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Sailabala Dasi Vs. Baidya Nath Rakshit and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Reported inAIR1928Cal580,110Ind.Cas.542
AppellantSailabala Dasi
RespondentBaidya Nath Rakshit and anr.
Excerpt:
- .....thereupon the lady presented a petition in which she said that by an omission she was not granted probate along with the respondents and prayed that probate might be granted to her along with the other named executors. this matter came up for hearing before the learned judge who dismissed her application mainly upon the ground that the widow had renounced her executorship and in clearer terms than a mere statement that she desired to renounce the executorship. the learned judge observed that when a will was challenge by a person and entirely repudiated by him, he could not turn round and say that, he was entitled to probate. he observed that the principle was founded on equity that one cannot approbate and reprobate at the same time. the learned judge also refers to the doctrine.....
Judgment:

B.B. Ghose, J.

1. This appeal arises out of a vary novel proceeding before the lower Court. The facts are these: The respondents applied for probate of a will executed by one Jatish Chandra Pal. The appellant in this appeal is his widow. The respondents as well as the appellant were named as executors in the will. The appellant did not apply for probate and so she was joined as opposite party in the application for probate made by the respondents. The lady presented a petition alleging that she did not admit the will nor did she admit that the will had f been properly executed or attested according to law. She, however, stated in para. 6 of her petition that if the will be proved to have been properly executed and attested she was willing and 'claimed' to get the probate as executrix; and in her prayer she said that the petition for probate might be dismissed after taking evidence, or if the will be proved to have been properly executed and attested probate might be given to her jointly with the respondents. It appears that the question about the due execution of the will was fought out. The lady in her evidence disputed the genuineness of the will. In spite of her evidence it was found that the will was properly executed and probate was granted to the respondents. Thereupon the lady presented a petition in which she said that by an omission she was not granted probate along with the respondents and prayed that probate might be granted to her along with the other named executors. This matter came up for hearing before the learned Judge who dismissed her application mainly upon the ground that the widow had renounced her executorship and in clearer terms than a mere statement that she desired to renounce the executorship. The learned Judge observed that when a will was challenge by a person and entirely repudiated by him, he could not turn round and say that, he was entitled to probate. He observed that the principle was founded on equity that one cannot approbate and reprobate at the same time. The learned Judge also refers to the doctrine of election. At the end the learned Judge stated that by challenging the will as forged the widow repudiated the will and by her conduct renounced her right to probate. Upon that findings he dismissed the application.

2. She has appealed from that order and it is contended on her behalf that the order of the learned Judge is not warranted by law and that she is entitled to probate. Reference was made in the course of the agreement to Section 230, Succession Act 1925, where it is stated that renunciation may be made only in the presence of the Judge or by writing signed by the person renouncing and it was urged that nothing like that having been done, the widow, although she contested the will, was entitled to ask for probate. The question is free from authority and neither the appellant nor the respondents could point out any authority with reference to this question. The matter of probate is governed by statute and we must look to the statute in order to find whether a particular executor is entitled to grant of probate or not according to the provisions of the law.

3. It is contended on behalf of the respondents that Section 230 does not apply to the present case. That section must be read along with Section 229. Section 229 provides that letters of administration cannot be granted unless the executor has renounced his executorship and without citation being issued calling upon the executor either to accept or to renounce his executorship, and Section 230 refers to the manner of renunciation in such a case. That argument seems to me to be sound. Leaving the question of applicability of Section 230 of the Act aside there does not appear to be any other provision in the Act which precludes an executor from asking for probate at any time. Under Section 224, Succession Act, where several executors are appointed probate may be granted to them all simultaneously or at different times. Where there is a statutory law governing the question of grant of probate to executors, I do not think that it is open to us to apply any general principles of law and. to refuse grant of probate to a named executor on the ground of his disputing the will or any other ground for which the law does not authorize the Court to refuse grant of probate. In this case, therefore, in our judgment we do not think that it would be right to refuse grant of probate to the appellant on the ground that she actually gave evidence against the due execution of the will. To do so might seriously affect her right to any legacy under the will.

4. We, therefore, set aside the order of the learned Judge and direct that probate be granted to the appellant along with the respondents who have already been granted probate.

5. The appellant is entitled to Tier costs in this Court. We assess the hearing fee at five gold mohurs.

Cammiade, J.

6. I agree.


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