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Kishen Dai Vs. Satyendra Nath Dutt and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1901)ILR28Cal441
AppellantKishen Dai
RespondentSatyendra Nath Dutt and ors.
Cases ReferredNilmoni Singh Deo v. Umanath Mooherjee
Excerpt:
probate - caveat--judgment--creditor--fraudulent creditor--probate and administration act (v of 1881), section 69. - .....application for probate was made on the 17th idem. the grant of probate is opposed by the patna loan office, which claims to be a creditor of one of the natural heirs of the deceased, namely, gopi chand, his brother; and the allegation of the loan office is that the will in dispute is a forgery, which has been set up at the instance of the brothers of the deceased, gopi chand and puran chand, so as to put the property of the deceased beyond its reach; for, if the property had descended to the natural heirs of the deceased, as it would have done, if there had been no will, then the property would have been liable to be attached in execution of the patna loan office's debt against gopi chand.3 the district judge has found that the will is a forgery and has, therefore, refused probate.4.....
Judgment:

1. This is an appeal against a decision of the District Judge of Patna, dated the 25th of August 1898.

2. The suit, out of which the appeal arises, relates to probate of a will put forward as that of a deceased person named Bal Kishen. The will purports to have been executed on the 25th of July 1897. The testator is said to have died on the 2nd of August 1897, and the application for probate was made on the 17th idem. The grant of probate is opposed by the Patna Loan Office, which claims to be a creditor of one of the natural heirs of the deceased, namely, Gopi Chand, his brother; and the allegation of the Loan Office is that the will in dispute is a forgery, which has been set up at the instance of the brothers of the deceased, Gopi Chand and Puran Chand, so as to put the property of the deceased beyond its reach; for, if the property had descended to the natural heirs of the deceased, as it would have done, if there had been no will, then the property would have been liable to be attached in execution of the Patna Loan Office's debt against Gopi Chand.

3 The District Judge has found that the will is a forgery and has, therefore, refused probate.

4 The applicant for the grant of probate now appeals; and on his behalf two grounds of appeal have been pressed before us, namely, first, that the Patna Loan Office has no locus standi in this case, and, secondly, that the decision of the District Judge refusing probate is against the weight of evidence.

5 We cannot admit the force of either of these contentions.

6 It appears to us that the Patna Loan Office is a person who has a right to come in and oppose the grant of probate under Section 69 of the Probate and Administration Act, inasmuch as it is a corporate body having an interest in the estate of the deceased. The learned pleader for the appellant maintains that the Patna Loan Office cannot be a person claiming to have any interest in the estate of the deceased, because the Patna Loan Office claims to have an interest in the estate of Gopi Chand, the brother of the deceased, and not in the estate of the deceased Balkishen. But we think that the pleader for the appellant puts too narrow a construction on the words in Section 69, 'claiming to have any interest in the estate of the deceased.' In our opinion they mean 'claiming to have an interest in the property left by the deceased,' because it is clear that, when a person dies leaving any property, that property must descend to some one else, and, therefore, strictly speaking, there can be no person claiming to have any interest in the estate of the deceased person. Every person who comes in to oppose the grant of probate must be a person claiming to have an interest in the estate left by 'the deceased. Now in this case the Patna Loan Office would seem to us to' have a clear claim to an interest in the property left by the deceased, because, if it were not for this will, it would have a right to seize the property, or that share of the property, which should descend to Gopi Chand, in exeoution of the decree which it has obtained against him. The Judge in the Court below has relied on two rulings. The first of these is to be found in the case of Umanath Moohhopadhya v. Nilmoni Singh (1880) I.L.R. Cal. 429, in which it is laid down that ' the judgment-creditor, who has attached property of his debtor, which purports to have been inherited by such debtor from his deceased father, may, where the will of such deceased is set up and proved at variance to his interests, apply for a revocation of the order granting probate of the will so set up.' That would seem to support the view of the Judge that the Patna Loan Office has a locus standi in this case. That case was appealed to the Privy Council and the judgment of their Lordships of the Privy Council, which is to be found in the case of Nilmoni Singh Deo v. Umanath Mooherjee (1883) I.L.R. 10 Cal. 19 affirms the decision of this Court on the merits, the will having been held by the Privy Council to be a genuine will. In their judgment it is said 'that, whether an attaching creditor can oppose the grant of probate or apply to have it revoked is a matter of grave doubt, at least in a case which is not founded on the ground that the probate has been obtained in fraud of the creditors. Now, in the first place, we observe that in this passage of the Judgment of the Privy Council their Lordships do not expressly say that an attaching creditor cannot oppose the grant of probate or apply to have it revoked, and in the second place they seem to imply that, in a case which is founded on the ground that the grant of probate has been obtained in fraud of the creditor, such attaching creditor would have a right to come in and oppose the grant of probate. That seems to us to be authority for holding that the Patna Loan Office has a right to come in and oppose the grant of probate, because in the present case it is expressly alleged by the Patna Loan Office that the will has been set up by two brothers of the deceased Gopi Chand and Puran Chand, so as to defraud it and put the property of the deceased beyond its reach. We, therefore, must find that the Patna Loan Office has a locus standi in this case and is entitled to come in and oppose the grant of probate.

7 On the merits, too, we think that the judgment of the lower Court is perfectly right. The will is a very suspicious will. The testator Bal kishen died, leaving him surviving two brothers, of adult age, Gopi Chand and Puran Chand, and the will purports to bequeath the testator's property to an infant of five or six years of age, who could not possibly manage it and to appoint the mother of the infant as his guardian. The mother would seem to us to be a very unsuitable person to manage the property, and there would seem to us to be no reason for excluding Puran Chand or Gopi Chand from the management of the property, except that it was desired to avoid complications with the Patna Loan Office and the other creditors of these two persons. Then, the draft of the will has not been produced and the will has not been registered. The evidence as to its execution seems to us very unsatisfactory and not altogether consistent. One witness Jai Narain Misser, according to his endorsement upon the will, executed it on the admission of the testator, whereas in his deposition he says that he actually saw the testator sign it in his presence. We, therefore, consider that on the merits the decision of the Judge is perfectly correct, and we dismiss this appeal with costs.


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