KUNJA LAL CHOWDHURY Vs. KAILASH CHANDRA CHOWDHURY

JUDGEMENT

(1.) This appeal arises out of an application under Section 50 of the Probate and Administration Act for revocation of the probate of the Will of one Raj Chand Chowdhury. The facts are shortly these:--There were two brothers Keshav Chandra Chowdhury and Raj Chandra Chowdhury. Keshav had two sons, Kailash and Tara Prasanna. Raj Chandra, the alleged testator, made a Will on the 8 July 1896 whereby he bequeathed all his properties to his nephews, Kailash and Tara Prasanna. He died four days afterwards leaving behind him a widow, Dayamayi and a daughter, Nrityamayi. Nrityamayi, who is still alive, has two sons, Behary Lal Chowdhury and Kunja Lal Chowdury. On the 2 October, 1896, Kailash and Tara Prasanna applied for probate of the Will; whereupon, besides the usual notices, special citations were issued to the widow and daughter of the testator, as also to Behary Lal who was then adult. On the 3 March 1897, the widow represented to the Court that a compromise had been effected with the applicants for probate and as guardian on behalf of Kunja Lal who was then a minor, she prayed that the compromise be sanctioned. No formal order, however, was passed on that petition. On the 10 March, the petitions of compromise were filed by both parties, where-upon the Court passed the following order: ?Compromise has been effected, petitions of this day of both sides and petitions of Nrityamayi and her sons read. The case of the objector, therefore, dismissed in accordance with the compromise petition. The case is ex parte and now goes to third Subordinate Judge for enquiry and report." The third Subordinate Judge accordingly recorded the evidence of the witnesses examined on behalf of the applicants for probate, and being of opinion that the Will had been proved, forwarded the records to the District Judge with a recommendation that the probate might be granted. On the 22nd March, the District Judge formally granted probate of the Will. On the 3 December 1907, the petitioner filed the present application for revocation of the probate on the ground that the Will was not genuine, and that the compromise was collusive, fraudulent and seriously injurious to him. The District Judge had rejected the application on the ground that the petitioner had for 4 or 5 years acquiesced in the disposal of the property according to the terms of the Will and the compromise and also on the ground of estoppel. From this order the petitioner has appealed to this Court.

(2.) It has been contended on his behalf that the probate ought to be revoked because, it is said, that the District Judge acted irregularly in sending down the case to the third Subordinate Judge, who exercised the powers of a District delegate for enquiry and report. I am of opinion that the contention is untenable. Section 52 of the Probate and Administration Act contains by implication ample warrant for the delegation, only partial in this case, of his functions by the District Judge to his delegate. But quite apart from this, it is conceded that the District Judge did not act ultra vires in adopting the procedure he did. Therefore, if the petitioner was a party to the probate proceedings and the compromise, he is bound by the terms of the compromise which authorised the applicants to take out probate in the common or non-contentious form and it is not open to him now to turn round and ask for revocation of the probate on the ground that there was irregularity in the procedure followed in granting it. If he was not a party and is not so bound, he is entitled to have probate revoked, whether there were defects in the procedure or not.

(3.) Therefore, the real question for determination is whether the petitioner, Kunja Lal, must in law be deemed to have been a party to the probate proceedings and the compromise.