SOUTHERN BANK Vs. KESHARDEO GANERIWALLA

JUDGEMENT

(1.) This is a creditor's application to revoke the probate of the Will, not of the debtor, but of a testator from whom the debtor would have inherited, but for the Will. The testatrix in this case happens to be the adoptive mother of the debtor The application is made by Southern Bank Ltd., for an order revoking the probate, dated the 15th July, 1946, of the Will of Rami Bibi, dated the 11th April, 1946. The notice of motion also asks for an order for proof of the Will in solemn form, and for liberty to the applicant to cross-examine the witness produced in support of the Will. The notice of motion was taken out by the applicant on the 22nd June, 1954, about eight years, after the grant of Probate. The probate in this case was granted by Mr. Justice J.N. Majumdar in the common form on the sole executor's petition affirming that the due execution of the Will was proved by the declaration of Mr. S.N. Chunder, Attorn at-Law, who was one of the attest or witnesses to the Will. The declaration of the attesting witness appeared at the foot of that petition.

(2.) The respondents to the application are Keshardeo Ganeriwalla, the executor to the Will of Rami Bibi, Pursottam Ganeriwalla, the other attesting witness and his sons Sankarlal, Nandalal, Sree Bhagwan, Monilal, and Omprokash. Attesting witness S.N. Chunder, the attorney, has since died.

(3.) The grounds on which revocation of the probate is sought are set out in paragraphs 11 and 12 of the petition a of the applicant. These grounds are affirmed as submissions. The grounds are-(i) that the Probates obtained by fraud on the creditor (ii) that Purusottam Ganeriwalla being the person benefited by the Will is one of the attesting witnesses; (ii) that executor Keshardeo is a person the employment of Purusottam; (iv) that the probate is obtained by defective the procedure; and (v) that the Will is not genuine. Mr. B. K. Ghosh, learned counsel for the applicant, did not press the last three grounds in his arguments before me. In paragraph 11 of the petition the applicant says, "The circumstances of the execution of he alleged Will are very suspicious and your petitioner apprehends that it has been brought into existence only to defraud your petitioner, who is the creditor of the said respondent Purusottam Ganeriwalla, the sole heir of the said Bibi." In support of these grounds and submissions, the applicant has relied on the affidavit of Santosh Kumar Roy Chowdhury, Manager of the Bank. affirmed on the 9th June, 1954. The substance of his affidavit is that since May, 1940, Purusottam represented to him that premises No. 166, Muktaram Babu Street, really belonged to Purusottam and that it only stood in the benami of Purusottam's mother, Rami Bibi. The purchase of the said premises, according to this affidavit, was made in the benami of Rami Bibi by the firm of Satyanarayan Gulraj of which they were partners. Both in the petition and in the affidavit of Santosh Kumar Roy Chowdhury it is stated that Purusottamdas was and still is in actual possession of the said premises.