1. The will concerned in this case is alleged to have boon executed by one Ganga Bishnu De on 17th September 1888. He died about a month after, leaving a brother named Ram Gobinda De and a widow, a widowed sister and three infant daughters who were then residing with their mother in the house of Ram Gobinda. On 17th December 1889 Ram Gobinda as executor made a petition for probate giving in the petition the names of the widow and the widowed sister and stating that they were under the will entitled to enjoy the profits of the estate left by Ganga Charan and also saying that his own son Jagatbandhu was the owner of the said property by virtue of the will. Citation was issued on the widow and the widowed sister. There was no contest and on the other hand there was a petition purporting to have been made by the widow and the widowed sister consenting to the grant. On 11th August 1890 letters of administration were ordered to issue on the footing that there was no opposition, but there was prima facie proof of the will, and that the applicant was a legatee under the will. There is some doubt however whether the grant was of letters of administration or of probate, because in the order by which the grant was issued it was said that letters of administration were to issue, while an endorsement in the order sheet of the case states that it was probate that was granted.
2. Ram Gobinda died soon after, and thereupon his son Jagatbandhu applied for letters of administration on 5th December 1890, and obtained the same on 28th January 1891. The records of this case have been destroyed and there is nothing to show what proceedings took place in it. On 19th December 1928 Menaka Sundari, one of the daughters, applied for revocation of the probate and the letters of administration, obtained respectively by Ram Gobinda and Jagatbandhu. The main ground alleged was that the three daughters had no notice or knowledge of the cases and that though they were infants, no guardian had been appointed on their behalf, nor any citation issued, so far as they were concerned. The Judge has upheld the objection and revoked the grant. The sons of Jagatbandu have preferred this appeal and Menaka Sundari is the respondent. We called upon the appellants to produce the probate and the letters of administration but they have not been produced, it being said that they cannot be found.
3. As regards the probate it has been argued before us on behalf of the appellant that no citation was necessary because Section 62, Probate and Administration Act (5 of 1881) which states what the petition for probate or letters of administration with the will should contain does not require the names of the relatives of the testator to be given, while Section 64 which deals with the contents of a petition for letters of administration on the footing of intestacy expressly requires such particulars to be given. There is no force in this contention because though there is this difference between the two sections, which merely describe what the respective petitions should contain, Section 69 says:
It shall be lawful for the District Judge or District Delegate... to issue citation calling upon all persons having or claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate on letters of administration,
and Section 50, Illus. (b) shows that a grant made without citing parties who ought to have been cited is fit to be revoked. It cannot be seriously urged that it is not the duty of the applicant to bring to the notice of the Court who are the persons who prima facie have a claim on the estate. If the applicant says in his petition, as the applicant in the present case did, that the widow and the widowed sister were such persons and omitted to state that there were three minor daughters left by the testator and in consequence of the omission they were not cited the proceedings were radically defective in substance.
4. Arguments were then advanced on behalf of the appellants to show that a long series of years have elapsed since the probate was granted, and so it would be well nigh impossible to prove the will at this distance of time, that the daughters had in fact knowledge of the proceedings and that as they were living under the guardianship of their mother who herself was cited and had appeared and consented to the grant, no other result would have followed even if they had been cited. We agree with the findings of the Judge that it has not been proved that the respondent was aware of the will at any time before when she alleges she came to know of it or has taken any benefit under it or that the estate has been dealt with in a way inconsistent with its being joint family property. It is not necessary to go into the question whether the widow or the widowed sister was duly served or whether the consent that purported to be given by them was really their consent because the failure to mention the existence of the daughters and to have them represented and cited was a defect sufficient to revoke the probate: see Haimabati Mitra v. Kunja Mohan Das : AIR1931Cal713 , and the cases cited in it. The other arguments noted above are mostly met by the observation of their Lordships of the Judicial Committee in the case of Ramananda Kuer v. Kalawati Kuer AIR 1928 PC 2 by which very similar arguments were overruled and which were as follows:
And as against the difficulties in the defendant's way by reason of lapse of time, death of parties and witnesses and destruction of records it has to be remembered that much of it might have been avoided by prudent action on the part of the propounder e.g., by taking proper and necessary steps to have the will proved per tests in the presence of an independent guardian for the infant daughters.
5. As regards the argument that the mother would have been appointed then guardian we are not prepared to place much weight on it. As regards the grant of letters of administration to Jagatbandhu it has already been stated that the records relating to this matter are not available. The appellants have not produced the grant on the allegation that it is missing. There is little doubt however that the grant was a de bonis grant such as is made in favour of a universal or a residuary legatee or a new representative. The practice in such cases is to file a petition disclosing the fact of the former grant and to annex the grant if possible with the petition. There is no reason to suppose that this was not done. Citations have to be issued, but the respondent says she never got any notice of the proceedings, ordinarily her own denial would not have been sufficient, but judging from the short interval that elapsed between the grant of the probate and the application for letters of administration, we think we shall not be wrong in supposing that her denial is true.
6. The result is that, in our opinion, the appeal ought not to succeed. It is accordingly dismissed with costs, threes gold mohurs.