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Bhobatarini Debi Minor by Her Husband and Next Friend Ganesh Chandra Sarkhel Vs. Hari Charan Banerjee - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in36Ind.Cas.38
AppellantBhobatarini Debi Minor by Her Husband and Next Friend Ganesh Chandra Sarkhel
RespondentHari Charan Banerjee
Excerpt:
court fees act (vii of 1870), scheduled ii, article 12 - probate proceedings--caveat, object of--petition of objections to probate, whether caveat--court-fee - .....two daughters. one of the daughters thereupon appeared and intimated her intention of opposing the application for probate. she did so in a petition on which she affixed an 8-annas stamp. the learned district judge was of opinion that this petition was in the nature of a caveat and so required a stamp of 5 rupees under article 12, schedule ji of the court fees act. he, therefore.refused to accept the petition of objection and having refused that petition proceeded to deal with the application for probate ex parte. his order granting probate after these ex parte proceedings is dated the 16th january 1915.2. it is clear that in treating the petition of objection filed by the daughter as a caveat the learned judge has fallen into error. a caveat is in the nature of a precautionary mesure.....
Judgment:

1. In this cafe it appears that a widow of the name of Charubala Devi died sometime in October 1914. Thereafter her father presented to the Court of the District Judge of Alipore a document which he alleged to be the last Will and testament of the deceased Charubala Devi and applied for Probate thereof. In his application he stated, as the law requires, the names of the relatives of the deceased, these relatives being in this case two daughters. One of the daughters thereupon appeared and intimated her intention of opposing the application for Probate. She did so in a petition on which she affixed an 8-annas stamp. The learned District Judge was of opinion that this petition was in the nature of a caveat and so required a stamp of 5 rupees under Article 12, Schedule JI of the Court Fees Act. He, therefore.refused to accept the petition of objection and having refused that petition proceeded to deal with the application for Probate ex parte. His order granting Probate after these ex parte proceedings is dated the 16th January 1915.

2. It is clear that in treating the petition of objection filed by the daughter as a caveat the learned Judge has fallen into error. A caveat is in the nature of a precautionary mesure intended to ensure that there shall be no proceedings in the matter of the estate of the deceased without notice to the person who files the caveat. In this case no caveat was necessary. Citations had issued upon the daughters at the instance of the petitioner and in answer to the citation she appeared and claimed her right to be heard. Eight annas on such a petition is sufficient and the daughter, having appeared upon citation and being a person interested in the estate of the deceased, should obviously have been allowed to be present throughout the proceeding and to adduce such evidence as she might have in opposition to the claim.

3. For these reasons we set aside the Judge's order of the 14th December 1914 and also his order of the 22nd December 1914 and direct that the proceedings be re opened and that the Will be proved in the presence of the objector, who shall be allowed full opportunity to adduce such evidence in the matter as she may be advised to offer. The Probate already issued shall be re-called. The appeal is accordingly decreed and the Rule No. 312 of 1915 made absolute.

4. Costs will abide the result. We assess the hearing fee in the appeal and in the Rule at one gold mohur in each.


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