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KalimaddIn Vs. Hara Sundari Sen and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in109Ind.Cas.243
AppellantKalimaddin
RespondentHara Sundari Sen and ors.
Cases ReferredMokashdayini Dassi v. Karnadhar Mandal
Excerpt:
succession act (xxxix of 1925), section 265 - letter of administration--grant of letters without notice to person interesed--revocation of grant. - 1. this is an appeal by the petitioner for the revocation of the grant of letters of administration with the will annexed of one ram narayan sen, which was made in favour of his widow on the 6th of august, 1923. the fact should be stated in some detail in order to understand the position of the parties. ram narayan had two sons. in the year 1913, he and one of his sons, aswini, executed two simple bonds in favour of the appellant. in january, 1915, ram narayan died leaving his widow and the two sons him surviving. on the 24th of november, 1916, the two sons of ram narayan executed a bond in renewal of the two bonds executed by ram narayan and aswini in favour of the appellant in 1913. in september, 1920, the appellant brought a suit against the two sons of ram narayan. a decree was made.....
Judgment:

1. This is an appeal by the petitioner for the revocation of the grant of Letters of Administration with the Will annexed of one Ram Narayan Sen, which was made in favour of his widow on the 6th of August, 1923. The fact should be stated in some detail in order to understand the position of the parties. Ram Narayan had two sons. In the year 1913, he and one of his sons, Aswini, executed two simple bonds in favour of the appellant. In January, 1915, Ram Narayan died leaving his widow and the two sons him surviving. On the 24th of November, 1916, the two sons of Ram Narayan executed a bond in renewal of the two bonds executed by Ram Narayan and Aswini in favour of the appellant in 1913. In September, 1920, the appellant brought a suit against the two sons of Ram Narayan. A decree was made by consent in favour of the appellant against the two sons of Ram Narayan on the 17th of January, 1921. In February, 1923, some properties which had originally belonged to Ram Narayan were sold in execution of the decree and purchased by the appellant himself. On the 14th of March, 1923, the widow of Ram Narayan propounded the Will now in question which was alleged to have been executed by Ram Narayan on the 12th December, 1914, that is about nine years after the alleged date of the execution of the Will, and more than eight years after Ram Narayan's death. On the 16th of March, 1923, the two sons of Ram Narayan filed an application under Order XXI, Rule 30, Civil Procedure Code, for setting aside the sale of the property purchased by the appellant. On the 6th of August, 1923, Letters of Administration were granted to the widow of Ram Narayan ex parte. The application for setting aside the sale present by the two sons dragged on for over a year and it was dismissed on the 26th of April, 1924, for default. In the meantime the appellant was put in possession of the properties he had purchased in execution of his decree. The widow presented an application for the recovery of possession under Order XXI, Rule 100, Civil Procedure Code in November, 1925, which was granted. On the 10th of December, 1925, the application for the revocation of Letters of Administration was made by the appellant out of which this appeal arises.

2. The learned Judge dealt mainly with the question as to whether the Will was a genuine one or not. He referred to matters of suspicion which must arise having regard to the circumstances of the case as stated above. But the learned Judge relied upon the evidence of two attesting witnesses who, he thought were fairly respectable old men and who spoke in support of the Will; and in that view he has dismissed the application for revocation of the grant of Letters of Administration.

3. The main argument that has been addressed to us is that upon the mere fact that no notice was served upon the appellant of the application for the grant of Letters of Administration made by the widow when the appellant had obtained an interest in the properties left by the testator, his application for the revocation of the grant of Letters of Administration ought to have been granted without any further trouble. In support of this contention, our attention has been drawn to the case of Mokashdayini Dassi v. Karnadhar Mandal 31 Ind. Cas. 702 : 19 C.W.N. 1108 where it was stated that in case the proceeding in the matter of obtaining Letters of Administration was bad in substance, it was sufficient ground for the revocation of the grant; and in deciding the question of revocation of the grant on that ground, the question as to the genuineness or otherwise of the Will was not a matter for decision, It is contended on behalf of the respondents that in the application made by the petitioner for revocation, the main ground urged was that the Will was a forged one, and although it was stated in one paragraph that the grant was obtained by suppressing the processes for citation and without citing parties who ought to have been cited, that was not really the main ground upon which the application was pressed before the learned Judge. It was further argued that the learned Judge having gone into the question as to the genuineness of the Will has come to the conclusion that the Will was genuine and upon that ground refused to grant the application of the appellant, and we should not lightly reverse his decision as regards the genuineness of the Will. In our opinion, having regard to the circumstances the learned Judge ought to have made an order revoking the grant of Letters of Administration and directed the respondents to prove the Will as if there had not been any grant made to her. The grounds upon which an application for revocation can be made are stated in Section 263 of the Succession Act of 1925 which has replaced Section 50 of the Probate and Administration Act; and if any one of the grounds is made out in support of the application for revocation, the order for revocation should be made. In the case there cannot be any doubt that the appellant was a person who ought to have been cited when the application for Letters of Administration was made. There cannot be any question that he was not so cited and that ought to be sufficient to make an order for revocation of the grant of Letters of Administration without going into the question of the genuineness of the Will.

4. It is true that the applicant put forward both the grounds, with regard to one he may not have been able to prove that the Will was forged; with regard to the other he had succeeded. Therefore, the order should be in his favour. We refrain from expressing any opinion whatsoever as to the genuineness of the Will or otherwise. These matters should be decided, if the applicant for the grant of Letters of Administration desires to proceed with her application, and in doing so she will no doubt be required to explain the suspicious circumstances in the case and to satisfy the Court that it was a genuine Will executed according to law by the alleged testator and also the reasons for which she made no application for such a long period of time. The appellant has a real grievance as he was undoubtedly a creditor of the testator and by the proceedings which had taken place be is sought to be deprived of his just dues.

5. We, therefore, think that this appeal should be allowed and an order should be made for the revocation of the grant of Letters of Administration made to the widow of Ram Narayan on the 6th of August, 1923, and this grant should be cancelled.

6. As, however, the petitioner did not present the case on the simple ground on which he might have succeeded in the Court below, we make no order as to coats in his favour either in this Court or in the Court below. Each party will bear his own costs in both the Courts.


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