BANGA CHANDRA DE Vs. SMMENAKA SUNDARI DE

JUDGEMENT

(1.) The will concerned in this case is alleged to have boon executed by one Ganga Bishnu De on 17 September 1888. He died about a month after, leaving a brother named Ram Gobinda De and a widow, a widowed sister and three infant daughters who were then residing with their mother in the house of Ram Gobinda. On 17 December 1889 Ram Gobinda as executor made a petition for probate giving in the petition the names of the widow and the widowed sister and stating that they were under the will entitled to enjoy the profits of the estate left by Ganga Charan and also saying that his own son Jagatbandhu was the owner of the said property by virtue of the will. Citation was issued on the widow and the widowed sister. There was no contest and on the other hand there was a petition purporting to have been made by the widow and the widowed sister consenting to the grant. On 11 August 1890 letters of administration were ordered to issue on the footing that there was no opposition, but there was prima facie proof of the will, and that the applicant was a legatee under the will. There is some doubt however whether the grant was of letters of administration or of probate, because in the order by which the grant was issued it was said that letters of administration were to issue, while an endorsement in the order sheet of the case states that it was probate that was granted.

(2.) Ram Gobinda died soon after, and thereupon his son Jagatbandhu applied for letters of administration on 5 December 1890, and obtained the same on 28 January 1891. The records of this case have been destroyed and there is nothing to show what proceedings took place in it. On 19 December 1928 Menaka Sundari, one of the daughters, applied for revocation of the probate and the letters of administration, obtained respectively by Ram Gobinda and Jagatbandhu. The main ground alleged was that the three daughters had no notice or knowledge of the cases and that though they were infants, no guardian had been appointed on their behalf, nor any citation issued, so far as they were concerned. The Judge has upheld the objection and revoked the grant. The sons of Jagatbandu have preferred this appeal and Menaka Sundari is the respondent. We called upon the appellants to produce the probate and the letters of administration but they have not been produced, it being said that they cannot be found.

(3.) As regards the probate it has been argued before us on behalf of the appellant that no citation was necessary because Section 62, Probate and Administration Act (5 of 1881) which states what the petition for probate or letters of administration with the will should contain does not require the names of the relatives of the testator to be given, while Section 64 which deals with the contents of a petition for letters of administration on the footing of intestacy expressly requires such particulars to be given. There is no force in this contention because though there is this difference between the two sections, which merely describe what the respective petitions should contain, Section 69 says: It shall be lawful for the District Judge or District Delegate... to issue citation calling upon all persons having or claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate on letters of administration, and Section 50, Illus. (b) shows that a grant made without citing parties who ought to have been cited is fit to be revoked. It cannot be seriously urged that it is not the duty of the applicant to bring to the notice of the Court who are the persons who prima facie have a claim on the estate. If the applicant says in his petition, as the applicant in the present case did, that the widow and the widowed sister were such persons and omitted to state that there were three minor daughters left by the testator and in consequence of the omission they were not cited the proceedings were radically defective in substance.