ANILA BALA DASI Vs. RAJENDRA NATH DALAL

JUDGEMENT

(1.) This was a Rule calling upon the opposite party to show cause why the order of the Court referred to in the petition should not be set aside and the opposite party directed to make a full discovery of the assets of the deceased by an affidavit sworn by them personally in the form required by law.

(2.) It appears that a petition was filed before the learned Judge, averring that the inventory filed by the other side as executors to her husband s estate, which alleged that only forty- seven thousand Rupees came into their hands in cash, was erroneous and that as a matter of fact they obtained a lakh of Rupees or more and it asked the District Judge to direct the opposite party to make a full discovery of the assets of the deceased by an affidavit sworn by the opposite party personally. The learned Judge refused the application, on the ground that there appeared to him to be nothing in the Probate Act which would enable him to make any such discovery. He apparently did not have it brought to his notice that Section 55 of the Probate and Administration Act lays down that "The proceedings of the Court of the District Judge in relation to the granting of Probate and Letters of Administration shall, except as hereinafter otherwise provided, be regulated, so far as the circumstances of the case will admit by the Code of Civil Procedure." There is, therefore, no doubt that Order XI of the present Code of Civil Procedure applies to proceedings in Probate. Under that Order there are only two methods of discovery, one by interrogatories and the other by an order directing discovery of documents in the possession or power of the other side. The affidavit which the petitioner desires to obtain can, therefore, only be obtained by the first method, namely, by interrogatories; and it is laid down clearly in Order XI, Rule 2, that on application for leave to deliver interrogatories the particular interrogatory proposed to be delivered shall be submitted to the Court; and in the case before us no interrogatories whatever were submitted to the Court; and it has been held in England, and the same rule applies in this country, that under this rule the Judge has not any power to settle interrogatories, but he can only decide what should be administered. Until the interrogatories are filed it is impossible for him to settle whether there is anything offensive, improper or irrelevant in those interrogatories: and the dicta that have been laid before us from English cases with regard to the more extensive powers of the Court in matters of Probate, seem to us to imply that possibly in such matters the Judge would not be astute to insist upon the strictest relevancy, but he certainly would be obliged to exclude anything offensive or improper in the same way as in any other case. It may be that in matters of Probate the strictest relevancy in the interrogatories may not be required, but this is a matter for the Judge to decide when the interrogatories are filed before him. Until the interrogatories are filed he is absolutely without any power whatever in the matter.

(3.) We are, therefore unable to help the petitioner upon the present Rule. As there is no provision of limitation applying to such proceedings, we can see no reason why he should not file a proper petition with proper interrogatories as laid down in Order XI of the Code of Civil Procedure, and we have no doubt that if he does so, the Judge will give them the proper attention in the exercise of his judicial discretion and administer such as may be according to law.