NABIN CHANDRA GUHA Vs. NIBARAN CHANDRA BISWAS

JUDGEMENT

(1.) This is an appeal from a decision of the District Judge of Backer-gunge by which he has granted Letters of Administration with a copy of the will annexed of one Madhab Chandra Mistry to the respondent Nibaran Chandra Biswas. The will is alleged to have been executed by the testator Madhab Chandra Mistry on 9 December 1898 and appears to have been registered on his own admission as to execution on the 14 of that month. The testator is said to have died in Magh 1305 B. S., that is to say about two months after the will, and to have left three daughters. On 9 July 1929 the respondent, Nibaran Chandra Biswas, the only son of one of those daughters, who is dead, applied for Letters of Administration with a copy of the said will. The appellant Nabin Chandra Guha who was named as a defendant in the said petition filed an objection but the District Judge held that he had no locus standi to oppose the grant. Immediately thereafter he examined the applicant and made an order ex parte for grant of Letters of Administration. Prom this order the present appeal has been taken.

(2.) The appellant happens to have purchased one of the properties disposed of by the will at an auction sale held in. 1918 in execution of a decree for rent thereof which was obtained by the landlord. This decree had been obtained by the landlord in a suit laid against one of the daughters of the testator, the other two daughters having died long before, on the footing that she was the sole heir of the said testator. It should be pointed out here that under the will all the properties were to vest in the three daughters after the testator's death and in case any of the daughters predeceased him her sons and heirs would get her share. The District Judge observed in his order: He is not a legatee. Ha is not an heir and he has derived no interest in the estate from the deceased himself. To permit him to contest the grant merely on the ground of a subsequent derivation of title to some of the deceased's property would be to introduce an issue which a probate Court has no jurisdiction to determine. It is a bare issue on a question of title raised by a stranger on a transaction subsequent to the testator's death and this is not within the scope of a Court sitting in probate.

(3.) A preliminary objection has been taken on behalf of the respondent to the competency of the appeal and two decisions of this Court have been relied upon in support, viz., Khettra Moni Dasi V/s. Shyama Churn Kundu [1894] 21 Cal. 539 and Radha Raman Chaudhury V/s. Gopal Chandra Chakravarti A.I.R. 1920 Cal. 459. In the former case the appeal was preferred by a person whose application to be made a party to the proceeding and to intervene was refused by an order passed on a certain date, and on a subsequent date the case was heard and order was made for grant of probate, and it was from the former order that the appeal was preferred. This Court, in that appeal, held that no appeal lay as, regarding Secs.86 and 53, Probate and Administration Act (5 of 1881) together, it appeared that an appeal was permissible only in a case in which such an appeal would lie under the Civil P. C.. The learned Judges pointed out that the Code did not allow an appeal from an order refusing to add the name of a person as plaintiff or defendant and so no appeal would lie from the order refusing the application which the appellant had made in the Court below to be made a party. There was no appeal in that case, as there is in the case before us, from the order which was made for the grant. In the case of Radha Raman Chaudhury V/s. Gopal Chandra Chakravarti (2) the appeal had been preferred by certain persons who wanted to oppose the grant but were refused on the ground that they had no locus standi and the appeal, as far as may be made out was from the said order of refusal, in which it was also stated that "probate would be granted to the respondent on proot of the will in common form."