PARBATI DEVI Vs. LALLOO DEVI

JUDGEMENT

(1.) THIS appeal has been filed under Section 299 of the Indian Succession Act challenging an order dated 27 -10 -1979 passed by the District Judge Azamgarh. This was an application for review of an order dated 15 -9 -1979 passed by the District Judge. It was urged that by order passed by the District Judge in exercise of powers under the testamentary jurisdiction was appealable and as such the present appeal has been filed.

(2.) LEARNED Counsel for the Respondents contended that the appeal was not maintainable for the order rejecting the review application was not appealable under any provisions of the Indian Succession Act. It was further contended that Smt. Parbati Devi claimed to be a daughter of Sri Ram Prasad and after the death of Ram Prasad she was claiming a share in the property which had come to Ram Prasad from his mother Smt. Bharta Kuer through a Will; on behalf of the Respondents it was urged that testamentary case in the Court of the District Judge was in respect of the estate of Smt. Bharta Kuer, deceased mother of Ram Prasad and Smt. Parbati Devi, the Appellant in this Court was not even mentioned as a legatee under the aforesaid Will and as such she had no right, title or interest to make the application in the proceedings before the testamentary Court.

(3.) THE relevant facts are that Smt. Bharta Huer executed a will on 16 -6 -1963 and sought to dispose of 5 of her properties, two of which were situated in district Azamgaih and the other three, in Calcutta. Under the Will she gave one house property in Azamgaih to Smt. Lalloo Devi wife of Ran Prasad, her SOD. Another property at Azamgaih was bequeathed to her three sons, Bam Prasad, Shiv Prasad and Ganga Prasad. One property in Calcutta was bequeathed to Ram Prasad and the other two properties in Calcutta were bequeathed equally to the other two sons, Shiy Prasad and Ganga Prasad. On her death, Bam Prasad moved an application for grant of a probate. The matter was pending before the District Judge who was exercising the powers of testamentary court when Sri Ram Prasad died. Smt. Lalloo Devi, widow of Bam Prasad then stepped in, to pursue the petition for the grant of probate in place of Bam Prasad. While this proceeding was pending before the District Judge, Smt. Paibati Devi filed an objection 16/C2 dated 8 -9 -1978 in which she stated that Bern Prasad died on 31 -8 -1972 and she was one of his heirs and that Smt. Lallco Devi did not pursue the substitution proceedings in accordance with law and left her cut. Further, that Shiv Prasad and Ganga Prasad were in collusion with Smt. Lalloo Devi and further proceedings in the matter of the grant of probate should only be done after the substitution proceedings had been done in accordance with law. She also raised another ejection that the Estate Duty certificate which bad been filed in the case related to the estate of Smt. Bbarta Kuer and no certificate was filed in respect of the estate of Bam Prasad. This objection of Smt. Paibati Devi was rejected by an order dated 15 -9 -1979. The application 16/C2 was rejected. Thereafter Smt. Parbati Devi the Appellant bad moved a fresh application claiming that the was the daughter of Bam Prasad, a fact which (be bad not disclosed in her application 16/C2. 'In support of her stand that she was a daughter of Bam Prasad she filed some documentary evidence. The learned District Judge considered the matter and held that Smt. Parbati Devi was not a daughter of Bam Prasad. Her application was accordingly rejected. After this order was passed, Smt. Parbati Devi moved an application for the review of the above order and sought to file further evidence. The Court below rejected the application for review giving reasons. It is against the above order that the present appeal has been filed.