The main legal point established in the judgment is that under S. 234 of the Indian Succession Act, a legatee having a beneficial interest is entitled to the grant of letters of administration. The judgment also emphasizes the importance of complying with the formalities of law regarding the execution and attestation of a Will, and the lack of evidence for revocation.

1. The appellant applied for the grant of letters of administration with a copy of the Will annexed in respect of the estate of his mother's father John George Gomez who died at Anjengo on 25.2.1927. The application was originally made to the Subordinate Judge, Tinnevelly, within whose jurisdiction Anjengo was at that time but consequent on the transfer of the territory to this State, the application was transferred to the District Court of Trivandrum where it was numbered as Probate Petition No. 5 of 1950. John George Gomez left surviving him, his widow Mrs. Joanesa Gomez who died on 6.6.1936, two sons George John Gomez and Walter J. Gomez and three daughters Mary D'Silva who died on 18.10.1936, Margaret Gomez and Jessie Fernandez. The appellant is a son of Margaret Gomez. It was alleged by the petitioner that of the two executors appointed under the Will viz. Joseph Gomez and J.C. Pereira, the former was dead and the latter was unwilling to act as executor, that Joanesa Gomez and Simon T. Gomez who were to act as executors in case the two persons named above found it inconvenient to do so were both dead, that the petitioner was a legatee under the Will, that letters of administration should be granted to him in that capacity and that the assets that were likely to come to his hands were the properties described as items Nos.1 to 4 in Schedule A to the Will. The original Will was said to be missing and an authenticated copy obtained from the office of the Sub-Registrar of Anjengo where the original was registered was produced along with the petition. The petition was opposed in the court below and here by the 5th respondent to whom items Nos.1 to 4 in Schedule A had been sold by the petitioner's mother Margaret Gomez, to discharge the decree debt which was obtained on the mortgage mentioned in the Will, for the realisation of which, these properties had been sold in court sale. He contended that the District Court of Trivandrum had no jurisdiction to entertain the petition. The allegation that John George Gomez had left a Will of which Ext. A was produced as a copy was denied. It was also contended that the petitioner was not entitled to the grant of letters of administration, that the assets were not correctly stated in the petition, that the assets described in the schedule annexed to the petition belonged to him, that the original Will was not produced because the same was destroyed by the testator with intent to revoke the same, that the long delay in making the application was a ground for dismissing the petition and that all the formalities of law had not been complied with. The court below refused to grant letters of administration holding that the execution of the Will was not satisfactorily proved, that one of the witnesses to the Will did not sign the same, that the Will must have been revoked, that there was no estate to be administered, that the petition was defective in as much as it was for the grant of letters of administration for a part only of the assets of the testator and that the petition was an attempt to get by indirect means a declaration of the petitioner's title from the probate court for the purpose of a civil suit pending between the parties.

2. The circumstances in which the petition was filed may also be stated. After the testator's death a suit for recovery of the amount under the simple mortgage mentioned as the first item of debt in Schedule B to the Will was filed as O.S. No. 5 of 1936 of the Anjengo Munsiff's Court and a decree was obtained. Ext. A is copy of the plaint. The properties described as items Nos.1 and 2 in the petition which were items Nos. 1 to 4 in Ext. A were sold in court sale for a portion of the decree amount on 18.6.1943. Ext. F is copy of a petition dated 8.10.1942 filed by Margaret Gomez for postponing the sale. On 12.7.1943 Jessie Fernandez one of the daughters of the testator filed an application for setting aside the ex-parte decree in the case and another