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Manorama Chowdhurani Vs. Shiva Sundari Mozumdar - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata
Decided On
Judge
Reported in(1915)ILR42Cal480
AppellantManorama Chowdhurani
RespondentShiva Sundari Mozumdar
DispositionAppeal dismissed
Cases ReferredKunja Lal Chowdliury v. Kailash Chandra Chowdhury
Excerpt:
probate - rerocation--will, validity of--proof in common form--knowledge--acquiescence--delay--probate and administration act (v of 1881) section 50. - .....mozumdar, was born in 1883. the fifth daughter is dead.3. it is fully established by evidence that shiva sundari, the widow of the testator, took out the probate on the 20th march 1884. and in a rent suit in 1880 the will was filed by her confidential servant, kali kanta biswas, and returned to him. in 1887 the petitioner then 11 years of age was married, and there is evidence that the will was read out to her husband, a pleader's clerk, who has since become a vernacular copyist in the (sic)mansifs court at (sic)lakhipnr and herself at the time of the marriage. in accordance with the terms of the will, kasum kumari one of the daughters gave receipts for her allowance to her mother in 1887 and to her mother and khuri the mother of the objectors jointly for the years 1888 and 1891. two.....
Judgment:

Holmwood and Chapman JJ.

1. This Was a Suit for revocation o[ probate of the will of one Gobinda Chandra Das Mozumdar calling upon the executor to prove the will in the presence of the petitioner.

2. The testator died on the 27th or 28th December 1883 of cholera in a boat and the will was said to have been executed on the 27th December 1883. He left a widow and five minor daughters unmarried as well its two brother's sons, the objectors in this case, who were then also minors. By the will the widow got a life estate with remainder to the brother a sons, and the daughters were given allowance for maintenance of Rs. 12 a year each. The petitioner. Manorama Chowdhurani, is the only one of the, daughters who has borne sons, and she claims to come in because admittedly although general citations were issued and her mother obtained probate of the will, no separate guardian ad litem was appointed to represent the minor daughters or the minor brother's sons in the probate proceeding. The eldest daughter, Kusum Kamari now n childless widow, was born about 1869; the younger brother's son, Sasi Mohan Das Mozumdar, was born in 1872; the 2nd daughter, Kumudini, was born in 1871; the petitioner was born in 1876; the fourth daughter, Kadambini, was born in 1880, and the younger brother's son, Kamini Mohan Mozumdar, was born in 1883. The fifth daughter is dead.

3. It is fully established by evidence that Shiva Sundari, the widow of the testator, took out the probate on the 20th March 1884. and in a rent suit in 1880 the will was filed by her confidential servant, Kali Kanta Biswas, and returned to him. In 1887 the petitioner then 11 years of age was married, and there is evidence that the will was read out to her husband, a pleader's clerk, who has since become a vernacular copyist in the (sic)Mansifs Court at (sic)Lakhipnr and herself at the time of the marriage. In accordance with the terms of the will, Kasum Kumari one of the daughters gave receipts for her allowance to her mother in 1887 and to her mother and Khuri the mother of the objectors jointly for the years 1888 and 1891. Two subsequent receipts of hers, tho first given to her mother and Sasi Mohan jointly and the second to her mother alone, have also been produced. Receipts of a similar nature granted by Kumudini for 1890 and 1901 are produced and from Kadambini for 1903. But the most important document is the receipt given by the petitioner herself in 1901 for Rs. 200, being the arrears of her maintenance for 16 years from 1885 to 1900 and three quarters of her allowance of 1901. All these receipts clearly recite that her father Gobinda before his death executed a will on the 13th Pous 1290 and in the said will he made directions for payment of Rs. 12 annually to the recipient as allowance out of the profits of the estate. In 1909 the objectors, Sasi Mohan and Kamini Mohan, had occasion to bring a suit for accounts against Kali Kanth Biswas who was managing for Shiva Sundari and for their own mother and they made Shiva Sundari a defendant also. This appears to have annoyed Shiva Sundari who separated from her sister-in-law and the objectors and went over to the side of the petitioner and her husband and in 1910 this petition was brought making Shiva Sundari alone a party. Upon this the objectors came in and said that the petition was fraudulent and collusive and got up by Shiva Sundari. At the trial Shiva Sundari and all the surviving daughters denied the will altogether and denied they had received any allowance and supported the petitioner in her allegation that she had no knowledge of the will of her father or of the probate case until Kartic 1316 when she went to visit her father's house.

4. As regards the facts, we may at once say that we have carefully perused the documents and can have no doubt that the receipt Ex. A is in the hand-writing of the petitioner herself, and the other receipts are genuine. Numerous specimens of the handwriting of the ladies have been produced in the shape of affectionate letters and post-cards written by them to the objectors and to their own mother, the authenticity of which cannot for one moment be doubted, though the witnesses of the petitioner have bad the audacity to deny all knowledge of them. It is clear from the correspondence that up till 1909 the sisters were on the most affectionate terms with their cousins, the objectors. One of the letters speaks of the objectors as the only hope of carrying on their father's name.

5. We, therefore, find, two main facts against the petitioner: first, that her petition is not bond fide but collusive and fraudulent, made solely as an answer to the suit for accounts against their, mother and her agent; and, secondly, that no resonable account is given of the circumstances which entitled the petitioner to reopen the probate after so many years. The account she does give is entirely false, and as Shiva Sundari herself undoubtedly obtained the probate and they knew of it and acquiesced in it for many years they must on the authorities give some good and true reason why they had not proceeded earlier. This doctrine is clearly laid down in Hoffman v. Norris (1805) 2 Phillim. 230. which was cited with approval in Merryweather v. Turner (1844) 3 Curt. 802, 813. where it was stated that the ground or principle upon which the Court proceeded in Hoffman v. Norris (1805) 2 Phillim. 230 was that the petitioner was not barred by lapse of time, if he can show good reason why he did not proceed at the earlierl period; but if be does not show good cause the Probate Court will not allow him to call in the will after such a lapse of time. The same view has been taken by this Court in Kunja Lal Chowdliury v. Kailash Chandra Chowdhury (1).

6. It is urged that in all these cases there had been collateral litigation in other Courts to which the petitioner had been a party and was thereby saddled with knowledge and acquiescence. But it does not seem to us to matrer by what facts such knowledge and acquiescence are established, for neither knowledge, nor acquiescence, nor lapse of time, are of themselves operative as a bar to the proceeding which every person interested in the estate of the testator has a right to bring; if they were not made parties in the probate proceeding. What is held is that where knowledge, acquiescence and lapse of time are shown, the petitioner must give some reasonable and true explanation of the delay; or, in other words, the application must be made bona fide.

7. We are of opinion, apart from all authority, that our tiding that this petition is a dishouest and vindictive proceeding supported by false evidence and not putting the true facts at all before the Court, is certainly a bar to the reopening of the probate obtained 30 years ago under circumstances which created no suspicion of a will the provisions of which have been accepted by all the parties as reasonable and proper and such as the testator would be likely to make.

8. The appeal is therefore dismissed with costs.


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