SAROJA SUNDARI BASAK Vs. ABHOY CHARAN BASAK

JUDGEMENT

(1.) This is an appeal against an order for revocation passed by the District Judge of Chittagong on an application, under Section 50 of the Probate and Administration Act, in respect of a probate granted to Abhoy Charan Basak, the appellant, in terms of a will said to have been executed by his deceased cousin Raj Kumar Basak. The alleged testator died on the 6th or 7th March 1908, and Probate of the will was granted on the 20th February 1909. In the application for probate the appellant Abhoy Charan Basak cited Jamini Sundari and Saroja Sundari Basak, the widow and daughter respectively of the deceased, as his only heirs. Jamini Sundari died before the application, out of which this appeal has arisen, was made. On the 20th December 1910, Saroja Sundari Basak, the respondent, by her application of that date sought before the District Judge revocation of the probate under Section 50 alleging that the will was forged and that no citation had been served on her. This application was resisted by the appellant who, while protesting the genuineness of the will, insisted that citation had been served on the respondent and further alleged that, apart from the citation, she had otherwise knowledge of the probate proceeding. At the hearing of the application before the Judge, a further contention was raised that the application was barred by limitation. In the lower Court the parties seem to have concentrated their attention on the question of the service of the citation though the respondent s knowledge of the probate proceeding and limitation were also urged. The genuineness or otherwise of the will does not appear to have been discussed in the lower Court, and whatever evidence touching it was adduced was of an incidental character.

(2.) The learned Judge has found that no citation was served on the respondent though one had been issued to her. As regards the respondent s knowledge of the probate proceeding, the learned Judge has expressed no finding but reading his judgment, as we do, we understand it to mean that his conclusion on the point is against the appellant. The plea of limitation has been rejected on the ground that the Limitation Act does not apply to applications for grant or revocation of probate.

(3.) In appeal we have been pressed to hold in favour of the appellant on all the three points stated above.