SARDAR SINGH Vs. SWAMI CHAKRAPANI ACHARYA

JUDGEMENT

(1.) This is an appeal from an order of the District Judge of Agra refusing to entertain an application for the revocation of a grant of probate. The facts are that a certain Mt. Sumitra Devi died on 6 March 1939 leaving a will which we shall set out: My name is Sumitra Devi. I am a disciple of Chakrapani Maharaj of Brindaban. I regard him as God. I have got some money and ornaments. There is no certainty of human life. I wish that after my death my Guru Chakrapani Ji shall take all my properties and spend the same in good religious works which may be for my spiritual benefit. He may take the advice of my gurubhai Thacoor Phulan Singh and Krishna Behari Lal Sharma. My guru shall pay to my beti Draupadi five hundred rupees if she does sheba to me and remains obedient.

(2.) In form, therefore, that is a testamentary disposition disposing of her property, to put it in general terms, by bequeathing the whole of it to her guru, Chakrapani, for the purpose of religious and charitable works and in order to provide what is in the nature of a bequest of five hundred rupees to the named person Draupadi. In due course, Chakrapani applied to the District Judge of Agra by an application which he put in an alternative form asking first for a grant of probate and, in the alternative, for a grant of letters of administration with will annexed. The application itself was dated 18 April 1939 and, among other things, by Para. 1 it stated that the applicant had been "appointed...as the sole executor" of the will. And by para. 9 of the same petition it was said "the petitioner applies for probate of the said last will and testament of the deceased as executor therein named." This application was filed in accordance with Section 276, Succession Act, which requires that the application shall state a number of things relating to the death and will of the testator and among others by Sub- section (1)(e) that "when the application is for probate, that the petitioner is the executor named in the will." On this application the District Judge directed a general citation in the form of an advertisement. There was at that stage no contest and he was perfectly entitled to take that course. No caveats were entered and accordingly in due course the District Judge made a grant of probate to the applicant Swami Chakrapani as the person who had been named in the will as the executor.

(3.) The next stage was that an application was filed later by the present applicant, Sardar Singh, who claimed to be the son of the brother of the husband of the testatrix. As such, he asked for two things - first for a finding that Swami Chakrapani to whom probate had been granted was never an executor and accordingly that probate never should have been granted to him, secondly, that, he himself, being a relative recognised by Hindu law, was a person who was entitled to a grant o? letters of administration. This application, which is the one which is now in appeal before us, was heard by the District Judge on 24 August 1942 and he came to the conclusion that it ought to be dismissed. It is from that order of dismissal that this appeal has come to us. The learned Judge first discussed whether the applicant Sardar Singh was the relative which he described himself to be and whether he was as such entitled to make the application for revocation. He decided both these things in favour of the applicant. He then went on to consider whether the District Judge had in the first place omitted to order any citation which ought to have been issued and he came to the conclusion that there was no obligation on the District Judge when hearing the original application for probate to have issued any special citations. And he finally went on to consider whether the will was forged. The point, however, which he did not consider was the point whether Swami Chakrapani was ever a person who was an executor at all and, therefore, whether it was ever possible for a grant of probate to have been made to him.