BRINDABAN CHUNDER SHAHA Vs. SURESHWAR SAHA PRAMANIK

JUDGEMENT

(1.) One Phanindra Mohan Shaha, owner of an estate of considerable value, died on the 20th July 1900. He left a minor widow Gour Dasi the daughter of the present appellant Brindaban Chandra Shaha, a sister by the name of Shobha Sundari, a nephew Sureshwar Shaha the infant adopted son of his sister, and a cousin Bhuban Mohan Shaha. On the 18 September 1900 Brindaban Chandra Shaha and Shobha Sundari made an application to the District Judge of Dacca for probate of a will alleged to have been executed by Phanindra Mohan Shaha on the day previous to his death. Under the will the petitioners, who are the father -in-law and the sister of the testator, were appointed executors. The will provided that the widow was to take a life-interest in the estate of the testator but would not be able to do any act that might cause deterioration to the same. The widow was further authorised to take three sons in adoption successively. The will also contained a direction for the management of the estate during the infancy of the adopted son or in the event of disagreement between the widow and the adopted son. The executors were finally empowered to alienate any property for the benefit of the estate. The application for probate recited that the nearest relations left by the testator were his widow, his sister and the adopted son of the latter. No mention was made of the cousin. General notices were, there upon issued in the usual manner and on the 20th December 1900 Bhuban Mohan entered a caveat in which he denied the genuineness of the will, questioned the factum of the adoption by the sister of the deceased and alleged that after the death of the widow he was the person entitled to inherit the estate as reversionary heir. The proceedings were thereupon converted into a contentious probate suit, and at one stage witnesses were examined upon the question of the factum and validity of the alleged adoption by the sister Shobha Sundari. This evidence prima facie established that Sureswar had been taken in adoption by Shobha Sundari. The cousin Bhuban Mohan, therefore, entered into a compromise with the petitioners and withdrew his objections to the grant of probate by a petition dated the 10 June 1901. The case was subsequently treated as uncontested, and upon proof of the execution of the will by an affidavit probate was granted to the petitioners on the 17 June 1901. On the 22 September, 1908 Sureswar, the adopted son of Shobha Sundari, who had meanwhile attained majority, presented an application to the District Judge under Section 50 of the Probate and Administration Act for revocation of the probate on the ground, amongst others, that he had not been made a party to the proceedings, that no notice had been served upon him or upon any one as his guardian ad litem, that the will was a forgery and that consequently the probate ought to be revoked and the executors called upon to prove the will in solemn form. On the 2 December, 1908, the District Judge revoked the probate on the ground that no citation had been issued upon Sureswar and he was not represented in the probate proceedings. Brindaban Chandra Shaha, the father-in-law of the testator and one of the executors, has now preferred an appeal against the order of revocation.

(2.) On the 25 January 1909 the petitioner for revocation of the probate, Sureswar, applied to the District Judge for appointment of an administrator pendente lite. This application was refused on the 20 February last on the ground that the deceased had left widow who was able to administer the estate. ureswar has preferred an appeal against that order and has further obtained a Rule calling upon the opposite party to show cause why an administrator pendente lite should not be appointed to take charge of the estate of the deceased during the pendency of the appeal from order. The two appeals and the Rule have been heard together.

(3.) In support of the appeal directed against the order for revocation, it has been argued, first, that Sureswar as reversionary heir of the deceased has no interest in his estate and is not entitled to appear in these proceedings; secondly, that he ought not to have been allowed to obtain an order for revocation till he had established by evidence that he was the adopted son of the sister of the testator; thirdly, that the District Judge ought not to have revoked the probate but should merely have called upon the executors to prove the will in solemn form.