PHANINDRA CHANDRA Vs. NAGENDRA CHANDRA

JUDGEMENT

(1.) F.A. 51 of 1921. This appeal is directed against the grant of probate of a Will alleged to have been executed by one Pannamoni Dassi on the 18 December, 1918 and registered on the 12 February, 1919. The lady died on the 18 August, 1919. An application was made on the 6 February, 1920 for probate of the Will by two of her sons (who are named as executors) in the Court of the Subordinate Judge and district delegate. On the 20 March, 1920 a petition of objection supported by an affidavit was filed by another son of the testatrix, who is now the appellant before us. Thereupon the case was treated as contentious and was transferred to the District Judge. On the 7 May, 1920 an order was recorded to the effect that the application should be treated as a contentious probate case. A written statement was filed by the objector on the 8 June, 1920, On the 21 June, 1920 the pleaders of both sides were heard and the following issues were framed: (A) "Was the will duly and legally executed by Sm. Pannamoni Dasi and was she in her full senses and possessed of free disposing capacity at the time? (B) Was the will executed as a result of undue influence exercised upon Sm. Pannamoni Dasi by the brothers of Phanindra defendant? The case was taken up for final disposal on the 26 November, 1920. The objector applied for adjournment on the ground that it was necessary for him to have his wife examined on commission. The Court refused the application. Thereupon the pleader for the objector stated that he withdrew from the case. The District Judge proceeded to hold that the case became undefended and the Will might now be proved in common form. An affidavit) was filed by the petitioners with regard to the execution of the will. The following, order was then passed:" Will proved. Let Probate be granted."

(2.) The propriety of this order is assailed on the ground that probate should not have been granted as in a non-contentious case. This argument raises a question of first impression. "We have to determine whether the proceedings which were undoubtedly contentious ceased to be contentious when the pleader for the objector withdrew from the case; and whether thereafter it was competent to the Court to deal with the application as in a non-contentious case and to grant probate in common form. We are of opinion that the procedure adopted in the Court below is not authorised by law.

(3.) Section 73 of the Probate and Administration Act provides that a District Delegate shall not grant probate or letters of administration in any case in which there is a contention as to grant or in which it otherwise appears to him that probate or letters of administration ought not to be granted in his Court.