HEM NOLINI JUDAH SINCE DECEASED AND AFTER HER LEGAL REPRESENTATIVE MALLEAN WILKINSON Vs. ISOLYNC SAROIBASHINI BOSE

JUDGEMENT

(1.) This appeal on a certificate granted by the Allahabad High Court arises out of a suit filed by Mrs. Bose (Plaintiff-respondent) by which she claimed a declaration that she was the owner of house No. 195 Ghasiarimandi Road, Lucknow, or in the alternative a declaration that she was the owner of two thirds of the house. The previous history of litigation with respect to this house is relevant and may be set down. The house originally belonged to Dr. Miss Mitter, who died in July 1925. At the time of her death she left three sisters, namely, the appellant Mrs. Judah, the plaintiff-respondent Mrs. Bose and the defendant-respondent Mrs. Momin, and her mother Mrs. Mitter. The plaintiff's case was that Dr. Miss Mitter had made a will in favour of Mrs. Momin in April 1921 by which she gave the whole house to her. Mrs. Momin in turn made a gift of the house to the plaintiff who thus became the owner of the house. The defence of the appellant on the other hand was that Dr. Miss Mitter had executed a will in June 1925 bequeathing the house to her mother Mrs. Miter. Subsequently the mother made a will in favour of the appellant in April 1930. It appears that no probates of the two alleged wills by Dr. Miss Miner of April 1921 and June 1925 were taken out. It appears further that Mrs. Minter was living in this house when she died in 1934. On her death three wills alleged to have been made by her were propounded one in favour of each of her three daughters, namely, Mrs. Bose, Mrs, Judah and Mrs. Momin. Applications for letters of administration were made by the three sisters each claiming that the will in her favour was the last will of Mrs. Mitter, and among the property left by Mrs. Minter by the three wills was included the house in dispute. Further the house in question was also shown in the applications made by the three sisters for letters of administration of the alleged wills in their favour. Letters of administration were granted to the appellant while the applications of Mrs. Bose and Mrs. Momin were dismissed. This was followed by appeals to the then Chief Court of Oudh. The said Court rejected the appeals of Mrs. Bose and Mrs. Momin and thus their applications for letters of administration on the basis of the wills propounded by them stood finally dismissed. The Chief Court however allowed the appeal against the grant of letters of administration to the appellant and dismissed her application also. The matter was then taken before their Lordships of the Privy Council by the appellant and in 1945 the appeal of the appellant was allowed and the decree of the Chief Court was set aside and that of the trial judge granting letters of administration to the appellant was restored.

(2.) In the meantime, however, certain other events had transpired. In l942, Mrs. Bose filed a suit for partition. This suit was still pending when the Judicial Committee of the Privy Council allowed the appeal of the appellant in March 1945. So in December 1945 Mrs. Bose made an application to withdraw the partition suit with permission to bring a fresh suit, and she was allowed to do so on the condition that she would pay the costs of the appellant before filing the fresh suit. In July 1946 Mrs. Momin made a gift of her interest in the house in dispute in favour of Mrs. Bose. Thereafter in the same year viz., 1946, Mrs. Bose filed an application for grant of letters of administration of the will alleged to have been executed by Dr. Miss Mitter in Mrs. Momin's favour. This was objected to by the appellant and certain preliminary issues were framed in 1947; but eventually Mrs. Bose did not pursue this application for letters of administration and it was dismissed in 1948.

(3.) In the meantime, Mrs. Bose had filed an application for the revocation of the letters of administration granted to the appellant but this was also dismissed. About the same time in September 1946, the present suit was filed by Mrs. Bose praying for reliefs already) set out. Eventually this suit was the only proceeding which was pursued to the end by Mrs. Bose,