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Nalini Sundari Gupta and anr. Vs. Bejoy Kumar Roy Chowdhuty - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in30Ind.Cas.12
AppellantNalini Sundari Gupta and anr.
RespondentBejoy Kumar Roy Chowdhuty
Cases ReferredKanja Lal Ckotcdhury v. Kaitash Chandra Chowdhury
Excerpt:
probate, rerocation of - non-citation--special notice, non-service of, effect of. - .....he left a widow named nalini sundari gupta, the appellant-opposite party in this case, a daughter, sarat sasi by another wife niroda sundari gupta, and his mother bama sundari. bama sundari applied for probate of her son's will, but died before the order on her application was made. an order in this matter was passed on the 31st march 1884. the next proceedings were the two applications one by prosonno chandra sen, the father of nalini sundari, and the other by umesh chandra mojumdar, the brother of niroda sundari, for letters of administration with the will annexed. both these applications were refused on the 2nd april 1834. the matter was then brought up to this court, but the appeal was dismissed on the ground that no letters of administration could be granted, the estate then being.....
Judgment:

1. This appeal arises out of an application made by one Bejoy Kumar Roy Chowdhury for revocation of Probate of the Will of one Kashi Nath Gupta. Kashi Nath Gupta made his Will in August 1883 and died on the same day. He left a widow named Nalini Sundari Gupta, the appellant-opposite party in this case, a daughter, Sarat Sasi by another wife Niroda Sundari Gupta, and his mother Bama Sundari. Bama Sundari applied for Probate of her son's Will, but died before the order on her application was made. An order in this matter was passed on the 31st March 1884. The next proceedings were the two applications one by Prosonno Chandra Sen, the father of Nalini Sundari, and the other by Umesh Chandra Mojumdar, the brother of Niroda Sundari, for Letters of Administration with the Will annexed. Both these applications were refused on the 2nd April 1834. The matter was then brought up to this Court, but the appeal was dismissed on the ground that no Letters of Administration could be granted, the estate then being in the custody of the Court of Wards. In 1889 the present petitioner, Bejoy Kumar Roy Chowdhury, was born. He is the son of Sarat Sasi and so grandson of Kashi Nath, On the 24th April 1893, Probate of the Will of Krsbinath was granted to Nalini Sundari as executrix. There had been another application by Sarat Sasi, who was then a minor, through her husband for Letters of Administration with the Will annexed, which was disposed of on the same day, that application being dismissed. It appears that Probate was granted to Nalini Sundari in consequence of a compromise which was arrived at between her and Basanta Kumar, the husband of Sarat Sasi. It was agreed between them that the objection to the Probate should be withdrawn, and the Will was proved in common form by the examination of one witness. The petitioner attained his majority on the 25th July 1907. Previous to this his mother Sarat Sasi had died on the 18th Juno 1906. He tiled the present petition for revocation of the Probate on the ground that he had not been cited in the Probate proceedings of 1893. The petitioner is the reversioner to the estate of Kashi Nath Gupta and he would, therefore, be entitled apart from any Will to succeed to that estate, after the decease of Nalini Sundari, the testator's widow.

2. The learned District Judge has granted the application and disposed of the objections of Nalini Sundari Gupta in a somewhat perfunctory manner. He holds that, because the petitioner was not cited, the Probate must, therefore, be revoked and he has not gone into any other questions though Nalini Sundari, the opposite party, had put in a petition raising a number of issues. We think that the learned Judge was in error and that lie ought to have considered the other questions arising, before the could revoke the Probate on the ground that the petitioner was not cited. We may. refer to the case of Kanja Lal Ckotcdhury v. Kaitash Chandra Chowdhury 7 Ind. Cas 740 : 14 C.W.N. 1068. In that case it was held that though an infant has a right in such cases to apply after he comes of age for revocation of Probate obtained by consent, yet he may be barred by acquiescence and delay for a long time or by subsequent ratification of the disposition of the Will from putting the executor to the proof of the Will in solemn form or from contesting its genuineness. In the present case it is alleged that the petitioner did, as a matter of fact, accept the two-annas share which was bequeathed by the Will to Sarat Sasi and her heirs, that he had been in enjoyment of that share and lie cannot now dispute the Probate or the genuineness of the Will. This and other circumstances must be inquired into by the 'District Judge before he can pass an order in favour of the petitioner. The Judge must inquire whether the petitioner is debarred in any way from applying to have the proceedings re-opened. If, after taking such evidence as may be offered on that point, lie still decides in favour of the petitioner, we think that he ought to give the opposite party an opportunity of proving the Will in solemn form in the presence of the petitioner. There seems to be no reason why this should not be done without instituting fresh proceedings in the matter of Probate.

3. We accordingly allow this appeal, set aside the order of the District Judge and remand the case to him for determination of the various points after taking fresh evidence.

4. The costs of this appeal will abide the result of the proceedings before the District Judge. We fix the hearing fee in this appeal at five gold mohurs.


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