JUDGMENT Chatterjee, J. - This is an application for the probate of a Will of a lady, Musstt. Suraj Bai, who died on September 1, 1947. According to the propounded, the Will was executed on June 6, 1946, and it was registered on the same day. The caveator is the son of the lady's deceased step-son. The following genealogical table will elucidate the relationship of the parties :-- The propounders of the Will are Sm. Kashi Bai, the youngest daughter of the testatrix and her husband. The caveator is Gobindlal, son of Mohonlal Mackar, deceased. 2. The parties were governed by the Mitakshara School of Hindu Law. On January 20, 1943, Mohonlal and Gobindlal instituted a suit for partition of the coparcenary properties, being Suit No. 72 of 1943, in this Court, against Sreekissen Mackar, Sm. Suraj Bai and three other gentleman who were the holders of a decree for a large sum against Sreekissen. 3. During the pendency of the suit Mohonlal and Sreekissen and Sm. Lakshmi Bai died. Gobindlal became the Plaintiff both in his individual capacity and as the heir and legal representative of his father Mohonlal. The Defendants were Sm. Suraj Bai and the three creditors. 4. On February 2, 1945, a preliminary decree was passed in the partition suit. By that decree Gobindlal and Suraj Bai were declared entitled, by way of family arrangement, each to half-share of the properties and assets left by Sreekissen Mackar. 5. Two gentlemen were appointed Commissioners of partition. Under the decree they were to sell the immovable properties and other assets of Sreekissen and to divide the sale proceeds between the two parties. I have been informed that the Commissioners have sold one of the properties, No. 15, Sir Hariram Goenka Street, for Rs. 1,85,000 and that they have paid off the three creditors whose dues amounted to about Rs. 85,000. The balance of the sale proceeds is still with them. The other properties have not yet been sold and the suit is still pending. An application was made by the propounders of the Will for substitution in place of the lady as Defendants in the suit, but the application has been adjourned sine die and waits the result of these proceedings. 6. The Will of the lady refers to the above decree. Then she appoints Sm. Kashi Bai and her husband to be the executrix and the executor. 6. The Will of the lady refers to the above decree. Then she appoints Sm. Kashi Bai and her husband to be the executrix and the executor. She gave several pecuniary legacies to different legatees, directed the executor and executrix to spend Rs. 15,000 for religious and charitable purposes and bequeathed the rest and residue of her estate to her daughter Kashi Bai. 7. On behalf of the caveator Mr. P.B. Mukherjee contends that the bulk of the estate of the testatrix is the property which was to come to her under the decree in the partition suit. He further contends that under the Hindu Law she had merely a widow's estate in the same and she had no power to bequeath the same and, therefore, the Will is inoperative. 8. On the strength of a recent case reported as In the Estate of Thomas Public Trustee v. Davies [1939] 2 A. E. R. 567, Mr. Mukherjee argued that it is within the scope and duty of a Court of Probate to make such limited construction of documents before it as is necessary to determine (a) what documents should be admitted to probate and (b) to whom administration should be granted. In my view the testamentary Court has no jurisdiction to act as the Court of construction of the Will or to find out whether the person making the bequest of certain properties had the title to the same. The question which falls within the scope of the Probate Court is to find out whether the document sought to be probated did in fact dispose of some property. It is only for the purpose of determining whether the document is of dispositive effect that the Probate Court can construe the provisions of that document. Clearly the document before me does dispose of properties and there is nothing for the Court to construe in this case. 9. Learned Counsel for the Caveator also referred me to In the goods of Tharp v. McDonald L. R. 3 Pro. Diy. 76 (1878). In that case probate was asked of the Will of a married woman on the ground that she had separate property and the Will disposed of such property. The caveator resisted probate on the ground that she had no separate property. The Court was satisfied that she had separate property. Diy. 76 (1878). In that case probate was asked of the Will of a married woman on the ground that she had separate property and the Will disposed of such property. The caveator resisted probate on the ground that she had no separate property. The Court was satisfied that she had separate property. On appeal Sir George Jessel, M.R., held that it is the duty of the Court, so far as the evidence and pleadings enable it to do so, to decide whether the testatrix had separate property and of what such property consisted and to grant probate limited to such properties as the deceased had power to dispose of. 10. Having regard to the authorities in India I should hold that the law in this country is not in accord with the views expressed by Sir George Jessel. A proceeding for probate under the Indian Succession Act is not a suit properly so-called, although it is marked as a contentious cause under our Rules. In such a proceeding the only question which the Court is called upon to determine is whether the Will is true or not and whether the person making the Will had a sound disposing mind and it is completely outside its purview to determine any question of title with respect to the properties covered by the Will. 12. It has been repeatedly held by this High Court as well as by other High Courts in India that it is not the duty of the Probate Court to consider any issue as to the title of the testator to the property with which the Will propounded purports to deal or as to what disposing power the testator may have possessed over such property or as to the validity of the bequests made. It will be most injudicious to upset the settled practice of this Court which has been uniformly followed from the year 1879 and to permit the Testamentary Court to embark on the adjudication of difficult questions as to the ownership of the properties bequeathed by a Will. 13. In Behary Lal Sandyal v. Juggo Mohan Gossain [1879] I. L. R. 4 Cal. 1 an application was made for the probate of the Will of a Hindu widow. 13. In Behary Lal Sandyal v. Juggo Mohan Gossain [1879] I. L. R. 4 Cal. 1 an application was made for the probate of the Will of a Hindu widow. The caveator contested the grant of probate inter alia on the ground that the testatrix had no right to dispose of the property mentioned in the Will inasmuch as she had only a life-estate in it. The trial Court upheld this contention and refused the application for probate. On appeal Garth, C.J., and McDonell, J., held that upon an application for probate of Will, it is not the province of the Probate Court to go into questions of title with reference to the property which the Will purports to dispose of. "Since the passing of the Succession Act," observed the learned Chief Justice, "no Executor can make title to any property of the testator, whether disposed of by the Will or not, nor can he sue for or claim any such property, or even clothe himself with his representative character, for the purpose of collecting or paying debts, or otherwise legally intermeddling with the affairs of the testator, without first obtaining probate of the Will . . . . It is clear that the grant of probate to the Executor does not confer upon him any title to property which the testatrix had no right to dispose of. It only perfects the representative title of the executor to the property, which did belong to the testator, and over which he had a disposing power. 14. The learned Chief Justice further observed that a Hindu widow can make a Will of her properties and the grant of probate to the executor of a Hindu widow's Will cannot prejudice the rights of the Caveator, if the property really belongs to him and not to the testatrix. 15. This view has been consistently followed by this High Court. Reference may be made to Nanhu Koer v. Somirun Thakur 8 C. L. R. 287 (1881), Raghunath v. Mt. Pate Koer 6 C. W. N. 345 (1901), Abhiram Das v. Gopal Das I. L. R. 17 Cal. 48. (1889), Arunmoyi Dosi v. Mohendra Nath Wadadar I. L. R. 20 Cal. 888 (1893), Lalit Mohan Das v. Radharaman Shaha 15 C. W. N. 1021 (1911), Jagadind v. Madhusudan 20 C. L. J. 3. 307 (1912) and Sm. Pate Koer 6 C. W. N. 345 (1901), Abhiram Das v. Gopal Das I. L. R. 17 Cal. 48. (1889), Arunmoyi Dosi v. Mohendra Nath Wadadar I. L. R. 20 Cal. 888 (1893), Lalit Mohan Das v. Radharaman Shaha 15 C. W. N. 1021 (1911), Jagadind v. Madhusudan 20 C. L. J. 3. 307 (1912) and Sm. Haridasi Dasi v. P.B. Mukherji A. I. R. 1924 Cal (sic). 16. The Bombay High Court has taken the same view and has acted upon it. Hormusji Navroji v. Bai Dhanbaiji I. L. R. 12 Bom. 164 (1387), Barot Parshottam v. Bai Muli I. L. R. 18 Bom. 749 (1893) and Ochavram Nanabhai Haridas v. Dolatram I. L. R. 28 Bom. 645 (1904). The Bombay High Court in the case reported in Barot Parshottam v. Bai Mudi I. L. R. 18 Bom. 749 (1893) went so far as to hold that a Probate Court is not justified in refusing to grant probate of a Will because the testator had no power to dispose of some or even all of the property he purported to dispose of See also Chintaman v. Ramchandra I. L. R. 34 Bom. 589 (1910) and Bai Parvatibai v. Raghunath Lakshman 42 Bom. L. R. 1063 (1940). 17. The Allahabad, Madras and Patna High Courts have also followed the Calcutta High Court and have refused to accede to arguments based on the observations of Sir George Jessel. M.K. Sowbagiammal v. Komalangi Ammal 54 M. L. J. 382 (1928), Birj Nath De v. Chandar Mohan I. L. R. 19 All 459 (1897) and Kashi Nath Singh Vs. Dulhin Gulzari Kuer, AIR 1941 Patna 475 . What does a probate establish? It is only conclusive as to the appointment of executors and the valid execution of the Will. It does not decide any question of title. The Testamentary Court should not adjudicate over matters which are not germane to the grant of probate. In the Allahabad case the learned Judges, Edge, C.J. and Blair, J., attempted to distinguish the case of Tharp v. McDonald L. R. 3 P. D. 76 (1878). The learned judges pointed out that a married woman had in England no testamentary power unless she was possessed of separate property. In the Allahabad case the learned Judges, Edge, C.J. and Blair, J., attempted to distinguish the case of Tharp v. McDonald L. R. 3 P. D. 76 (1878). The learned judges pointed out that a married woman had in England no testamentary power unless she was possessed of separate property. Accordingly it was necessary to ascertain whether the testatrix in that case was possessed of any separate property so as to give her title to make a Will and it was really a question of finding out whether she had testamentary capacity. 18. With due deference to these learned Judges it seems that their respect for Sir George Jessel, which is shared by every lawyer, compelled them to attempt a distinction which had really no substance. In every case of a Will by a Hindu widow in India the caveator's argument can be put on the basis that the possession of stridhan or separate property is necessary to establish her testamentary capacity. The Testamentary Court in my view has no authority to adjudicate on questions of title to the properties purported to be disposed of by a Will. Such adjudication will not be binding on the Court--administering the assets. In the case before me the testatrix had admittedly some stridhan properties and this Court is bound to grant probate, if the Will was validly executed and attested. It is not proper to issue a limned probate or a probate limited to some assets. Sec. 255 of the Indian Succession Act does not justify such" a course. Mt. Laso Devi v. Mt. Jagdamba A. I. R. 1936 Lah. 878. 20. Mr. Mukherjee referred me to the judgment of Luxmore, J., in Havoksley's Settlement (1934) 1 Ch 385. In that case the Chancery Court held that it was not bound by the construction put upon a Will by the Probate Court. Sir Ashutosh Mookerjee also took the same view in the case already cited, Lalit v. Radkaraman 15 C. W. N. 1021 (1911). The question will have to be decided by the Court in the suit still pending between the parties, Suit No. 72 of 1943, and that will be the proper forum to adjudicate the same. 21. Lord Sinha cautioned Indian Courts against following English precedents in such cases. Ramnandi v. Kalawati L. R. 65 I. A. 18 : s. c. 32 C. W. N. 402 (1927). 21. Lord Sinha cautioned Indian Courts against following English precedents in such cases. Ramnandi v. Kalawati L. R. 65 I. A. 18 : s. c. 32 C. W. N. 402 (1927). We are governed by the Indian Succession Act and in my view it is neither necessary nor proper for the Probate Court to decide what assets are likely to come to the hands of the Petitioners for the purposes of administration. 22. On the merits I am satisfied that the Will was duly executed and attested and that the lady had a sound disposing mind and fully understood the purport and the effect of the document. I accept the evidence of Mr. S.K. Bhattacharyya, who is an attorney of some standing and that of his managing clerk. There was a prior Will which was explained to the lady by the attorney and was duly executed and attested. The Registrar created difficulties in registering the same because the description of the lady was not properly set out. Hence the Will was re-engrossed and it was explained again to herein the presence of the Registrar and then executed and attested. The documents tendered and the attorneys Day-Book fully support the evidence of the two witnesses. I grant probate as asked for. The applicants will get their costs out of the estate of the testatrix as of a defended suit on scale No. 2.