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Shyama Charan Baisya Vs. Prafulla Sundari Gupta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in30Ind.Cas.161
AppellantShyama Charan Baisya
RespondentPrafulla Sundari Gupta
Cases ReferredDarnley v. L.C.
Excerpt:
probate, revocation of, application for - probate proceedings--reversionary heir, whether entitled to intervene--statement as to relations of deceased to be correct--probate and administration act (v of 1881), sections 50, 69--special citation, conditions of--grant of probate, defect in--person bound by proceedings to which he is no party, when--full knowledge--burden of proof--waiver, effect of. - .....hindu lay, near relations. the petitioner was thus clearly a person entitled to intervene in the probate proceedings. it was ruled by this court in the cases of kamona soondury dassee v. hurro lall shaha 8 c. 570 : 10 c.l.r. 400; khettramoni v. shyama churn 21 c. 539; bepin behari v. manoda 6 c.w.n. 912 and brindaban chunder v. sureshwar 3 ind. cas. 178 : 10 c.l.j. 263 that although a reversioner under the hindu daw has no present alienable interest in the property left by the deceased, he is substantially interested in the protection or devolution of the estate, and as such is entitled to appear and be heard in a probate proceeding. this position has not been seriously controverted on behalf of the respondent; but it has been argued that as section 62, unlike section 64, does not.....
Judgment:

1. This appeal is directed against an order of dismissal of an application for revocation of Probate of an alleged Will of one Raj Chandra Uaisya. The testator died on the 25th April 1899, and is said to have made a testamentary disposition of his properties on the 18th April 1899. He left a widow, Anandamayi, and his nearest male relation alive at the time of his death was the appellant, Shyama Charan Baisya, who would consequently be entitled to succeed as reversionary heir on her death. The Will authorised the widow to take a son in adoption and constituted her absolute owner of the estate, if she did not exercise her power of adoption. There were also two legacies, one in favour of Giris Chandra Bhattacharyya, the spiritual guide of the testator, the other in favour of Karunamayi, the daughter of the appellant and the wife of the brother of Anandamayi. No application for Probate was made till the 4th August 1902, more than three years after the death of the tesiator. In this application Anandamayi stated that, besides herself, the deceased had left no other near relation, kindred or heir surviving him, A general citation was issued under Section 69 of the Probate and Administration Act, 1881, on the 7th August 1902, and is said to have been put up on the north wall of the house of the deceased on the 14th August and on the gate of the Court house on the 18th August. Special citation was also issued on the 13th August 1902 on the two legatees. The spiritual preceptor, it is said, declined to give a receipt for the notice, and it was accordingly affixed on the wall of his house on the 25th August 1902. The other legatee was not found in the house of her husband, who declined to receive the notice, which was accordingly affixed on the wall of his house on the 19th August 1902. The return of service states that the lady had gone to the house of her father; there is, in fact, some evidence to show that she was not on good terms with her husband and had been discarded by him; the statement in the return that she had gone to the house of her father may, accordingly, be accepted as a true version. On the 5th September 1902, one Biswanath Baisya filed a caveat, but he does not appear to have persisted in his opposition. The result was that the Will was formally proved and Probate granted on the 22nd September 1902. The Probate was not, however, actually issued till the 28th May 1903. The widow continued in occupation of the estate till her death, which took place on the 2nd December 1910. She appears to have alienated portions of the estate for alleged necessity on the 14th October 1903, 4th December 1905, and 9th October 1907, According to the petitioner, he attempted to take possession of the estate after the death of the widow, but was opposed by the transferees who wet up title by purchase from her as executrix. On the 18th May 1911, he consequently applied fur revocation of Probate on the ground that the Will was a forgery and that the Probate had been obtained without notice to him. The application was opposed by the representatives of the spiritual preceptor and by the transferees from the widow; the other legatee died in 1906. The Subordinate Judge has dismissed the application on the ground that the petitioner was barred by the doctrine of acquiescence. The substantial question in controversy in the present appeal is, whether this view is well-founded.

2. It has not been disputed that the petitioner was the nearest male relation of the testator at the time of his death and was entitled to succeed as reversionary heir on the demise of the widow. The testator and the petitioner were the sons of two sisters, and were, from the point of view of Hindu Lay, near relations. The petitioner was thus clearly a person entitled to intervene in the Probate proceedings. It was ruled by this Court in the cases of Kamona Soondury Dassee v. Hurro Lall Shaha 8 C. 570 : 10 C.L.R. 400; Khettramoni v. Shyama Churn 21 C. 539; Bepin Behari v. Manoda 6 C.W.N. 912 and Brindaban Chunder v. Sureshwar 3 Ind. Cas. 178 : 10 C.L.J. 263 that although a reversioner under the Hindu Daw has no present alienable interest in the property left by the deceased, he is substantially interested in the protection or devolution of the estate, and as such is entitled to appear and be heard in a Probate proceeding. This position has not been seriously controverted on behalf of the respondent; but it has been argued that as Section 62, unlike Section 64, does not specifically require that the names and residences of the family or other relatives of the deceased should he stated in the application, omission to furnish such information does not affect the validity of the proceedings. This need not be disputed; but two points are perfectly plain, namely, first, that if the applicant for Probate chooses to make a statement as to the relations of the deceased the information he gives to the Court must be correct and not misleading and secondly, that as observed in the case of Nistariny v. Brahmomoyi 18 C. 45 at p. 47 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 as to the mode of issuing citations, direct special citations to persons whose rights are immediately affected by the Will. In the case before us, the petition contained the untrue statement that, besides the widow, the deceased had left no other near relation, kindred or heir surviving him. With what motive this statement was made, it is needless to speculate; it is immaterial whether the untrue statement was intentional and fraudulent or was the result of an accidental mistake. The fact remains that the statement was made, and that misled thereby the Court did not direct the issue of special citation on the petitioner, as it would undoubtedly have done if apprised of his existence. Consequently, the proceeding to obtain the grant was defective in substance, within the meaning of the first clause of the explanation to Section 50 of the Probate and Administration Act; reference may, in this connection, be made to illustration appended to that section: In the goods of Gunga Bissen Mundra 2 C.W.N. 607. The respondents were, consequently, driven to invoke the aid of the doctrine that mere omission to serve a special citation is not by itself a sufficient ground for revocation, if it is shown that the person on whom the citation should have been served is otherwise aware of the proceedings. Before this principle is applied to the circumstances of this case, it is necessary to examine its scope and precise import.

3. The leading decision on the subject is the judgment of Sir John Nicholl in Newell v. Weeks (1814) 2 Phillim 224 where he observed as follows: 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 the 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 abundanti cautela, it may still be convenient to resort to it and have it upon record.' To the same effect is a long series of decisions, amongst which may be mentioned, Hoffman v. Norris (1805) 2 Phillim. 230 note; Richardson v. Claney (1802) 2 Phillim. 228; Bell v. Armstrong (1882) 3 Add. 365; Braham v. Burchell (1826) 3 Addam. 243; Blake v Knight (1843) 3 Curt. 547; Merryweather v. Turner (1844) 3 Curt. 802; Ratcliffe v. Barnes (1862) 2 Sw. & Tr. 486 : 31 L.J.P. 61 : 8 Jur. (N.S.) 313 : 6 L.T. 658; Duffy v. Brady (1841) Milward (Irish) 582; Wytcherley v. Andrews (1871) 2 P. & D. 327 : 40 L.J.P. 57 : 25 L.T. 134 : 19 W.R. 1015; Goddard v. Smith (1873) 3 P. & D. 7 : 42 L.J.P. 14 : 28 L.T. 141 : 21 W.R. 247; In re Topping (1853) 2 Rob. 620; Young v. Holloway (1895) P.D. 87 : 64 L.J. P. 55 : 11 R. 596 : 72 L.T. 118 : 43 W.R. 429; Mohan v. Broughton (1899) P.D. 211 : 68 L.J.P. 91 : 81 L.T. 211; Williams v. Mvans (1911) P.D. 175 : 80 L.J.P. 115 : 105 L.T. 79 : 27 T.L.R. 506. The reason for the rule has been thus summarised by Sir John Nicholl in the case first mentioned; Spectators to the whole and privy to the whole, if they had been dissatisfied, they might have intervened at any moment of the proceedings. This right of intervention, coupled with their privity to the proceedings, is decisive to shew that they can have sustained no prejudice by not having been before cited, and not having before given a formal appearance,' To the same effect is the observation of Sir Cresswell in Rutcliffe v. Barnes (1862) 2 Sw. & Tr. 486 : 31 L.J.P. 61 : 8 Jur. (N.S.) 313 : 6 L.T. 658; 'Where a party has had full notice, and has had the opportunity of availing himself of the contest, he will be bound by the decision.' Similarly, Lord Penzance said in Wytcherley v. Andrews (1871) 2 P. & D. 327 : 40 L.J.P. 57 : 25 L.T. 134 : 19 W.R. 1015; 'If a person knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and not be allowed to re-open the case.' The rule that a person is bound by proceedings to which he is no party and of which he has received no notice from Court, thus depends on his full knowledge of the proceedings and his capacity to make himself a party. Consequently cases may be found in the reports which show that a next-of-kin or an executor who has acquiesced in a grant of Probate without full knowledge of the proceedings may obtain a revocation of the grant: Williams v, Evans (1911) P.D. 175 : 80 L.J.P. 115 : 105 L.T. 79 : 27 T.L.R. 506.; Young v. Holloway (1895) P.D. 87 : 64 L.J. P. 55 : 11 R. 596 : 72 L.T. 118 : 43 W.R. 429; Peters v. Tilly (1886 11 P.D. 145 : 55 L.J.P. 75 : 35 W.R. 183; Ritchie v. Malcolm (1902) 2 Ir. R. 403 : 36 I.L.R. 56 : 6 Irish Law. Reports. 783. These principles have been adopted and applied in Indian Courts in a long line of authorities, amongst which may be mentioned, Komollochun Dutt v. Nilruttun 4 C. 360 : 4 C.L.R. 175 : 2 Shome. L.R. 126; Nistariny v. Brahmonmyi 18 C. 45 at p. 47; Brinda v. Radhica 11 C. 492 In re Pitambar Girdhar 5 B. 638; In the goods Bhuggobutty Dasi 27 C. 927 : 4 C.W.N. 757; Rebells v. Rebells 2 C.W.N. 100: Elokeshi v. Hari Prasad 30 C. 528 : 7 C.W.N. 450; Kunja Lal v. Kailash Chandra 7 Ind. Cas. 740 : 14 C.W.N. 1068; Nalini Sundari Gupta v. bejoy Kumar Roy 30 Ind. Cas. 12 : 12 C.L.J. 555; Dwijendra Nath v. Golok Nath 28 Ind. Cas. 574 : 21 C.L.J. 287 : 19 C.W.N. 747. It is further well-settled that where in answer to an application for revocation by a person on whom citation should have been issued, it is pleaded that he did not intervene though aware of the proceedings, the burden of proof that lie had full knowledge is on the person who alleges it; It is not necessary for the party who applies for revocation to prove not only that no special citation was Served on him, but also that he had no knowledge of the proceedings' Prem Chand Das v. Surendra Nath Saha 9 C.W.N. 190. It is thus clear, from what has already been said, that if a person is to be deprived of his right to have the Will proved in his presence, on the ground of acquiescence or waiver, he must be proved to have possessed full knowledge of the fact; for it is elementary that there can be no acquiescence without full knowledge both of the right infringed and of the acts which constitute the infringement; in the words of Turner, V.C. in Marker v. Marker (1851) 9 Hare 1 : 20 L.J. Ch. 246 : 15 Jur. 663 : 68 E.R. 389 : 17 L.T. (O.S.) 177 : 89 R.R. 395 parties cannot be said to acquiesce in the claims of others unless they are fully cognizant of their right to dispute them. See also Beauchamp v. Winn (1873) 6 H.L. 223 : 22 W.R. 193; De Bussche v. Alt (1878) 8 Ch. D. 286 : 47 L.J. Ch. 381 ; 33 L.T. 370; Willmott v. Barber (1880) 15 Ch. D. 96 : 43 L.T. 95 : 28 W.R. 911 There is further, as Lord Cottenham pointed out in Duke of Leeds v. Amherst (1846) 2 Phillips. 117 : 78 R.R. 47 : 41 E.R. 886 : 10 Jur. 956 a distinction between a case where the acquiescence alleged occurs while the act acquiesced in is in progress and another where the acquiescence takes place after the act has been completed. In the former case, the acquiescence is quiescence under such circumstances as that assent may be reasonably inferred from it. In the latter case, when the act is completed without any knowledge or without any assent on the part of the person whose right is infringed, the matter must be determined obviously on very different legal considerations. A right of action has then vested in him, and mere delay to take legal proceedings to redress the injury cannot, by itself, constitute a bar to such proceedings, unless the delay on his part, after he has acquired full knowledge, has affected or altered the position of his opponent. Similarly, a person cannot be barred of his remedy on the ground of waiver, unless at the time of the alleged waiver he is shown to have been fully cognizant of his right and of the facts of the case; for, as Lord Cranworth said in Darnley v. L.C. & D. Railway Co. (1869) 2 H.L. 43 at p. 60 : 36 L.J. Ch. 404 : 16 L.T. 217 : 15 W.R. 817 a waiver must be an intentional act with knowledge. We shall now proceed to test the case before us in the light of these principles.

4. The testator died on the 25th April 1899; the widow remained in occupation of the estate of her husband ostensibly in her character as widow; there is no evidence to show that the Will was produced or set up at any time during the three years and a half which elapsed before the application for Probate was made on the 4th August 1902. There was consequently nothing to put the reversioner on his guard or to rouse his suspicion. When, again, the application for Probate was made, the general citation as also the special citation on the daughter of the appellant were served in a manner not calculated to bring the proceedings to the actual notice of the parties. A caveat was no doubt filed by a distant agnate of the deceased, but for some unexplained reason he did not persist in his opposition. The consequence was that the order was made as in a non-contentious proceeding on the 22nd September 1902. There is no evidence to show that during the few weeks that the application remained pending; the appellant was in any way apprised thereof. The burden of proof, as we have said, is upon the respondents to establish that he had full and definite knowledge of the proceedings taken in Court; this burden they have not discharged. The evidence* is directed to show that the proceedings were known to men in the village or to other members of the community. This is clearly insufficient, for we cannot hold that the appellant is barred by-acquiescence or waiver, unless it is proved that he had full knowledge of the facts, such as would enable him to appear and intervene. It is significant that it was not even put in cross-examination to the appellant that he had become aware of the proceedings before they terminated. There is also nothing to show that he was apprised of the order after it had been made; on the other hand, he pledges his oath that he came to know of the Will and Probate for the first time when after the death of the widow lie attempted to take possession of the estate. The inference follows that the respondents have failed to show that though no special citation was issued to the appellant, he is not entitled to have the Will proved in his presence, as he had such knowledge of the proceedings as would have enabled him to intervene therein or to have the Probate revoked earlier. The case thus falls within the general rule and not within the exception.

5. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside and the Probate revoked. The appellant is entitled to costs both here and in the Court below. We asses the hearing fee in this Come at five gold moliurs. We direct that the record be returned to the Court of the District Judge, so that the Probate case may be restored and the objectors allowed an opportunity to prove the Will in the presence of the appellant; as the executrix and the legatees are dead, the conduct of the proceedings in support of the Will may now be given to such of the representatives of the legatees and the purchasers from the executrix as may desire to carry them on.


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