Skip to content


Narendra Nath and anr. Vs. Sm. Fakirmani Dassi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 222 of 1949
Judge
Reported inAIR1952Cal20
ActsSuccession Act, 1925 - Sections 263 and 288; ; Bengal, Agra and Assam Civil Courts Act, 1887 - Section 23
AppellantNarendra Nath and anr.
RespondentSm. Fakirmani Dassi and ors.
Appellant AdvocateBinayak Nath Banerjee and ; Susil Kumar Biswas, Advs.
Respondent AdvocateHiralal Chakrabarty and ; Syamadas Bhattacharya, Advs.
DispositionAppeal dismissed
Cases ReferredPremchand Das v. Surendra Nath
Excerpt:
- .....inter alia were that defendant no. 1 was not served with notice of the application for the grant of letters of administration, that the will in question was forged. it was also alleged that no citations were issued on defendants nos. 2 to 5. this application for revocation was filed before the district judge, ali-pore, district 24-parganas. after certain transfers to different subordinate judges we find that on 9-3-1949, the application for revocation of the grant was transferred to sri u. das gupta, subordinate judge, 2nd additional court, alipore. the learned subordinate judge took up the hearing of this case on 19-7-1949, and after the application was heard in full he reserved judgment which was delivered on 18-8-1949. the judgment is signed by sri u. das gupta as subordinate.....
Judgment:

Das, J.

1. This appeal which is directed against the decision of Sri U. Das Gupta dated 18-8-1949, arises out of certain proceedings for the revocation of the Letters of Administration which were granted to the appellants. The testator was Gopal Chandra Sardar who died on 6-3-1946. Shortly before his death, on 3-3-1946, Gopal Chandra Sardar executed a Will, the genuineness of which is in controversy between the parties. At the time of his death Gopal Chandra Sardar had a widow; surviving him, named Rashmani. Rashmani died, on the evidence, in February or March, 1948. Gopal Chandra Sardar who was also survived by his daughter Fakirmani Dasi, defendant No. 1, and four grandsons, defendants Nos. 2 to 5 of whom defendant No. 2 is major and defendants Nos. 3 to 5 are minors. On 5-5-1948 the appellants who are related to the testator Gopal Chandra Sardar as nephew and son of a nephew, made an application for Letters of Administration to the estate of Gopal Chandra Sardar with a copy of. the Will annexed. Citations were thereupon issued on defendant No. 1 and another nephew of the testator Gopal Chandra Sardar. No citations were issued on the testator's grandsons, defendants Nos. 2 to 5. On 28-8-1948, Letters of Administration with a copy of the Will annexed were granted ex parte. On 28-8-1948, an application for revocation of the grant was made by defendants Nos. 1 to 5. The allegations inter alia were that defendant No. 1 was not served with notice of the application for the grant of Letters of Administration, that the Will in question was forged. It was also alleged that no citations were issued on defendants Nos. 2 to 5. This application for revocation was filed before the District Judge, Ali-pore, District 24-Parganas. After certain transfers to different Subordinate Judges we find that on 9-3-1949, the application for revocation of the grant was transferred to Sri U. Das Gupta, Subordinate Judge, 2nd Additional Court, Alipore. The learned Subordinate Judge took up the hearing of this case on 19-7-1949, and after the application was heard in full he reserved judgment which was delivered on 18-8-1949. The judgment is signed by Sri U. Das Gupta as Subordinate Judge and District Delegate. It is against this decision that the present appeal has been taken by the opposite parties to the application for revocation of the grant, that is, by the applicants for the grant of Letters of Administration to the estate of Gopal Chandra Sardar.

2. Mr. Banerjee appearing on behalf of the appellants has first contended that the learned Judge in the Court below had no jurisdiction to hear the application for the revocation of the grant of Letters of Administration on the ground that he subscribed his name to the judgment as a District Delegate. It is contended that a District Delegate has no jurisdiction to hear a revocation case, the more so as the present case was a contentious one. In support of this contention reliance is placed on the decision in the case of 'Kailash Chandra v. Nanda Kumar', 48 Cal W N 751. The decision, on the face of it, fully supports the contention of Mr. Banerjee. The decision of this Court proceeds on a consideration of Sections 264, 265 and 288 of the Indian Succession Act. Section 264 empowers the District Judge to grant and revoke the probate of a Will. Section 265 relates to the appointment of a District Delegate. The section states that the District Delegate may grant probate and Letters of Administration in non-contentious cases. Section 288 then proceeds to state that in every case where there is contention the District Delegate will return the papers to the District Judge. In 'Kailash Chandra Mondal's case', Mukherjee, J. delivering the judgment of the Bench was concerned with a revocation case which was of a contentious nature. This is made clear by the learned Judge at page 754 of his judgment.

3. We have, therefore, to consider how far the present case can be said to be concluded by the said decision. The present case concerns the grant of Letters of Administration and the revocation thereof in certain proceedings which took place in the district of 24-Parganas. The revocation case, as I have already pointed out, was heard by Sri U. Das Gupta, learned Subordinate Judge, 2nd Additional Court, Alipore, District 24-Parganas. If the Succession Act stood alone, it is obvious that the learned Judge would have no jurisdiction to hear this matter. It appears, however, that this Court by Notification No. 8986-A dated 25-6-1927, authorised the Subordinate Judges and Munsifs mentioned therein under Section 23(i) of. the Bengal, Agra and Assam Civil Courts Act, 1887, 'to take cognisance of proceedings under the Indian Succession Act, 1925, which cannot be disposed of by District Delegates.' In the schedule which follows it is mentioned that two senior Subordinate Judges and the permanent Munsif. at Alipore are empowered under the Notification. From the Civil list for January, 1949, and June. 1949, it appears that Sri U. Das Gupta was the Senior Subordinate Judge at Alipore, This notification, therefore, conferred on Sri U. Das Gupta the requisite authority to take cognisance of the proceedings for revocation of the Letters of Administration. It is plain that the words 'to take cognisance of.' include not merely entertainment of the proceedings but> the trial thereof. The decision in 'Kailash Mondal's case', 48 Cal WN 751 related to certain proceedings which were started in Bagerhat, district Khulna. The schedule appended to the Notification No. 8986-A dated 25-6-1927, did not empower any Judicial Officer in the district of Khulna to entertain or dispose of revocation cases. The decision in 'Kailash Mondal's case' is, therefore, distinguishable. I may point out that the Notification issued in 1927 has since been superseded by a later Notification bearing No. 5721-A dated 10-8-1949, by which two senior Subordinate Judges at Alipore and Sealdah have been empowered to try and dispose of cases of the aforesaid type. It also appears that by another Notification No. 5729-A dated 10-8-3 949, the High Court has authorised the District Judge under Section 23(i) of the Bengal, Agra and Assam Civil Courts Act, 1887, to transfer proceedings under the Indian Succession Act, 1925, which cannot be disposed of by District Delegates to any of the Subordinate Judges of 24-Parganas. The position, therefore, is that Sri U. Das Gupta was perfectly competent as a Subordinate Judge presiding over the Second Additional Court, Alipore, to hear and dispose of revocation proceedings. The fact that he also subscribed his name as District Delegate is a superfluity and does not affect his jurisdiction to try and dispose of the revocation lease. In point of fact the Order Sheet shows that all the orders commencing with the trial up to the conclusion of the case were signed by him as Subordinate Judge. The first contention raised by Mr. Banerjee must, therefore, be overruled.

4. The second contention raised by Mr. Banerjee was that on the finding of the learned Subordinate Judge that defendant No. 1 Fakirmani had notice of the application for the grant of Letters of Administration and in view of the fact believed by the Judge is that the summons on Fakirmani was served in the presence of her husband Harananda and her eldest son, defendant No. 2, who was a major, and in view of the fact that the minors were living in the same mess and under the guardianship of defendant No. 1, it must be presumed that the minors namely, defendants Nos. 3 to 5 had notice of the proceedings and as such they must be held bound by the proceedings for the grant of Letters of Administration. As regards defendant No. 2, the major grand-son, Mr. Banerjee submitted that in view of the finding of the learned Subordinate Judge that notice on his mother Fakirmani was served in his presence he must be deemed to have knowledge of the pendency of the proceedings for Letters of Administration and must also be bound by the ex parte grant of the Letters of Administration which was made.

5. The power of the Court to revoke the grant of a probate or Letters of Administration is contained in Section 263 of the Indian Succession Act. The section lays down that the grant of probate or Letters of Administration may be revoked or annulled for just cause. The expression 'just cause' is explained by an explanation appended to the section. It is necessary to refer to Clauses (a) and (b). These clauses explain the term 'just cause' to include cases where the proceedings to obtain the grant are defective in substance or cases where the grant was obtained fraudulently by making a false suggestion or by concealment of something material to the grant. Illustration (ii) refers to the absence of citations as a justifying cause. Illustration (iii) refers to grant of probate of a forged or revoked Will as a just cause.

6. The principle on which reliance is placed by Mr. Banerjee, namely, that a party who is cognisant of the proceedings for probate or Letters of Administration and who might have intervened, is bound by the grant of probate or Letters of Administration, is well settled. The principle underlying the rule was enunciated as early as the year 1814 by Sir John Nicholl in the case of 'Newell v. Weeks', (1814)2 Phill Ecc 224. It is stated by the learned Judge that the service of notice on the person interested is sufficient to hold that the ultimate grant even though ex parte of a Letters of Administration binds the person served. In case of such service the law presumes actual privity and the person served by legal process is accordingly precluded from disputing the grant. In a case where a person though not served, has actual knowledge of the pendency of the proceedings for the grant of probate or Letters of Administration, and has an opportunity to intervene, his knowledge is taken to be a substitute for the legal process of service of notice. In such a case where a person has actual knowledge and has opportunity to intervene and stands by, the person concerned cannot complain of any prejudice and the law. therefore, holds the person bound by the grant of probate or Letters of Administration even though he may not have been served in the course of the proceedings. The above principle has been applied by different High Courts in this country. Mr. Banerjee referred me specially to the case of 'In re Pitambar Girdhar', 5 Bom 638 as also to the case of 'Nistarini Debya v. Brahmomoyee Debya', 18 Cal 45. Mr. Banerjee laid special stress on the latter decision because in that case a minor who was interested in the estate of the testator, though not served, was held bound by proceedings of which his guardian had knowledge and had opportunity to intervene. In order to appreciate the conclusion which was reached in that case it is necessary to set out the argument of Dr. Kashbehary Ghose who appeared for the appellant in that case. At page 48 the argument of the learned Counsel is stated as follows:

'Nothing short of special citation or actual appearance in the previous proceedings was sufficient to conclude the minor, as privity could not otherwise be presumed in such a case.'

It was this contention which was repelled on the ground that where in the proceedings to obtain the grant an uncle of the minor who had no interest whatsoever in the estate did intervene and oppose the grant and the grant was made in spite of his objection, the minor was bound, on the ground that this objection by the uncle was made really in the interest of the minor. It was pointed out that the minor and her guardian mother lived in the same mess and under the roof of the uncle who filed the objection petition, and that in those circumstances it must be held that there was really objection on the part of the minor in those proceedings and therefore the minor was disentitled to apply for revocation of the grant.

7. The above case of 'Nistarini Debya v. Brahmamoyee Debya', 18 Cal 45 was considered by Ashutosh Mookerjee J. in the case of 'Syama Charan v. Profulla Sundari', 19 Cal WN 882 where the learned Judge opined that the above principle depended upon proof of full knowledge of the proceedings to obtain the grant and the capacity of the person concerned to make himself a party to the proceedings, and that the burden of proving these facts lay on the persons who made the application for the grant of probate or Letters of Administration. The learned Judge further observed that a party who was not cited is bound on the principle that in the aforesaid circumstances, he is deemed to have acquiesced in the continuance of the proceedings for the grant of probate or Letters of Administration and in the final order making a grant of Letters of Administration. In order that the person may be deemed to have acquiesced he must have full knowledge of the pendency of the proceedings and of his right to intervene and must have also opportunity to intervene in those proceedings.

8. We have now to consider whether the principles discussed above applied to the facts of this case. It appears that the notice on defendant No. 1 Fakirmani, as appears from the return, was tendered to her and that on her refusal to give a receipt it was hung up. Fakirmani has deposed and she has denied that the notice was ever tendered to her or that she had any knowledge of the proceedings. Her husband Harananda has also deposed in the same strain. Apart from the peon's return the appellants examined Hajj. Kabiruddin Molla, P.W. I. The witness did not state that the notice was served in the presence of Harananda, husband of defendant No. 1 or of defendant No. 2, the only major grand-son of the testator. The peon, Ashutosh Biswas, P.W. 2, has not said anything in regard to the presence of Fakirmani or her husband or her adult son. Fakirmani is an illiterate purdanashin lady. The Will deprived her to a large extent of her father's estate. It also deprives her sons in the same manner. If the proceedings to obtain the grant were known to Fakirmani or her husband or her adult son, I can see no reason why they would not. intervene in the proceedings. The' objection filed to the revocation proceedings by the appellants refers to certain criminal and civil proceedings between the parties. The feelings were therefore extremely strained. That is an additional ground why I think it impossible to hold that Fakirmani or her sons would not have intervened in the proceedings if they had knowledge of the pendency thereof and of their right to intervene in the proceedings. In these circumstances, in my opinion, the second contention raised by Mr. Banerjee cannot be given effect to.

9. The third contention raised by Mr. Banerjee relates to the form of the order. The order is in these terms:

'The grant of Letters of Administration to the opposite parties in Act XXXIX case No. 68 of 1948 of the Court of the District Judge of 24-Parganas at Alipore is revoked and the opposite parties are directed to return the grant to Court within one month of this order.'

Mr. Banerjee referred us to the decision in the case of 'Premchand Das v. Surendra Nath', 9 Cal WN 190 at p. 193 where the order was in these terms:

'Letters of Administration granted to the appellant be recalled and that the Judge do call upon them to prove the Will in solemn form in the presence of the respondents, the objectors.'

A reference to Section 296 of the Indian Succession Act would show that when the grant is revoked, the persons in whose favour the grant was made are required to forthwith deliver up probate or Letters of Administration to the Court. In my opinion, there is nothing in the order to which exception can be taken. The order as made by the learned Judge must, therefore, be affirmed.

10. In the result this appeal fails and is dismissed with costs, hearing fee five gold mohurs.

Lahiri, J.

11. 1 agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //