SUDHIR CHANDRA PAL Vs. UTTARA SUNDARI PAL

JUDGEMENT

(1.) The appellants Sudhir Chandra Pal and Manorath Chandra Pal applied for the probate of a will said to have been executed by Jugalram Pal or in the alternative, for Letters of Administration with a copy of the will annexed. The will in question is dated 3 Pous 1814 corresponding to 19 September 1907. Jugalram died on 5 Pous following and it is said that he was then in a boat on his way to get the will registered. By the will the testator bequeathed his properties to his son Surjya Kumar Pal and be further provided that in the case of Surjya dying without male issue his nephews Ram Mohan Pal and Dhanram Pal would get the properties and he also appointed these two persons executors to the will. Surjya died on 16th March 1924 and he left no issue. Dhanram died on 3 January 1925. Ram Mohan died on 18 December 1927. The petitioners claim that according to the provisions of the will they have become entitled to the properties of the testator and accordingly they make the application as above. The objectors are Uttara Sundari Pal, the widow of Surjya Kumar, and Sashi Bhusan Pal, the son of his sister. Their case is that the will was not executed by Jugalram Pal who was ill and unconscious for 8 or 10 days before his death and that he had no testamentary capacity and they further allege that after the death of Jugalram and during the lifetime of Surjya Kumar the properties used to be managed by Ram Mohan Pal. He colluded with the sons of Dhanram who tried forcibly to make Uttara Sundari affix her thumb impression on a blank stamp paper with a view to having a document written in respect of the properties left by Surjya Kumar. This led to criminal cases and ultimately Uttara instituted two civil suits against the petitioner Manarath and others claiming certain sums of money. During the pendency of the suits the present application for probate was filed. The learned Judge held that the will was genuine. But he further held that the gift over in favour of Dhanram and Ram Mohan was inoperative and in that view he found that the petitioners had no locus standi to make the application. Accordingly he dismissed the application. Hence this appeal.

(2.) As regards the question of locus standi the learned Judge no doubt refers to Secs.232 and 233, Succession Act. He was entitled to read the will in order to see whether in the circumstances the petitioners could come in as residuary legatees or their representatives. But he has gone further than that. He has construed the will in order to see whether the gift over in the will was a valid one or not and he has held that it was invalid. This is a question which's beyond the scope of the Probate Court: The function of the Probate Division is to determine what documents are testamentary, and who is entitled to be constituted the personal representative of the deceased." (Tristram and Coote's I robate Practice, Edn. 17, p. 5.)

(3.) The learned Judge was therefore clearly wrong in going beyond the terms of the will and in deciding a question of title which ought to be gone into in another Court. The real question therefore is whether the learned Judge is right in holding the will genuine. On this point the learned Judge has accepted the direct evidence as to execution which was adduced on behalf of the petitioners. Mr. Gunada Charan Sen, for the respondents has pointed out that there are certain circumstances which go to show that this direct evidence is open to suspicion. Surjya Kumar died on 16 March 1924. The present application was filed on 13 December 1928. During this period Ram Mohan, Dhanram, and their sons entered into transactions treating Uttara Sundari as heir to the properties left by Surjya Kumar. Ex. O, is copy of the plaint in a suit of 1924 in which Uttara was a co-plaintiff with Ram Mohan and Dhanram and subsequently Sudhir was substituted in place of Dhanram deceased. It is pointed out that in the plaint it was definitely Stated that Surjya Kumar had died leaving his widow, plaintiff 4, as his heir to the properties left by him.