The main legal point established in the judgment is the interpretation of the provisions of the Indian Succession Act, particularly Sections 241, 228, 242, and 243, in the context of granting letters of administration with a copy of the will annexed and the requirement of security.

Alfred Henry Lionel Leach, C.J.

1. This is an appeal from an order of Somayya, J., directing that4etters of administration to the estate of one Edward Carmichael McCankie be issued to the appellant on the furnishing of security under Section 291 of the Indian Succession Act. The appellant contends that the learned Judge should have held that he was entitled to letters of administration with a copy of the will annexed under Section 241 of the Act, in which case he could not be called upon to furnish security. The deceased died in Littlehampton, England, leaving a will dated the 21st of February, 1936. Probate of the will was obtained in England. The testator appointed Mrs. Madeline Emily Hawkins, his executrix. The executrix was not able to come to India to take out letters of administration and she granted a power-of-attorney to the appellant to enable him to apply as her agent. Since the Succession Act of 1865 it has been the practice of this Court to grant letters of administration with a copy of the will annexed in cases such as this without requiring security to be furnished. The Court is informed that the same practice has prevailed in the Calcutta and Bombay High Courts. The learned Judge considered that the practice was in conflict with the wording of Section 241 and he refused to follow it. He held that the appropriate section was Section 228 which meant that security would have to be furnished.

2. Section 228 says that when a will has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the Province, whether within or beyond the limits of His Majestys dominions, and a properly authenticated copy of the will is produced, letters of administration may be granted with a copy of the authenticated copy of the will annexed. Section 228 is in Chapter I of Part IX of the Act. This Chapter contains general provisions with regard to the grant of probate and letters of administration. Section 241 falls in Chapter II which deals with limited grants. This section says that when an executor is absent from the province in which the application is made, and there is no executor within the province willing to act, letters of administration, with the will annexed, may be granted to the attorney or agent of the absent executor, for the use and benefit of his principal, limited until he obtains probate or gets a grant of letters of administration to. himself. In addition to the assistance rendered by the learned Advocate for the appellant the Court has had the assistance of the learned Advocate-General. It has been accepted by Counsel that, unless the executrix in England can avail herself of the provisions of Section 241, she must come out to India and apply herself for letters of administration, there being no other section which can be read as permitting of an application being made by an agent in such a case as this. Sections 242 and 243 allow applications by agents but they do not apply here. Section 242 relates to the case where the person to whom, if present, letters of administration with the will annexed might be granted is absent from the province, and Section 243 to an application for letters of administration on intestacy.

3. I do not think that it could have been the intention of the Legislature to compel an executor living abroad to come to this country to take out letters of administration personally when he has obtained probate of the will in his own country. It might be impossible for him to come to India and then the estate here would have to remain unadministered. Although it has never before been called upon to give a judicial pronouncement on the question this Court, in common with the other Presidency High Courts, has, as I have already indicated, read Section 241 as covering an application for letters of administration with a copy of the will annexed when the original cannot be produced because it is held by a Court abroad as the result of that Court, having granted prob