DULAR KUER Vs. KESAR KUER

JUDGEMENT

(1.) This appeal under Section 299 of the Indian succession Act, 1925 (Act 39 of 1925) is against the order dated the 27th November, 1962 of the First Additional District Judge, Gaya, rejecting the appellant's application for revocation of the probate dated the 10th April, 1954 granted to respondent No. 1, who was the sole legatee under a wilt dated the 1st. December, 1949 executed by her father, Bhuin Prakash, who died about twenty days later on the 21st December, 1949. The testator died leaving two daughters, namely, Manwati Kuer and Keshar Kuer (respondent No. 1). The former died in the year 1951 leaving two sons and two daughters; the sons being Rajkishore and Awadhkishore, and the daughters being Sidheshwar Kuer and Dular Kuer (appellant). The application for probate was made on the 14th December, 1953, and citations were issued to Rajkishore for self and as guardian of his minor brother Awadhkishore. No caveat was entered, and probate was granted, as mentioned above, on the 10th April, 1954. On the 13th November, 1959, the present appellant, srimati Dular Kuer, one of the daughters of Manwati Kuer, filed her application for revocation on the grounds intsr alia that the proceedings to obtain grant were defective in substance in so far as all the persons interested had not been impleaded, and citations had not been issued to them. According to her, from the genealogy set out in Schedule II to her application, the only two persons who had been left out from being impleaded in the probate case were herself and her sister, Sidheshwar Kuer. The application for revocation was resisted by respondent No. 1, who filed a show cause petition on the 27th May, 1960 contending inter alia that appellant Dular Kuer had no locus standi to apply for revocation, because she never -had any interest in the property of the testator, whether in his life-time or after his death, and that she had not even a bare possibility of getting an interest even in future. The learned Additional District Judge has given effect to this plea of respondent No. 1 and has dismissed the application for revocation of the grant on the preliminary ground that applicant Srimati Dular Kuer had no locus standi to make the application. Hence this appeal by the applicant.

(2.) Illustration (ii) of Section 263 shows that a grant made without citing parties, who ought to have been cited, is fit to be revoked. The question, however, is whether the applicant in this case can be said to have any interest--whether slight or otherwise in the testator's estate at the time of the testator's death; in other words, was there any possibility of her succeeding to the testator's estate, assuming that there was no will and lie had died intestate. If the answer to this question is in the negative, it must be held that the applicant had no locus standi to claim citation or to oppose the grant, and, accordingly, her present application for revocation of the same would not be maintainable. On the admitted genealogy, the testator died leaving two daughters, respondent No. 1 and the mother of the appellant, Manwati Kuer. In case of intestacy, the two daughters would have taken the estate jointly with rights of survivorship; and unless they had agreed that the right of survivorship should be existinguished as between themselves, on the death of Manwati Kuer the entire estate would have gone to respondent No. 1, Srimati Keshar Kuer; and on her death the estate would have gone to the two sons of Manwati who would have taken the estate as full owners like any other male member; and on their death the succession would have passed to their heirs and not to the heirs of the testator, their maternal grandfather. In the above scheme of things, there was no place for Manwati's daughters at all. Assuming that there was an agreement between the two daughters of the testator existinguishing the right of survivorship as between themselves even that would not improve the position of the applicant or her sister at all. In that event as well, after the death of Manwati her sons would have been the natural heirs and they would have taken the estate as full owners like any other male heirs. Between the daughters of the testator and the applicant, the order of succession would show that at least six full owners intervene, namely, the daughter's son, the father, the brother of the whole blood or of the half blood, the brother's sons, the brother's son's son and father's father. Before the Hindu Law of Inheritance (Amendment) Act, 1929 (Act No. II of 1929) came into force, a daughter's daughter was recognised as an heir only in Bombay and Madras, where she ranked as a bandhu. It will thus appear that at the time of the. testator's death, the applicant had no possible chances of succeeding to the testator's estates; and, in the circumstances, she cannot be said to have had any locus standi to claim citation or to oppose the grant. Section 283(1)(c) requires issuing of citations upon persons having any interest in the estate of the deceased, and the applicant having no interest, as shown above, could not claim citation. It is not disputed that citations were issued to her two brothers, namely, to the two sons of Manwail Kuer. In the circumstances, I am satisfied that the applicant had no locus standi to maintain the present application for the revocation of the grant and the learned Additional District Judge has rightly come to that conclusion.

(3.) Reliance was placed on behalf of the appellant on the decision in the case of Priya Nath Bhattacharjt v. Saila Bala Debi 11 Pat LT 343 : (AIR 1929 Pat 385). In that case, one Haran Chandra Banerjee, governed by the Dayabhag School of Hindu Law, had made a will dated the 20th July, 1905 bequeathing all his properties to one Sarat Chandra one of the two sons he had from a woman named Bhabanmohini, living in Benares; his son from his wife Kailashkamini Debi in whose favour he had executed as earlier will on the 12th October, 1890 having died on the. 4th March, 1904. The testator had died on the 17th September, 1907 leaving in his family at Bhagalpur his widow Kailashkamini Debi and the widow of his predeceased son Narojini and a sister's son Priyanath Bhattacharji, who was the applicant for revocation. No executor had been appointed under the will. On the 10th December, 1907, Sarat, the sole legatee, had applied for Letters of Administration of the will of 1905; and on his death the application was continued by his widow Sailbala and his four minor sons, who made an application for grant of Letters of Administration to Haran Chandra's Will and disclosed the existence of only Kailashkamini and Narojini in respect of whom the Court had ordered special citations. Charu Chandra, a brother of Sarat Chandra, had objected to the grant of Letters of Administration on various grounds including the allegation that the will was not genuine. A grant had, however, been made by the learned District Judge.