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Kali Churn Dey and anr. Vs. Muddun Mohun Sircar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1893)ILR20Cal37
AppellantKali Churn Dey and anr.
RespondentMuddun Mohun Sircar
Cases ReferredKomollochun Dutt v. Nilrutton Mundle I.L.R.
Excerpt:
probate - person claiming interest in the estate of the deceased--interest sufficient to support application to revoke probate--revocation of probate--probate and administration act (v of 1881), section 69. - .....sarma sircar, alleging that he was one of the heirs of the late hurro mohun sircar, executed a byana patra for the sale of the properties left by the deceased; and this document states that bishtu charn has received from the respondents before us, kali churn dey and srinath dutt, rs. 220 out of the sum of rs. 300 which was fixed as the consideration for the sale. on the 4th august following, a caveat was entered by bishtu charan; and upon that day he filed a petition asking for a month's time to put in objections to the application for probate. this request was granted, and the 4th of september was fixed for the hearing of the matter. but it appears that on the 29th of august bishtu charn presented a petition to the court stating that he had learnt upon enquiry that the will.....
Judgment:

Ghose, J.

1. This is an appeal from an order revoking the probate of a will granted to Muddun Mohun Sircar, the appellant before us. The will is said to have been executed by the deceased Hurro Mohun Sircar on the 14th Assar 1297 B.S. The application for probate was made on the 14th July 1890. On the 25th idem Bishtu Charn Sarma Sircar, alleging that he was one of the heirs of the late Hurro Mohun Sircar, executed a byana patra for the sale of the properties left by the deceased; and this document states that Bishtu Charn has received from the respondents before us, Kali Churn Dey and Srinath Dutt, Rs. 220 out of the sum of Rs. 300 which was fixed as the consideration for the sale. On the 4th August following, a caveat was entered by Bishtu Charan; and upon that day he filed a petition asking for a month's time to put in objections to the application for probate. This request was granted, and the 4th of September was fixed for the hearing of the matter. But it appears that on the 29th of August Bishtu Charn presented a petition to the Court stating that he had learnt upon enquiry that the will propounded by the petitioner was genuine, and that he no longer objected to probate being granted. The Court accordingly ordered that upon formal evidence being given of the execution of the will probate might be granted to Muddun Mohun; and such formal evidence having been given on the following day, the 30th August, an order was made granting probate to the petitioner. Then, on the 6th September, an application was presented by Kali Churn Dey and Srinath Dutt, the respondents before us, setting up the byana patra from Binhtu Charn, and stating that they were ready to put in their objections on the 4th September, but that on that day they learnt that the matter had been disposed of on the 30th August, and alleging at the same time that a fraud had been practised upon them both by Bishtu Charn and the applicant for probate. The learned Judge of the District Court, however, so far as one can gather from the record, instituted no enquiry as to the genuineness of the byana patra transaction, and without any evidence assumed that the byana patra was true, and acting upon that assumption and upon such materials as were then before him, he came to the conclusion that a fraud had been practised upon the respondents, and that the probate must therefore be revoked. He accordingly revoked the probate and fixed a day for the hearing of the matter in the presence of both parties. The present appeal is by the applicant for probate, Muddun Mohun Sircar; and the main ground that has been urged before us by the learned vakil on his behalf is, that the respondents Kali Churn Dey and Srinath Dutt have no locus standi in this matter, and that the order made by the District Judge recalling the probate is therefore illegal.

2. The argument that has been addressed to us turns upon Section 69 of the Probate and Administration Act (Act V of 1881), which states that 'in all cases it shall be lawful for a District Judge or District Delegate, if he thinks fit, to examine the petitioner in person upon oath, and also to require further evidence of the due execution of the will, or the right of the petitioner to the letters of administration as the case may be, and to issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration,' and so on.

3. It has been contended before us that the respondents Kali Churn Dey and Srinath Dutt did not acquire, by reason of this byana patra, supposing it to be genuine, any such interest in the estate of the deceased as to entitle them to come in and oppose or apply for revocation of the probate. In the case of Komollochun Dutt v. Nilrutton Mundle I.L.R. 4 Cal. 360 a Divisional Bench of this Court was of opinion that a purchaser from the heir of a deceased person has an interest within the meaning of this section, entitling him to come in and apply for revocation of the probate of a will said to have been executed by the deceased, and the opinion thus expressed has never been dissented from; and I may say that I agree with it. The principle of this ruling applies to the present case, and it seems to us that if it be found upon enquiry by the District Judge--an enquiry which has not yet taken place--that Bishtu Churn actually entered into a contract to sell the property of the deceased to the respondents, and received the greater part of the consideration money, the respondents have acquired an interest in the estate, such as would entitle them to come in and ask for a revocation of probate, if it were improperly granted. As matters stand at present, there is no evidence on the record to show that this deed of byana patra is true, or that any consideration really passed under it.

4. We think, therefore, that the order of the District Judge must be set aside and the case sent back to him with directions that he should determine upon evidence, which the parties may adduce, whether or not this byana patra is true, and whether the earnest-money mentioned in it passed, before he proceeds to determine the question as to the authenticity of the will propounded by the petitioner. The costs will abide the result.


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