SRISH CHANDRA SANYAL Vs. KADAMBINI DEBYA

JUDGEMENT

(1.) This appeal is against an order granting Probate of a Will. The Will was executed nearly 50 years ago--on the 3 October, 1877 by one Karuna Kanta Sanyal who is said to have died on the 5 October, 1877, according to the applicant for Probate, and two days earlier according to the objectors. Karuna had a brother named Rukmini. Rukmini's son Rohini was married to Kadambini the present applicant for Probate. The objectors are the nearest agnates of the testator.

(2.) It appears that so far back as the 21 May, 1878, an application for Probate was made by Rukmini. Probate was granted, but only a limited grant was made in respect of the debts mentioned in para. 3 of the Will. Karuna Kanta left a widow Raj Kumari and she died in 1919. Rohini predeceased Raj Kumari, and Kadambini made the present application for Probate in 1922. The Court below was of opinion that the Will had been proved, especially having regard to the fact that it had been proved in 1878 and accordingly granted Letters of Administration with a copy of the Will annexed, to her. It appears that pending the hearing of the application for Probate in the Court below, the opposite party applied to that Court for treating their objection to the application as an application for revocation of the Probate which had been granted in 1878. That has been refused by the Court below and that is the subject matter of Appeal No 134.

(3.) The first contention on behalf of the appellant was based on the construction of the Will. The Will in the first paragraph provides that on the death of the testator his wife Raj Kumari would be entitled to hold possession of the moveable and immoveable properties left by him during her lifetime, but that if she lived elsewhere and not in the family dwelling house, then her right to the properties would cease and she would only get maintenance to the extent of one-fourth of the profits of the properties from the testator's brother, Rukmini, and in the absence of Rukmini from his son Rohini. In the second paragraph of the Will, it is stated, "that on the death of my wife Sriman Rohini Kanta" Sanyal, the only son of my brother by his first wife and of whom both I and my wife are very fond, shall get all the moveable and immoveable properties to be left by me. God forbid, if the said Sriman dies before the death of my wife, then of the heirs of my nephew, such as wife, son, grandson, daughter having or likely to have sons or daughter's son, whoever will be alive at the time of the death of my wife, shall get all the properties to be left by me. If my nephew shall have no such heirs, then my brother and the children of his second wife, if any, shall after the death of my wife get all the said properties. If he too shall have no such heirs, then after the death of my wife, the son of my Gurudeb (spiritual guide) the late Brahmananda Bhattacharjee of Pukhurpar and his nephew (brother's son) Srijut Gopal Chandra Bhattacharjee, shall get (my properties) in equal shares." The third paragraph of the Will provides, "that my brother Sriman Rukmini Kanta Sanyal and in his absence his son Sriman Rohini Kanta Sanyal will be entitled to realise all sorts of my dues; and the debts incurred by me shall be paid off out of the moveable and immoveable properties to be left by me."