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Surbomongala Dassi Vs. Shashibhooshun Biswas - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal413
AppellantSurbomongala Dassi
RespondentShashibhooshun Biswas
Cases ReferredUmanath Mookhopadhya v. Nilmoney Sing I.L.R.
Excerpt:
probate - application for probate--caveat--mortgagee--attaching creditor--fraud. - .....v. nilmoney sing i.l.r. 6 cal. 429 decided that an attaching creditor was entitled to oppose the grant of probate of a will, which had the effect of passing a property which should otherwise come to the heir. the case of umanath mookhopadhya v. nilmoney sing i.l.r. 6 cal. 429 was taken up to the privy council l.r. 10 i.a. 80 : i.l.r. 10 cal. 19, and although their lordships refrained from coming to any final decision as to the right of an attaching creditor to apply for the revocation of a probate, they expressed themselves thus: 'assuming that a purchaser (from an heir) can oppose the grant of a probate, or apply to have it revoked (which their lordships do not decide), they entertain grave doubts whether an attaching creditor can do so, at least in a case which is not founded on the.....
Judgment:

Prinsep, J.

1. In this case Surbomongala Dassi, wife of Bhagabati Churn Nag, applied for probate of the will of one Thakomoni Dassi, dated the 12th of May 1881. A caveat was entered by Shashibhooshun Biswas, who objected that the property included in the will really belonged to Bhagabati Churn Nag, his judgment-debtor, and that the will was set up by his judgment-debtor, through his wife Surbomongala Dassi, in order to save the mortgaged property which had been attached, from being sold in execution of the decree. In other words, Shashibhooshun Biswas declared that Bhagabati Churn Nag, in order to defraud him, one of his creditors, had set up a false will and had drafted it in such a manner as to pass the property to his wife. The question that we have to decide is, whether under these circumstances Shashibhooshun Biswas can be allowed to object to probate being granted or not. In the case of Nobeen Chunder Sil v. Bhobo Soondery Dabee I.L.R. 6 Cal. 460 which is the last decided case in this Court touching upon the point now before us, a Division Bench, following the case of Umanath Mookhopadhya v. Nilmoney Sing I.L.R. 6 Cal. 429 decided that an attaching creditor was entitled to oppose the grant of probate of a will, which had the effect of passing a property which should otherwise come to the heir. The case of Umanath Mookhopadhya v. Nilmoney Sing I.L.R. 6 Cal. 429 was taken up to the Privy Council L.R. 10 I.A. 80 : I.L.R. 10 Cal. 19, and although their Lordships refrained from coming to any final decision as to the right of an attaching creditor to apply for the revocation of a probate, they expressed themselves thus: 'Assuming that a purchaser (from an heir) can oppose the grant of a probate, or apply to have it revoked (which their Lordships do not decide), they entertain grave doubts whether an attaching creditor can do so, at least in a case which is not founded on the ground that the probate has been obtained in fraud of creditors. But as, after hearing the appellant's counsel upon the question of the execution of the will, their Lordships did not consider it necessary to hear the [416] counsel for the respondents, the question whether the Raja could apply for the revocation of the probate has not been argued before them, and therefore they give no final opinion upon it.'

2. It therefore appears from the opinion expressed by their Lordships in the Privy Council that no attaching creditor can seek to revoke the probate of a will, or oppose the grant of probate unless he puts his case upon the ground that the will set up was in fraud of creditors. We think that the ground set forth in the application made by the objector in this case amounts to a statement that the will set up by the wife of the judgment-debtor is a forgery and a fraud upon the mortgagee. Under such circumstances, we are of opinion that the attaching creditor is entitled to oppose the grant of probate. Were we to come to any other decision the result would be that, although the attaching creditor would be in a position to contest the demand of any other person claiming the attached property, he would not be able to dispute any title derived under a will.

3. In regard to the merits of the case, we concur in the opinion expressed by the lower Court that the will is not proved to have been executed by the alleged testator, and we therefore dismiss the appeal with costs.


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