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Brindaban Chunder Shaha Vs. Sureshwar Saha Pramanik - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in3Ind.Cas.178
AppellantBrindaban Chunder Shaha
RespondentSureshwar Saha Pramanik
Cases ReferredBellew v. Bellow
Excerpt:
probate and administration act (v of 1881), section 50 - revocation--immediate reversioner, right of, to apply for revocation--mere assertion of relationship not sufficient, but proof necessary--proper order in revocation case--infant applicant--mother joined in application for probate--guardian ad litem. - .....the learned vakil for the appellant that if a reversioner is held to be a person interested in the estate and entitled to intervene, every possible heir of the deceased would be entitled to claim similar rights, as it would be impossible to draw the line of demarcation. we do not feel embarrassed by any such consideration. in our opinion there can be no doubt that the immediate reversioner is entitled to intervene, and if a question arises in future as to whether a remote reversioner is under any circumstances entitled to be heard, the principle laid down in abinash chandra mazumdar v. harinath saha 32 c. 62 may afford a basis for solution. we must, therefore, hold that the first ground on which the decision of the district judge is assailed cannot be supported and must be overruled.7......
Judgment:

1. One Phanindra Mohan Shaha, owner of an estate of considerable value, died on the 20th July 1900. He left a minor widow Gour Dasi the daughter of the present appellant Brindaban Chandra Shaha, a sister by the name of Shobha Sundari, a nephew Sureshwar Shaha the infant adopted son of his sister, and a cousin Bhuban Mohan Shaha. On the 18th September 1900 Brindaban Chandra Shaha and Shobha Sundari made an application to the District Judge of Dacca for probate of a will alleged to have been executed by Phanindra Mohan Shaha on the day previous to his death. Under the will the petitioners, who are the father -in-law and the sister of the testator, were appointed executors. The will provided that the widow was to take a life-interest in the estate of the testator but would not be able to do any act that might cause deterioration to the same. The widow was further authorised to take three sons in adoption successively. The will also contained a direction for the management of the estate during the infancy of the adopted son or in the event of disagreement between the widow and the adopted son. The executors were finally empowered to alienate any property for the benefit of the estate. The application for probate recited that the nearest relations left by the testator were his widow, his sister and the adopted son of the latter. No mention was made of the cousin. General notices were, there upon issued in the usual manner and on the 20th December 1900 Bhuban Mohan entered a caveat in which he denied the genuineness of the will, questioned the factum of the adoption by the sister of the deceased and alleged that after the death of the widow he was the person entitled to inherit the estate as reversionary heir. The proceedings were thereupon converted into a contentious probate suit, and at one stage witnesses were examined upon the question of the factum and validity of the alleged adoption by the sister Shobha Sundari. This evidence prima facie established that Sureswar had been taken in adoption by Shobha Sundari. The cousin Bhuban Mohan, therefore, entered into a compromise with the petitioners and withdrew his objections to the grant of probate by a petition dated the 10th June 1901. The case was subsequently treated as uncontested, and upon proof of the execution of the will by an affidavit probate was granted to the petitioners on the 17th June 1901. On the 22nd September 1908 Sureswar, the adopted son of Shobha Sundari, who had meanwhile attained majority, presented an application to the District Judge under Section 50 of the Probate and Administration Act for revocation of the probate on the ground, amongst others, that he had not been made a party to the proceedings, that no notice had been served upon him or upon any one as his guardian ad litem, that the will was a forgery and that consequently the probate ought to be revoked and the executors called upon to prove the will in solemn form. On the 2nd December 1908, the District Judge revoked the probate on the ground that no citation had been issued upon Sureswar and he was not represented in the probate proceedings. Brindaban Chandra Shaha, the father-in-law of the testator and one of the executors, has now preferred an appeal against the order of revocation.

2. On the 25th January 1909 the petitioner for revocation of the probate, Sureswar, applied to the District Judge for appointment of an administrator pendente lite. This application was refused on the 20th February last on the ground that the deceased had left widow who was able to administer the estate. ureswar has preferred an appeal against that order and has further obtained a Rule calling upon the opposite party to show cause why an administrator pendente lite should not be appointed to take charge of the estate of the deceased during the pendency of the appeal from order. The two appeals and the Rule have been heard together.

3. In support of the appeal directed against the order for revocation, it has been argued, first, that Sureswar as reversionary heir of the deceased has no interest in his estate and is not entitled to appear in these proceedings; secondly, that he ought not to have been allowed to obtain an order for revocation till he had established by evidence that he was the adopted son of the sister of the testator; thirdly, that the District Judge ought not to have revoked the probate but should merely have called upon the executors to prove the will in solemn form.

4. The first point taken on behalf of the appellant, namely, that the reversionary heir of a Hindu is not entitled to be heard in a proceeding for the probate of a will alleged to have be en executed by the deceased, because he has not a present interest in the estate, raises a question of considerable importance. The learned Vakil for the appellant conceded that his contention was opposed to a series of decisions of this Court and was contrary to what has been deemed the settled practice for many years past. Amongst those decisions it is sufficient to refer to the cases of Kamona Soondury Dassee v. Hurro Lall Shaha 8 C. 570 : 10 C.L.R. 409; Khettramoni Dasi v. Shyama Churn Kundu 21 C. 539 and Bepin Behari Shaha v. Manoda Dasi 6 C.W.N. 912. He, however, strenuously contended that these decisions could no longer be treated as good law in view of the decision of their Lordships of the Judicial Committee in Sham Sunder v. Achhan Kunwar 25 I.A. 183 : 21 A. 71 : 2 C.W.N. 729 which it was argued overruled by implication the cases to which reference has been made. No doubt, if the question raised before us has been decided by their Lordships of the Judicial Committee, we are bound to give effect to that decision. But it was emphatically contended on behalf of the respondent that the point did not arise either directly or indirectly for consideration before the Judicial Committee and that the appellant merely sought to apply the decision of their Lordships to a class of cases which it could never have been intended to govern. It is necessary, therefore, to examine closely the decision of the Judicial Committee.

5. In the case of Sham Sunder v. Achhan Kunwar 25 I.A. 183 : 21 A. 71 : 2 C.W.N. 729 which is the foundation of the argument addressed to us on behalf of the appellant, the question arose as to the validity of certain mortgages one of which was executed by the widow and the other by the daughter of the original owner with the concurrence in each case of the reversionary heirs. It was found that the alienation by the widow or the daughter was not binding upon the estate. The question, therefore, arose whether the reversionary heir was affected. Their Lordships observed that in 1877, the date of the first bond, neither Achhan Koer nor Enayet Singh who were the reversionary heirs and had joined in the transaction could by Hindu Law make a disposition of or bind their expectant interests. This statement of the law has in subsequent ' cases been treated as an authority for the proposition that the interest of a Hindu reversioner expectant upon the death of a Hindu female cannot be validily alienated by the reversioner (see Nund Kishore Lal v. Kanee Ram Ternary 29 C. 355 which dissents from the contrary view taken in Brahmadeo Narayan v. Harjan Singh 25 C. 778; Abdool Hoosein Mulla v. Goolam Hosain Ally 30 B. 304 at p. 315 : 7 Bom. L.R. 742; Sumsuddin Goolam Husein v. Abdul Husein Kalimuddin 31 B. 165 : 8 Bom. L.R. 781; Dhoorjetti Subbayya v. Dhoorjetti Venhayya 30 M. 201 : 2 M.L.T. 184; Bhawani Singh v. Dilawar Khan 31 A. 253 : 6 A.L.J. 145 : 1 Ind. Cas. 886 and Rebati Mohan Das v. Ahmad Khan 9 C.L.J. 50 : 1 Ind. Cas. 590. It may be assumed, therefore, as a settled proposition of law that a Hindu reversioner not only cannot dispose of but cannot bind his expectant rights. But the question still remains does it necessarily follow that such a person has ,not such an interest in the estate under Section 69 of the Probate and. Administration Act as entitles him to oppose the grant of probate of a will which if established is likely to prejudice him? There can be no dispute that the case before the Judicial Committee is not directly in point and after a careful consideration of the arguments which have been addressed to us on behalf of the appellant, we are not prepared to extend the application of the principle to a class of cases which the Judicial Committee had never under consideration. Lord Halsbury made two weighty observations of a general character in Quinn v. Leathern 1 S.E.C. (N.S.) 97 : (901) A.C. 495 : 70 L.J.P.C. 76 : 85 L.T. 289 50 W.R. : 139 : 65 J.P 708; 5 C.W.N. cccxxiii which may be usefully remembered when an attempt is made to apply the legal principle deducible from a Judicial decision to a class of cases of an entirely different nature. Every judgment must be read as applicable to the particular facts proved or, assumed to be proved, since the generality of expressions which may be found there, are not intended to be expositions of the whole law but governed and qualified by the particular fact of the case in which such expressions are to be found. A case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a form of reasoning assumes that the law is necessarily a logical Code whereas every lawyer must acknowledge that the law is not always logical at all.' (See also National Phonograph Company v. Edison-Bell Consolidated Phonograph Company (1908) 1 Ch. 335 at p. 349 : 77 L.J. Ch. 218 : 98 L.T. 291 : 24 T.L.R. 201. If we bear this observation in mind, it is obvious that the contention of the appellant reduces to the position that a Hindu reversioner is not entitled to appear in a probate proceeding because he does not possess a present alienable interest in the estate left by deceased, a position for which so far as we are aware, there is no authority, and, against which, it was not disputed by the learned Vakil for the appellant, weighty reasons may be assigned on principle. Similar observations apply to the cases of Davis v. Angel (1862) 4 De. G.F.&J.; 524 at p. 529 In re Parsons (1890) 45 Ch. D. 51 at pp. 56&60, Allcard v. Walker (1896) 2 Ch. 369 at p. 380 and In re Ellenborough; Towry-Law v. Burne (1903)1 Ch. 697 : 72 L.J.Ch. 218 : 87 L.T. 714 : 51 W.R. 315. These cases no doubt, point out the distinction between an interest that has arisen and is represented and an interest that has not arisen and never may arise, but with regard to which there is a remote possibility that the event which has not occurred and upon which it is made to hang may hereafter occur. As was observed, by Lord Westbury in the first of these cases, an interest that :has not arisen is properly not an interest, it is not a right; it is nothing more than a bare expectation of a future right an,. expectation of a future interest. or rather of a future event which may give an interest, is not a thing which would justify a Court of Equity in entertaining a suit at the instance of a party having that and nothing more,-a suit for construction of a will and for ascertainment and security of the future title. Similarly in, the case In re Parson (1890) 45 Ch. D. 51 at pp. 56&60, Mr. Justice Kay examined with reference to the provisions of the Married Women's Property Act of 1882, the meaning and scope of the phrase contingent title ' and pointed out that a possible next-of-kin of a person who is supposed to die at a future time cannot properly be said to have a contingent title, as in reality he had nothing more than an expectation of title which was not recognised in law as any title at all. It does not follow, however, by any means that the interest which would justify the intervention of a person in a probate proceeding must be an interest of the description referred to in these cases. In fact Mr. Justice Kay referred to the decision of Lord Eldon in Ex parte Clarke Jacob 589 at p. 595, where the Lord Chancellor held that in proceedings in lunacy against an ancestor the possible heir or next-of-kin is permitted to come before the Court, on the principle that the Court ought to receive from the persons probably entitled, that assistance in the protection of the property which persons having, such an expectant right will be likely to afford.' We are unable to hold that the principle deducible from the authorities upon which reliance is placed on behalf of the appellant can be legitimately applied to proceedings for grant or revocation of probate. Although a reversioner under the Hindu Law has no present interest in the property left by the deceased, yet it is manifest that he is substantially interested in the protection or devolution of the estate. It is well-settled that a reversioner can sue to restrain waste Hurrydass v. Rungunmoney Sevestre 657. The reversioner can, if he makes out a proper case, obtain an order for the appointment of a Receiver Rao Kurun Singh v. Nawab Mahomed Fyaz Ali Khan 14 M.I.A. 176 at pp. 187,198 : 10 B.L.R.(P.C.)1. He can maintain a suit for declaration that an adoption by the female heir in possession is invalid Srinath Gangapadhya v. Mahesh Chandra 4 B.L.R. (F.B.) 3 : 12 W.R. (F.B.) 14; Anand Kunwar v. Court of Wards 8 I.A. 14 : 6 C. 764 : 80. L.R. 381. He can also sue for declaration that an alienation by the female heir in possession will not be operative beyond her lifetime. This has now been placed beyond the possibility of dispute by the provisions of Section 42 of the Specific Relief Act, illustration (e) and (f) to which section show that such declaratory suits may be maintained. Besides it is manifest from the case of Abinash Chandra Mazumdar v. Harinath Shaha 32 C.62 that such a declaratory suit is maintainable by a remote reversioner, who would take an absolute interest, in the presence of the immediate reversionary heir who has only qualified rights in the estate, and also, when the nearest reversioner has precluded himself from maintaining a declaratory action by his conduct or by omission to sue within the statutory period, a remote reversioner is entitled to maintain the suit. See also Puttanna v. Rama Krishna Sastri 30 M. 1795 : 17 M.L.J. 374 in which it was held that where on the death of the last male owner, leaving a widow, the properties belonging to him are claimed by devisees under a will alleged to have been left by him, the nearest reversioner in existence is entitled to sue for a declaration that the alleged will was invalid and did not bind his reversionary interest. Our attention was invited to the case of Nobeen Chundar Sil v. Bhobosoonduri Debee 6 C. 460 in which Mr. Justice Field appears to have held that the test to be applied to determine whether a person possesses sufficient interest to entitle him to enter a caveat and oppose the grant of probate is whether the person can show that he is entitled to maintain a suit in respect of the property over which probate would have effect. It is not necessary for our present purpose to examine whether this test is of universal application or whether it may not require to be qualified. We only observe that the learned Judges who decided the case of Abhiram Dass v. Gopal Dass 17 C. 48 expressed their dissent from the test formulated by Mr. Justice Field. Reference was also made in the course of the argument to the decision in Kishen Dai v. Satyendra Nath Butt 17 C.48 in which it was held that a judgment-creditor of a person who, but for a will, would receive the property by inheritance had sufficient interest to entitle him to oppose ' the grant of probate. It is not necessary to express any opinion upon the question decided in this case as it has no direct bearing upon the solution of the question raised before us, nor is it necessary to examine the grounds of the dictum in Durgagati v. Saurabini 23 C. 1001 at p. 1009 in which it was held that a decision in a proceeding for revocation of probate commenced by a female reversionary heir would be binding upon the actual reversionary heir after her death. We feel no doubt that for the reasons already given, the position of a reversionary heir under the Hindu Law in relation to the estate of the deceased is of such a character as to entitle him to be heard in proceedings for grant or revocation of probate. We may further point out that the view we take is supported by implication by the decision of the Judicial Committee in the case of Shama Charn Kundu v. Khettromoni Dasi 27 C. 521 : 4 C.W.N. 501. In that case, upon application for probate of the will of one Madhusudan, caveat was entered by his widow. She afterwards withdrew her opposition and thereupon one of her daughters filed objection to the grant of probate. It was contended that as a reversioner, she had no interest in the estate left by the deceased and was consequently not entitled to be heard. This objection prevailed and an order for grant of probate was made as in a non-contentious proceeding. The daughter then appealed to this Court and her appeal succeded Khetramoni Dasi v. Shyma Churn Kundu 21 C. 539. The case was then, remanded, and the question of the genuineness of the will was investigated in the presence of the daughter. The District Judge held that the will was genuine and granted probate. Upon appeal to this Court, that judgment was reversed, and probate was refused. The matter was then taken on appeal to the Judicial Committee and the appeal was defended by the daughter. Their Lordships with full knowledge of the facts just stated, did not hold that the daughter had no locus standi, but considered the case on the merits and reversed the decision of this Court. If, as has now been contended by the learned Vakil for the appellant, the daughter as reversionary heir was not entitled to be represented in the proceedings at all, it is a matter for surprise that this question should have escaped the counsel for the appellant, as well as the members of the Judicial Committee, two of whom at any rate (Lord Hobhouse and Sir Richard Couch) had considerable experience of Indian law and might be assumed to have been quite familiar with the nature of the position and rights of a reversioner under the Hindu law. We may add that if the view put forward by the appellant were accepted, irremediable injustice of the gravest character might be done to the reversioner. It would be quite open to the widow, for instance, of a Hindu who had died intestate, to propound a forged will and get probate thereof without contest. Under the will she might have absolute power of alienation or authority to take a son in adoption, and thus be placed in a position to deprive the reversioner of the estate to which he would otherwise be legitimately entitled. We are not prepared, therefore, to put upon Section 69 the narrow construction which we have been invited to place upon it by the learned Vakil for the appellant. The grant of probate operates as a judgment in rem and as has been repeatedly pointed out in the English Courts, it is of the utmost importance that such grant should be made after full opportunity to enter appearance has been afforded to all persons who are likely to be affected by the grant. The principle which is followed in England in pases of this character is thus stated in a well-known work: 'Any interest however slight and even it seems the bare possibility of an interest is sufficient to entitle a party to oppose a testamentary, paper. Thus where a testator disposed of all his personal estate by his will and gave his real estate but none of his personal, to his brother's children, and by a codicil he gave them pecuniary legacies revoking the devise to them of the real estate which was of greater value than the legacies, it was held that they might oppose the codicil alone, notwithstanding their only right to a share of the personal estate was under it. Though a next-of-kin may as such oppose all the testamentary papers, he has not a right to oppose any particular one he may think fit; for some interest in it however remote is necessary '(Will liams on Executors Vol. I page 245). This statement of the law is amply borne out by cases of the highest authority Kipping v. Ash (1845) 1 Robertson 270 : 4 Notes of Cases 177; Bashcomb v. Harrison (1849) 2 Robertson 118 : 7 Notes of Cases 275; Crispin v. Doglioni 1860) 2 Sw. & Tr. 17; Dixon v. Allinson (1864) 3 Sw. & Tr. 572 In more than one of these cases, it was stated that the bare possibility of an interest was sufficient to enable a person to oppose a testamentary instrument. Substantially the same rule has been adopted in the American Courts as consistent with the principles of reason and justice. Thus in the Encylopedia of Pleading and Practice Vol. 16 pages 1009 and 1015, it is stated that a contestant must be a person interested though his interest may be very small and not entirely free from contingencies or doubts. Reference is made to the case of Dower v. Church (1864) 3 Sw. & Tr. 572 in which it was held that where the interest of the plaintiff in a bill contesting a will consists in his claim under an earlier will not probated, the Court will not try the validity of the former will, but it is sufficient if the contestant sets up a bona fide claim.

6. It was contended by the learned Vakil for the appellant that if a reversioner is held to be a person interested in the estate and entitled to intervene, every possible heir of the deceased would be entitled to claim similar rights, as it would be impossible to draw the line of demarcation. We do not feel embarrassed by any such consideration. In our opinion there can be no doubt that the immediate reversioner is entitled to intervene, and if a question arises in future as to whether a remote reversioner is under any circumstances entitled to be heard, the principle laid down in Abinash Chandra Mazumdar v. Harinath Saha 32 C. 62 may afford a basis for solution. We must, therefore, hold that the first ground on which the decision of the District Judge is assailed cannot be supported and must be overruled.

7. The second ground upon which the decision of the District Judge is questioned is that the petitioner for revocation was not entitled to be heard upon more assertion of his relationship with the deceased, but if at all, only upon proof of the alleged adoption. Now there can be no doubt that before a person can be permitted to contest a will, the party propounding has the right to call on him to show that he has some interest Hingeston v. Tucker 2 Sw. & Tr. 596; Rahamtullah Sahib v. Rama Rau 17 M. 373. In the case before us, however, it is manifest from the proceedings in the Court below that the question of the factum and validity of the adoption of the present respondent was not seriously challenged. No doubt the somewhat ambiguous statement in the original application for probate by the present appellant that Srireswar was the adopted son of Shoblia Sundari does not create an estoppel. At the same time from the evidence already on the record, which we have examined, it is fairly clear that the status of Sureswar as an adopted son has been prima facie established for the purposes of the present litigation. This evidence, which as already explained, was taken at the instance of the cousin of the deceased who had entered a caveat and questioned the adoption of Sureswar is, in our opinion, sufficient to render further investigation needless in the course of the present proceeding. The second ground taken on behalf of the appellant entirely fails.

8. The third ground taken on behalf of the appellant does not raise a question of substance. The learned Vakil for the appellant contended that when an application for revocation has been made and allowed under Section 50 of the Probate and Administration Act, probate ought not to be revoked and the petitioner called upon to prove the will in solemn form, but the question of revocation ought to be deferred till the petitioner had an opportunity to prove the will in the presence of the objector. In support of this proposition reliance was placed upon the form of the order made in the cases of Brinda Chowdhrain v. Radhica Chowdhrain 11 C. 492; Elokeshi Dassi v. Hurry Prosad Soor 7 C.W.N. 450 and Prem Chand Das v. Surendra Nath Saha 9 C.W.N. 190. The cases upon which reliance is placed, however, do not support the contention of the appellant. In our opinion the proper order to make in a case of this description is to allow the application under Section 50 if good grounds are established for revocation of the probate, and to recall the probate before the profounder is called upon to prove the will in the presence of the objector. On an examination of the record in the present case it appears that the probate has not only been recalled but also cancelled. The cancellation appears to have been due to an oversight and will not stand in the way of reissue of the probate, if the will is ultimately established. But we must hold that when the learned District Judge found that the probate ought to be revoked, he rightly recalled the probate which had been granted. We are further of opinion that the propounder ought to be called upon to prove the will in solemn form in the presence of the objector, as the case cannot be allowed to remain pending for an indefinite length of time.

9. It was faintly suggested at one stage of the argument that the applicant for probate was not entitled to apply for revocation under Section 50 of the Probate and Administration Act, as although no citation was issued upon him, he had full knowledge of the proceedings and was consequently debarred from claiming any assistance from the Court upon the principle of the decision in Brinda Chowdhrain v. Radhica Chowdhrain 11 C. 492 and Nistariny Dabya v. Brohmomoyi Dabya 18 C.45. The answer to this argument, however, is obvious. The applicant for revocation was at the time an infant and as pointed out in the cases of Walter Rebells v. Maria Rebells 2 C.W.N. 100 and Shoroshibala Debi v. Anandamoyee Debt 12 C.W.N. 6 he ought to have been represented by a guardian ad litem other than his mother who had joined in the application for probate, and citation ought to have been issued upon such guardian. The respondent is consequently entitled to ask for revocation of the probate. All the grounds urged in support of Appeal No. 3 of 1909 fail and this appeal, therefore, must be dismissed with costs. We assess the hearing fee at 20 gold mohurs.

10. Appeal from order No. 82 of 1909 is directed against the order of refusal of the District Judge to appoint an administrator pendente lite. His refusal is based on the ground that there was no pending proceeding before him, and that the widow was quite competent to manage the estate. It is manifest, however, that the effect of the revocation of the probate was to revive the original proceeding for the grant of probate and it would be quite competent, therefore, to the Court to make an order under Section 34 of the Probate and Administration Act. As was observed in the case of Bellew v. Bellow 4 Sw. & Tr. 58 the Court of Probate would grant administration pendente lite in all cases where the necessity for the grant is made out; and this is so because while the suit is pending, there is no one legally entitled to receive or hold the, assets or to give discharges. In the case ' before us, it is not disputed that various suits are pending in different Courts and the estate is of considerable value and ex-tent, for the preservation of which propers arrangement ought to be made. We, there-fore, set aside the order of the District Judge and appoint the widow to be administratrix pendente lite, on condition that she furnishes a bond for Rs. 20,000 and that her father, the present appellant, do stand surety in the sum of Rs. 10,000 upon failure to carry out this order the applicant for revocation will be at liberty to apply for further orders. This appeal is, therefore, decreed, but there will be no separate order for costs.

11. Rule No. 857 of 1909 which was for the appointment of an administrator during the pendency of these appeals will be discharged without costs.


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