FULKALIA Vs. NATHU RAM

JUDGEMENT

(1.) This appeal under Clause 10 of the Letters Patent is directed against the judgment and order dated 8-9-1959, passed by Sahai, J., in Testamentary Case No. 8 of 1956, dismissing the application of the appellant to revoke the Letters of Administration granted to the Administrator-General and to grant them to her. The facts giving rise to the present appeal are shortly these : One Mahadeo Bania (Halwai) was living in a two-storeyed house in Jugsalai, a suburb of Jamshedpur town in the district of Singhbhum. He was living alone there for a considerable number of years, almost throughout his life. In October, 1951, he died an unnatural death, being murdered by some unknown person or persons. The property left by him was the house and the premises appertaining thereto. The Administrator-General of Bihar got information about his death, and he wrote a letter dated 19-12-1951, to the District Judge of Manbhum-Singhbhum at Purulia, asking for a report under Section 54 of the Administrator-General's Act (Act III of 1913) and for his appointment under Section 269 of the Succession Act to take possession of the properties left by the said deceased. He was directed by the learned District Judge to apply to the Subordinate Judge at Jamshedpur who had jurisdiction to deal with such matter occurring within his territorial jurisdiction. On the Administrator-General's writing to the learned Subordinate Judge, he started Intestate Case No. 1 of 1952, the order sheet of which is Ex. 8 in this case. On 23-1-1952, he directed issue of general notice calling claimants, if any, to file their claims by 20-2-1952. He also directed an enquiry by the Officer-in-charge of the Jugsalai Police Station. Before the general notice could be issued, or the report of the Officer-in-charge could be received, a person claiming to be Biharilal Bania filed a petition on 2-4-1952, in the Subordinate Judge's Court at Jamshed- pur, He claimed the properties of Mahadeo Bania, the deceased. While the claim of the petitioner said to be Biharilal Bania was pending investigation, he (the claimant) died on 17-8-1952, and after his death one Mewalal, claiming to be the son of a deceased daughter of Bihari, filed a petition claiming the properties in question. There was some correspondence in this regard between the Administrator-General and the Government Pleader at Jamshedpur. The learned Subordinate Judge also was informed of the position from time to time. Ultimately, the Administrator-General filed Testamentary Case No. 1 of 1953 in this Court for grant of Letters of Administration to him in respect of the estate of Mahadeo Halwai. This petition is Exhibit 1 in the record of this case. In the 12th paragraph of this petition it was stated that Mewalal, even according to the genealogy given by him, had no case, and in the 13th Paragraph it was asserted-

(2.) If the genealogical table given on behalf of the appellant showing the relationship between the parties be correct, it is obvious that Fulkalia being the daughter of Bihari Bania, who was said to be the brother of Mahadeo Bania, had the topmost claim and the other contesting opposite parties of Testamentary Case No. 1 of 1953, namely, Mewa Lal, Ghhotey Lal, two sons of deceased daughter Duh'a and Kalawati, a minor daughter of another deceased daughter Kamla, had no case. Instead o applying for grant of Letters of Administration, as observed in the order of Ramaswami, J. (as he then was), (Exhibit 2), it appears from Kxiiibit 4, the succession certificate, that Mussarnmat Fulkalia applied on 16-1-1954, in the Court of the District Judge of Manbhum-Singhbhum at Purulia for a succession certificate in respect of a sum of Rs. 900, said to be arrears of rent due from one Bisambhar Maharaj in respect of the house in question, and the said certificate was granted to her on 20-4-1954. Thereafter, she proceeded to sell the house in question for a sum of Rs. 15,000 only to one Sardar Kartar Singh, and the then Administrator-General Mr, G, P. Shahi applied for permission to execute a fresh conveyance in favour of the said Sardar in respect of the house. This permission was granted on 5-8-1955. It is admitted on all hands that that permission had been obtained under some misrepresentation of facts, and, therefore, the said order was recalled by Ramaswami J. as he then was, on 10-9-1956. A Letters Patent Appeal against that order also failed, and the decision of the Letters Patent Bench is reported in Kartar Singh v. Administrator-General of Bihar, AIR 1959 Pat 349. Be that as it may, the fact remains that Mos-sammat Fulkalia attempted to sell the property for a grossly inadequate price, but failed in her endeavour. Ultimately on 20-9-1956, she filed the application giving rise to the present proceeding which was numbered as Testamentary Case No. 8 of 1956.

(3.) The case of the appellant, in short, is that Maliadeo Halwai died intestate and issueless, and on his death his estate devolved upon Bihari Bania, his brother and only heir. Bihari Bania also died on 17-8-1952, leaving the appellant as his nearest heir. The parties are said to be residents of Uttar Pradesh in the district of Allahabad. She prayed for, as stated above, revocation of the grant of Letters of Administration to the Administrator-General and for their grant to her. By an amendment petition filed on 5-7-1957, she sought to introduce an amendment in her case that really the controversy was in respect of the estate of Bihari Bania and not in respect of the estate of Mahadeo Bania as the same had devolved upon Bihari after the death of Mahadeo. The Letters of Administration, according to her, which were granted to the Administrator-General in respect of the estate of Mahadeo were irregular in that case. By another amendment petition filed on 27-11-1957, she gave four grounds as mentioned in that petition as1 grounds A. B, C and D in support of her case as to why the Letters of Administration granted to the Administrator-General should be revoked. The Administrator-General has refuted the allegations made on behalf of the appellant and resisted her prayers. The learned Judge of this Court sitting on the original side has rejected the application, chiefly on the ground that it has not be?n established by legal and reliable evidence that Mahadeo Bania died leaving Bihari Bania as his brother and heir, or for the matter of that, any other heir. The learned Judge has answered most of the technical points raised on behalf of the Administrator-General against him. I shall briefly indicate them in my judgment hereinafter, but in view of the agreeing decision which I am going to give in regard to the main question, I do not think it would be necessary to decide any of the technical questions.