CHUNILAL KOTHARI Vs. GOPI DEVI MIMANI

JUDGEMENT

(1.) This is an appeal by certificate from a judgment of the Calcutta High Court arising out of an original suit filed by the respondent for grant of letters of administration to the estate of her father late Meghraj Kothari.

(2.) The following genealogical table shows the relationship of the parties ; Meghraj Kothari died on April 18, 1953 in Calcutta. In May 1953 respondent No. 1. Smt. Gopi Devi Mimani filed a petition in the High Court for an order that letters of administration to the estate of the deceased be granted to her having effect throughout the Union of India. She claimed to be the sole heir and legal representative of the deceased and it was stated in her application that since Smt. Goharbai, her mother, was insane a right be reserved for her to apply for grant of letters of administration in the event of her gaming sanity bat that her right to maintenance and residence be declared to from a charge upon the assets of the deceased A special citation was issued to the appellants Chumlal, Heeralal and Kanhaiyalal and respondents Shri Gopal and Hargopal. A special citation was also issued to one Smt. Mathurabai. Upon receipt of the special citation the appellants and respondent Shri Gopal entered caveats and Smt. Mathurabai opposed the said application of respondent No. 1 for grant of letters of administration in her favour. An affidavit was filed on behalf of Smt. Goharbai through her brother Gangadas Binani to the effect that she was the sole her of the deceased. However, the prayer of respondent No. 1 was supported by Gangadas Benani for grant being made to her subject to the right of residence and maintenance of Smt. Goharbai. The matter remained\ pending till May 1962 when P. C. Mahk, J., made an order granting letters df administration to the estate of the deceased not to respondent No. 1 but to Gangadas Benani the brother of her mother who was the widow of the deceased. The appellants preferred an appeal which was disposed of in February 1964. Learned Judges Constituting the division bench enquired from the counsel for respondent No. 1 whether she was willing to admit that Smt. Goharbai was the sole heir of the estate of Megh-raj Kothari and whether she was prepared to admit her claim. On February 17, 1964 an affidavit was allowed to be filed by to that effect. A direction, was made issuing a limited grant to respondent No. 1 under Section 254 of the Indian Succession Act.

(3.) The sole argument raised on behalf of the appellants is that respondent No. 1 was not a fit person for the grant of letters of administration to the -estate of the deceased because she had throughout been denying the right of the real heir, namely, her mother who as a widow of the deceased was entitled to succeed to his estate. Secondly she was an illiterate person and was incapable of managing any property. The real person who would get complete control of the estate would be her husband who was hostile to the appellants. This is how the division bench of the High Court dealt with the matter.