OFFICIAL TRUSTEE OF BENGAL Vs. KUMUDINI DASI

JUDGEMENT

(1.) This is an appeal from the Original Side of this Court in the Testamentary and Intestate Jurisdiction, the judgment complained of being one passed by Mr. Justice Fletcher, who directed that the grant of probate of the will of one Manick Lal Seal, deceased, to the Official Trustee be revoked, and that the grant of probate issued to the Official Trustee of Bengal for the time being be brought into the Registry of this Court. There is no dispute as to the facts, and the only question is whether this is a case where the Court, under Section 50 of the Probate and Administration Act, ought to revoke the probate that has been granted. This probate was granted by Mr. Justice Chitty on the 18 of November 1907, his order being that probate of the will be granted to the Official Trustee of Bengal the probate actually granted was expressed to the Official Trustee of Bengal for the time being. At the time when the application was made Mr. Grey was Official Trustee, but he was merely officiating temporarily in the place of Mr. Miller the permanent incumbent. The ground on which Mr. Justice Fletcher has revoked this grant of probate was that Mr. Justice Chitty had no jurisdiction to grant the probate now sought to be revoked: first, because the Official Trustee is not capable of being appointed executor; and, secondly, because the learned Judge had no jurisdiction, in so far as he directed the grant to issue to the Official Trustee for the time being.

(2.) It has not been contended before us that Mr. Justice Fletcher's view of the law is not correct, and, speaking for myself, I am glad that he has raised this point. I think, how ever, the appeal must succeed on the ground that, although Mr. Justice Chitty's order may have been erroneous on the ground stated, it cannot be said that he had no jurisdiction to make the order. It has become a commonplace that it is within the jurisdiction and competency of the Court to decide wrongly as well as to decide rightly, so that even if it be assumed for the purpose of this case that Mr. Justice Chitty took an erroneous view of the position of the Official Trustee under the Official Trustee's Act, it cannot, in my opinion, be said that he made an order as to which he had no jurisdiction. Reading the judgment of Mr. Justice Chitty, I have little doubt that he regarded the Official Trustee as a corporation sole, represented by the incumbent for the time being. He therefore regarded the Official Trustee as a person who could be appointed as executor within the meaning of the Probate and Administration Act. Further than that, he obviously was of opinion that there was nothing in the Official Trustee's Act which precluded his becoming an executor of a will. However erroneous that decision may have been--and it is assumed for the present purpose that it is erroneous--still it was a decision to which the learned Judge was entitled to come. He was the Judge at that time exercising the testamentary jurisdiction of the Court in its Original Side, and the subject matter then before him was clearly one with which he was in every way competent to deal There was, therefore, no defect in respect of subject matter, or parties, or the nature of the proceeding, so that I am of opinion that the case does not fall within Section 50 of the Probate and Administration Act. Further, I think this is not a case where it would be convenient to exercise the power of revocation and annulment given by Section 50 of the Probate and Administration Act to the Court. The estate is one of very considerable value: probate was granted as far back as November 1907, and we are told, and it is not disputed, that during the three years that have elapsed since the grant of probate many transactions have taken place, so that serious questions might possibly arise, notwithstanding the saving provision of Section 84 of the Act, were the grant now to be cancelled.

(3.) The result then is that, even assuming the order of Mr. Justice Chitty to have been erroneous, I still think that the order for revocation should be set aside.