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Satindra Mohun Tagore and anr. Vs. Sarala Sundari Debi and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in45Ind.Cas.59
AppellantSatindra Mohun Tagore and anr.
RespondentSarala Sundari Debi and anr.
Cases ReferredBrindaian Ghunder Shaha v. Suresh
Excerpt:
testamentary suit - caveat, remote reversioners, whether can file. - .....testamentary suit that a certain caveat, which was filed on the 20th of december 1916 by satindra mohun tagore and ronendra mohun tagore, should be discharged. the will which was the subject-matter of the suit was the will of one atanunandan tagore who died, as we are informed, at the age of 19 years, and left a widow who was then 13 years old and who at the time of the suit was said to be 16 years old. caveats had been entered against the will by three persons, diptendra mohan tagore, bidyut prokash ganguly and srimati haziri daasi debi. of these diptendra mohun tagore is now dead; bidyut prokash ganguly is alive; and so is srimati haziri dassi debi who is the mother of the widow of the testator atanunandan. caveats had also been entered by the two appellants satindra mohun tagore and.....
Judgment:

Lancelot Sanderson, C.J.

1. In this case the appeal is from the judgment of my learned brother Mr. Justice Chitty, which was given upon an application by the plaintiffs in a testamentary suit that a certain caveat, which was filed on the 20th of December 1916 by Satindra Mohun Tagore and Ronendra Mohun Tagore, should be discharged. The Will which was the subject-matter of the suit was the Will of one Atanunandan Tagore who died, as we are informed, at the age of 19 years, and left a widow who was then 13 years old and who at the time of the suit was said to be 16 years old. Caveats had been entered against the Will by three persons, Diptendra Mohan Tagore, Bidyut Prokash Ganguly and Srimati Haziri Daasi Debi. Of these Diptendra Mohun Tagore is now dead; Bidyut Prokash Ganguly is alive; and so is Srimati Haziri Dassi Debi who is the mother of the widow of the testator Atanunandan. Caveats had also been entered by the two appellants Satindra Mohun Tagore and Ronendra Mohun Tagore. But on the 17th of November 1914, a letter had been written by the solicitor for the plaintiffs alleging on behalf of his clients, namely, the widow of the deoeased testator and the exeoutor and the exeoutiix named in the Will, that the appellants had not any interest whatsoever, and that consequently the solicitor was instructed not to allow inspection of the Will for which the appellants had been asking. The result of that, and, I think, of further communications was that en the 8th of March 1915 the caveats Which had been entered by Satindra Mohnn Tagore and Rcmendra Mohun Tagore were withdrawn.

2. Now, the position at that time was as follows: Bidyut Prokash Ganguly was contesting the validity of the Will as is shown by the fact that on the llth of March 1915 he affirmed an affidavit in which he set up very serious allegations: In paragraph 9 of his affidavit he alleged that the brother-in-law of Srimati Sarala Sundari Debi, who was the exeoutrix of the Will, had not only murdered his mother-in law but that also one Triguna Sundari Debi and had cut off four of the fingers of the hand of the said Srimati Sarala Sundari Debi and in addition to that, he struck the testator such a blow upon his face that he lost the sight of both his eyes and that in consequence of that unfortunate incident he had no training or education of any sort whatever and by constantly brooding over his misfortune he practically lost his memory and intelligence as well as balance of mind and lived the life of practical imbecility until his death: and in paragraph 22 he went on to allege that the Will was simply and wholly the act of Ashutosh Bannerjee and Srimati Sarala Sundari Debi (who are the exeoutor and executrix of the Will), in order to get the estate absolutely in their clutches and to get the son of the said Ashutosh Bannerjee adopted. 1 ought to have said that although we have not the Will before us, we are informed that the main provisions of it are to the effect that the property was left to the widow with power to adopt a son, if she so desired. That was the position of affairs at the time when Satindra Mohun Tagore and Bonendra Mohnn Tagore withdrew their caveats.

3. On the 30th of June 1915, the suit was set down as a contested suit. It appears that before that date an order had been made for a commission to issue for the examination of certain witnesses, namely, on the 22nd of May 19)5: and, inasmuch as on the 18th of November Diptendra Mohun Tagore died, the death was recorded, and liberty was given to the Commissioner to proceed with the commission. That was the state of affairs up to the end of November 1915.

4. The next fact 'which is necessary for me to mention is this: Apparently, in December 1915, a proposed settlement with Bidyut Prokash Ganguly was made, and that is evidenced by a letter which was written on the 9th of December 1916 by Mr. Sen acting on behalf of the executor and the executrix, addressed to Messrs. Manuel, Agarwalla and De who were acting as solicitors on behalf of the mother of the widow in these terms: I have the pleasure to inform you that subject to the sanction of the Court my clients and Mr. B. Ganguly have arranged to settle this case amicably on the terms of which I enclose for your information a copy. Having regard to the relationship of the parties and seeing that your client has no personal interest in the matter I trust you will agree with me that this settlement is very desirable and should be carried out.' The material provisions of the settlement weVe as follows: Mr. B. Ganguly being the next reversioner after the widow of the deceased, in case no adoption takes place or fails, was to be paid out of the estate of the said A.N. Tagore the sum of Rs. 1,55,000 'out of which he will meet and pay his own costs and the costs of Srimati Hazari Dasi Debi, the mother of the said widow, one pf the defendants in the suit;' and that the said sum of Rs. 1,55,000 should be paid by the executor and executrix by sale or mortgage of a portioii of the estate of the deceased within two months after the grant of probate. That agreement was to be subject to the sanction of the Court, as was provided by Clause 6 of the agreement, namely, that these terms would be treated as without prejudice to any or either of the parties to the suit until recorded and confirmed by the Court with the usual certificate that they were for the benefit of the infant widow. We do not know what took place after that, but we must approach the case on the basis that the widow's mother has not agreed to that proposal up to the present time. Apparently, Satindra Mohnn Tagore and Ronendra Mohun Tagore having got to know of this proposal proceeded on the 20th of December 1916 to file their second caveat, and the paragraph in their affidavit upon which they rely is paragraph 14, which is to this effect: 'That previous to this there was no necessity for our eptering caveat as we were under he impression that Bidyut Prokash Ganguly, who had always maintained that the Will was a forgery, would properly prosecute the proceedings started on the caveat entered into by him, but now that he is willing to have probate granted of a forged Will on being promised a large sum of money, we have been advised to contest the Will which has been set up as aforesaid.' That is the caveat which the learned Judge in the Court below has directed should be struck off the file.

5. Now, two main points have been raised in the argument in this Court. The first is that Satindra Mohnn Tagore and Bonendra Mohun Tagore have not got sufficient interest to entitle them to file caveats against the Will. The relationship is as follows: There is no doubt that Bidyut Prokash Ganguly is the immediate revorsioner in case of the death of the widow without a son being adopted: and, that if Bidyut were to die before the widow then the persons who would then become the immediate reversioners are the appellants Satindra Mohun Tagore and Bonendra Mohnn Tagore. There is no doubt that Bidynt Prokash Ganguly, the immediate reversioner, is entitled to contest the Will on the authority of the decision in the case of Brindaian Ghunder Shaha v. Suresh-war Saha Faramanik 3 Ind. Cat. 10 C.L.J. 263 and it is said that that case is an authority for the proposition that any interest, however slight, and even the bare possibility of an interest is sufficient to entitle a party to oppose a testamentary paper. In my judgment I do not think it necessary in this case for us to consider whether the rule laid down in the English cases has been adopted in this country as the rule applicable to such a case as this, because it was admitted during the course of the argument that if the immediate reversioner is not protecting the estate, then the next reversioner is entitled so to do: and I intend to base my judgment in this case on the facts of this case and not to lay down any general ruld upon the question whether any interest, however slight, or even the bare possibility of an interest is enough to entitle a party to oppose a testamentary paper. With regard to Bidyut Prokash Ganguly, as I have already pointed out, he has entered into this agreement to the material terms of which I have already referred; and, in my judgment, he has thereby done his best to render it impossible for him successfully to challenge the Will: or, looking at it from another point of view, in my judgment, he, by the agreement into which he has entered, has shown that at all events he cannot be relied upon seriously and successfully to contest the Will. But Mr. Das argued that it is not a concluded matter because there is the mother of the widow who is contesting, and there is no suggestion that she is going to abandon the position which she has taken up in contesting the Will. I assume that and I decide this case upon that assumption, because Mr. Das has poiiat-, ed out that he has not had an opportunity of answering the affidavit which had been put forward on the actual day of hearing before Mr. Justice Chitty. But even assuming that the widow's mother at the present moment has not agreed to compromise the suit, I still think that under the special and peculiar circumstances of this case, the appellants Satindra Mohun Tagore and Bonendra Mohun Tagore have suffioient interest to entitle them to enter caveat and contest the suit. I do not think it necessary for me to say anything more upon that point.

6. The second point urged is that the appellants ought not to be allowed to enter caveats at this stage, because they had already entered caveats on a previous occasion and withdrew them and, to use the words of the learned Judge, they ongfht not to be allowed to blow hot and cold in that way.' The answer to that seems to me to be that it cannot be said to be a case of blowing hot and cold, because the conditions which existed when caveats wpre Srst entered and withdrawn do not exist at the present moment. The caveats wore withdrawn, as I have already pointed on, when the opposition of Bidynt Prokash Ganguly could certainly be regarded as a genuine and strenuous opposition; but having regard to the agreement into which he has entered 1 think, as 1 have already said, he cannot be relied upon in future seriously to contest the Will, Therefore, the conditions being different, the accusation of 'blowing hot and cold' cannot reasonably be made against the appellants, and I do not think that that is sufficient reason for preventing them from filing caveats on the 20ch of December 1918.

7. The result, therefore, in my judgment is that the two appellants ought to be allowed to enter caveats. I think it would be a misfortune if there should be another suit, and consequently they ought to be added as defendants to the suit which is now proceeding. Mr. Sarkar has agreed that he will accept the evidence which has already been taken on commission, provided that he is allowed to have an opportunity of putting further questions in cross-examination, if he is advised so to do: and, the appellants will, therefore, be added as defendants to the suit upon the understanding that they will accept the evidence which has already been given, subject to any application which may be made by the appellants to the Judge trying the case for leave to put further questions in cross-examination. We cannot decide whether that leave ought to be granted or not, and it will be for the learned Judge trying the case to decide that.

8. For these reasons I think that the appeal should be allowed with costs here and in the Court of first instance.

Woodroffs, J.

9. I agree with the order proposed by the leained Chief Justice on this ground: the caveatnr Diptendra Mohun Jagore is dead, and the oaveator Bidyut Prokash Ganguly has entered into a com' promise to settle this litigation, and there is thus left out of the original caveators, only Srimati Hazari Debi acting on behalf of the minor widow. It, seems to me that it is very likely that Hassiri Debi was consulted about the compromise, and though it has not been shown that she has actually assented to this compromise, I am not satisfied under the circumstances of this case that the interests of the rever-sioner appellants will be sufficiently protected unless they are allowed to intervene.


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