NUKUR CHANDRA SARKAR Vs. RANJIT KUMAR MULLIK

JUDGEMENT

(1.) This is a rule calling upon the Chief Presidency Magistrate and the complainant to show cause why the order made by one of the Presidency Magistrates, Mr. Wazer Ali, dated 7th March 1933 committing the accused to the Sessions Court for trial under Section 477, I. P. C, should not be quashed or why such other or further order should not be made as to this Court may seem fit and proper on the ground that the evidence adduced by the prosecution does not disclose an offence under Section 477, I. P. C., and, as such the commitment of the accused is bad in law. We have heard Mr. P. Rule Das of the Patna Bar in support of the Rule and Mr. Probodh Chandra Chatterjee has shown cause. In order to understand the facts involved in this matter and which have given rise to the present prosecution it is necessary to state a few facts very shortly.

(2.) It appears that one Janardan Sarkar died some time in 1924 after having executed a will on 24 December 1918. The will after execution remained with the Solicitors Messrs. Kar Mehta & Co. till 2 February, 1926 when it was made over to the present accused who is the only son of the testator. The testator died leaving a widow named Tarangini Dasi who had a brother named Brojo Kishore Mondal and the person who said that he represented the complainant in the present proceedings, namely Ranjit Kumar Malik, a daughter's son of the testator. It appears that although the accused got possession of the will from the Solicitors, Messrs. Kar Mehta & Co. on 2 February, 1926, he did not take any steps whatsoever to apply to this Court on its original side for obtaining probate thereof. The receipt granted by the accused to Messrs. Kar Mehta & Co. has been produced in the present proceedings and is marked Ex. 17.

(3.) The explanation which has been sought to be given on behalf of the accused for his inaction in the matter of obtaining probate of the will is said to be this: that on the terms of the will there was nothing provided to show the destination of the corpus till a certain event had taken place, namely the death of the widow and that although various provisions are to be found in the will in the matter of legacies and annuities, the accused, who, it will be remembered, is the only son of the testator, was not to get any portion of the moveable or immoveable properties left by the testator till the widow of the testator died. It is said on behalf of the accused that there was a complete intestacy so far as the corpus of the estate was concerned and that he had been advised that, under the circumstances obtaining in the present ease, he being the only son entitled to get the property dehors the will under the Hindu law was not under any obligation whatsoever to apply for probate. Be that as it may, so far as the facts are concerned it appears that the widow of the testator, namely the accused's mother, started a civil suit on the original side of this Court for obtaining a suitable maintenance for herself. That suit being Suit No. 903 of 1930 was started by the mother of the accused in the mon May, 1930 and it resulted in a compromise decree some time in December 1930.