MANORAMA CHOWDHURANI Vs. SHIVA SUNDARI MOZUMDAR

JUDGEMENT

(1.) This Was a Suit for revocation o[ probate of the will of one Gobinda Chandra Das Mozumdar calling upon the executor to prove the will in the presence of the petitioner.

(2.) The testator died on the 27th or 28th December 1883 of cholera in a boat and the will was said to have been executed on the 27th December 1883. He left a widow and five minor daughters unmarried as well its two brother s sons, the objectors in this case, who were then also minors. By the will the widow got a life estate with remainder to the brother a sons, and the daughters were given allowance for maintenance of Rs. 12 a year each. The petitioner. Manorama Chowdhurani, is the only one of the, daughters who has borne sons, and she claims to come in because admittedly although general citations were issued and her mother obtained probate of the will, no separate guardian ad litem was appointed to represent the minor daughters or the minor brother s sons in the probate proceeding. The eldest daughter, Kusum Kamari now n childless widow, was born about 1869; the younger brother s son, Sasi Mohan Das Mozumdar, was born in 1872; the 2nd daughter, Kumudini, was born in 1871; the petitioner was born in 1876; the fourth daughter, Kadambini, was born in 1880, and the younger brother s son, Kamini Mohan Mozumdar, was born in 1883. The fifth daughter is dead.

(3.) It is fully established by evidence that Shiva Sundari, the widow of the testator, took out the probate on the 20th March 1884. and in a rent suit in 1880 the will was filed by her confidential servant, Kali Kanta Biswas, and returned to him. In 1887 the petitioner then 11 years of age was married, and there is evidence that the will was read out to her husband, a pleader s clerk, who has since become a vernacular copyist in the (sic)Mansifs Court at (sic) Lakhipnr and herself at the time of the marriage. In accordance with the terms of the will, Kasum Kumari one of the daughters gave receipts for her allowance to her mother in 1887 and to her mother and Khuri the mother of the objectors jointly for the years 1888 and 1891. Two subsequent receipts of hers, tho first given to her mother and Sasi Mohan jointly and the second to her mother alone, have also been produced. Receipts of a similar nature granted by Kumudini for 1890 and 1901 are produced and from Kadambini for 1903. But the most important document is the receipt given by the petitioner herself in 1901 for Rs. 200, being the arrears of her maintenance for 16 years from 1885 to 1900 and three quarters of her allowance of 1901. All these receipts clearly recite that her father Gobinda before his death executed a will on the 13th Pous 1290 and in the said will he made directions for payment of Rs. 12 annually to the recipient as allowance out of the profits of the estate. In 1909 the objectors, Sasi Mohan and Kamini Mohan, had occasion to bring a suit for accounts against Kali Kanth Biswas who was managing for Shiva Sundari and for their own mother and they made Shiva Sundari a defendant also. This appears to have annoyed Shiva Sundari who separated from her sister-in-law and the objectors and went over to the side of the petitioner and her husband and in 1910 this petition was brought making Shiva Sundari alone a party. Upon this the objectors came in and said that the petition was fraudulent and collusive and got up by Shiva Sundari. At the trial Shiva Sundari and all the surviving daughters denied the will altogether and denied they had received any allowance and supported the petitioner in her allegation that she had no knowledge of the will of her father or of the probate case until Kartic 1316 when she went to visit her father s house.