1. This is an appeal against an order refusing to allow the appellant to oppose the grant of probate of a Will, on the ground that she has no interest sufficient to enable her to appear in proceedings on an application for probate. The order is, therefore, one refusing to make the appellant a party to the proceedings, it was held in the case of Khettra Moni Dasi v. Shyama Churn Kundu 21 C. 539 that no appeal lies against such an order, and that case has recently been followed in Sri Proshad Narayan Singh V. Dulhin Genda Koer 22 Ind. Cas. 276 : 18 C.L.J. 612.
2. We accordingly hold that no appeal lies against the order, and the appeal is accordingly dismissed. We make no order as to costs.
Rule No. 346 Of 1914.
3. We can, however, deal with the order under Section 115 of the Civil Procedure Code in the Rule which was granted in the case.
4. The petitioner is the widow of the predeceased son of one Haridas, and the opposite party is the widowed daughter of Haridas. The opposite party applied for probate of a. Will said to have been executed by Haridas, and the question is whether the petitioner has any locus standi to oppose the application.
5. It is alleged by the petitioner that she lived as a member of a joint family, governed by the Mitakshara School of Hindu Law, with her husband and her father-in-law until the death of the latter If, therefore, the properties dealt with by the Will were the ancestral properties of Haridas in which the petitioner's husband was a co-parcener, she could enforce her legal claim to maintenance oven against her father-in-law himself, had he been alive, and although the latter did not take the son's interest by inheritance, but by survivorship, he could not resist her claim. See Devi Persad v. Gunwanti Koer 22 C. 410. And in such a case a Will by the father-in-law disposing of his entire estate could not affect the right of maintenance of the daughter-in-law. There is no allegation, however, in the petition that the properties dealt with were ancestral properties and under the circumstances the petitioner is in the same position as regards the right to maintenance as a widowed daughter-in-law under the Bengal School, there being no difference between the two schools in this respect. See Siddessury Dassee v. Janardan Sarkar 29 C. 557 : 6 C.W.N. 530.
6. Now, upon the death of a son, the father has no legal obligation to maintain his daughter-in-law, except possibly under certain circumstances which need not be considered in the present case. His obligation has been held to be merely a moral or an imperfect obligation which, however, ripens into a legal obligation on the part of the heir who gets his estate after his death.
7. It may be taken as settled law that as against the heir in possession of the estate of the father-in-law, the daughter-in-law can legally enforce her right to maintenance. But the question raised in the present case involves the question whether such right can be enforced against a devisee of the entire estate under a Will executed by the father-in law. The quest ion has been answered in the negative in the case of Bai Parvati v. Tarwadi Dolaram 25 B. 263 : 2 Bom. L.R. 894 but a contrary opinion has been expressed by the Madras High Court in Rangammal v. Echammal 22 M. 305 : 9 M.L.J. 14. It is unnecessary to consider which of the two conflicting views is correct. If the daughter-in-law as contended on behalf of the opposite party cannot legally enforce her claim to maintenance as against a devisee, there can he no doubt that she is vitally interested in showing that the Will was never executed by hot father-in-law, and she should certainly be allowed to appear and oppose the grant of probate, for once the Will, is established her right to maintenance which could have been enforced in case of intestacy, is gone. If, on the other hand, the right to maintenance can be legally claimed against a decide, the question arises whether in such a case she has any interest sufficient to entitle her to appear in the probate proceedings. In the cases of In the goods of Sarat Chander Patro 2 C.W.N. cclvi, Garabini Dassi v. Pratap Chandra Shaha 4 C.W.N. 602 and in the goods of Gobinda Chandra 22 M. 305 : 9 M.L.J. 14 it was held that the persons who had merely a claim for maintenance in those eases, had no interest to appear in the probate proceedings. The first was the case of an illegitimate son of a Sudra, the second that of a widow of the adoptive father of the testator and the third of a widowed daughter-in-Jaw. The principle upon which these cases were decided appears to be that the right to maintenance cannot be affected by the Will, which proceeds upon the view that the right can be enforced against the devisee. We need not consider whether such a person has sufficient interest to oppose the grant of probate in all cases. There may he cases, for instance, where the right to maintenance is expressly recognized and the maintenance is provided for by the Will itself. In such a case, a person claiming maintenance might have no interest in appearing in the probate proceedings. In the case of Garabini Dassi v. Pratap Chandra Shaha 4 C.W.N. 602 the learned Judges (Banerjee and Stevens, JJ.) were of opinion that the provisions of the Will may be looked at, to see if the Will really affects the rights to maintenance, and in that particular case they held that it did not affect that right in any way whatever. The Will set up in the present case is in favour of the widowed daughter who is not the, heiress of Haridas. The Will itself directs that all the properties shall be sold, that a certain sum of money shall be paid to the petitioner, and certain other sums to two other persons, and the whole of the balance is to be appropriated by the opposite party herself. It is alleged by the petitioner that the opposite party has already entered into an agreement to sell all the properties, including the family dwelling house in which the petitioner had been residing. Assuming that the widowed daughter-in-law can enforce her right to maintenance and right of residence in the family dwelling-house as against the purchaser where the Will itself directs the sale of all the properties (a question not free from doubt) the petitioner will have the greatest difficulty in following the properties in the hands of the purchasers, specially if they are sold to different persons.
8. Under these circumstances, we think, the Will in this case seriously affects the interest of the petitioner and that she has sufficient interest to oppose the grant.
9. We accordingly direct that the order of the Court below be reversed and that the Will be proved in solemn form in the presence of the petitioner as in a contentions case.
10. The petitioner will be entitled to costs, three gold mohurs.