BEHARILAL Vs. MAHESHKUMAR

JUDGEMENT

(1.) THESE four appeals are connected and they are therefore decided by one judgment.

(2.) KHAWAS Balabux, it is said, made a will on the 24th of July 1948, by which most of his property was bequeathed in favour of Mahesh Kumar, his granichild. KHAWAS Balabux died on the 28th of July 1948 leaving behind him two sons Lekhraj and Gajraj. Gajraj was given away in adoption in some other family and Mahesh Kumar is the son of Gairaj. Mst. Phulan Devi, widow of KHAWAS Balabux filed an application in the court of the District Judge, Jaipur City, on behalf of Mahesh Kumar as his guardian for grant of letters of administration on the 30th of October 1948 under sec. 278 or the Jaipur Succession Act. The District Judge transferred the application 10 the Civil Judge, Jaipur City, for disposal. One Mohammad Siddiq against whom KHAWAS Balabux filed a suit for possession of certain immovable property filed an objection in the court of the Civil Judge, Jaipur City, against grant of letters of administration. The Civil Judge thereupon submitted the petition along with the objection application filed by Mohd. Siddiq to the court of the District Judge. When the case was pending in the court of the District Judge Biharilal filed an objection petition on the 4th of February 1950 on the ground that he had obtained a money decree on the 30th of November 1949 against Lekhraj, one of the sons of KHAWAS Balabux, who was his heir-at-law, for Rs. 54375/-, besides costs, and he had got an attachment order in his favour in the month of May 1950, by which some of the immovable properties left by KHAWAS Balabux were attached. Similarly Rai Bahadur Hiralal and Rai Bahadur Kesri Singh also filed objection petitions on the ground that they had both obtained money decrees against Lekhraj and in execution of their decrees separately they had obtained attachment orders against the properties left by KHAWAS Balabux some time after the filing of the application for grant of letters of administration. Subsequently on the 4th of April 1950 Beharilal and Rai Bahadur Seth Hiralal filed regular caveats. The learned District Judge on the 27th February 1950 rejected the applications of Mohammad Siddiq, Beharilal, Rai Bahadur Seth Hiralal and Rai Bahadur Seth Kesri Singh on the ground that they had no interest in the estate of the deceased. The caveats were therefore discharged. Both Beharilal and Rai Bahadur Seth Hiralal filed appeals against the order of the District Judge dated the 27th February 1950. The proceedings for grant of letters of administration pro-ceeded in the court of the District Judge and ultimately on the 6th of June 1950 letters of administration were granted to Mahesh Kumar through his grand-mother Mst. Phulan Devi, who was required to furnish security in immovable property to the value of Rs. 1,50,000/- for proper administration of the estate. Beharilal and Rai Bahadur Seth Hiralal have again filed appeals against the order of the District Judge dated the 6th June 1950. In all the four appeals the same questions are agitated.

(3.) FURTHER on, regarding the discussion the principle laid down in the judgment of their Lordships of the Privy Council in 10 Cal. 19 appearing in 28 Cal. 441 the observations in A. I. R. 1941 Pat. 151 are as follows: - "a Bench of the Calcutta High Court in 28 Cal. 441 appears to have taken this as an authority for the proposition that the creditor of the heirs of a testator can oppose the grant of probate if they allege that the will was executed in fraud of creditors. In my view, the observation of their Lordships does not support the view taken in this later Calcutta case. Their Lordships expressed the gravest doubts as to whether an attaching creditor could oppose the grant of probate or apply to have it revoked and all they said was that if it was shown that probate had been obtained in fraud of creditors the attaching creditor might possibly succeed in having the probate set aside though they do not decide the question. "