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Srimati Lakshmi Sundari Vs. Nityananda Dhupi and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in64Ind.Cas.61
AppellantSrimati Lakshmi Sundari
RespondentNityananda Dhupi and anr.
Excerpt:
probate and administration act (v of 1881), section 23 - hindu widow--reversioner--letters of administration, when unnecessary. - .....heirs the objector nityananda dhupi and another brother of the name of nobin chunder dhupi. the learned judge has refused the petitioner's application for grant of letters of administration and has granted letters of administration to the objector nityananda dhupi on terms that he would give security for rs. 1,500 and that he would make payment to the widow of rs. 5 a month and deliver to her on demand three pairs of clothes and permit her to reside in her deceased husband's house and so forth. under section 23 of the probate and administration act, the widow clearly is entitled to letters of administration prima facie. the reversioner's interest is only contingent. the widow is 23 years of age, the reversioner nityananda gives his age as 52 or 53 years, it is obvious, therefore, that.....
Judgment:

1. This appeal arises out of an application for Letters of Administration made by Srimati Lakshmi Sundari to the Court of the District Judge of Chittagong on the 19th of September 1919 in respect of the estate of her deceased husband, Kailash Chunder Dhupi. The deceased died on the 28th of September 1917, 1eaving the petitioner his widow and as his reversionary heirs the objector Nityananda Dhupi and another brother of the name of Nobin Chunder Dhupi. The learned Judge has refused the petitioner's application for grant of Letters of Administration and has granted Letters of Administration to the objector Nityananda Dhupi on terms that he would give security for Rs. 1,500 and that he would make payment to the widow of Rs. 5 a month and deliver to her on demand three pairs of clothes and permit her to reside in her deceased husband's house and so forth. Under Section 23 of the Probate and Administration Act, the widow clearly is entitled to Letters of Administration prima facie. The reversioner's interest is only contingent. The widow is 23 years of age, the reversioner Nityananda gives his age as 52 or 53 years, It is obvious, therefore, that the objector may possibly never succeed to the estate. But this is not a point which should be taken into account. The objection is based upon alleged mismanagement of the estate which has occurred during the period intervening between the death of the deceased and the application for the grant. The learned Judge has found that the widow is not a fit person capable of looking after the estate and he has also criticized her management of its affairs. It has been argued that the learned Judge had a discretion to make the appointment under Section 41 of the Probate and Administration Act. No doubt, he was entitled to do so, but the section itself, while giving a discretion to the Court, says that the 'Judge may, in his discretion, having regard to consanguinity, amount of interest, the safety of the estate and probability that it will be properly administered, appoint such person as ha thinks fit to be administrator' and, in doing so, pass over some person who, in ordinary circumstances, would be entitled to a grant. Now, it seems to us that in this case the learned Judge, in exercising his discretion, has failed to take into account the widow's interest. Not withstanding what he says with regard to the dealings of the widow with the estate during the last two years, he has not taken into consideration at all nor weighed against such matters the fact that the widow has got an interest in the whole estate, whereas the reversioner's interest is only contingent and may never become vested. In these circumstances we do not think that the learned Judge has properly exercised the discretion vested in him under Section 41 of the Probate and Administration Act and, therefore, his order cannot be sustained. Why the appellant ever applied for Letters of Administration is not clear, because she does not say that she had any difficulty in collecting the assets. The objector himself says that the deceased left no debts. The object of the grant of Letters is to administer the estate. But if the estate has, in fact, been administered--and it is by no means clear that it has not--there seems to be no good ground for Letters of Administration at all, and this is what the objector himself says in the petition of objection in this case. He says that the immoveable properties left by the deceased are too small and for their administration no Letters of Administration are necessary, lie does not suggest that Letters of Administration are necessary for any other purpose. Without expressing any such view, he says that, if any such Letters of Administration are necessary, he, as the eldest of the members of the family, is entitled to get the same and that he is willing to take them. In these circumstances, we do not think that it is necessary that there should be a grant of Letters of Administration to any person at all. The proper course for the learned Judge was to have said so and refused the petitioner's application in the first instance. Taking this view, it is unnecessary for us to consider whether or not the order which he made imposing conditions was a proper order under the Probate and Administration Act, The result is that the order of the lower Court is set aside and there will be no grant of Letters of Administration to any person, The appellant is entitled to recover her costs in this Court from the contesting respondent. We assess the hearing fee at three gold mohurs We do not sea any reason, to make any order as to the costs of the lower Court, in which no order as to costs was made.


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