RAJAH NILMONI SINGH DEO BAHADOOR; BHOYHARINI DEBIA Vs. UMANATH MOOKERJEE AND OTHERS; RAJAH NILMONI SINGH DEO BAHADOOR

JUDGEMENT

(1.) THE question in these appeals relates to the execution of the will of Bamundas Mookerjee, a large landed proprietor in the district of Nuddea, in Bengal, who died on the 7th of January, 1875. He had at the time of his death three sons living, Umanath, Taranath, and Srinath, and three grandsons, Girendronath, Horendronath, and Norendronath (the sons of a deceased son named Arundass). The Respondent Bhoyharini is the wife of Taranath. The Appellant, the Rajah, had in the years of 1863 and 1864 obtained decrees against Taranath for over Rs. 60,000 in the district of Manbhoom, which had in 1872 been transferred into the district of Nuddea for execution.

(2.) IMMEDIATELY after the death of Bamunaas, namely, on the 11th of January, 1875, Umanath, Srinath, the three grandsons, and Bhoyharini presented a petition to the District Court of Nuddea, stating that Bamundas had given the whole of his property to them, by a will dated 24th Pous 1281 (7th of January, 1875), and praying for a certificate for collecting the debts due to the deceased under Act XXVII of 1860. A deposition of Norendronath, one of the witnesses to the will, proving its execution, was made on the 5th of February, and on the 20th of February the certificate was granted. On the 2nd of February, the Rajah, the Appellant, applied for the attachment of the right, title, and interest of Taranath in certain immoveable property of the deceased Bamundas, and the attachment was made a few days after. Thereupon Umanath, Srinath, the grandsons, and Bhoyharini presented a petition to the District Court of Nuddea, under Section 246 of Act VIII of 1859 (the then Procedure Code) claiming to be in possession under the will. On the 29th of June their claim was disallowed by the officiating Judge, but by an order of the High Court, dated the 7th of September, 1875, the order of disallowance was set aside, and the Court was instructed to take up the claim again, with special reference to the question of possession, the officiating Judge having called upon Bhoyharini to prove the execution of the will (which he ought not to have done), and tried the case as if the question was the validity of the will. The result of the hearing on the remand was that, on the 11th of February, 1876, three fourths of Bamundas' share and interest in the estates under attachment were released, and the attachment was held good as to the remaining one fourth. The Section 246 provides that the order passed by the Court under that section shall not be subject to appeal, but the party against whom the order may be given shall be at liberty to bring a suit to establish his right within one year from the date of the order. Accordingly, on the 1st of April, 1876, Bhoyharini filed her plaint in the District Court of Nuddea for a declaration of her right under the will to a fourth share of the zemindaries, &c., mentioned in the schedule thereto, left by Bamundas Mookerjee, situated within the jurisdiction of the Court. The suit was brought against the Rajah, and against Taranath as a pro forma Defendant. The Rajah in his written, statement, filed on the 7th of June, 1876, objected that, as no probate had been taken out under the will, as was required by law, the Plaintiff was not entitled to bring a suit for declaration of her right, and alleged that Bamundas did not execute the will, and that it was fabricated after his death by Taranath and his co-sharers in order to deprive him of the money due to him.

(3.) IT may be well to mention here that by Act XXI of 1870, the Hindu Wills Act, certain portions of Act X of 1865, the Indian Succession Act, are made applicable to wills of Hindus in the territories subject to the Lieutenant Governor of Bengal, and these portions include the different sections of the Act of 1865, which have been referred to in the course of this litigation.