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Haimabati Mitra Vs. Kunja Mohan Das - Court Judgment

LegalCrystal Citation
Subject Family
CourtKolkata
Decided On
Reported inAIR1931Cal713
AppellantHaimabati Mitra
RespondentKunja Mohan Das
Cases ReferredKalidas Chuckerbutty v. Ishan Chunder Chuckerbutty
Excerpt:
- .....was also the executor applied for probate and citation was issued to the mother and to the three infant daughters represented by their mother and to mahamaya dasi, married daughter of the testator : see exs. a and a-l, at p. 1, part 2 of the paper-book. and one of the main questions in the appeal is whether citation was issued to haimabati, who was one of the infant daughters of the testator. the mother either for self or as guardian of her infant daughters did not enter any caveat nor did the married daughter do so. the matter was treated as a non-contentious proceeding and after examination of one of the attesting witnesses to the will probate was granted by the district judge. in 1927 monomohini, the mother of the applicant for revocation died and the present application for.....
Judgment:

Mitter, J.

1. This is an appeal from a judgment of the Additional District Judge of Sylhet refusing to revoke the grant of probate of the will of Ramlochan Das, father of the appellant. Probate was granted so far back as the year 1895. The grant is attacked on two grounds principally, namely : (1) no citation was issued upon the appellant or upon her mother who was described as her guardian ad litem in the probate proceedings, (2) that the will was a forged will. The learned District Judge while holding that

there really there was no service of the citations in fact upon an interested person

refused to revoke the grant of probate on the ground of the long delay in applying for revocation.

2. The circumstances which have led to the application for revocation are these : In 1895 Krishna Prosad Das, an uncle of Ramlochan, applied for the probata of an alleged will of the latter stating that he had executed the will on 23rd January 1895, a short time before his death which took place in June of the same year. At the time of the execution of the will Ramlochan had his wife, three unmarried daughters and a married daughter living. The will appears from its terms to be an almost inofficious will for neither the wife nor daughters were given any share in the inheritance but provision was made only for maintenance of the wife and for the marriage of the daughters and it was provided by the will that in the absence of an adopted son or natural son the uncle of the testator would become the absolute owner of all the moveable and immovable properties left by Ramlochan. After the death of Ramlochan his widow Monomohini lived in joint mess with Kristoprosad and under his care and protection and the unmarried daughters lived with their mother. The daughters including the applicant for revocation of the grant (now appellant) were all infants. The uncle who was also the executor applied for probate and citation was issued to the mother and to the three infant daughters represented by their mother and to Mahamaya Dasi, married daughter of the testator : see Exs. A and A-l, at p. 1, part 2 of the paper-book. And one of the main questions in the appeal is whether citation was issued to Haimabati, who was one of the infant daughters of the testator. The mother either for self or as guardian of her infant daughters did not enter any caveat nor did the married daughter do so. The matter was treated as a non-contentious proceeding and after examination of one of the attesting witnesses to the will probate was granted by the District Judge. In 1927 Monomohini, the mother of the applicant for revocation died and the present application for revocation was filed on 25th May 1927 a short time after, Haimabati became entitled to the reversion on the death of her mother Monmohini.

3. Kunjamohan Das, the son of Krishna-prosad the executor under the will put in objections to the petition for revocation. The grounds of objection fall substantially under five heads : (1) there is no just cause for revocation of probate; (2) probate cannot be revoked in the absence of all the parties now interested in the properties left by the testator as there have been numerous alienations in their favour since the grant of probate; (3) the will was a genuine will and was duly executed by the testator; (4) proper citations were issued and the proceedings to grant probate were not defective in any way and (5) the application for revocation could not be entertained after such a. lapse of time when the executor and all the witnesses to the will are dead. The learned District Judge practically gave effect to the last objection and held that

the contention that appellant's inheritance opened only on her mother's death in 1333 was no valid reason why she should be permitted to contest the probate after an age,

and dismissed the application as already stated without deciding on the objection as to the genuineness or otherwise of the will.

4. On appeal it has been contended that delay was no ground for refusing revocation and there was no limit of time for such an application and as there has been no acquiescence in this case mere delay without any waiver on her part does not justify the Court in refusing her application, and reliance has been placed on a decision of this Court in the case of Shyamlal Ghose v. Rameswari Bose [1916] 23 C.L.J. 82, whore probate was revoked after thirty-two years. It is true that in the case just referred to it was laid down that there is no fixed time during which an application for revocation of a probate might be made, but it was at the same time held that although there may be no acquiescence a person may be debarred by long delay in making such application: Shyamlal Ghose v. Rameswari Bose [1916] 23 C.L.J. 82 at p. 100, para. 2 Although it has been held in one case that Article 178, Lim. Act, does not apply to applications for revocation of probate, see Kashi Chandra v. Gopi Krishna [1892] 19 Cal. 48, it seems to us that the last word has not been said on the subject and it may be a question whether such an application would not be governed by the residuary article in the Limitation Act either with reference to suits or applications. But we are really not concerned with the question as the present application was made shortly after Haimabati became entitled to the inheritance to which she would have succeeded but for the will. It is true that she might have as a presumptive reversioner made the application immediately after she attained majority which was many years ago, but it was not obligatory on her to do so. She, after attaining majority, might have thought that it would not be prudent for her to spend money till she actually succeeded to the inheritance of her father's estate as she might not have succeeded to it at all; of money also she had not enough and to spare for carrying on a litigation for securing a contingent right. She gives as a reason for not applying for revocation of probate so long her husband's bad financial condition which prevented her so long from starting any proceedings to revoke the grant: see p. 6. lines 14 to 18 of her deposition. These are circumstances which induce us to hold that there was some ground as to why the proceedings wore not started earlier.

5. There are at the same time circumstances on the other side which require consideration. All the witnesses to the will are dead. The executor who propounded the will is dead and it has become now extremely difficult for the respondent to prove the will in solemn form in the presence of the appellant.

6. Apart from the plausible explanation for the long delay in applying for revocation, are there any circumstances which would outweigh the consideration of the difficulties in the way of the respondent of proving the will in the presence of the appellant The circumstances which induce us to hold in favour of the appellant are these:

7. The will, if not absolutely inofficious, is certainly adverse to the interest of Monmohini, the widow of the alleged testator, and his daughters including the present appellant. Monmohini was purdanashin lady and the daughters except one, were all infants at the time the testator died. Both Monmohini and her daughters were living under the immediate protection of and in joint mess with Kristoprosad, the propounder of the will. It is true that one of the daughters, Mahamaya, had been married to Sarat Chandra Deb, one of the witnesses for the applicant, but the evidence is not conclusive that ha was cognizant of the probate proceedings during their pendency, The witness states that he hoard of a will from his mother-in-law probably in 1303, say six months after his father-in-law's death who crying said it was a forged will.

8. In 1304 B.S. (Chaitra) (1897) Mahamaya, wife of this witness, and the daughter of the alleged testator died and this witness must have ceased to take any interest in the estate of the alleged testator, It is true Monmohini took no active steps against the will, but it is to be remembered that she was under the protection of the propounder of the will and even if there had been formal service of the notice on her both in her personal capacity and as representing her infant daughters it was not such as would give to the parsons alleged to have been served an opportunity either to oppose the grant of probate or to require the will to be proved in her presence. The learned advocate for the appellant has criticized the evidence of service of citation on Monmohini, but Raj Govinda Sharma, witness 2 for the respondent, whose signature appears on the back of the notice states that the peon threw the process in the verandah when Monmohini was in the baraghar at a distance of say four or five cubits behind a hap and we are satisfied that there was formal service of citation on the widow. But as has been said by their Lordships of the Judicial Committee of the Privy Council with reference to a state of facts somewhat resembling the present, in the peculiar, circumstances of the case the service, if any, was of no greater effect in law than personal service on an infant of tender years: see Ramanandi Koer v. Kalawati Koer A.I.R. 1928 P.C. 2. And it might be said in this case as has been said by their Lordships in the case just referred to that as against the difficulties in the defendants way by reason of lapse of time, death of parties and witnesses...that much of it might have been avoided by prudent action on the part of the propounder. e.g., by taking proper and necessary stops to have the will proved par tastes in the presence of an independent guardian for the infant daughters.

9. As there was no citation on an independent guardian of the applicant the infant daughter of the testator, who was the nearest female heir after the death of the widow of the testator we think the proceedings to obtain the grant would be defective in substance, and under Section 263, Succession Act the grant of probate should be revoked or annulled for just cause on this ground alone. It will be open however for the respondent to prove the will in the presence of the appellant and to establish by evidence that it was duly executed and attested.

10. It remains to notice a point raised by the learned advocate for the appellant that the grant was defective in substance as after the widow declined to appear and contest the proceedings a guardian ad litem should have been appointed by the Court and the will should have been proved in solemn form in the absence of such guardian ad litem and reliance is placed on the decision in the case of White v. Duvernay [1891] P.D. 290. It appears however that Under the practice obtaining in the probate division of the English High Court citations to see proceedings are issued in what is known as contentious business (Tristram & Coote's Probate Practice, 16th Edn. 350). So also on the original side of this Court no citation is issued unless there has been a caveat, and in such cases probate is obtained in noncontentious or common form business. In the mufassil under the discretion which is vested by Section 283, Succession Act, citation is issued on an application for probate being filed but the proceedings do not become contentious until they are opposed (Section 286 of this Act) and when there is contention the proceedings take the form of a regular suit to which the provisions of the Civil Procedure Code apply. The case relied upon by the appellant therefore does not apply to noncontentious proceedings in this country and, as was pointed out by my learned brother in the course of argument, if this contention were accepted it would revolutionize the law of procedure in probate proceedings in India and would convert every non-contentious proceeding into a contentious proceeding whenever one of the parties to be cited happens to be an infant. Reliance was also placed on the decision of this Court in the ease of Akhileswari Dasi v. Hari Charan Mirdha : AIR1925Cal223 . An examination of this and other cases on this point in this. Court will show that they do not go so far as the English case cited. They are no authorities for the proposition that whore the guardian ad litem of the infant does not appear and contest the proceedings, a guardian ad litem should be appointed by the Court and the will proved in the presence of such guardian. All that the Indian cases, which I will examine presently lay down is that in cases that where the applicant for probate is himself the guardian of the infant on whom citation should issue or where the natural guardian of the infant lives under the influence, care and protection of the propounder of the will an independent guardian ad litem should be appointed for the purpose of receiving the citation issued, and on such an independent guardian service of citation should be effected.

11. The first case on this point in this Court is the case of Rebells v. Rebells [1897] 2 C.W.N. 100. In that case no citation at all was issued on the infant who was disinherited by the will and the infants were living under the guardianship of the applicant for probate and Banerjee, J., points out in those state of facts that they had no guardian ad litem appointed for them and they ought not to be held to have had sufficient notice even if nominally special citations had to be issued to them.

12. The next case on this point is the case of Shorashi Bala Debi v. Anandamoyee Debi [1908] 12 C.W.N. 6. In this case application for probate was made by two widows of the testator and citation was issued upon the infant daughter of one of them as represented by her mother (one of the applicants for probate), and in these circumstances it was held that the proper course for the applicant for probate was to have somebody appointed by the Court to act as the guardian of the infant daughter or to take out citation against her represented by her next friend or an officer of the Court who could have no interest adverse to the infant daughter. The reason of the decision was that the mother, one of the applicants for probate, could not represent both her interest and the interest of her daughter. There is nothing in this decision which supports the contention of the appellant that if the guardian ad litem did not appear and contest the proceedings after citation had been served on her the Court should appoint a guardian.

13. Dwijendra Nath v. Goloknath [1915] 28 I.C. 574 is the next case which requires consideration. There the person affected by the will was the infant son of the testator. He was at the time of issue of citation a child few months old; his mother also was a minor, incompetent in law to act as his guardian. Service upon them was wholly useless for the protection of the interest of the infant and it was held in these circumstances that the proper course for the propounder of the will to follow was to have a guardian ad litem appointed for the infant concerned. This case again is no authority for the contention of the appellant in this behalf above alluded to.

14. Akhileswari Dassi v. Hari Charan Mirdha A.I.R. 1925 Cal. 223 is the next case to be considered. In that case the propounder of the will who was the son of a first cousin of the testator applied for letters of administration with copy of the will annexed. In the petition for letters of administration the name of the guardian of two of the infant daughters of the testator who were cited was not mentioned and this being pointed out to the petitioner by the officer of the Court, the petitioner proposed the maternal uncle of the infant daughters of the deceased as their guardian but no citation was issued upon the infant daughters and their maternal uncle, the proposed guardian, but what was done was, notices were taken to the house of the father of the two infants, and as the girls could not be found the notices were affixed to the thatch and it was held in those circumstances that the propounder should have taken steps for the appointment of guardian ad litem and as no guardian ad litem was appointed the issue of notices to the infants were of no avail. This case again does not decide that where notices were served upon an independent guardian ad litem and he or she did not appear the Court should appoint a guardian ad litem. We think therefore that this contention must fail.

15. To induce us to hold that we should not exercise our discretion in favour of the appellant reference was made on behalf of the respondent to the case of Kalidas Chuckerbutty v. Ishan Chunder Chuckerbutty [1904] 31 Cal. 914 in which their Lordships of the Judicial Committee observed thus:

Their Lordships think that the learned Judges of the High Court were right in laying stress upon the difficulty of proving in 1896, a will which purports to have been executed in 1878 and of which probate was taken in common form in 1884.

16. The facts of that case however are widely different from those in the case before us; that was a case in which the applicant for revocation became connected with the estate after the probate was issued, and wanted the will which had been proved in common form without issue of any citations to be proved in solemn form in his presence after the probate so granted was recalled.

17. We have already given our reasons for holding that the grant of probate must be set aside, on the ground that in the peculiar circumstances of the case the service of citation was of no greater effect in law than the personal service of an infant of tender years, and the respondent must be called on to prove the will in solemn form in the presence of the appellant.

18. It remains to notice an objection raised by the respondent that as since the granting of the probate numerous alienations in favour of third parties have been made and such third parties have not been impleaded in the present proceeding the application for revocation is not maintainable. We do not think they were necessary parties to the present proceedings for revocation of the grant on the ground of the proceeding being defective in substance. In the present proceedings we are not concerned with the question as to what will happen to the alienees if eventually the will is found not to be the will of a free and capable testator. But the alienees, if they chose, may intervene and opportunities should be afforded to them of being heard when the respondent is called on to prove the will in solemn form.

19. There will be no order as to costs.

Mukerji, J.

20. I agree, and on all points.


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