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Gerindra Kumar Das Gupta and ors. Vs. Rajeswari Roy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1900)27TTJ(Cal)5
AppellantGerindra Kumar Das Gupta and ors.
RespondentRajeswari Roy
Cases ReferredKhettramoni Dasi v. Shyama Churn Kund
Excerpt:
appeal - order refusing to amend a clerical error in the form of probate--probate and administration act (v of 1831), section 86--succession act (x of 1865), section 263--exercise of power of high court under section 622 of the civil procedure code, 1882, when there is no appeal. - .....an order of the judicial commissioner of chota nagpur, dated the 25th march 1898, refusing to amend a probate granted by his predecessor on the 18th june 1897.2. it appears that the applicant to this court applied for probate to the judicial commissioner of chota nagpur, on the 25th january 1897, and probate was granted accordingly. but, in issuing the probate, a printed form was made use of according to which the probate purports to have been granted under section 254 of act x of 1865, as amended by sections 8 and 9 of act vi of 1881 and section 4 of act vi of 1889, these words should apparently have been struck out from the probate, inasmuch as the applicant did not apply for probate under these acts or sections.3. the testator was a hindu, and his application must be understood.....
Judgment:

Rampini and Pratt, JJ.

1. This is an appeal against an order of the Judicial Commissioner of Chota Nagpur, dated the 25th March 1898, refusing to amend a probate granted by his predecessor on the 18th June 1897.

2. It appears that the applicant to this Court applied for probate to the Judicial Commissioner of Chota Nagpur, on the 25th January 1897, and probate was granted accordingly. But, in issuing the probate, a printed form was made use of according to which the probate purports to have been granted under Section 254 of Act X of 1865, as amended by Sections 8 and 9 of Act VI of 1881 and Section 4 of Act VI of 1889, These words should apparently have been struck out from the probate, inasmuch as the applicant did not apply for probate under these Acts or sections.

3. The testator was a Hindu, and his application must be understood to have been made under Section 76 of Act V of 1881, as amended by Section 12 of Act VI of 1889, and the Judicial Commissioner's order must be understood as having been passed under Act V of 1881. Owing, however, to a clerical error in the form of the probate, the applicant had some difficulty in administering the estate of the deceased; and he applied to the Judicial Commissioner of Chota Nagpur to amend the probate. The Judicial Commissioner, Mr. Cowley, having gone away, the application was made to his successor, Mr. Taylor, who refused to make the correction on the ground that be could not amend a probate issued by his predecessor. It is very doubtful whether there is any appeal in this case. We do not think that any appeal lies either under Section 263 of the Succession Act or under Section 86 of the Probate and Administration Act. But we think we may deal with the case as an application under Section 622 of the Code of Civil Procedure. We find a precedent for this course in the case of Khettramoni Dasi v. Shyama Churn Kund (1894) I.L.R., 21 Cal., 539....';

4. We, therefore, set aside the order of the Judicial Commissioner, and remand the case to him with a direction that he should amend the probate granted to the applicant by striking out the incorrect sections cited at the top of the probate.

5. We make no order as to costs.


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