JUDGMENT

1. We are invited in this appeal to examine the propriety of an order of dismissal, made on an application for letters of administration with copy of will annexed in respect of the estate of one Sibsundari Debi. The lady made a testamentary disposition on 15th Jane 1896. She died in the following month leaving four sons, two of whom had been married. The will recites that as the sons were of extravagant habits, it was necessary to take steps for the preservation of the estate. The property was consequently left to the two daughters-in-law and various directions were given for its management and distribution. On 2nd January 1920, the daughters-in-law made the present application for letters of administration to the estate of their mother-in-law with copy of her will annexed. The application was opposed by one Srish Chandra Bhattacharjya, who claimed an interest in the estate by purchase at a sale held in execution of a decree against the sons of the deceased, who would have taken the estate in the event of intestacy. In view of the decisions of this Court in the matter of Bhobosoonduri Dabee [1881] 6 Cal. 460 and Surbo Mongala v. Sasi Bhusan [1884] 10 Cal. 413, the objector was dearly entitled to take exception to the grant of letters of administration. But the District Judge has not investigated the case on the merits at all; he has rejected the application on the preliminary ground that as the estate has been sold in execution of a decree on a mortgage granted by the heirs at law, it had been "administered," and there was no occasion for the grant of letters of administration. In support of this extraordinary view, he has invoked the authority of the decision in Lalit Chandra v. Baikuntha Nath [1910] 14 C.W.N. 463. We are of opinion that the order made by the District Judge cannot be maintained either on authority or on principle.

2. It may be conceded that where the object of the litigation appears to be not to administer the estate left upon the death of the deceased but merely to obtain a declaration of heirship so as to fortify the position of the successful party in a regular suit that may be instituted no grant should be made. This position is borne out by the decisions in In the goods of Nursingh Chandra [1899] 3 C.W.N. 635, Lakshmi Narain v. Nanda Rani [1909] 9 C.L.J. 116 Chandi Charan v. Banke Behary [1906] 10 C.W.N. 432, Lalit Chandra v. Baikunta Nath [1910] 14 C.W.N. 463, Parsania v. Hari Charan [1917] 17 C.L.J. 65 and Prasanna Kumari v. Ram Chandra [1913] 17 C.L.J. 6 . Bat there is no room for the operation of this principle where an application is made for probate of a will or for letters of administration with copy of the will annexed. There is, as explained in Charu Chandra Pramanik Vs. Nahush Chandra Kundu and Others, AIR 1923 Cal 1 a fundamental distinction between letters of administration to the estate of an intestate and letters of administration, not upon intestacy, but with copy of the will annexed. In the latter case, we have to take account of the fact that Section 187, Succession Act, which is not reproduced in the Probate and Administration Act, but is made applicable to the wills of Hindus by Section 2, Hindu Wills Act, as amended by Section 174, Probate and Administration Act, ordains that no right as executor or legatee can be established in any Court of justice unless a Court of competent jurisdiction in British India shall have granted probate of the will under which the right is claimed or shall have granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.

3. Reference may in this connexion be made to the case of Adwaita Charan v. Krishna [1917] 21 C.W.N. 1129. In that case, it was ruled that where a will has been propounded ed and proved, the probate Court should grant probate even though it should appear that there were no debts due to or by the testator and the legatees have been in possession in accordance with the terms of the will