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Hari Ram Singh Choudhury Vs. Ram Ram Singh Choudhury and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal444,75Ind.Cas.218
AppellantHari Ram Singh Choudhury
RespondentRam Ram Singh Choudhury and anr.
Excerpt:
will - two executors--application for probate by one--renunciation of executorship by other--probate, grant of--subsequent application or withdrawal of renunciation, whether competent. - .....date requesting them either to renounce the executorship or to join in the application on the 3rd july an application was made by the appellant before us stating that he was willing to be an executor under the will in that petition, however he further stated that it would be necessary to file a petition of objection to the suit. on the 17th july 1920 he made an application asking for further time until the 27th july 1920 for the purpose of filing objections. then on the 27th of july, the date up to which he had got an adjournment, an application was made by the appellant in which he said, contrary to his previous statement, that he did not agree to be an executor under the will. in that petition he also says that he has come to know that the will contains various illegal provisions and.....
Judgment:

John Woodroffe, J.

1. A preliminary objection was raised in this appeal as to its competency. It has been contended that the appeal is directed against an order re fusing an application for a review, that is taking it that the Probate was granted by the Court on the 7th of August 1920. It is not necessary, in my opinion, to decide that point because I think the appeal fails upon the second ground.

2. The appellant is a son of the testator, one Gobinda Sundar Singh Choudhury. The respondent also is another son. These two sons were appointed executors under the Will of their father. There were also other persons executor and executrix. An application for probate was made by the respondent, Ram Ram Singh, on the 8th June 1920. On the 12th June 1920 the application was registered and notice was directed to issue to the persons named in the order of that date requesting them either to renounce the executorship or to join in the application On the 3rd July an application was made by the appellant before us stating that he was willing to be an executor under the Will in that petition, however he further stated that it would be necessary to file a petition of objection to the suit. On the 17th July 1920 he made an application asking for further time until the 27th July 1920 for the purpose of filing objections. Then on the 27th of July, the date up to which he had got an adjournment, an application was made by the appellant in which he said, contrary to his previous statement, that he did not agree to be an executor under the Will. In that petition he also says that he has come to know that the Will contains various illegal provisions and that he will have to bring a suit for setting aside the Will, that he does not admit the clauses of the said Will, nor does he intend or agree to be an executor thereof. He prayed that his objections might be noted (on protest) and the suit might be decided. Then, after certain other orders to which I need not refer on the 7th of, August an order was passed, as read it, granting Probate. The appellant's name was not included among the Probate holders. Then there were some further orders and on the 27th' of September 1920 the appellant prayed that he might be allowed to withdraw his application of the 27th July. 1920 and be appointed an executor along with his two brothers. That application was supported by a petition in which it was stated that that objecto that is, the appellant, was always ready and willing to be an executor and that he had never refused to do So. This application was opposed and on the 8th of October 1920 the learned Judge gave his decision-holding that he was not satisfied that the petition of the appellant renouncing executorship was filed through mistake as alleged. He also pointed out that the appellant did not file his petition of withdrawal until two months after the petition of renunciation had been filed. He accordingly dismissed the petition. Against that order the present appeal has been made.

3. I think the decision of the learned Judge must be supported on the ground that, at the time when the appellant asked to withdraw his renunciation of the executorship, the grant of Probate had already been made on the 7th of August 1920 and, therefore that application came too late. It has been argued that we should hold that the Probate, was granted on the 8th of October 1920. On that date the order was that probate should issue, The Probate had been granted same time previously. This distinguishes the present case from that cited to us. Therefore, the appeal fails and mutt be dismissed with costs. Hearing fee five gold mohurs.

Cuming, J.

4. I agree.


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