GOBINDA MOHAN ROY CHOWDHURY Vs. MAYATUNNESSA BIBI

JUDGEMENT

(1.) THE substantial question in controversy in this appeal relates to the propriety of an order made by the Court below for revocation of probate of a Will alleged to have been executed by one Arman Khan on the 13 June 1894. Arman Khan died on the 3 August 1894. On the 12 September following an application for probate was presented by his son, Mamtaz Ali Khan. THE order for grant of probate was made on the 3 November 1894, and the probate was actually issued on the 8 December 1894. On the 26 January 1896, Mamtaz executed a mortgage of a considerable portion of the estate of his father in favour of certain persons who are the appellants before this Court. THE mortgagees sued to enforce their security and obtained a decree on the 6 December 1898. THE sale in execution took place on the 16th May 1899, when the mortgagees purchased the property. Since the grant of probate, applications have been made, one after another, by the sons and daughters of Arman for revocation of the probate but none of these, excepting the one before us, has been carried to any conclusion. THE present application for revocation was presented on the 17 April 1907 by Mayatunnessa Bibi, one of the daughters of Arman. She asked for revocation on the ground that at the time when the grant was made she was an infant, that no notice was served upon her and that no guardian was appointed to protect her interest. THEse allegations were established to be true and the learned Judge in the Court below re-called the probate. It is not disputed, and in view of the authorities it cannot be disputed, that the probate was rightly re- called. THE probate ought not to have been granted, without a notice to Mayatunnessa and steps ought to have been taken for the appointment of a guardian for the protection of her interest. As soon as the probate was re-called, the executor was called upon to prove the Will in solemn form. THE executor, however, does not appear to have taken any interest in the proceedings and for an obvious reason. THE substantial portion of the estate had passed into the hands of the mortgagees purchasers, and the executor might have thought that if the probate was revoked, his position as an heir of Arman Khan might possibly be improved. THE mortgagees purchasers, however, intervened and tried their best to prove the genuineness of the Will. THEy were evidently in a difficult position. THEy were strangers to the family. THE Will had been executed many years before the date of the application for revocation and the evidence which was produced did not satisfy the learned Judge in the Court below that the Will was genuine. THE consequence was that he cancelled the probate on the ground that the Will was a forgery. THE executor has not appealed against this decree. He is apparently content with to have the probate of the Will revoked. THE intervenors, however, have appealed. At the time of hearing of the appeal, the learned Vakil for the appellants has stated that in view of the decision of their Lordships of judicial Committee in the case of Debendra Nath Dutt v. Administrator-General of Bengal 35 I.A. 109 : 12 C.W.N. 802 : 18 M.L.J. 367 : 10 Bom. L.R. 648 : 8 C.L.J. 94 : 35 C. 955, the appellants are not likely to be affected by the revocation of the probate. THE Judicial Committee appears to have held in that case that a person, who has in good faith derived title from an executor at a time when the probate was in force, is not affected by the subsequent revocation of the probate. Under these circumstances, the learned Vakil for the appellants has intimated to the Court that it is not necessary for them to trouble the Court further with the question of the genuineness of the Will. In our opinion, they have adopted what under the circumstances must be treated as the proper course to follow. THE result, therefore, is that this appeal is dismissed. We make no order as to costs.