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NabIn Chandra Guha Vs. Nibaran Chandra Biswas and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal734,140Ind.Cas.54
AppellantNabIn Chandra Guha
RespondentNibaran Chandra Biswas and ors.
Cases ReferredMokshadayini v. Karnadhar
Excerpt:
- .....chandra guha who was named as a defendant in the said petition filed an objection but the district judge held that he had no locus standi to oppose the grant. immediately thereafter he examined the applicant and made an order ex parte for grant of letters of administration. prom this order the present appeal has been taken.2. the appellant happens to have purchased one of the properties disposed of by the will at an auction sale held in. 1918 in execution of a decree for rent thereof which was obtained by the landlord. this decree had been obtained by the landlord in a suit laid against one of the daughters of the testator, the other two daughters having died long before, on the footing that she was the sole heir of the said testator. it should be pointed out here that under the will all.....
Judgment:

1. This is an appeal from a decision of the District Judge of Backer-gunge by which he has granted Letters of Administration with a copy of the will annexed of one Madhab Chandra Mistry to the respondent Nibaran Chandra Biswas. The will is alleged to have been executed by the testator Madhab Chandra Mistry on 9th December 1898 and appears to have been registered on his own admission as to execution on the 14th of that month. The testator is said to have died in Magh 1305 B. S., that is to say about two months after the will, and to have left three daughters. On 9th July 1929 the respondent, Nibaran Chandra Biswas, the only son of one of those daughters, who is dead, applied for Letters of Administration with a copy of the said will. The appellant Nabin Chandra Guha who was named as a defendant in the said petition filed an objection but the District Judge held that he had no locus standi to oppose the grant. Immediately thereafter he examined the applicant and made an order ex parte for grant of Letters of Administration. Prom this order the present appeal has been taken.

2. The appellant happens to have purchased one of the properties disposed of by the will at an auction sale held in. 1918 in execution of a decree for rent thereof which was obtained by the landlord. This decree had been obtained by the landlord in a suit laid against one of the daughters of the testator, the other two daughters having died long before, on the footing that she was the sole heir of the said testator. It should be pointed out here that under the will all the properties were to vest in the three daughters after the testator's death and in case any of the daughters predeceased him her sons and heirs would get her share. The District Judge observed in his order:

He is not a legatee. Ha is not an heir and he has derived no interest in the estate from the deceased himself. To permit him to contest the grant merely on the ground of a subsequent derivation of title to some of the deceased's property would be to introduce an issue which a probate Court has no jurisdiction to determine. It is a bare issue on a question of title raised by a stranger on a transaction subsequent to the testator's death and this is not within the scope of a Court sitting in probate.

3. A preliminary objection has been taken on behalf of the respondent to the competency of the appeal and two decisions of this Court have been relied upon in support, viz., Khettra Moni Dasi v. Shyama Churn Kundu [1894] 21 Cal. 539 and Radha Raman Chaudhury v. Gopal Chandra Chakravarti A.I.R. 1920 Cal. 459. In the former case the appeal was preferred by a person whose application to be made a party to the proceeding and to intervene was refused by an order passed on a certain date, and on a subsequent date the case was heard and order was made for grant of probate, and it was from the former order that the appeal was preferred. This Court, in that appeal, held that no appeal lay as, regarding Sections 86 and 53, Probate and Administration Act (5 of 1881) together, it appeared that an appeal was permissible only in a case in which such an appeal would lie under the Code of Civil Procedure. The learned Judges pointed out that the Code did not allow an appeal from an order refusing to add the name of a person as plaintiff or defendant and so no appeal would lie from the order refusing the application which the appellant had made in the Court below to be made a party. There was no appeal in that case, as there is in the case before us, from the order which was made for the grant. In the case of Radha Raman Chaudhury v. Gopal Chandra Chakravarti (2) the appeal had been preferred by certain persons who wanted to oppose the grant but were refused on the ground that they had no locus standi and the appeal, as far as may be made out was from the said order of refusal, in which it was also stated that 'probate would be granted to the respondent on proot of the will in common form.'

4. The appellants had, it appears, filed an application for revision under Section 115 of the Code in the alternative. The learned Judges said:

It has been held in several cases that no appeal lies against such an order. The order however can be revised upon the application under Section 115, Civil P. C.,

and proceeded to revise the order complained of. That also therefore was not a case where, as here the appeal was preferred from the order granting the probate. That an order refusing a caveator to oppose a grant is not appealable has been held in other cases as well, e. g., Sri Prosad Narain Singh v. Mt. Dulhin Genda Koer A.I.R. 1914 Cal. 259 and Indu Bala Debi v. Panchu Mani Dasi [1915] 28 I. C. 578. These apparently were the class of cases which Chatterjea, J., had in mind when he made the observations in the case of Radha Raman Chaudhury v. Gopal Chandra Chakravarti A.I.R. 1920 Cal. 459 which have been [((noted above. We are of opinion that Section 299, Succession Act, clearly gives a right of appeal from the order complained of in the present case and we must accordingly overrule the prelimimary objection.

5. It was next urged on behalf of the respondent that inasmuch as there is nothing illegal or wrong on the face of the order complained of its validity can only be challenged on behalf of the appellant by showing that the decision of the District Judge on the question of his locus standi is erroneous. This must be so. To show that that decision is correct it has been urged that the appellant has no interest within the meaning of Section 283, Succession Act. The words in that section are:

all persons claiming to have any interest in the estate of the deceased.

6. These words have from time to time been explained by judicial decisions. Brindaban Chandra Saha v. Sureswar Saha [1909] 3 I. C. 178 may be taken as an authority for the proposition that any interest,, however slight, and even the possibility of an interest, is sufficient to entitle a party to oppose a testamentary paper. That apparently is the rule of English practice. And 'possibility of an interest' does not apply to possibility of a party filling a character which would give him an interest but to the possibility of his having an interest in the result of setting aside the will: Crispin v. Doglioni (1860] 2 Sw. & Tr. 17. Whether this rule should be taken to be applicable in its entirety in this country seems to have been questioned in the case of Satindra Mohan v. Sarala Sundari [1918] 45 I. C. 59. Taking the words of Section 283 in their natural meaning it is in our opinion sufficient to interpret them as implying a real interest which is or is likely to be prejudicially or adversely affected by the will: see Akhilesivari Debi v. Hari Charan : AIR1925Cal223 . It is difficult to say that the appellant does not fulfil this requirement. The purchase that he has made stands the chance of being affected if the terms of the will were effective at the date of the suit; for then in certain events and circumstances what he purchased might be held to be only the right, title and interest of the judgment-debtor and not the holding itself.

7. A purchaser from an heir after the death of the testator has a locus standi; and to have it is not necessary for the objector to show that he had an interest in the estate at the time of the testator's death : Komol Lochan Dutt v. Nilratan Mundle [1879] 4 Cal. 360 Maddun Mohan Sir-oar v. Kali Charan Dey [1893] 20 Cal. 37. So also it has been held that an assignee from an heir of the testator after the latter's death has locus standi to apply for revocation of a probate already granted: Sheikh Azim v. Chandra Nath [1904] 8 C. W. N. 748 Mokshadayini v. Karnadhar [1915] 31 I. C. 702. For these reasons we hold that the second contention of the respondent as also the view on which the learned Judge has proceeded must be overruled. The result is that this appeal will succeed. The order of the Court below is set aside and the application of the respondent for Letters of Administration should be dealt with on giving the appellant an opportunity to contest the proceedings. Costs of this appeal--hearing fee being assessed at two gold mohurs--will abide the result of the case in the Court below.


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