MUBARAK HUSSAIN Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) IN this writ application the petitioner has prayed for quashing the order dated 29.3.2004 passed in Probate Case No. 3/1959 by the 1st Additional Judicial Commissioner, Ranch whereby the respondent No. 3 has been appointed as a new executor of the estate of the deceased W.S. Hitchcock in place of the executors, namely, Ram Chandra Mukherjee and Bhagchand Jain for the purpose of executing and administering the entire balance of un administered estate of the said deceased.

(2.) THE brief fact relevant for the purpose of this case is that one William Surridge Hitchcock died in Cambridge on 12.11.1958. After his death Bhagchand Jain & Ram Chandra Mukherjee made an application for grant of probate of the last Will and testament of said W.S. Hitchcock, being Probate Case No. 3/1959. In the said probate case one Mehndi Hassan intervened and on his contest the said probate case was converted into Title Suit No. 6/1959. The main contention of the objector Mehndi Hassan was that the Will and codicil were not of William Surridge Hitchcock and the same were not properly executed and attested. It was claimed that the said W.S. Hitchcock had made an oral gift in his favour transferring his (Hitchcock) properties before leaving for England. Subsequently on 22.11.1960 both the parties filed a compromise petition and Mehndi Hassan, as prayed for, was allowed to withdraw his objection.

(3.) MR . H.C. Prasad, learned Counsel appearing on behalf of the petitioner submitted that the order passed by the learned Court below is wholly illegal and unsustainable. It has been submitted that neither the petitioner was made a party to the said application nor the general citation was issued. The proceeding was against the provision of Sec.259 of the Indian Succession Act. learned Counsel further submitted that no part of the testated estate has been left unadministered and as such the appointment of a new representative for the said purpose and no order was required to be passed.