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Nistariny Dabya, Miner, by Her Guardian Sarasaty Dabya Vs. Brahmomoyi Dabya - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1891)ILR18Cal45
AppellantNistariny Dabya, Miner, by Her Guardian Sarasaty Dabya
RespondentBrahmomoyi Dabya
Cases ReferredBrinda Chowdhrani v. Radhika Chowdhrani I.L.R.
Excerpt:
probate - revocation of probate--'just cause' for revocation--probate and administration act (v of 1881), section 50. - .....in the exercise of the discretion vested in him as to the mode of issuing citations, direct special citations to be served on every one immediately affected by the will; the issue of special citations is not held to be imperative, so as to make the proceedings substantially defective merely by reason of its absence. in brinda chowdhrani v. radhica chowdhrani i.l.r. 11 cal. 492 the learned judges observed: 'if it appeared that the applicant had had notice, or had been aware of the former proceedings before the grant of probate issued and had abstained then from coming forward, this would constitute a ground for refusing to allow her to intervene see ratcliffe v. barnes 2 sw. and t. 486 and in re pitambar girdhar i.l.r. 5 bom. 638 unless perhaps it were made out that the.....
Judgment:

Macpherson and Banerjee, JJ.

1. It is very properly conceded before as that the allegation of fraud and collusion has not been substantiated, and the only point pressed upon us is that the appellant is entitled to ask the executrix, Brahmomoyi, to prove the will in solemn form in her presence, as she neither appeared nor had she been specially cited to appear in the previous proceedings, and that there was just cause for revocation of probate within the meaning of Section 50 of the Probate Act, the absence of special citation making the proceedings substantially defective.

2. We do not think this contention is sound. The authorities cited in its support do not bear it out. In Komol Lochun Dutt v. Nilruttun Mundle I.L.R. 4 Cal. 360 the only point decided was that the grant of probate could not be contested by a regular suit, and that if the probate was wrongly granted, the proper course was to apply for its revocation according to the procedure laid down in the Succession Act. Some of the observations made in the judgment no doubt show that under certain circumstances the grant of probate after a will is proved in solemn form may still be called in question, but the learned Judges do not say, nor were they called upon to say, what those circumstances are. In the case of Kamona Soondury Dassee v. Hurroo Lall Saha I.L.R. 8 Cal. 570 the only points raised (in addition to that relating to the genuineness of the will) were that the Court below had no local jurisdiction to revoke the probate, and that the petitioner had no sufficient interest in the property of the alleged testator to entitle him to apply for revocation of probate. And though in the judgment it is observed that when a will is propounded which alters the devolution of property, the District Judge should, in the exercise of the discretion vested in him as to the mode of issuing citations, direct special citations to be served on every one immediately affected by the will; the issue of special citations is not held to be imperative, so as to make the proceedings substantially defective merely by reason of its absence. In Brinda Chowdhrani v. Radhica Chowdhrani I.L.R. 11 Cal. 492 the learned Judges observed: 'If it appeared that the applicant had had notice, or had been aware of the former proceedings before the grant of probate issued and had abstained then from coming forward, this would constitute a ground for refusing to allow her to intervene see Ratcliffe v. Barnes 2 Sw. and T. 486 and In re Pitambar Girdhar I.L.R. 5 Bom. 638 unless perhaps it were made out that the circumstances leading her to believe that the will was not genuine had not come to her knowledge until after the grant of probate.' In those observations we entirely agree; but they do not, under the circumstances of this case, presently to be noticed, at all support the appellant's contention: on the contrary, they support the opposite side.

3. While we deem it certainly desirable that when a will is propounded which alters the devolution of property, the District Judge should, in the exercise of the discretion vested in him by Section 69 of the Probate Act (V of 1881) as to the mode of issuing citations, direct special citations to persons whose rights are immediately affected by the will, we do not think the absence of such special citation would of itself be sufficient to entitle a party to require a will to be proved in his presence after it has once been proved in solemn form, if he was aware of the proceedings. The contention that the appellant is entitled to ask the other side to prove the will in her presence solely on the ground that she was not cited to appear, and she did not appear in the previous proceedings, was precisely the contention raised in Newell v. Week 2 Phill. 224. But the contention was overruled, as there was no authority for it, and Sir John Nicholl observed: 'The process of citing parties is a convenient one for all suitors, because when that is done you need not prove actual privity; the law presumes actual privity after legal process--the lis pendens is sufficient notice that persons should appear and protect their own interests, but if you can prove actual privity, the legal process in point of solid justice and sound reason is superfluous, though ex abundante cautela, it may still he convenient to resort to it and have it upon record.' The same view is affirmed in Ratcliffe v. Barnes 2 Sw. and T. 486 in Wycherly v. Andrews L.R. 2 P. & D. 327 in the case of Brinda Chowdhrani v. Radhika Chowdhrani I.L.R. 11 Cal. 492 referred to above, and also in the case of In re Pitamber Girdhar I.L.R., 5 Bom., 638.

4. It was strongly urged that as the applicant for revocation of probate is a minor, nothing short of special citation or actual appearance at the previous proceedings was sufficient to conclude her, as privity could not otherwise be presumed in such a case. Let us examine what the facts are. Kali Prasad Tripati, paternal uncle of the minor, clearly had notice of the proceedings. It is admitted by the minor's mother, who now represents her as her guardian, that he is not on bad terms with the minor, and that the minor has been living in the same house with him. Kali Prasad had no interest whatever in opposing the grant of probate otherwise than as representing the minor. He did oppose the grant of probate, expressly representing that the minor was living under his care and was the heiress-at-law of the alleged testator, and his opposition was successful in the first Court, though the Appellate Court took a different view of the case. And both the Courts regarded him as acting on behalf of the minor, These being the facts of the case and the allegation of fraud and collusion between Kali Prasad and the opposite side being now given up, the only conclusion that we can come to is that the persons under whose care the minor has been living, and who are interested on her behalf, were fully aware of the previous proceedings, and that the party who entered appearance and opposed the grant, though nominally appearing on his own behalf, did really appear on behalf of the minor.

5. We do not therefore think that any just ground has been made out for re-opening the proceedings, and this appeal must consequently be dismissed with costs.


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