RAKSHAB MANDAL Vs. TARANGINI DEYI

JUDGEMENT

(1.) This is an appeal by the plaintiffs under the following circumstances. They sued for khas possesion of certain lands and to establish their title through one Bamamoyi, who took a lease of these lands in 1908; she died in July 1913, her husband Thakurdas pre-deceased her as also her son Sashi, who left him surviving his widow Saroda, defendant No. 2, an infant; Thakurdas had a cousin Arun, who survived him, and two nephews, the sons of a deceased cousin Madhusudan, who are the appellants. On the 7th April 1915 the father of Saroda, as her guardian, purported to sell to the first defendant the lands in suit. On the 9th June 1915 the plaintiffs obtained Letters of Administration to Bamamoyi s estate from the Hooghly Court and as such administrators commenced the present suit. The Munsif decreed the suit with costs and awarded Rs. 5 as wasilat against the first defendant. The Additional District Judge allowed the appeal and set aside the decree of the Munsif, holding that the grant of Letters of Administration had been fraudulently obtained, inferring that as no special citation was issued to Arun, his existence was concealed from the Court which issued the grant. Two points are urged in second appeal: (1) that until the grant is revoked in the Probate Court which issued the grant, the title of the plaintiffs as Bamamoyi s representatives stands; (2) that on the facts as stated by the District Judge, fraud cannot be inferred.

(2.) I should have myself been inclined to think apart from authority that arise a grant of Letters of Administration has been made, this cannot be questioned except in the Court which made the grant, but the respondents rely on Section 44 of the Evidence Act and on some observations of Markby, J., in Komollochurn Dutt v. Nilruttun Mundle 4 C. 860 : 4 C.L.R. 175 : 2 Shome L.R. 126 : 2 Ind. Dec. (N.S.) 228.

(3.) Section 44 provides that any judgment, order or decree which is relevant under Sections 40, 41 or 42 may be shown by any party to a suit or other proceeding to have been obtained by fraud, and Section 41 includes a final judgment, order or decree of a competent Court in the exercise of Probate Jurisdiction and Markby, J., states at page 362 of the report cited above that the grant of Probate is the decree of a Court which no other Court can set aside except for fraud or want of jurisdiction. These remarks were not necessary for the purpose of his decision, as he states that fraud was not alleged, in the case. At page 363 he sets out the confusion that would arise if, after Probate is granted, the validity of a Will could be questioned in a civil suit and, quotes some opposite remarks in a decision of the Allahabad Court in Mayho v. Williams 2 N.W.P.H.C.R. 268 at p. 274 which seem to me equally applicable whether a grant is attacked on the ground of fraud or on grounds in which fraud is not an element.