GOPI DEBI MEMANI Vs. CHUNILAL KOTHARI

JUDGEMENT

(1.) This is an application by Sm. Gopi Debi Memani for grant of Letters of Administration to the estate of Meghraj Kothari, who died on April 18, 1953. The petitioner is the only daughter of Meghraj who died leaving no son, but the petitioner as his only daughter and a widow named Gahar Bai. The widow at the time of the death of Meghraj was of unsound mind. She was not, however, adjudged a lunatic, nor has a manager been appointed by the Court of her estate. Meghraj left also other relations whose names are set out in paragraph 3 of the petition. They are three brothers -- Chunilal, Hiralal and Kanhaialal -- and two nephews by a predeceased brother as also the father's mother. The present petition was presented on May 26, 1953 and there was an order directing notice to be served on the caveators to file affidavits. Special citations were ordered to be issued to the relations named in paragraph 3 of the petition. The caveators referred to are the three brothers and a nephew. It is alleged that the properties Meghraj died possessed of are separate properties. The deceased was separated from the coparcenary before his death. It is further alleged that the widow of Meghraj -- Gahar Bai --is a lunatic since 1944 and that either Gahar Bai or the petitioner has become in law entitled to the estate left by Meghraj. The assets have been valued at Rs. 2,50,000/-. It is to be noted that though in the petition the title of the widow to inherit the estate hag not been categorically denied, in the affidavit of assets the petitioner describes herself as "the only daughter and heir and legal representative of Meghraj Kothari who died intestate." She does not state however that she is the sole heir.

(2.) The grant is being contested by the three brothers -- Chunilal, Hiralal and Kanhaialal --and the nephew Srigopal. They are the defendants in this action. They filed a joint affidavit in support of caveat. It is alleged that Meghraj died after having executed a will dated October 6, 1952, whereby the three brothers have been appointed executors. A copy of the will is annexed to the affidavit. It is also alleged that an application for grant of probate has already been made on June 5, 1953. It is further alleged that apart from the self-acquired properties, Meghraj died possessed of joint property which has devolved by survivorship on the other coparceners, including one Giridharilal who was adopted as a son by Meghraj on October 2, 1952. Girdharilal is the son of Chunilal a brother of Meghraj and a defendant. Gopi Debi's title has therefore, been disputed. Another ground on which Gopi Debi's title is disputed is that by custom prevailing at Bikaner a married daughter can never inherit the father's property. It is admitted that Gahar Bai' is a lunatic, as alleged. It is submitted that citation should be issued to Giridharilal who is vitally interested in the estate. Apart from being one of the legatees under the Will in respect to self-acquired properties, Gopi Debi's title to the estate has been disputed. It is contended that the application is misconceived and has been brought mala fide and the applicant is not entitled to the grant.

(3.) In due course, both the proceedings in the above goods, namely, the proceeding for grant of probate and the proceeding for the grant of Letters of Administration were marked as contentious cause. According to the Rules, they have been registered and numbered as suits. The probate suit was heard by me first. The suit was not proceeded with by the alleged executors. By my order dated August 17, 1961, the application for grant of probate was dismissed with costs. The other application for grant of Letters of Administration to the daughter on the basis of intestacy is now before me.