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3. Though Sheopragash died in January, 1925, the plaintiff did not apply for probate till the year 1938, alleging in explanation of the delay that the will was mislaid and was only found by him in 1936. By that time Munga Kuer whose daughter is married to the plaintiff had died and the defendant Dharohar Kuer was the sole opposite party in the probate proceeding. Probate was granted by the District Judge by his order Ex. N(4), dated 6-1-1939. The grant was, however, qualified by, a note that "the executor will not be entitled on the strength of the probate to interfere with the life estate granted to Mt. Dharohar Kuer except by due processes of law."

19. '22 Cal 788 (K)' related to a Hindu will of 1889 probate of which was granted in 1891 after which the executor transferred the estate to the Administrator-General of Bengal, professing to act under Section 31, Administrator-Generals Act, 1874. The only question which arose for decision in the case was whether the executor of a deceased Hindu is a "private executor" within the meaning of that section. In the course of the decision holding that such an executor came within the terms of the section Lord Watson pointed out that before the Hindu Wills Act of 1870 the position of an executor under a Hindu Will was different from that of an English executor, his powers & functions being those of a manager & that title in the estate did not vest in him even after he got probate. After the Act, his Lordship observed, a Hindu executor who took advantage of its provisions was "on precisely the same footing as the executor of an Anglo Indian testator, in so far as concerned the taking out of probate and the vesting in him of the estate of the deceased." The position of such an executor in the event of probate not being taken out did not arise for consideration.

20. '25 Cal 103 (L)' related to a Hindu will of 1857. No probate was obtained and the executors transferred a portion of the estate of the deceased testator in 18G4. The case was, therefore, governed by the law previous to the Hindu Wills Act of 1870 when the position of the executor of a Hindu will was that of a manager whether probate was taken out or not. '33 Cal 116 (PC) (M)' related to a will executed in 1893 by a Muhammadan lady. Probate of the will was obtained in 1900. The facts are sufficiently stated in the head-note. By the will the testatrix confirmed a release, which she had executed in favour of the principal defendant, who had been for some years in her household as her confidential agent and manager of her affairs, by which she declared that certain property he had obtained from her was a free and absolute gift and that neither she nor her heirs had any claim or demand on him in respect of it. Pending the probate proceeding which was opposed by her heirs the heirs instituted the suit out of which the appeal before the Judicial Committee arose to set aside the release and asking for an account and for two-thirds share of the property of the testatrix which was outside her testamentary capacity under the Mu-hammadan law. It was held by the Judicial Committee that the grant of probate did not, under the provisions of the Probate and Administration Act, create an estoppel so as to prevent the plaintiffs from denying the validity of the confirmation of the release to the defendant contained in the will. The question of the date of the vesting of the property in the executor did not arise for consideration.

The argument is that the testator intended the executor to take possession and to manage the property only after he had obtained probate and, therefore, his cause of action in this suit arose when he obtained probate. I do not think that the testator intended that there should be a particular sequence of time between the obtaining of probate and the taking of possession of the property by the executor. The will indicates that he was unwilling that his property should be in the direct possession and management of his wives and he cannot have contemplated that following his death they should remain in possession until in due course his son-in-law obtained probate. The directions in his will about obtaining probate and about managing the properties are two separate directions, not connected with each other. He was aware that in the usual course, if the executor was to act under the will at all, he would have to take out probate, and he was merely emphasizing the necessity for the probate in directing his son-in-law to take out probate. He was certainly not making the taking of possession of the estate by his son-in-law dependent upon the son-in-law first obtaining probate.