JUDGMENT Derbyshire, C.J. - This is an appeal from a decision of Das J. rejecting an application made by Charles Gardner for an order that letters of administration with a copy of the will annexed to the property and credits of the deceased. Sidney Thomas Mathison, do issue to the said Charles Gardner as attorney until the Lloyds Bank Limited shall apply for probate of the said will and that such letters of administration be limited to the Province of Bengal. 2. Das J. rejected the application on the ground that for every grant of letters of administration with a copy of the will annexed the original will must be produced and proved, that the essential pre-requisite of a grant of letters of administration is the production and proof of the original will and that the procedural requirements of S. 276, Succession Act, namely, that the original will must be produced and proved, must be complied with. 3. Sidney Thomas Mathison died in England on 31st May 1944 leaving property in Bengal. He made his will on 22nd October 1931 and appointed Lloyds Bank Limited, the sole executor. Probate of the will was granted to Lloyds Bank on 13th September 1944 by the Principal Registry of the Probate Division of the High Court of Justice in England. Lloyds Bank accepted the office of executor and in order to obtain administration of the assets of the deceased in Bengal granted a power of attorney dated 26th October 1944, to certain of their officers in Calcutta including the applicant Charles Gardner. The power of attorney appoints these officers severally to be the attorneys of the grantors for and on behalf and in the name of the grantors to do all or any of the following things, namely to apply to the High Court at Calcutta or any other competent Court or office in India and to obtain a grant of letters of administration. 4. Mr. Gardner applied in his own name and the application was rejected for the reasons stated. Mr. Gardner has appealed to this Bench. The appeal was not opposed, nor was the application. 5. It is said that the application in this case follows the practice which has obtained for more than three quarters of a century in this Court and has obtained for a long period in other High Courts in India. Mr. Gardner has appealed to this Bench. The appeal was not opposed, nor was the application. 5. It is said that the application in this case follows the practice which has obtained for more than three quarters of a century in this Court and has obtained for a long period in other High Courts in India. The document which is exhibited to the proceedings is of course not the will itself. That is kept apparently at the probate office in London, It is a photographic copy of the will certified to be a true copy of the original and deposited and proved in the Principal Registry of the Probate Division of the High Court in London. It is certified to be such by Mr. Coates, acting Registrar on 17th October 1944 and it is impressed with the seal of the Principal Registry of the Probate Court in London. 6. The only question is whether probate can be granted upon such an application. Das J. has given his reasons at some length for holding that such a grant cannot be made and that the will itself should be produced unless a grant of probate is made to the executors. In 1875 the case of In the goods of Leckie, 15 Beng. L.R. (App.) 8 came before Phear J. of this Court. There probate of a will was granted in England to the executors who appointed an attorney to administer the Indian assets. There was objection by the Administrator-General but the application was granted under S. 212, Succession Act of 1865 which is identical in terms with S. 241, Succession Act of 1925 which provides: When any executor is absent from the province in which 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 shall obtain probate or letters of administration granted to himself. 7. 7. In the same Succession Act of 1865 there was a section, S. 180, which is identical with S. 228, Succession Act of 1925, which provides: 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 Majesty's dominions and a properly authenticated copy of the will is produced, Letters of Administration may be granted with a copy of such will annexed. 8. Dealing with the application Phear J. said at p. 10 of the report: I am of opinion that if the gentlemen who have given the present applicant a power of attorney had been in India, they would have had a right to probate of the will. That being so, it would be in accordance with the practice of the Court that letters of administration with the will annexed should be granted to the attorney. The application will therefore be granted. 9. That practice in 1875 was of some standing. Apparently it was made under the provisions of the two sections of the Succession Act of 1865 to which I have referred. That practice was certainly in existence in 1912 because there was a case in this Court before Fletcher J., In the goods of William Renni, 40 Cal. 74 : (18 I.C. 907) where an application was made for letters of administration on a power of attorney granted, and refused because the power of attorney did not justify a grant of letters of administration. In the course of his judgment Fletcher J. said: In British India the practice differs from that of other parts of the British Empire. In other parts of the British Empire the Colonial Probates Act applies and the practice is not to make a grant of letters of administration with copy of the will annexed, but to send an exemplification of the probate granted in any part of the United Kingdom and this exemplification is resettled by the Court to which it is sent. The matter is of great convenience. It saves all the trouble of getting administration with will annexed and of obtaining sureties in the different colonies and dependencies of the Crown. The matter is of great convenience. It saves all the trouble of getting administration with will annexed and of obtaining sureties in the different colonies and dependencies of the Crown. That practice and Act have not been extended to British India and the practice here is to require administration with will annexed to the estate of a deceased British subject who left property here. 10. In my view there has been no change in the law from 1875 which has altered the law with regard to grants of letters of administration in cases like the present. In my view S. 228 stands apart from the other sections relating to grants of letters of administration and read with S. 241 provides for the present case. 11. As regards S. 276, that certainly provides that applications for letters of administration with the will annexed shall be made by petition with the will or in the cases mentioned in Ss. 237, 238 and 239 a copy, draft, or statement of the contents thereof annexed. Section 237 deals with the grant of probate of copy or draft of a lost will. Section 238 deals with probate of the contents of a lost or destroyed will. Section 239 deals with probate of copy where the original exists. None of them refers to the present case. Das J. thought that as that was so, then the words of the section "with the will annexed" were obligatory; failing that it was not possible to grant letters of administration in the present case. As I have said, I think S. 228 provides for the present case, but it does seem to me that S. 276 which is a procedural section is directory and does not provide for every case. Section 276 is similar to S. 62, Probate and Administration Act of 1881. Sections 237, 238 and 239 are similar to Ss. 24, 25 and 26, Probate and Administration Act of 1881. 12. In 1900, a case came before the Bombay High Court (In re Mariambai, 24 Bom. 8) in which probate was asked for nuncupative will of a Mahomedan. The learned Judge refused it on the ground that S. 62 could not be complied with because the will could not be annexed. 12. In 1900, a case came before the Bombay High Court (In re Mariambai, 24 Bom. 8) in which probate was asked for nuncupative will of a Mahomedan. The learned Judge refused it on the ground that S. 62 could not be complied with because the will could not be annexed. On appeal Sir Lawerence Jenkins C.J. giving his view in his judgment said: But then it may be suggested that this view is inconsistent with the terms of S. 62, which no doubt contemplates only a written will. I think, however, it would be attributing to that section a result that was never contemplated, to read it as excluding an oral will from the operation of the Act, seeing that the purpose of that section is to regulate the procedure according to which applications for probate should be made. Then later he goes on: The result, then, is that if we accept the decision of the learned Judge by parity of reason we should be forced to hold that Succession Act, though expressly permitting an oral will, at the same time for practical purposes nullified its effect. 13. The learned Chief Justice then granted probate of the oral will notwithstanding the provisions of S. 62. That in my view strengthens the opinion which I have formed that S. 276 does not provide for every case and that in this particular case letters of administration with a copy annexed of the will proved abroad can be given. 14. Das J. has made criticisms of the present position based on the examination of the Succession Act. I have come to the conclusion, however, that the position as it has obtained during the last seventy five years is based upon the law as it was seventy-five years ago and as it has continued to the present day. In my opinion, it has not altered by the provisions of S. 276 of the Act. It is obvious that when the will has been proved in England and is in the custody of the Probate Registry it cannot be reproduced in this country. If it were necessary I should be prepared to hold that the production of the duly certified and sealed office copy of the will proved in England was a sufficient compliance with the words of S. 276. However, I do not think that is necessary. If it were necessary I should be prepared to hold that the production of the duly certified and sealed office copy of the will proved in England was a sufficient compliance with the words of S. 276. However, I do not think that is necessary. In my opinion, subject to certain alterations in the form of the petition, this petition should be granted. 15. Das J. was of the opinion that the form of the petition did not justify the grant as asked. I think those objections will be met if the title of the application is amended to come within the specific words of the power of attorney "in the name of the grantors...." The title of the application will, therefore, be amended to: In the matter of an application of Lloyds Bank Limited made by Charles Gardner, Appellant, petitioner. 16. There is one other point which was raised during the course of the hearing under S. 241, Succession Act: Letters of administration may be granted to the attorney or the agent of the absent executor for the use and benefit of the principal until he shall obtain probate or letters of administration granted to himself. These words do not occur in the prayer of the petition, but they should, and the petition should be amended accordingly. The petitioner undertakes to amend the petition and the form of the prayer. 17. For these reasons I am of the opinion that this appeal should be allowed, and subject to the modifications I have mentioned the grant of letters of administration to Charles Gardner should be made. Gentle, J. 18. I agree and desire to add a few observations. 19. The practice which Das J. condemned has been established and followed in this Court for over seventy years. The practice is for an attorney of an executor who has proved a will in a Court outside the province and where it is deposited, to obtain a grant of letters of administration with a copy of the will annexed by producing the probate and an authenticated copy of the will. Reference to the practice is made by Phear J. in In the goods of Leckie, 15 Beng. L.R. (App.) 8. Reference to the practice is made by Phear J. in In the goods of Leckie, 15 Beng. L.R. (App.) 8. It has also been the practice in the Madras High Court since the year 1865: vide the observations of Leach C.J., In Re: Goods of Edwards Carmichael McCankie, AIR 1940 Mad 680 . It was also stated it is followed in the Bombay High Court. The Allahabad High Court In the goods of William Ashton, (1905) All. W.N. 251, held that such a grant could not be made. This decision does not seem to be followed there; during the argument before Das J. and during this appeal, reference was made to a recent grant by that Court similar to that which the appellant seeks to obtain here. The last mentioned decision is the only one which has refused to recognise the correctness of the practice. 20. Das J. came to the conclusion that this long established practice is not warranted by the provisions of the Succession Act. He was of opinion that in all such applications for grant of letters of administration with the will annexed the original will must be produced in the Court where the application is made and that the will must be proved; these are two conditions precedent to a grant. The learned Judge based his opinion upon the provisions of S. 276 of the Act which, in terms requires that in applications for the grant of probate or letters of administration with the will annexed, the will shall be annexed to the application and the petition shall contain statements that the writing in the will is the last will and testament of the testator and that the instrument was duly executed. 21. At first, this opinion had its attractions and if it were correct then a grant cannot be obtained under S. 228 by invoking S. 241. If production of the will and proof of it is necessary it must follow that, in the absence of the will and proof of its due execution, an application cannot be made under S. 228 by reference to S. 241. Section 241 enables an attorney of an absent executor to obtain grant of Letters of Administration with the will annexed, for the use and benefit of the executor limited until the executor himself obtains grant of probate or Letters of Administration. Section 241 enables an attorney of an absent executor to obtain grant of Letters of Administration with the will annexed, for the use and benefit of the executor limited until the executor himself obtains grant of probate or Letters of Administration. The correctness of the view expressed by Das J. must be dependent upon the extent of S. 276. 22. That section is not exhaustive in its terms and does not extend in its entirety to every application for a grant. There is one obvious instance. Section 65 enables a soldier or an airman employed in an expedition or engaged in actual warfare, or a mariner at sea, to dispose of his property by a will made in the manner provided in S. 66. Section 66(1) enacts that privileged wills may be in writing or may be made by word of mouth: sub-clause (g) provides that a soldier, airman or mariner may make a will by word of mouth by declaring his intentions before two witnesses present at the same time. Since the Succession Act makes provision for, and recognises, an oral will as being a legal disposition of property, it is beyond doubt that that will can be proved under the provisions of the Succession Act. Section 276, makes no mention of an oral will and in an application for probate or letters of administration with the will annexed, the requirement of that section that the will must be annexed to the petition which should contain statements that the writing annexed is the last will and testament of the deceased and was duly executed, cannot have reference to a nuncupative will. It cannot be the case that the Succession Act provides for and recognises an oral will but the will cannot be proved because of the impossibility of its being annexed to the petition. All wills are proved by means of S. 276, which is the procedural section, and its provisions must also apply to oral wills although exact conformity with its requirements is not possible in those instances. 23. In my opinion, S. 276 is not exhaustive in its terms and exact compliance with its provisions is not essential when by reason of a peculiarity, this is impossible but there must be substantial and sufficient compliance with it. 23. In my opinion, S. 276 is not exhaustive in its terms and exact compliance with its provisions is not essential when by reason of a peculiarity, this is impossible but there must be substantial and sufficient compliance with it. In the present case, since the will of the testator, Sidney Thomas Mathison, cannot be produced as it is deposited in the Courts in England where it was proved, what is required is indicated in S. 228, namely, an authenticated copy being produced at the time when an application is made for grant. Section 228 is distinct from other sections; applications under S. 276 in respect of other sections of the Act require production of the original will and for it to be proved before grant of Letters of Administration with the will annexed can be made, but an application pursuant to S. 228 is an exception to that requirement. This section requires, firstly, proof that the will of the testator has been proved and deposited. It requires, secondly, production of a duly authenticated copy of the will. Both these things having been done then the grant can be made which S. 228 prescribes. 24. In an application under S. 241 by an attorney of an executor, who is absent from the province, to obtain a limited grant of letters of administration with the will annexed, when the grant sought is that which S. 228 prescribes, upon the requirements in that section being fulfilled, S. 241 is ancillary to S. 228 and the provisions of the latter section being followed by production of probate and an authenticated copy of the will, there is sufficient compliance with S. 276 to enable a grant to be made in accordance with S. 228. 25. In the present instance, the authority in the power of attorney given by Lloyds Bank Ltd. as executors of the testator does not permit an application being made in the name of the attorney but it must be made in the name of the executors, and when this has been done the grant which is sought can issue to the attorney subject to the limitation in S. 241 of the Act and also limited to the Province of Bengal. 26. I agree that this appeal should be allowed.