bidamcoomary out of monies received by her under the provisions of the will of Nobocoomar. Mr. Bonnerjee for a defendant, an heir of Nobocoomar, suggests the issue I have mentioned, but Counsel for the plaintiff contends that, unless and until the probate be revoked by the Court which granted it, the question of the factum of the will cannot be entered into.

6. This question depends upon the applicability of Section 41 of the Indian Evidence Act of 1872.

7. That section is as follows:

A final judgment, order or decree of a competent Court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person a legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing not as against any specified person, but absolutely, is relevant, when the existence of any such legal character or the title of any such person to any such thing is relevant. Such judgment, order or decree is conclusive proof--

That any legal character which it confers accrued at the time when such judgment, order or decree came into operation.

That any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person.

That any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease.

And that anything, to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.

8. Mr. Bonnerjee contends that as the testator died before the Hindu Wills Act came into force, and as the executor of the will of a Hindu dying before that Act came into force was a mere manager having no title to the estate, the probate neither conferred a legal character nor declared the executor to be entitled to any legal character.

9. I have examined the cases which have been cited, but 1 am of opinion that Section 41 of the Evidence Act applies to this case. Is is quite true that a Hindu executor was, at any rate until the passing of the Hindu Wills Act, only a manager, but as such manager he had certain powers over the estate, and for many purposes he represented the testator. It may be that the probate did not confer upon the executor any legal character, but I think that the effect of probate is to declare the person to whom probate is granted to be entitled to the powers of an. executor, whatever his powers as such may be. The words "legal character" is not anywhere defined, but I think that it is quite clear that it is intended to include the case of an executor. The fact that this section has been frequently applied to cases of persons dying after the Hindu Wills Act came into force shows this.

10. The only legal character which the Probate Court declares a person to be entitled to is that of executor. It confers the character of administrator. It does not declare it. So the section would be meaningless unless "legal character" included the office