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Haridasi Dasi and ors. Vs. Bidhumukhi Dasi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1922Cal38,68Ind.Cas.795
AppellantHaridasi Dasi and ors.
RespondentBidhumukhi Dasi
Cases ReferredBrinda Chowdhrain v. Radhica Chowdhrain
Excerpt:
probate and administration act (v of 1881), section 50 - hindu reversioner, whether entitled to be heard in probate proceeding--application for revocation of probate--immediate female reversioner not entitled to maintain application--next reversioner, if can apply--minor reversioners--natural guardian omitting to apply for revocation--reversioners, whether estopped. - .....the district judge has refused the application of haridasi on the ground that she was aware of the probate proceedings, arid that the fact that no special citation had been issued to her was in the circumstances not sufficient to justify the revocation of the probate, on the principle explainer by this court in the case of prem chand day v. surendra nath saha 9 c. w. n. 190., as regards the application by pramatha nath and anadinath, the district judge has held that they had no interest in the property during the lifetime of their mother and were not consequently necessary or proper parties to the probate proceedings.2. it is not necessary to consider whether in view of the decision in ramgopal das v. radha-krishna das 3 c. l. j. 37n., the probate was properly granted on affidavits or.....
Judgment:

1. This appeal is directed against an order of dismissal made on an 'application to revoke a Probate under Section 50 of the Pre bate and Administration Act. Priya Nath Ghose, the alleged testator, died on the 13tb November, 1907. He left a widow, Bidhumukhi Dasi, a daughter, Haridasi Dasi, and two sons by her Pramatha Nath and Anadinath, On the 16th July 1908 the widow applied for Probate of a Will said to have been executed by the deceased on the 26th October 1907. The application, which was supported by the affidavits of two of the attesting witnesses, did not mention that the testator had left a daughter or two sons by her who would successively take the estate in the event of intestacy. A general citation was thereupon issued but no special citation was or could be served upon the relatives of the deceased. As there was no opposition, the Prelate was granted on the affidavits on the 21st August 1908. On the 21st May 1919, the present application for revocation of the Probate wag made by Haridasi and her two sons, Pramatha Nath and Anadinath, on the allegation that the Will set tip was not genuine. The application was opposed by the widow. The District Judge has refused the application of Haridasi on the ground that she was aware of the Probate proceedings, arid that the fact that no special citation had been issued to her was in the circumstances not sufficient to justify the revocation of the Probate, on the principle explainer by this Court in the case of Prem Chand Day v. Surendra Nath Saha 9 C. W. N. 190., As regards the application by Pramatha Nath and Anadinath, the District Judge has held that they had no interest in the property during the lifetime of their mother and were not consequently necessary or proper parties to the Probate proceedings.

2. It is not necessary to consider whether in view of the decision in Ramgopal Das v. Radha-krishna Das 3 C. L. J. 37n., the Probate was properly granted on affidavits or whether the application made by Haridasi Dasi has been properly refused, because there is no room for serious controversy that the application made by Pramatha Nath and Anadinath should have been granted. It is plain that in the event of intestacy Pramatha Nath and Anadinath would be ultimately entitled to succeed to the estate of their maternal grandfather, Priya Nath Ghose, in their own right and not through their mother. Consequent, if the alleged testamentary instrument is not genuine, their position has been seriously affected by the grant of the Probate, inasmuch as the result of the Will is to alter the line of succession and to divert the estate into new channels. In such circumstances, the daughter's sons would prima facie be entitled to intervene in the Probate proceedings, on the well-established principle relating to the true position of reversioner of the record degree, as explained in the ease of Abinash Chandra Mazumdar v. Harinath Saha 32 C. 62 at p. 66 : 9 C. W. N. 25. in the follow-terms:

In the case in which, upon the death of a fall owner, the estate successively passes through the hands of a series of female heirs, who take only a qualified estate, before the property vests in another full owner, they may rightly be regarded in the aggregate as the holder of a limited interest which intervenes between the fall ownership of the original owner and the ultimate taker. Each of these recipients of the limited interest has three common characteristics, namely, first, each possesses only a qualified right of alienation; secondly, not one of them can transmit the property to her own heirs, but it passes upon her death to the heir for the time being of the last full owner, and, thirdly, not one of them can alienate the estate absolutely even with the consent of the next female reversionary heir, for where the next reversioner is herself a female who only takes a life-estate, her consent will not bind the next reversioner who takes an absolute estate: in other words, the assent of a female reversionary heir to an alienation made by a female heir cannot confer upon it a character of greater validity than it would have possessed if it had been made by herself. . . There is a substantial distinction between the case in which a remote reversioner who would take an absolute interest, sues for a declaratory decree in the presence of a nearer male reversionary heir and the case in which such a suit is brought in the presence of a nearer female reversionary heir. It follows corsequently that a male reversionary heir who would be entitled to the property absolutely, if he succeeded to it, ought to be allowed to challenge an unauthorised alienation by the holder of a qualified estate, whether or not such female heir is his immediate predecessor or is separated from him by the interposition of other possible female heirs.

3. The view thus expounded has been adopted and applied in a variety of cases. As an example, reference may be made to the judgment of this Court in the case of Harsh Chand Babu v. Biioy Chand Mahatab 2 C. L. J. 87 at p, 95 : 9 C, W. N, 795. where the following observation was made:

4. where there are several reversioners entitled successively under the Hindu Law to an estate held by a Hindu widow, no one such reversioner san rightly be held to claim through or derive his title from another, but he derives his title from the last full owner, and, therefore, although the right of the nearest reversioner for the time being to contest an alienation or an adoption by the widow may have become barred by limitation against him, this will not bar the similar rights of the subsequent reversioner.' This principle has been followed by the Madras High Court in Gazzala Veerayya v. Gazzala Ganamma 16 Ind. Cas. 339 : 36 M. 570 : 12 M. L. T. 168 : 23 M. L. J, 269 : (1912) M. W. N. 912 and Narayana Aiyar v. Rama Aiyar 20 Ind. Cas. 625 : 38 M. 396 : (1913) M. W. N. 588 : 14 M, L. T. 89 : 25 M. L. J. 219.

5. For other illustrations, reference may be made to the decisions in Srinibash Das v. Monmohini Dasi 3 C. L. J. 224. and Be pin Behari Kundu v. Durga Charan Barerji 35 C. 1086 at p. 1090 : 12 C. W. N. 914 : 8 C. J. 120. In the case last mentioned, Mr. Justice Doss stated the principle in these words: 'if the widow had, with the concurrence of the daughters alienated the property in favour of a stranger, the alienee would not have taken any larger estate than the limited and qualified estate of the widow or of the daughters, for the alienee cannot have a larger estate than that possessed by the alienor, and the coalition of the estate of the widow with that of the daughters not having the effect of amplifying the quantum of the resultant estate,' This principle wan applied in Raja Dei v. Umed Singh 13 Ind. Cas. 632 : 34 A. 207 : 9 A. L. J. 158. and Chidambara Reddiar v. Nallammal 5 Ind. Cas. 164 : 33 M. 410 : 7 M. L. T. 44.

6. In the case before us, there its no doubt that, apart from all questions of acquiescence, the application for revocation could have been made and was properly made by Haridasi Dasi, the immediate reversioner. The decisions in Khettramoni Dasi v. Shyama Churn Kundu 21 C. 539 : 10 Ind. Dec. (n s.) 989. Brindaban Chander Shaha v. Sureshwar Saha 3 Ind. Cas. 178 : 10 C, L. J. 263 and Shyama Charan v. Prafulla Sundari 30 Ind. Cas, 161 : 21 C. L. J. 557 : 19 : C. W. N. 882. show that although a reversioner under the Hindu Law has no present interest in the property left by the deceased, the reversioner, whether male or female, is substantially interested in the protection or devolution of the estate, and, as such, is entitled to appear and be heard in a Probate proceeding. If the immediate reversioner is a female, the male reversioner in the second or third degree, as the case may be (for instance where the deceased hag left a widow, daughter, mother and brother), is similarly entitled to be heard. In the present case, the immediate reversioner, Haridasi, has rendered it impossible for herself by her own conduct, to maintain the application successfully; consequently, the application may be made by Pramatha Nath and Anadinath who, as the ultimate reversioner?, were unquestionably proper parties to the Probate proceedings, this is clear from the decisions in Brindabati Ohunder Skaha v. Sureshwar .Saha (12) and Shyama Ohurn v. Prafulla Suridari 30 Ind. Cas, 161 : 21 C. L. J. 557 : 19 : C. W. N. 882.,

7. We have been pressed, however, to hold on the authority of the decisions in Nistariny Dabyu v. Brahmomoyi Dabya 18 C. 45 : 9 Ind, Dec. (n. s.) 31., Kunja Lal Chowdhury v. Kailash Chandra Chowdhury 7 Ind. Cas. 740 : 14 C. W. N. 1063; Nalini Sundari Gupta v. Bejoy Kumar Boy Chowdhury 30 Ind. Cas, 12 : 21 C. L. J. 555, Prem Chand Ban v. Swerdra Natk Saha (1)9 C. W. N. 190. that ,Pramatha Nath and Anadinath should be held incompetent to maintain the present application in the same way as their mother, because the evidence indicates that their father who was their natural guardian was aware of the Probate proceedings. It is clear, that at the time of those proceedings, Anadinath and possibly Parmatha Nath also had not attained majority. Assuming that their father was aware of the Probate proceedings and yet did not intervene therein, on their behalf, we cannot hold that his omission can prejudice the position of the infants. The case of Nistariny Dabya v. Brahmomoyi Dabya. 18 C. 45 : 9 Ind, Dec. (n. s.) 31. is clearly distinguishable. There a person professing to be the guardian of the infants had intervened for their protection. He succeeded in the Court of first instance, hat upon appeal the decision of the primary Court was reversed. In these circumstances, this Court held that the infant could not be permitted to re open the proceedings through another guardian, No such consideration obviously arises in this case. Nor is there room for application of the theory, as there was in the case of Prafullananda Goswami v. Brojendra Nandan Goswami 51 Ind. Cas. 693.; that there has been so great a lapse of time as to justify a refusal by the Court to re-open matters in controversy in exercise of its discretionary powers: Brinda Chowdhrain v. Radhica Chowdhrain 11 C. 492 : 5 Ind. Doc. (n. s.) 1087.

8. The result is that this appeal is allowed, and the application for revocation is granted. The Probate will be re sailed, the original Probate proceedings will stand revived and the present respondent will be at liberty to prove the Will in solemn form. The costs of all the parties to the present proceedings, both in this Court and in the Court below, will come out of the estate. We assets the hearing fee in this Court at three gold mohurs.


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