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Akhileswari Dasi and anr. Vs. Hari Charan Mirdha and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Reported inAIR1925Cal223,84Ind.Cas.689
AppellantAkhileswari Dasi and anr.
RespondentHari Charan Mirdha and anr.
Cases ReferredShoroshibala v. Anandamoyee
Excerpt:
- .....this appeal is directed against an order of dismissal made on an application for revocation of letters of administration with copy of the will annexed, granted to the respondent on the 76h october, 1912, in respect of the estate of one ram chandra mirdha, who made a will on the 4th february, 1912. he died a week later, leaving a widow and two daughters by a predeceased wife. on the 26th august, 1912, the respondent, who is the son of the first cousin of the deceased applied for letters of administration with a copy of the will annexed. it was pointed out by the officer of the court that the information supplied in the petition was not adequate and that as two infants were interested in the estate, the petitioner should state the names of persons who might act as guardians. the.....
Judgment:

Mookerjee, J.

1. This appeal is directed against an order of dismissal made on an application for revocation of letters of administration with copy of the will annexed, granted to the respondent on the 76h October, 1912, in respect of the estate of one Ram Chandra Mirdha, who made a will on the 4th February, 1912. He died a week later, leaving a widow and two daughters by a predeceased wife. On the 26th August, 1912, the respondent, who is the son of the first cousin of the deceased applied for letters of administration with a copy of the will annexed. It was pointed out by the officer of the Court that the information supplied in the petition was not adequate and that as two infants were interested in the estate, the petitioner should state the names of persons who might act as guardians. The petitioner complied with the requisition and proposed the maternal uncle of the infant daughters of the deceased as their guardian. In these circumstances, one would have expected that, in the normal course of events, special citation would be issued upon the infants and their proposed guardian. But for some unexplained reason this was not done, though general and special citations were directed to issue. The notices directed to the infants were taken to the house of their father, and as the girls could not be found, the notices were affixed to the thatch. No appearance was entered on their behalf and the letters of administration were granted ex parte on the 27th February, 1912; pursuant to this order, the letters were issued on the 5th December, 1912.

2. The present petition for revocation was made by the daughters on the 19th February, 1921. shortly after they had attained their majority. The application was made under Section 50 of the Probate and Administration Act and the ' just cause' assigned was that the proceedings were defective in substance inasmuch as citation had not been issued upon the petitioners. There was manifestly no answer to the application; the grant should have been revoked and the propounder should have been called upon to prove the will in solemn form. The proceedings in the Court below, however, took an extraordinary course. The case was repeatedly adjourned at the instance of the objector, who was not really to oppose the application for revocation, and ultimately the petitioners for revocation were called upon to produce evidence to show that the will was not genuine. The District Judge went into evidence and came to the conclusion that ' the will was genuine and that there was no reason to revoke it.' On this ground the revocation petition was dismissed with costs. We are of opinion that the order made by the District Judge cannot possibly be supported.

3. It is an elementary principle that no question of the genuineness of a will arises for consideration till the Court has decided that the grant of probate or letters of administration 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 upon an application for revocation is whether the applicant has made out a just cause for revocation. The application cannot be thrown out at this stage on the ground that the applicant has not adduced evidence sufficient to throw doubt upon the genuineness of the will; Mokshadayini v. Karnadhur (1914) 19 C.W.N. 1108, Durgagati v. Sourabini (1906) 33 Cal. 1001. In the case before us the only question which could be properly considered by the District Judge was whether the proceedings to obtain the grant were defective in substance because the grant was made without citing parties who ought to have been cited. Upon that matter there could be only one answer. The infant daughters were the reversionary heirs to the estate left by their father and but for the will would have succeeded thereto by right of inheritance after the death of their step mother. They were consequently entitled to special citation; Brindaban v. Sureswar (1909) 10 C.L.J. 263, Shyama Charan v. Prafulla (1915) 21 C.L.J. 557. The object; of issue of citation is that all persona whose interests are or may be adversely affected by the decrees of the probate Court shall have notice of the proceedings and an opportunity of intervening for the protection of their interests. This purpose is not achieved merely by issue of citation to infants and the pro-pounder should take steps for the appointment of a guardian ad litem, Dwijendra v. Golok (1914) 21 C.L.J. 287, Rebells v. Rebells (1897) 2 C.W.N. 100. Shoroshibala v. Anandamoyee (1906) 12 C.W.N. 6. In the present case no guardian ad litem was appointed and the issue of notice to the infants was clearly of no avail. A grant made under such circumstances cannot be supported.

4. The result is that this appeal is allowed and the order made by the District Judge set aside. The grant made on the 7th October, 1912 will stand revoked and the respondent will be called upon to prove the will in solemn - form. There will be no order for costs either in this Court or in the Court below.


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