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Sm. Malati De and anr. Vs. Dhanapati Dutta and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata High Court
Decided On
Case NumberF.A.T. No. 1646 of 1962
Judge
Reported inAIR1964Cal41,66CWN879
ActsSuccession Act, 1925 - Sections 283(1) and 299
AppellantSm. Malati De and anr.
RespondentDhanapati Dutta and ors.
Appellant AdvocateSushil Kumar Biswas and ;Suprokash Banerjee, Advs.
Respondent AdvocateManindra Nath Ghose and ;Somindra Nath Roy Chowdhury, Advs.
Cases Referred and Radha Raman Choudhury v. Gopal Chandra Chakravartty
Excerpt:
- .....citation in this case, was refused by the learned district judge on the ground that she had no locus standi to file any caveat in the instant case, she not having, according to the said learned judge, the necessary interest in law in the estate of the deceased testator, has no locus standi to file the present appeal from the order, granting probate, however final that order may be in law. in other words, the respondents do not contest the position that the order, granting probate, which is dated 25th of may 1962 in the instant case, is an order appealable under section 299 of the indian succession act, but they contend that it is not appealable at the instance of the present appellant for the reason, given hereinbefore. it is the validity of this contention which has to be tested in.....
Judgment:

P.N. Mookerjee, J.

1. This appeal has been placed before us at the instance of the parties for hearing on the preliminary point of its competency. The point has been raised as a pure point or law by the respondents and it is upon that footing that the matter falls to be decided at this stage.

2. The appeal in question is from an order of the learned District Judge, Burdwan, granting probate with a copy of the Will in question annexed. There were certain conditions, imposed on this grant, but the respondents do not contend that the imposition of those conditions would make the order, granting probate, as aforesaid, any the less a final order.

3. The respondents' objection is that the present appellant, whose intervention, at an earlier stage, by filling a caveat, following the issue of general citation in this case, was refused by the learned District Judge on the ground that she had no locus standi to file any caveat in the instant case, she not having, according to the said learned Judge, the necessary interest in law in the estate of the deceased testator, has no locus standi to file the present appeal from the order, granting probate, however final that order may be in law. In other words, the respondents do not contest the position that the order, granting probate, which is dated 25th of May 1962 in the instant case, is an order appealable under Section 299 of the Indian Succession Act, but they contend that it is not appealable at the instance of the present appellant for the reason, given hereinbefore. It is the validity of this contention which has to be tested in the instant case.

4. It is necessary, at this stage, to point out that we criterion for determining whether a person has locus standi to file a caveat or an objection to the grant of probate is different from the criterion, on which depends a person's right or locus standi to file an appeal from an order, granting probate, which is otherwise appealable in law. In the former case, the matter depends on Section 283(1)(c) of the Indian Succession Act and, more particularly, on the words 'any interest in the estate of the deceased', as used in that clause. In the latter case, the decision depends on the question whether the person concerned, that is, the particular or intending appellant, is affected or prejudicially affected by the order in question, it being assumed that the said order is otherwise appealable in law.

5. So far as the former question is concerned, that is a matter to be decided in the present appeal, that is, at its final hearing, if the appeal is maintainable. It is the other question, namely, the question of the appellant's locus standi, to maintain this appeal as a matter of law or, in other words, whether the appellant is a person, who can be said to be aggrieved or prejudicially attected by the impugned order, is the point for immediate decision before us.

6. We are, therefore, not expressing, and should not be deemed to be expressing any opinion on the former question, namely, as to the appellant's locus standi to file the caveat in the instant case, which will be the subject-matter of the instant appeal at its final hearing, if it is new held to be maintainable. We shall, accordingly, contine ourselves only to the question of the appellant's locus standi to maintain the instant appeal or to the question whether she is aggrieved or prejudicially affected by the impugned order in question. About that, we have no doubt in our mind that the answer must be in the affirmative and in the appellant's favour. Had it been an ordinary suit or an ordinary proceeding, the answer may probably have been, different as, if the appellant's attempt to intervene in the proceeding be rejected, it may well be said that the final order, normally speaking, would not be binding on her, but the Instant case concerns the grant of probate of a Will and the order for such grant operates in law as a judgment in rem and would, therefore, be binding on an persons, including the appellant, even though her attempt to intervene in the proceeding has failed. In this view, we would hold that the appellant is a person aggrieved or prejudicially affected, by the impugned order, granting probate, and, upon that footing, she satisfies the test of having the locus standi to maintain an appeal from the said order, which appeal is, admittedly, otherwise maintainable in law under Section 299 of the Indian Succession Act.

7. In the above view, we are supported by the Bench decision of this Court, reported in Nabin Chandra Guha v. Nibaran Chandra Biswas : AIR1932Cal734 , where the earlier cases, having any the least relevancy on the matter in question, and, apparently, indicating an opposite view and often cited as authorities to the contrary, namely, Khettra Moni Dasi v. Shyama Churn Kundu, ILR 21 Cal 539, and Radha Raman Choudhury v. Gopal Chandra Chakravartty, 24 Cal WN 316; (AIR 1920 Cal 459), were discussed and distinguished and fully explained. The reason, however, which we have given above, and which seems to us to be the reason for the true view on the point, is not fully to be found in the said reported decision. We would, accordingly, supplement it by adding or mentioning that reason In support of the final conclusion, reached in that case and reached above by us.

8. In the premises, we overrule the respondents' preliminary objection to the competency of the Instant appealand direct that the said appeal do proceed in accordance with law.

9. In the circumstances of this case, let the hearing of the above appeal be expedited.

10. Let the records be called for immediately or necessary reminder in that behalf issue at once so that the said records may reach this Court within a month at the latest.

11. The learned Advocate for the appellant will prepare the paper books in this appeal out of Court and will file in Court, for the use of the Court and the learned Advocates, eight copies thereof, printed or typewritten, within two months from the service upon him of the notice of arrival of records, which service, as also the tiling of the lists and other necessary steps in connection with the preparation of the paper books should be expedited as much as possible.

12. After the paper books are filed, the parties willhave liberty to mention the appeal for the fixation of anearly date of hearing of the same.

13. There will be no order for costs, so far as this hearing is concerned.

Bhattacharya, J.

14.. I agree.


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