PROMODE KUMAR ROY Vs. SEPHALIKA DUTTA

JUDGEMENT

(1.) The appellant before us was the applicant for revocation of a rant of Letters of Administration. The grant was made to the respondent Shephalika Dutta on 22/12/1952, and it was actually issued to her on 2/1/1953. The grant was obtained in respect of the alleged Will of the respondent's father-in-law Charu Chandra Dutta who died in or about November 1932. The Will is dated 3/10/1932. It is an unregistered Will which purports to disinherit the testator's only living son Nayan Chand Dutta and to make a debuttar of all his (the testator's) movable and immovable properties and under the Will the testator's widow Sm. Durgabati Devi was to be the first shebait and after her his son's wife, if any, the son not having married till then, and thereafter their sons, grandsons etc., and in default the testator's other heirs in succession. In short, after the testator's daughter-in-law, the shebaitship was to follow the testator's line of succession and devolve upon his living heirs at the time, barring, of course, his only surviving son Nayan Chand Dutta who, as already stated, was expressly disinherited and excluded from his properties and the shebaitship. More detailed reference to the provisions of the Will is not necessary for our present purpose.

(2.) The respondent's application for Letters of Administration (which is Ext. 12 in the present case and which is dated 26/11/1952) was filed in November 1952 that is, about 20 years after the death of the testator. There was general citation and special citation only on the applicant-respondent's husband Nayan Chand Dutta, the only surviving son of the testator, who was disinherited by the Will. Nayan Chand did not appear and the grant was made ex parte and without opposition and it was issued on plain paper without security as prayed for by the respondent in her two supplementary petitions dated 23-12-1952 and filed in court on 2-1-1953. These two petitions have been marked in this Court by consent as High Court Exts. 2 and 3 by way of additional evidence.

(3.) Meanwhile, during the long period of about 20 years which had elapsed between the testator's death and the alleged discovery of the Will, which discovery, according to the respondent, was made on 4-11-1952, the testator's disinherited son Nayan Chand Dutta, who was the respondent's husband, had been dealing with the testator's properties as on intestacy and he had during this interval actually alienated by sale Holding No. 110, then Premises No. 149 Kutighat Road of the Baranagore Municipality, on 22-1-1936; portion of Holdings Nos. 72 to 75, village Nainan on Nainan Mussalmanpara Lane (Baranagore) on 15-12-1941; remaining portion of Holdings Nos. 72-75 and Holdings Nos. 66 to 71 on 28-1-1944; No. 17, Kashi Nath Dutta Road on 22-8-1944, and Holdings Nos. 64/65 and 65/110, village Nainan, on 30-1-1946, to several persons, one of whom, namely, Ramjan Ali, the purchaser of the Kutighat Road property, had in his turn sold the same to one Gopi Mohan Daw and his two brothers Sital Chandra Daw and Gour Mohan Daw on 24-1-1945, and the said Nayan Chand Dutta had also during the said interval mortgaged to the present appellant by way of collateral security No. 203, Kashinath Dutta Road and No. 20, Cossipore Road on 12-4-1949, and 17-6-1949, and the said premises No. 20/1, Gunfoundry Road on 19-12-1950 and 2-6-1951, for securing several loans taken by him from the appellant in the meantime. Memorandum of one of these equitable mortgages, namely, that of 12-4-1949, was registered. Meanwhile, the testator's widow Durgabati had also died on 6-12-1944.