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Ranmaya Gaorangini Vs. Betty Mahbert and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1927Cal207
AppellantRanmaya Gaorangini
RespondentBetty Mahbert and ors.
Cases ReferredNabagopal v. Srigopal
Excerpt:
- .....a sound judicial discretion in making the grant without issuing citations on the daughters. it has been repeatedly enjoined by this court that citations should always issue to parties who are known to the court to be interested or to claim any interest in the estate of the deceased. this ground, however, as a ground of revocation, fails in the circumstances of the case.13. the appeal accordingly must be, and is, dismissed with costs as against the respondent no. 1, hearing-fee being assessed at three gold mohurs. the other respondents who have appeared and supported the appellant must bear their own costs.greaves, j.14. i agree.
Judgment:

Mukerji, J.

1. This appeal has been preferred from an order refusing to revoke a grant of letters of administration. One Mrs. Benjamin, a native Christian, died leaving three sisters, three nieces by a predeceased sister, and two nephews and three nieces by a predeceased brother. Betty Mahbert who is one of the daughters of the predeceased sister obtained letters of administration from the District Judge on the 3rd January 1924 and she is the principal respondent in this appeal. Ranmaya Gaorangini alias Koili alias Rasidunnissa who is a sister of the said Mrs. Benjamin, on the 23rd July 1924, applied for revocation of the grant and her application being refused has preferred this appeal.

2. The application for revocation filed on the 23rd. July 1924 was based upon various grounds of which two only have been pressed in this appeal. The first of these grounds is to the effect that there were two minor sons of Rajman, the deceased brother of Mrs. Benjamin, named Dhan Bahadur and Harka Bahadur, living under the guardianship of their mother, Hiramaya; but no guardian ad litem had been appointed in respect of the said minors and the citation on Hiramaya that was issued by the Court was not sufficient as she was not a properly constituted guardian competent to represent the said minors.

3. The second ground asserts that Betty Mahbert in her affidavit of assets had fraudulently undervalued them by omitting to mention a sum of Rs. 541 which stood to the credit of the deceased in the Forest Department and by not showing the valuation of a certain jote which belonged to the deceased. To these a third ground has been added, drawn from a petition filed on the 16th September 1924 by the appellant when the revocation proceedings were pending in the Court below by which she amended or supplemented her original petition for revocation. This ground is to the effect that there were three daughters of Rajman named Mankala, Kamalmaya and Sibey, and that the grant had been made without issuing any citation on them. A fourth ground has also been urged complaining of the propriety of the order passed by the District Judge by which he rejected the appellant's application for adjournment on the day that the case was heard and disposed of.

4. I shall deal with this ground first. The application for revocation came on for hearing on the 5th January 1925. The appellant was absent on that day and on her behalf was filed a petition unsupported by any affidavit in which it was stated that a son of hers had died a few days before and she herself was ill. I am unable to say that the Judge was wrong in refusing to adjourn the case on a petition of this sort. Moreover it is said here on behalf of the respondent Betty Mahbert that she had proved in some proceedings that were before this Court in connexion with the case that the statements in the aforesaid petition were not true, the appellant's son having in fact died long before and that she herself was not ill as was alleged. This argument of the respondent has not been controverted in reply. This ground therefore has no substance.

5. As regards the first ground what appears upon the record is this. In a petition filed on behalf of Betty Mahbert on the 1st September 1924 it was stated that the infants Dhan Bahadur and Harka Bahadur were away in Burma and their mother and next friend Hiramaya Gurangini was living at Gayabari. The notices addressed to Hiramaya Gurangini as mother and next friend of the said infants were sent to her. It is complained that only a post card notice was sent, but it matters little that it was so; for, in fact, she appeared in the proceedings and as such guardian. She appears to have taken part in the proceedings and put in a petition stating the shares which her sons would, according to her, be entitled Ito. She does not appear to have done anything injurious to the interest of her sons and nothing has been shown to us which may suggest that their interest was not properly looked after. It must under the circumstances be held, despite the absence of a formal order appointing her guardian ad litem on behalf of the infants, that the infants were effectively represented by her in the proceedings : Walian v. Banke Behari Per shad Singh [1903] 30 Cal. 1021. This ground accordingly must fail.

6. As regards the second ground it is-sufficient to state that it was completely traversed in the objection that was filed on behalf of Betty Mahbert on the 16th September 1924 and there is nothing on the record to substantiate the appellant's assertion as to under-valuation.

7. The third ground now remains to be considered. SO far as this ground is concerned it is the brevity of the learned Judge's order which has caused soma difficulty. He has disposed of it in these words:

Heard pleader. The only reason which can be consider 'just cause' is the failure to issue citations to the alleged sisters of the two minors. That objection was taken in the case and it is not open to the same parties to raise the objection. If those parsons have any grievance, it is for them to appear and ask the Court for revocation.

8. The respondent seeks to support the order by contending that the appellant had taken this objection in the proceedings for the grant, bot notwithstanding that no issue had been raised therein relating to this objection and that she cannot be heard in support of this objection again as a ground for revocation of the grant. I am not prepared to attach much importance to this argument of the respondent. The appellant no doubt had brought this matter to the notice of the Court, but if in spite of that the daughters ware not cited and letters were granted, there is no rule of res judicata nor any similar rule that I know of that would preclude the appellant from putting forward this omission as a ground for revoking the grant.

9. The respondent next urges that the fact that no issue was raised on the point and there is no discussion of it in the order granting the letters suggests that this objection was not seriously pressed. There again I must differ; for I do not find any materials on which it may be definitely said that the objection was taken otherwise than bona fide. The respondent further urges that the said daughters were made parties to the revocation proceedings and to the present appeal and they have-not appeared till now, and that this fact suggests that they are not interested in questioning the validity of the grant. That undoubtedly is so, but still the question has to be considered as to whether omission to cite necessary parties necessarily invalidates a grant and calls for its revocation. That the daughters of Rajman were necessary parties to whom citation ought to have issued is a position which cannot be disputed and indeed had not been disputed. For the broad proposition that such an omission of itself invalidates a grant reliance has been placed on behalf of the appellant on the decision in the case of Akhileswari Dasi v. Hari Charan Mirdha : AIR1925Cal223 .

10. On behalf of the respondents it has been urged that Section 250 of the Succession Act gives a discretion to the Judge in the matter of issuing citation, and the only case where such omission amounts to a just cause for revocation under Section 234 of the Act is a case of an omission to issue a citation such as is mentioned in Section 193 or Section 199 of the Act and is compulsory; and in support of this contention reliance has been placed upon the case of Digambar Keshev Srotri v. Narayan Vithal Ashtekar [1910] 13 Bom. L.R. 38. This last mentioned case, which related to a Will and was under the Probate and Administration Act, it is true, lays down a distinction between compulsory citations and discretionary citations on reference to Section 16 and Section 69 of that Act; but I doubt very much whether the learned Judges intended to lay it down that it is only compulsory citations which would come within III. (b) to Section 50 of the Act as has been contended for before us. The judgment in that case to my mind is not inconsistent with the view that they held that both classes of citations come within the illustration, but that the question whether the grant should be revoked or not would depend upon the circumstances, that is to say, in the case of compulsory citations nothing else need be considered, while in the case of discretionary citations other considerations have to be taken into account. This precise contention which the respondent has now put forward was urged in this Court in the case of Walters Rebells v. Maria Rebells [1897] 2 C.W.N. 100 and was not accepted as well founded (see the judgment of Banerjee, J., in that case) and I agree with what was said by the learned Judge in his judgment in that case.

11. In my opinion it must be held in the words of III. (b) to Section 234 of the Succession Act, that the grant was made without citing parties who ought to have been cited. The question then arises whether if the case comes within III. (b) the grant must necessarily be revoked or annulled. The appellant's contention is that it must be. The case Akhileswari Dasi v. Hari Charan Mirdha : AIR1925Cal223 and the case of Dwijendra v. Golok [1914] 19 C.W.N. 747, Rebells v. Rebells [1897] 2 C.W.N. 100 and Shoroshibala v. Anandamayee [1906] 12 C.W.N. 6; and the case of Nabagopal v. Srigopal [1915] 23 C.L.J. 79; upon which it proceeds are all cases of Wills, and omission to take steps for the proper representation of minors concerned therein. There is, in my opinion, a bread distinction between cases of Wills and cases of intestacy in the matter of citations; for in the former cases the proof of a Will in a majority of cases, if not in all, acts prejudicially to the legitimate rights of those who would inherit or be entitled to the properties in the absence of a Will, and omission to cite them is likely to affect such rights of theirs in their absence, while in the latter cases such omission only affects their preferential right to administer, or prevents them from objecting to the personnel of the administrator or to like matters and it is not until there is any mal-administration that they are really affected. These considerations lead to different results in different cases.

12. In the present case, in view of the fact; that the daughters themselves have not yet complained of the proceedings having taken place in their absence, the omission to cite them does not, in my opinion, call for revocation of the grant. I wish to guard against suggesting in any way that the proceedings were not defective or that the District Judge exercised a sound judicial discretion in making the grant without issuing citations on the daughters. It has been repeatedly enjoined by this Court that citations should always issue to parties who are known to the Court to be interested or to claim any interest in the estate of the deceased. This ground, however, as a ground of revocation, fails in the circumstances of the case.

13. The appeal accordingly must be, and is, dismissed with costs as against the Respondent No. 1, hearing-fee being assessed at three gold mohurs. The other respondents who have appeared and supported the appellant must bear their own costs.

Greaves, J.

14. I agree.


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