DURGAPADA BERA Vs. ATUL CHANDRA BERA

JUDGEMENT

(1.) This is an appeal from the decision and decree of the learned District Judge of Midnapur by which he rejected the appellant's application for Letters of Administration with the copy of the will of one Madan Mohan Bera attached. The respondents took the usual objections to the effect that the will was forged and that the testator had no testamentary capacity. Accordingly, issues 1 and 3 were framed by the learned Judge. At the trial, these issues were abandoned by the respondents who admitted that the will was genuine and that the testator had testamentary capacity. The only thing which remained for the learned Judge to decide was issue 2. That issue is in these terms: "is the petition for Letters of Administration barred by acquiescence and waiver?" It is not very easy to appreciate what point this issue was intended exactly to raise nor is the judgment of the learned Judge very clear either. He refers to a question of a family arrangement and the effect which such an arrangement would have upon the provisions of the will. No such arrangement was ever even alleged by the respondents. In dealing with it (assuming that such a matter can be investigated on an application for probate) it would be necessary to examine whether this arrangement was in agreement with the terms of the will or opposed to it. Different consideration would arise in either case. It would also be necessary to examine who were the parties to it. On this part of the learned Judge's judgment, we need only say that the question does not arise at all.

(2.) Then the learned Judge referred to considerations which would arise on an application for Letters of Administration on intestacy. On behalf of the respondent Mr. Bose contended that there was no difference between such an application and an application for probate of a will. On an intestacy, Letters of Administration are an expensive luxury. In the case of a will, they are an absolute necessity and until probate is taken out or Letters of Administration granted, effect cannot be given to the terms of the will. My learned brother in the course of his judgment will refer to a decision which, in my opinion, is exactly similar to the present case.

(3.) Mr. Bose has made it clear what the objection of the respondents to this grant really is. He has said that there is nothing to administer and that a grant would be redundant. In such a case it is difficult to see why the appellant should be so anxious to obtain the grant and why the respondents should be so anxious to prevent him from doing so. In fact this case is really quite inconsistent with another allegation made by the respondents to the effect that the application was a mere dodge to help the appellant in a partition suit.