HARIMATI DEBI Vs. ANATH NATH ROY CHOUDHURY

JUDGEMENT

(1.) The appellants are the applicants for letters of administration. They have propounded a will said to have been executed by their father Phani Bhusan Roy Choudhury as far back as 27 February 1910. Phani Bhusan died on 6 March 1910 and the application for letters of administration with the will annexed was made on 15 September 1930, more than 20 years after the testator's death. The inordinate delay in propounding the will coupled with the fact that it is an unregistered one makes it our duty to scrutinize the evidence produced on behalf of the propounder with care and circumspection. Phani Bhusan was survived by his widow Mrinalini, two minor unmarried daughters, Harimati and Probhabati, who were about 13 and 10 years of age respectively at the time of his death and by an infant son, Bholanath then a few months old. Anath Nath, the respondent in the appeal, is the grandson of a separated brother of Phani Bhusan of the name of Apurba. The summary of the terms of the will propounded is that the testator's properties were to vest in his son Bholanath and during the latter's minority, Mrinalini, and in her absence Harimati and Probhabati, were to look after his properties. If Bholanath died unmarried but survived by his mother, Mrinalini, the properties were to vest in the latter on whose death they were to vest in the testator's daughters, Harimati and Probhabati. If Bholanath died after his mother but unmarried, the properties were also to vest in the said two daughters of the testator. Harimati was married after her father's death but she is a sonless widow. Probhabati was married to Nanigopal Bhattacharjee in the year 1918. Bholanath died unmarried in December 1917 survived by his mother Mrinalini, who died on 11 July 1930. At that time Probhabati had no male child living. If Phani Bhusan had died intestate, on Bholanath's death the properties would have devolved on his mother Mrinalini as his heir and on the latter's death, Anath would have inherited the same as being the nearest reversioner of the last male owner Bholanath. Harimati and Probhabati would not have come in, as under the Bengal School of Hindu law, sisters are no heirs. Sister's sons are no doubt heirs but none of them was in existence at the time of the death of Mrinalini when the succession to the estate of Bholanath opened again. Will or no will, it made no difference up to Mrinalini's death, but the will set up was absolutely essential, if Phani Bhusan s-nroperty is to be retained in his daughter's family. It is for this reason that the respondent has suggested that the will was hatched up after Mrinalini's death by Nanigopal, the husband of Probhabati.

(2.) On 15 September 1930 the appellants filed their application for letters of administration before the District Delegate of 24-Parganas. In their application they mentioned the name of Anath, who was then a minor, as a near relation of the testator. On 20 November 1930 they proposed his maternal grand-mother, Sarojini, as his guardian ad litem. The District Delegate accordingly issued on 8 December 1930/ notices both on Anath and his proposed guardian who were then living in Basirhat, The peon's report is that he went to Sarojini's house on 29th December 1930 but as Sarojini was a parda lady he could not hand over the notice to her, but made the contents of the notice known to her son-in-law Surendra Nath Banerjee, who was present there, but the latter having refused to sign, the notice was affixed to a prominent part of the house. This notice required Sarojini to appear in Court on 5 January 1931 and to intimate whether she would accept the guardianship or not. On the record we find a vakalatnama as Sarojini's vakalatnama and an application purporting to be on her behalf, both filed on 5 January 1931. In both there is a mark and Surendra Nath Banerjee purports to write the name of Sarojini on her behalf. On both there are signatures which purport to be Surendra s. The application states that not only Sarojini was willing to act as-the guardian ad litem but that she had no? objection to the grant being made to the applicants. On 22nd June 1931, Sasadhar Mukherjee whose name appears as one of the attesting witnesses filed his affidavit in which he stated that the will was duly executed and attested in his presence. On 3 August 1931 an ex parte order for grant of letters was made to the applicants on the basis of this affidavit. The probate duty was not however paid and the security was not furnished with the result that the case was dismissed for default by the District Delegate on 20 June 1935. There are indications on the record which furnish the reason for this default. The duty demanded was a small amount (Rs. 80-4-0) and it was not paid for four years not because of want of funds but for other reasons. Those reasons were that the applicants had succeeded in having their names substituted in the Collector's register on ex parte proceedings.

(3.) In 1935 however Anath, who had attained majority in the meantime, appeared before the Collector and succeeded in having the names of the applicants Harimati and Probhabati removed from his register and in having his own name recorded. This put the applicants to motion and they on 1 May 1936 applied to the District Delegate under Section 151, Civil P.C., to vacate the order of dismissal passed on 20 June 1935 on the ground that they were then prepared to pay the probate duty and to furnish security. The previous order for dismissal was set aside ex parte and letters of administration were issued to the applicants with a copy of their father's will annexed on 12 May 1936. Fourteen days later (26 May 1936) Anath filed his application for revocation of the grant. The grant was revoked by the learned District Judge by an order dated 30 January 1937 and the applicants were asked to prove the will in the presence of Anath in solemn form. The findings in the order of revocation are these: (i) that the notices issued by the District Delegate on Sarojini and upon the minor Anath on 8 December 1930 were fraudulently suppressed; (ii) that the vakalatnama and the petition filed on behalf of Sarojini before the District Delegate on 5 January 1931 were false documents. In them the signatures of Surendra Nath Banerjee had been forged; (iii) that the case sought to be made in the evidence adduced by the propounders, especially by their witness Purna Chandra Roy Choudhury, that Anath and Surendra Nath Banerjee knew in 1931 of the proceedings before the District Delegate, inasmuch as the Circle Officer of Basirhat made enquiries regarding the value of the estate for the purpose of assessing probate duty in their presence, was a false case. After the grant was revoked the proceedings started again on 8 March 1937.