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Mokashadayini Dassi and ors. Vs. Karnadhar Mandal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal421,31Ind.Cas.702
AppellantMokashadayini Dassi and ors.
RespondentKarnadhar Mandal
Cases ReferredLindsay v. Lindsay
Excerpt:
probate and administration act (v of 1881), section 50 - probate, revocation of, application for--genuineness of will, question of, if arises--just cause for revocation, question of, determination of--assignment of properties after testator's death--assignee, right of, to apply for revocation--revocation, ground for--fraudulent concealment of transfer. - .....he should have intimated to the court that he had transferred what he claimed as his share of the estate left by gobinda mandal to the present appellants. it is further difficult to imagine that the applicant for probate was unaware that his father had, a week before, conveyed away to the appellants what he claimed as his share of the estate; it was thus equally his duty to intimate this fact to the court. if this had been done, the court would undoubtedly have issued notices upon the present appellants.3. the result is that this appeal is allowed and the order of the district judge set aside. the case will be remanded to him in order that he may investigate whether the appellants have in reality the interest which they allege in the estate left by gobinda chandra mandal. if their.....
Judgment:

1. This appeal is directed against an order of dismissal of an application for revocation of Probate. The respondent Karnadhar Mandal applied for Probate of a Will alleged to have been executed on the 1st March 1886 by Gobinda Chandra Mandal, a cousin of his father Lukshmi Narain Mandal. The effect of the Will is to give a life-interest to the daughter of the testator Brojeswari who was a childless widow when her father died in 1886. After the termination of the life-interest in favour of the daughter, the estate was to vest in Karnadhar Mandal and his paternal uncle Dukhiram Mandal. Brojeswari died in 1907. Notice of the present application for Probate, which was not made till the, 2lst September 142, was served upon Lukshmi Narain Mandal and Dukhiram, Mandal. There was no opposition and the District Delegate granted Probate on the 27th November 1912. On the 21st December 1912 the appellants applied for revocation of the Probate on the allegation that they had acquired an interest in the property left by the deceased by purchase from Lukshmi Narain Mandal on the 14th September 1912, that is, a week before the application forProbate. The District Judge has dismissed the application the ground that the evidence adduced by the applicants for revocation is not sufficient to the row doubt upon the genuineness of the Will. It is plain that this order cannot be sustained. No question of the genuineness of the Will arises for consideration till the Court has decided that the Probate must be revoked on one or more of the grounds specified in Section 50 of the Probate and Administration Act. The only matter for consideration at this stage is, whether the appellants have made out a just cause for revocation of the Probate which was granted without notice to them: Brindaban Chunder Shaha v. Sureshwar Shaha 3 Ind. Cas. 178 : 10 C.L.J. 263. The question of genuineness cannot be considered till a case for revocation is made out: Durgagati v. Saurabini 33 C. 1001 : 10 C.W.N. 955.

2. It was ruled by this Court in the case of Komollochun Dutt v. Nilruttun Mundle 4 C. 360 : 4 C.L.R. 175 that a person interested by assignment in the estate of the deceased may, where a Will has been set up and proved at variance with his interests, apply for revocation of the Probate of the Will so set up. This view was followed in the cases of Muddun Mohun Sircar v. Kali Churn Dey 20 C. 37 Lalit Mohan v. Navadip Chandra 28 C. 587 Sheikh Azim v. Chandra Nath 8 C.W.N. 748 Digambar Keshav v. Narayan Vithal 9 Ind. Cas. 354 : 13 Bom. L.R. 38 and Ramchanda v. Ramrao (1896) Bom. P.J. 491. This is in accord with the principle adopted in the case of Lindsay v. Lindsay (1872) 42 L.J.P. 32 : 27 L.T. 592 : 21 W.R. 272 where it was ruled that the person entitled to intervene in a proceeding for revocation of Letters of Administration or Probate need not show that he had an interest in the estate of the deceased at the time of his death; an interest acquired subsequently by purchase of a part of the estate is sufficient. Consequently, if it is established that the appellants have acquired by purchase an interest in the properties left by the deceased, they were entitled to be heard in the proceedings for grant of Probate. There is thus just cause' for revocation of the Probate within the meaning of Section 50 of the Probate and Administration Act. If the case is not covered by the first Clause in the definition of the expression 'just cause', namely, that the proceedings to obtain the grant were defective in substance, it is undoubtedly covered by the second Clause, namely, that the grant was obtained fraudulently by making a false suggestion or by concealing from the Court something material to the case. Notice was served in the Probate proceedings upon Lukshmi Narain Mandal. It was his duty to apprise the Court that he had no subsisting interest in the estate so as to justify an opposition on his part to the grant of Probate; he should have intimated to the Court that he had transferred what he claimed as his share of the estate left by Gobinda Mandal to the present appellants. It is further difficult to imagine that the applicant for Probate was unaware that his father had, a week before, conveyed away to the appellants what he claimed as his share of the estate; it was thus equally his duty to intimate this fact to the Court. If this had been done, the Court would undoubtedly have issued notices upon the present appellants.

3. The result is that this appeal is allowed and the order of the District Judge set aside. The case will be remanded to him in order that he may investigate whether the appellants have in reality the interest which they allege in the estate left by Gobinda Chandra Mandal. If their purchase is proved, the Probate will stand cancelled and the applicant for Probate will be called upon to prove the Will in solemn form. If, on the other hand, the appellants fail to establish their alleged purchase, they must be deemed persons not entitled to intervene in the Probate proceedings and their application for revocation will stand dismissed. There will be no order for costs in this appeal.


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