BROJALAL BANERJEE Vs. SREEJUKTA SHARAJUBALA DEBI

JUDGEMENT

(1.) This appeal is against the decision of the District Judge of Dacca rejecting an application for Probate, under somewhat novel circumstances. One Kumar Ronendra Narayan Roy died on the 14 September 1910 leaving him surviving a widow who is the respondent before us. He is alleged to have executed a Will in the year 1904. Two gentlemen Mr. Peary Lal Roy and the present appellant were appointed executors under the said Will. They made an application for Probate before the District Judge of Dacca on the 4 November 1910. The widow disputed the Will and she had applied on the Original Side of this Court for grant of Letters of Administration of her husband's estate apparently on the allegation that he had died intestate. This dispute between the parties went on for a considerable time: On the 20 September 1912 Mr. Peary Lal Roy and the appellant before us filed an application before the Judge signed by them dated the 10 September 1912. In that application it was recited that the petitioners in consultation with their legal advisers and having regard to the interests of all parties concerned in the estate and also to the wishes of the deceased, desired to place the management of the property under the Court of Wards for saving it from ruin. It was also recited that the lady respondent would withdraw her application for Letters of Administration in this Court and had agreed that she would never thereafter make any application for Letters of Administration in any Court. The petition concludes in these terms: "The petitioners hereby renounce the executorship of the said Will of the late Kumar Ronendra Narayan Roy Choudhry and they pray that this suit may be dismissed and their costs may be allowed from the estate of the deceased Ronendra Narayan Roy." On the same day another application was filed on behalf of Sarajubala Debi the respondent almost in the same terms as the petition of the two gentlemen, and it concluded in these words: "The defendant prays; that the said renouncement of executorship under the disputed Will be recorded by the Court and that this suit may be dismissed and that the cost of defendant may be allowed from the estate left by her husband." Another petition was filed by the appellant alone on that date in which it was stated: "That the appellant had agreed to renounce the executorship on two conditions. The first condition has been set out in the petition filed by your petitioner and the other applicant Mr. P.L. Roy, Bar-at law. The second condition that the Will of Kumar Ronendra Narayan Roy, the deposition of Mr. F.M. Leslie, Solicitor one of the two attesting witnesses of the said Will and the whole record of the above mentioned suit should be kept in safe custody in your Honour's Court, has been omitted in that petition through mistake." The prayer was that an order should be passed for the safe custody of the Will and the whole record of the above mentioned suit. On these petitions the learned Judge made the following order on the 20th September 1912: "This case is taken up to day at the request of both parties. Two petitions of compromise are filed. The petition for Probate is dismissed in terms of the compromise. The two petitions filed on either side will form part of the final order." It is unnecessary to set out the rest of the order. There was some dispute subsequently as regards the question of costs between the parties and the Court decided the matter on the 17 September 1915. Nothing further was done with regard to the case. Apparently after the dismissal of the application for Probate the property vested in the widow of the deceased, and the Court of Wards took over the management on her behalf and has been in possession of and managing her estate since then.

(2.) On the 27 June 1921 the appellant made an application for Probate of the aforesaid Will to the District Judge of Dacca which gave rise to the present proceedings. The material facts stated in the application are that the petitioner was supplied with a copy of the draft of the Will in September or October 1910, and on the 5 October he had written letters to the widow, that is, the respondent, informing her of the contents of the Will and he also gave necessary instructions and directions to the Manager of the estate and the Manager had acted. according to the instructions of the petitioner till the 5 December 1910. It is further stated how, at the instance of the Collector, the Commissioner and certain other persons, this petitioner had been induced to file a petition renouncing the executorship, and it is alleged that the steps taken by the Collector amounted to undue influence. It is also alleged that the estate was involved at the time of the death of the testator and debts amounting to over three lacks of rupees had been paid off since--evidently by the Court of Wards. It is not necessary to state the other facts contained, in the petition. This application was verified by one of the attesting witnesses to the Will according to the provisions of the Probate and Administration Act. On the filing of this petition the learned Judge thought it desirable to issue notices to the opposite party named in the petition as well as to the Collector as representing the interest of the other co-sharers to show cause why the petition should not be admitted. Thereupon the respondent appeared and objected to the petition being heard, and after hearing the parties without taking any evidence the learned Judge has rejected the application on the ground that the petitioner was not entitled to apply for Probate of the Will of Kumar Ronendra Narayan Roy.

(3.) The first objection that has been taken on behalf of the appellant by his learned Counsel is that the procedure followed by the learned Judge is erroneous. He ought to have registered the application, issued notice to the persons concerned, ought to have raised proper issues, after the other side had filed their written objections, and decided the case as a suit, and ought not to have dismissed the application in the way he has done. Having regard to the circumstances of the present case that an application for Probate had already been made and dismissed on a petition filed by the present appellant and in that petition he had renounced his executorship on which an order had been passed, that an application for Probate of the very same Will has been made about 9 years afterwards, the learned Judge could rightly consider the preliminary question as to whether the application was maintainable or not. He might have heard it ex parte, but instead of doing so he gave notice to the other side to assist him in coming to his conclusion and we are of opinion that there is nothing wrong in his having done so. There is no doubt that this application of the 27 June 1921 is a fresh application for Probate by one of the executors named in the alleged Will, and not for reviving the proceedings initiated in November 1910. Various questions were raised in the lower Court, one of which was whether this application is maintainable unless the order made on compromise on the 20 September 1912 is set aside. We are of opinion that the learned Judge is right in holding that the order passed on compromise cannot operate as a bar to an application for Probate of the Will. This proposition is accepted by the learned Counsel on both sides. It is unnecessary to state anything further on this point.