Again, a Native's will, not requiring to be proved1, need not be deposited for safe custody. The resulting opportunities for forgery and fraudulent alteration are obvious. Nor can a Native executor be compelled to exhibit an inventory or account of his testator's estate except by the tedious, expensive, and hazardous process of a lawsuit. The consequence is, when the estate is too small to bear the costs of the suit, that women, children, and absentees have no adequate check on the executor, and, at any distance of time, it is difficult to fix him with the possession of moveable and sometimes even of immoveable property 2.

Lastly, the character and ex officio powers of a Native executor seem to be by no means clearly defined. As to the latter, the late Supreme Court at Calcutta held that a Hindú executor may deal absolutely with the property, and that a purchaser from him is not bound to see to the application of his purchase-money. But the High Court of Bengal has lately held on appeal that he has no greater power over immoveable property than a manager. Now the powers of a manager, as declared by the Privy Council in a case to which the High Court refer, are limited and qualified; and when he makes a mortgage, the lender is bound to enquire into the necessity for the loan and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the manager is acting in the particular instance for the benefit of the estate. If this be so in the case of a mortgage or conditional sale, à fortiori it must be so in the case of an absolute sale. It is unnecessary to dwell on the difficulties which this doctrine imposes on all persons dealing with Hindú executors.

These considerations were embodied in a circular issued by the Home Department of the Government of India to the several Local Governments, and led to the passing of the following Act, which was carried through the Council by Mr. (now Sir J. F.) Stephen, and received the assent of the Governor-General on the 19th July, 1870 :

ACT No. XXI OF 1870.

An Act to regulate the Wills of Hindús, Jainas, Sikhs and Preamble.

1 See I Ben. O. C. J. 24: 6 Bom. 73. If he sue as executor he must of course set forth his qualification. Civ. Pr. Code, sec. 50.

See Morton. Dec., ed. Montriou, p. 262. As to the practice of resorting to the criminal law in disputes as to

the property of deceased Hindús, see
per Couch C.J., 8 Ben. Appx. 62.

3 Aushotos Dey v. Moheschunder
Dutt, Fulton, 380.

4 1 Bourke, Rep., Part VII, p. 48:
S. C. 3 Suth., Misc. App. 7, note.
56 Moo. I. A. Ca. 393.

Short Title.

Portions of Act X of 1865 extended to wills of Hindús,

Jainas,

Sikhs and
Buddhists.
Extent of
Act.

Provisos.

Buddhists in the Lower Provinces of Bengal and in the towns of Madras and Bombay.

Whereas it is expedient to provide rules for the execution, attestation, revocation, revival, interpretation and probate of the wills of Hindús, Jainas, Sikhs and Buddhists in the territories subject to the Lieutenant-Governor of Bengal and in the towns of Madras and Bombay; It is hereby enacted as follows:

1. This Act may be called 'The Hindú Wills Act, 1870.' 2. The following portions of the Indian Succession Act, 1865, namely, sections 46, 48, 49, 50, 51, 55, and 57 to 77 (both inclusive), sections 82, 83, 85, 88 to 103 (both inclusive), sections 106 to 177 (both inclusive), and sec. 187, shall, notwithstanding anything contained in sec. 331 of the said Act, apply—

(a) To all wills and codicils made by any Hindú, Jaina, Sikh or Buddhist, on or after the first day of September, 1870, within the said territories or the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and

(b) To all such wills and codicils made outside those territories and limits, so far as relates to immoveable property situate within those territories or limits:

3. Provided that marriage shall not revoke any such will or codicil:

And that nothing herein contained shall authorise a testator to bequeath property which he could not have alienated inter vivos1, or to deprive any persons of any right of maintenance of which, but for sec. 2 of this Act, he could not deprive them by will:

And that nothing herein contained shall affect any law of adoption or intestate succession:

And that nothing herein contained shall authorise any Hindú, Jaina, Sikh or Buddhist to create in property any interest which he could not have created before the first day of September, 1870 3.

1 See 8 Moo. I. A. 66. As to the power of a Hindú widow to bequeath her property, see 2 C. L. R. 422; as to whether this power extends to accumulations in her hands at her death, 5 Cal. 512.

Mayne, H. L. § 374 et seq.: 9 Ben. 377.

8 See 9 C. L. R. 121, per Wilson J. Contra 8 Cal., per Pontifex J. Some words such as or to bequeath property to any person to whom he

4. On and from that day, sec. 2 of Bengal Regulation V of Partial 1799 shall be repealed so far as relates to the executors of repeal of Ben. Reg. persons who are not Muhammadans, but are subject to the V of 1799. jurisdiction of a District Court in the territories subject to section 2. the Lieutenant-Governor of Bengal.

5. Nothing contained in this Act shall affect the rights, Saving of duties and privileges of the Administrators-General of Bengal, rights of Madras and Bombay, respectively.

Admini. stratorGeneral. 6. In this Act and in the said sections and parts of the InterpretaIndian Succession Act, all words defined in sec. 3 of the same tion-clause. Act shall, unless there be something repugnant in the subject or context, be deemed to have the same meaning as the said section 3 has attached to such words respectively:

And in applying sections 62, 63, 92, 96, 98, 99, 100, 101, 102, 103, and 182 of the said Succession Act to wills and codicils made under this Act, the words 'son,' 'sons,' 'child' and 'children' shall be deemed to include an adopted child; and the word 'grandchildren' shall be deemed to include the children, whether adopted or natural-born, of a child, whether adopted or natural-born; and the expression 'daughter-inlaw' shall be deemed to include the wife of an adopted son.

Notwithstanding the Hindú Wills Act, there was no means of conferring upon any one a complete and conclusive title as representative of the estate of a deceased Hindú, Muhammadan or Buddhist, or other person exempt from the operation of the Indian Succession Act.

The Hindú Wills Act is, as we have seen, limited in its operation to Lower Bengal and the towns of Madras and Bombay. Even if it were extended to the rest of British India, it would still only apply to cases of testamentary succession among Hindús; and outside the Presidency Towns there would be no clear power to grant letters of administration in the case of Hindús, Muhammadans and Buddhists dying intestate.

The grant of a certificate under Act XXVII of 1860 makes the grantee a representative only for certain very limited purposes', and, though in the Bombay Presidency a certificate purporting

could not have bequeathed it before the same day' should have been added

to sec. 3.

He cannot, for instance, recover

property which belonged to the de-
ceased, from a person wrongfully in
possession, 8 Suth. 1, 2. See the Civil
Procedure Code, s. 366.

to confer larger powers might be obtained under Regulation VIII of 1827, the status of the certificate-holder is by no means clear.

In the Presidency Towns probates of the wills and letters of administration to the estates of deceased Natives could and can be granted under the Supreme Court Charters in cases to which the Succession Act and the Hindú Wills Act do not apply; but the representative status conferred by such grants falls far short of that conferred by similar grants in the case of deceased European British subjects. Thus in 1867', the late Mr. Justice Norman held that a Hindú executor took nothing from any grant of the Court. His title,' said that learned judge, 'is founded solely and simply on the will of the testator, considered as an instrument of gift. Except for the purpose of evidence, the will of a Hindú does not require probate.... As against those who get the probate or oppose the grant of it, [the probate] is no doubt binding; as against parties cited it is evidence, but it has no greater effect than the ordinary decree in a Civil Court against persons who have no means of appearing in the suit or right to dispute the grant.' Furthermore, a grant under those Charters of letters of administration to a Hindu's estate does not affect land 2, so that in the case of a Hindú dying intestate and leaving both moveable and immoveable property in a Presidency Town it was necessary to have two representatives, one for land and houses, the other for goods. It had, moreover, been ruled that, if Hindús take out letters of administration at all they must take out general letters. The useful power of making grants limited to certain property or for certain purposes was, therefore, inapplicable in their cases.

From this state of things much trouble and litigation at times resulted, and, except in the Lower Provinces, Assam, the Panjab, Burma, and the towns of Madras and Bombay, still result. The heirs may be very numerous: their interests may differ in degree: some of them may be minors or otherwise incapacitated: others may be residing at a distance: the titles of some may be disputed: the settlement of claims against the estate may thus be a matter of endless complication: the making of a satisfactory title to any portion of it which it may be necessary to sell may be impossible. Furthermore, a Native's will, not requiring to be proved, need not be deposited for safe custody. Nor can a Native executor be compelled to exhibit an inventory or account except by

a lawsuit. The evil consequences of these defects in the law have been already pointed out'.

The local authorities having been consulted on the subject were, broadly speaking, in favour of providing means of obtaining probate or letters of administration when those interested in the estate of a deceased person desired to do so; but it was thought undesirable to require probate or letters of administration in all cases, as tending to impose on many poor and ignorant people, where there was no difficulty or dispute, an unnecessary amount of trouble and expense.

In 1881, accordingly, the Indian Legislature passed Act V of 18812 (An Act to provide for the grant of probates of wills and letters of administration to the estates of certain deceased persons), the preamble and first two sections of which are as follows:

'Whereas it is expedient to provide for the grant of probate of wills and letters of administration to the estates of deceased persons in cases to which the Indian Succession Act, 1865, does not apply; it is hereby enacted as follows:

1. This Act may be called "The Probate and Administration Act, 1881."

'It applies to the whole of British India; and it shall come into force on the first day of April, 1881.

2. Chapters i to xiii, both inclusive, of this Act shall apply in the case of every Hindú, Muhammadan, Buddhist, and person exempted under sec. 332 of the Indian Succession Act, 1865, dying before, on, or after the said first day of April, 1881:

'Provided that nothing herein contained shall be deemed to render invalid any transfer of property duly made before that day:

'Provided also that, except in cases to which the Hindú Wills Act, 1870, applies, no Court in any local area beyond the limits of the towns of Calcutta, Madras and Bombay and the territories for the time being administered by the Chief Commissioner of British Burma, and no High Court in exercise of the concurrent jurisdiction over such local area hereby conferred, shall receive applications for probate or letters of administration until the Local

1 See p. 313, supra.

As to Natives and this Act, see 6 Bom. 75, where, in the case of a Hindú executor, Melvill J. said that 'there is no law at present in force in the Mufassal which obliges a person claiming under a will to obtain pro

bate or otherwise establish his right, before he can sue in respect to any property which he claims under the will, and 8 Bom. 266, where West J. ruled that a Muhammadan executor cannot now claim to represent the estate till he has taken out probate.