DAROGI SINGH Vs. GIRJA DEVI

JUDGEMENT

(1.) This Appeal has arisen out of Probate Case No. 7 of 1972 of the Court of District Judge, Gaya. An application for grant of probate has been filed by Smt. Girja Debi on the following averments. She is the adopted daughter of Firangi Singh, son of Nathp Singh of village Bermi, Police Station Nawadah, district Gaya. Firangi Singh duly executed his last will and testament in her favour on 5/12/1971. He died on 11/1/1972 and at the time of his death he was possessed of the properties specified in Schedule 'A' of the application. The applicant also claims to be the sole heir of the deceased.

(2.) Darogi Singh, the appellant, filed a petition on 1/3/1973 objecting to the prayer for grant or probate to the applicant on the grounds that the applicant, Srimati Girja Debi, was not the adopted daughter of Firangi Singh ; that the will was forged and fabricated ; that Firangi Singh was not in sound state of health and mind at the time of his death and that Darogi Singh himself was the nearest agnate of Firangi Singh, being the son of his deceased brother, Makhan Singh. He had given a genealogy in his petition to show that relationship. According to him Firangi Singh was joint with him and he was the karta of the family and he remained so till he died and on his death he came in possession of the said properties by survivorship and his name was also mutated in place of Firangi Singh in the office of the State of Bihar. By an order, dated 9/4/1973 the District Judge made Darogi Singh a caveator and converted the probate case into a title suit, being Title Suit No. 4 of 1973. On 12/6/1973, a petitition was filed on behalf of the applicant alleging that Darogi Singh had been made a caveator without the matter having been heard in her presence. She further alleged that he was not the nephew of Firangi Singh and he had no interest in the properties bequeathed to her and that therefore, the prayer made by him in his petition dated 21.2 1973 which had been filed on 1.3.1973 he rejected. The learned District Judge, therefore, decided to hear the matter and fixed 16.7.1973 for the purpose and directed that the lawyer for the other side be informed. No step was taken on that date and, therefore, the matter was adjourned to the following day i.e., on 17/7/1973 and on that date the learned District Judge passed an order recalling the order dated 9/4/1973 by which he had allowed Darogi Singh (the appellant) to enter caveat and converted the probate case into Title Suit No. 4 of 1973. Against that order, dated 17.7.1973, Derogi Singh preferred an appeal before this Court, being First Appeal No. 416 of 1973. This Court by its order dated 19/7/1973 set aside the District Judge's order dated 17/7/1973 and sent back the case to the learned District Judge with a direction that he should decide whether the appellant was a person claiming to have any interest in the estate of the deceased within meaning of section 283 (i) (c) of the Indian Succession Act (hereinafter referred to as 'the Act') and thereafter to dispose of the case. After receipt of the order of remand, the, matter was heard by the Additional District Judge, Vth Court, who by his order dated 15.9.1976 has come to the conclusion that Darogi Singh (the appellant) cannot be allowed to enter caveat in the proceedings.

(3.) Relying on the provisions of section 299 of the Act, Mr. Shreenath Singh, learned counsel appearing on behalf of the respondent, has raised a preliminary point that in view of the said provisions the appeal is not maintainable as the order rejecting the prayer of the appellant to be allowed enter caveat is not appealable under any of the provisions of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code"), applicable to appeals. On the other hand, Mr. Kaushal Kishore Sinha, learned counsel appearing on behalf of the appellant has contended that an appeal against the order of the District Judge by which he finally disposed of the appellant's claim to enter caveat is appealable to this Court by virtue of the provisions of the said section 299.