SARAT CHANDRA DE Vs. PRAMATHA NATH BANERJI

JUDGEMENT

(1.) This is an appeal by the plaintiff and arises out of a suit brought by him to enforce a mortgage security executed by defendant 1 for self and as certificated guardian of defendants 2 and 3 and of their eldest brother Motilal Chatterji since deceased in favour of the plaintiff on 24 July 1922 for a sum of Rs. 7000. Defendant 4 who is the only contesting defendant in the suit has been impleaded as he claims to have purchased the mortgage property in the year 1927 in execution of a money decree. The Subordinate Judge of 24-Parganas before whom the suit came up for trial dismissed the suit with costs against defendant 4 and decreed the suit against defendants 1 to 3 with costs, the decree against them being a simple money decree.

(2.) It is against this decree that the present appeal has been brought. The questions of law which fall for determination in this appeal depend on facts which are not disputed and which may be shortly stated as follows: Premises No. 37, Chakraberia Road which forms the subject of the mortgage security belonged originally to one Becharam Banerjee who made a gift of the said property to his daughter Kamanimoni Devi by a registered deed of gift dated 20th November 1876 and Kamini was possessing the said property in absolute right till the time of her death which happened on 18 February 1908. In the meantime on 29 January 1908 the said Kamini executed a will to the effect that on her death her two grandsons (Haripada Chatterji and Motilal Chatterjee) by a predeceased son Benimadhav would obtain the said property in equal shares, and that Motilal would be the executor to her estate and would look after the property after her death. The will further provided that should Haripada die sonless then Motilal would obtain Haripada's half share of the property. At the time of Kamini's death there were living her grandson Motilal and a widowed daughter named Matangini but Haripada had not been heard of for a long time before Kamini's death and he left no heirs, consequently the entire estate devolved on Kamini's grandson Motilal. Motilal obtained the probate of the will in common form on 5 May 1909 and probate was directed to be issued on 21st December of the same year. Motilal died in April 1915 and was survived by his widow Bibhabati, defendant 3 and three minor sons Bankim, Kanai, defendant 1 and Joy Krishna, defendant 2. On 21 December 1918 Bibhabati acting as a certificated guardian of her minor sons and with, the sanction of the District Judge of 24 Parganas executed a mortgage in favour of Srinath De for repayment of a loan of Rs. 3,000 by which 37, Chakraberia Road South was hypothecated. It appears that when probate was applied for no citation was issued to Matangini the widowed daughter of Kamini who had in the meantime transferred her interest in Kamini's estate to two persons Charu Chandra and Bir Sinha. The latter two persons applied to revoke the probate of the will on 8 December 1920. The Additional District Judge of 24 Parganas passed the following order on the said application: I am inclined to call upon the applicant for the grant to prove the will in solemn form and to prove the other remaining issue as to whether the will is a forged document in that proceeding. I do not at this stage order revocation directly and follow the rule laid down in Prem Chand Das V/s. Surendra Nath Sah (1905) 9 CWN 190 and direct that the probate be re-called and the District Judge would please call upon the Opposite party to prove the will in solemn form.

(3.) The will was proved in solemn form in the presence of Charu and the District Judge made an order for grant of letters of administration to the sons of Motilal with a copy of the will annexed. This order is dated 28 July 1924. An appeal was taken to the High Court against this order by Charu and this Court varied the order to this extent namely, that letters of administration with a copy of the will annexed was granted to Bankim the eldest son of Motilal as he alone had attained majority. The High Court however directed that the costs of the proceedings both in the High Court and in the lower Court should come out of the estate of the testatrix. This order was made by the High Court on 16 August 1926.