BHUPATI CHARAN BASU Vs. CHANDI CHARAN BASU MALLIK

JUDGEMENT

(1.) Two questions arise in this appeal from the decision of the District Judge of Hooghly refusing letters of administration to the estate of one Bhuban Mohan Roy who died on 23rd November 1930. The proponent, who is now the appellant before us, set up a Will said to have been executed by Bhuban Mohan several years before his death. Bhuban died leaving behind him a widow, Krishna Bhabini Dassi, but no issue. The widow died shortly after on 20th February 1931. The widow had two sisters, Karuna Moyee Dasi and Ayhore Moni Dasi. Chandi Charan Basu Mallik, who is the respondent before us, is a son by the first sister, and Bhupati Charan Bose, who is the applicant for letters of administration, is the son by the last named sister. According to the ordinary law of inheritance the applicant as well as the objector would be entitled to a share in the properties of Bhuban after the death of the widow in case of his dying intestate. When the application for letters of administration with the will annexed was made by Bhupati on 21 April 1931 a preliminary objection was taken by the objector that the present application was not maintainable as no estate of Bhuban remains to be administered and this objection seems to have prevailed with the learned District Judge who has held, on the construction of the will, that the applicant for the letters of administration has no interest in Bhuban's estate and that the gift over to him was inoperative and had no effect. The learned Judge, as has already been said, dismissed the application for letters of administration. It is against this decision that the present appeal has been brought and the two questions indicated in the beginning of our judgment which have been debated before us are: (1) that the probate Court was not competent to deal with the construction of the will and secondly that or the construction of the will the appellant Bhupati has no locus standi to maintain the application. With regard to the first question reliance has been placed by Dr. Mukherji who appears for the appellant to a decision of this Court in Sudhir Chandra Pal v. Uttari Sundari Pal 1933 Cal 571. The passage on which reliance has been placed occurs in the judgment of S.K. Ghose, J., who delivered the judgment of the Court and which runs as follows: As regards the question of locus standi the learned Judge no doubt refers to Secs.232 and 233, Succession Act. He was entitled to read the will in order to see whether in the circumstances the petitioners could come in as residuary legatees of their representatives.

(2.) And then the learned Judge quoted a passage from Tristam and Coot's Probate Practice, Edn. 7, p. 5 which is to the following effect: The function of the Probate Division is to determine what documents are testamentary and who is entitled to be constituted the personal representative of the deceased.

(3.) The true rule, however, appears from another passage in Tristam and Coot's Probate Practice to which our attention has been drawn by Dr. Sen Gupta who appears for the respondent. What passage occurs at p. 432 of the same edition. The passage is as follows: After the Court has admitted a document to probate the construction and interpretation of its contents are left to the Chancery Division. But where the question who is entitled to a grant of probate or of administration (with will) depends on the construction of a Will the Probate Division may and should construe it to that extent.