SOUTHERN BANK LTD Vs. KESARDEO GANERIWALLA

JUDGEMENT

(1.) On 17-7-1946, probate of a Will, alleged to have been executed by Rami Bibi, a Hindu widow, was granted by this Court. It appears from the probate that the will was executed by her on 11-4-1946. She died on 6-6-1946, leaving as her sole heir, her adopted son, the respondent Purushottamlal. By the will Rami Bibi devised and bequeathed premises No. 166, Muktaram Sabu Street, Calcutta, which stood in her name, to Parameswari, the wife of Purushottamlal for life and after her death to the sons of Purushobtamlal absolutely. She also bequeathed all her movables to Parameswari, absolutely. She does not appear to have had any other property. The result of the will was that Purushottamlal was completely disinherited.

(2.) The appellant, the Southern Bank Ltd. which is a creditor of Purushottamlal made the application out of which this appeal arises, for an order revoking the probate and directing the executor to prove the will in solemn form. The application was heard by P. B. Mukharji, J. and dismissed.

(3.) It appears that in May, 1940, Purushottamlal, who is a merchant, opened an overdraft account with the appellant. The appellant says that at that time, Furushottamlal represented to it that he was the real owner of the premises No. 166, Muktaram Babu Street and it was being held in the benami name of his mother, Rami Bibi. The appellant suggests that it was on the strength of this representation that it agreed to advance moneys by way of overdraft to Purushottamlal. On 13-12-1945, the appellant called upon Purushottamlal to pay up the amount due on the overdraft but no payment was made. Eventually on 10-7-1946 the appellant brought a suit against Purushottamlal for the recovery of its dues. On 16-6-1952 the suit was decreed for Rs. 1,06,551-1-2. In execution of the decree the appellant, on 8-9-1953 attached the Property. Its case is that, upto then, it was not aware of the will and levied the attachment on the basis that the property was really Purushottamlal's Rami Bibi being only a benamidar for him, and that in any event, on Rsmi Bibi's death intestate, Purushottamlal had inherited the property as her sole heir and became the owner thereof. Upon the attachment being levied, the sons of Purushottamlal preferred an objection under Order 21, Rule 58 of the Code of Civil Procedure, claiming the property as their own under the will of Rami Bibi, probate of which had been duly obtained as aforesaid, as Parameswari had died earlier, namely, sometime in 1950. The appellant states that it was from this objection that it came to know of the will and the probate for the first time. The claim preferred by Purushottamlal's sons was allowed and the property was released from attachment. Thereafter on 7-5-1954 the appellant filed a suit against Purushottamlal and his sons for a declaration that Purushottamlal was the real owner of the property and Rami Bibi was merely a benamidar for him and that it was liable to attachment in execution of the decree against Purushottamlal. That suit is still ponding.