RAMA NATH CHAKRAVARTI Vs. COLLECTOR OF KHULNA

JUDGEMENT

(1.) This appeal arises out of an application for Letters of Administration with the Will annexed of one Mati Moyi Debya. The Will purported to give away all the properties in the possession of the testatrix, being her own self-acquired property as well as the property inherited by her from her husband. At first the application was filed before the District Delegate and upon an objection being made by one Sarba Sundari, the case was sent up to the District Court and taken up as a contested case. In the meantime the Chairman of the Debhatta Municipality is said to have made a report to the Sub-Divisional Officer, Babu A.N. Sen, that the Will of which Probate had been asked for by Rama Nath Chakraburty was a forged one. Upon that information the Sub-Divisional Officer took some proceeding which he headed as confidential and examined certain witnesses, and then sent the record to the Collector asking him to oppose the grant of the Probate. It is not quite clear under what law this proceeding was taken. It appears that immediately upon the death of the deceased, the petitioner removed certain moveable property to his house and upon that Sarba Sundari lodged a complaint at the thana about this matter and he was arrested and taken to the thana. It is a question whether at the thana he did not make any mention of the Will. The Court, however, under these circumstances allowed Government to put in a caveat. There were three objectors, Sarba Sundari, the Government and a third person" named Rama Nath Banerjee, who claimed under a Tfobala from the brothers of the deceased. As the Government took up the case, the caveators did not take any steps in opposition of the Will. Witnesses were examined on behalf of the petitioner and also on behalf of the Government and the lower Court has held that the Will was a spurious one and has, therefore, refused to grant Letters of Administration.

(2.) On appeal it is contended that the Government has no locus standi to oppose the grant in this case and, secondly, that on the evidence taken as a whole even if the evidence adduced on behalf of the Government be taken into consideration, the Will should be taken as proved. As regards the first contention, we think regard being had to the statement in paragraph 5 of the petition for Letters of Administration, "The deceased left no (near or distant) relative as her heir", the Government may have been led into thinking that this was really a case in which there were no heirs and although the Collector might have made an inquiry as to the existence or non-existence of heirs so as to attract the right by escheat before launching the Government into an expensive litigation, we cannot say that at the inception of the proceeding the Government had no locus standi. Although we decide this question of the locus standi of the Government to oppose the application in favour of the Government at its inception, we think that as soon as it appeared that there were heirs in existence who would inherit, the Government ought to have retired.

(3.) It appears from the evidence that the deceased left two brothers, who upon the evidence would be the legal heirs of her pre-deceased son whom she had succeeded. However, the first question raised in appeal is so far decided in favour of the Government.