RANJIT KUMAR BOSE Vs. SUBODH CHANDRA BASU MALLIK

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff appearing through his next friend and mother Srimati Lilabati Bose against the decision of the Subordinate Judge at Alipore who decreed the suit for partition in part. It appears that one Krishnadas Basu Mallik died possessed of considerable properties which are the subject-matter of the suit for partition in which this appeal arises. Before his death which happened in 1906 he is alleged to have executed a will in the year 1902 on the 19 th October. Krishnadas died leaving him surviving two sons Peary Mohan Basu Mallik and Jogendra Nath Basu Mallik. Peary Mohan had six sons, the eldest being Mohendra. Jogendra had four sons one of whom Provash predeceased him. Provash died in 1929 and Jogendra died on 21 January 1930. Provash left behind him a son Ranjit who is the plaintiff in the suit. The defendants to the suit are Subodh Chandra Basu Mallik, Probodh Chandra Basu Mallik and Nirmal Chandra Basra Mallik, the other three sons of Jogendra. The plaint contains a long schedule lists of properties sought to be partitioned. The plaintiff sought for a declaration in respect of the one-fourth share in the properties in suit and asked for partition of the same by distinct demarcation. There was also a prayer for accounts. The suit was originally framed as one for partition pure and simple but it subsequently transpired that the plaintiff was not in possession of his share and ad valorem court-fees were paid. There was some dispute in the Court below with regard to the value of the properties. The Subordinate Judge came to the conclusion that the value of the properties did not amount to Rs. 24,100 as alleged in the plaint but was only Rs. 12,000, We are not at present concerned with this question. The substantial defence to the suit was that certain properties which are described specifically in the schedule to the will which is alleged to have been executed by Krishnadas, were debuttar properties and should be excluded from partition. The Subordinate Judge has given effect to this contention of the defendants and has passed a decree which, in so far as is material, is in the following form: It is ordered and decreed that the suit is decreed in part preliminarily. Plaintiffs alleged title to 1/4 share of the properties described in the schedule of the plaint excepting properties included in Sch. kha of the will, which has been marked Ex. B in this case, is declared. Let a Commissioner be appointed to effect partition of the property. He should ascertain which portion of the property described in the schedule of the plaint is included in Sch. kha of the will, marked as Ex. B, and effect partition of the properties of the plaint which are not included in Sch. kha of the will. Question of costs will be considered at the time of the final decree. Defendants are directed to submit account books since 21 January 1930 of the properties which are liable to be partitioned within one month.

(2.) It is against this decree that the present appeal has been brought by the plaintiff against that part of the decision of the Subordinate Judge which excludes the properties of Sch. kha to the will Ex. B. (see p. 2 of the second part of the paper book) and it has been contended before us on behalf of the appellant that the Subordinate Judge was clearly in error in excluding the properties of Sch. ka to the will, seeing that the will was not duly proved as no probate was taken of the same will, or rather as the probate in respect of the said will was revoked so far back as in the year 1915 and it has been contended that in the absence of a probate no title as legatee could be established having regard to the provisions of Section 213, Succession Act. It is further contended in the alternative that even if the will could be proved in the present case the evidence is wholly insufficient to show that the will which is said to have been executed by Krishnadas Basu Mallik was duly executed and attested by him. We have to consider these two contentions separately. The first point which is raised in connexion with this question is that the probate of the will having been revoked title to the so-called debuttar has not been established. In connexion with this the following facts which are relevant require to be stated. It appears that shortly after the death of Krishnadas an application was made by Jogendra, father of defendants 1 to 3, grandfather of the plaintiffs, for probate of the said will; and an ex parte order granting probate was made. But the probate was not actually issued for at the instance of Mahendra, the son of Peary, another son of Krishnadas, the probate was subsequently revoked in the circumstances which will be presently mentioned. Mahendra made an application in which he stated that no citation was served upon him and that he had no notice or information of the application for probate at the time when the said application was kept pending. He further stated that the alleged will of Krishnadas was never executed by Krishnadas Basu Mallik, and that the said Krishnadas Basu Mallik was about 107 years of age when the will is alleged to have been executed that he had lost his vision, that half of his body was paralysed and that mentally he was an imbecile and at the time of the alleged will he had no testamentary capacity. In answer to this petition Jogendra put in an objection which has been marked as Ex. H and printed in the second part of the paper book. It is very important to reproduce here the exact terms of the said petition. After stating that the notice had been served on Jogendra directing him to show cause why an order for the issue of probate to him of the will of his father Krishnadas Basu Mallik passed by the Subordinate Judge of 24-Parganas should not be revoked. Jogendra proceeded to state as follows: That the said will is dated so far back as 1309 B.S. and it would be difficult for your petitioner under existing circumstances now to prove the will. The applicant for revocation has agreed to give up his claim for costs of this proceeding; your petitioner considers it expedient that the order for the grant of probate be revoked.

(3.) On this petition being put in, the following order was made by Mr. A.H. Cuming, the learned District Judge, as he then was, on 11 November 1915: The propounder of the will appears and puts in a petition stating that he has no objection to the grant of probate being revoked. The caveator does not press for costs.