SACHINDRA NARAIN SAH Vs. HIRONMOYEE DASI

JUDGEMENT

(1.) This is, an appeal from the decision of the District Judge of Dacca, dated the 8th of August 1917.

(2.) The real paint at issue is, whether the citation served upon a minor in an uncontested Probate proceeding by serving it upon her husband after the husband has been appointed her guardian in the proceeding is bad because the husband was appointed guardian without his consent.

(3.) The facts are shortly as follows:On the 10th August 1914 one Mohendra Narain Saha died leaving a Will, dated the 14th Sravan 1321 B.S., corresponding to 30th July 1914. He left him surviving a widow, Mrinalini Dabya, and a daughter, Hironmoyee Dasi. On the 11th November 1914 Mrinalini applied for Probate of the Will, The petition states that the testator had two near relatives, namely, Hironmoyee Dasi, minor wife of Susan Bahari Ray, residing at 13, Nather Bagan Street, Calcutta, represented by her husband Susen Behary Ray, residing at the same place, and also a sister s son named Jotindra Nath Saha. Upon the same day that the petition was presented a petition was also presented on behalf of the petitioner for the appointment of guardians of the two minors. The petition states that Hironmoyee is under the guardianship of her husband Susen Behary Ray, and that he has no interest adverse to the minor and that he was a fit and proper person to be her guardian. It appears from the order sheet that, on the 14th November 1914, Susen Behary Ray was appointed guardian ad litem of Hironmoyee Dasi. We have an affidavit, dated 23rd January 1915, of the bailiff of the Small Cause Court of Calcutta stating that, according to the identification of Debandra Chandra Dutt, he affixed a copy of the notice with regard to guardian ship on the outer door of 13, Nattier Bagan Street. The first opposite party, that is, Hironmoyee, being a Hindu pardanashin lady and Susen Ray not being present the bailiff states that Hironmoyee s father-in-law, Gosto Bahary Roy, was present and that he refused to accept service and sign the original. There is an affidavit also on the record of Dabandra Chandra Datt stating that he accompanied Gosto Behary Gupta bailiff to serve notices on the two minors and he states that the bailiff served a copy of the notice by affixing it on the outer door of the dwelling house of the first opposite party, that is, Hironmoyee at 13, Nather Bagan Street. Upon the widow s application the grant of Probate was issued to her and no body appeared on behalf of Hironmoyee to contest the application for the grant. Upon the death of Mrinalini the present application was made on behalf of Hironmoyee Dasi by her husband and guardian, Susen Roy, asking for revocation of the grant of Probate upon certain grounds stated in the petition, one of them being that the Will was a forgery and that it was never signed by the testator, suit another being that no notice of the proceeding was served upon Hironmoyes Dasi or upon her guardian, and also alleging that she wag never represented in the Probate proceeding and was not bound by the same.