BABU DEBI BAKHSH SINGH Vs. SMTASHTBHUJA RATAN KUNWAR

JUDGEMENT

(1.) This is a first appeal against the issue of letters of administration in favour of an applicant by the learned District, Judge of Benares. The facts are that the property in question belonged to one Thakur Ambika Bakhsh Singh, Talukdar of Nanemau estate in the District of Pyzabad in Oudh. He died on 13 August 1905 in Fyzabad District. An application was made by Smt. Ashtbhuja Ratan Kunwar, his posthumous daughter aged about 23 years, on 11 April 1929, that is many years after his death, and her application is accompanied by a list of property which comprises the whole of the property of the deceased. This property is almost all in Oudh with the exception of one small area in Jaunpur District, No. 63 on the list, which is under proprietary right in Mauza Isapur in 75 acres odd. The value of this property is said to be very small, only Rs. 15 (see Collector's report p. 24). The value of the estate on the other hand is stated in para. 10 of the application to be over four lakhs and in the report to be 8 1/2 lakhs. Now the application is for letters of administration with a copy of the will-annexed and the will said to be printed on p. 67 purports to have been executed by the deceased Ambika Bakhsh Singh on 1 October 1904, that is within a year of his death. The applicant is not entitled to possession under this will, but the will provides in para. 4 that if there be no son born, then Thakurain Dharam Raj Kunwar, the widow of B. Adya Bakhsh Singh, the brother of the testator, "shall be considered the owner of the estate". The will proceeded to state: In her absence my senior wife should he entered, and even if she be dead then the name of my junior wife should be entered.

(2.) Then follows a paragraph where something has been cancelled in the will and it is stated: After them this riyasat will be considered as having been divided among my daughters in equal Shares.... After them their children will remain in possession thereof.

(3.) At the death of the testator, there were surviving him Thakurain Dharam Raj Kunwar and both the wives of the testator. At the present time Thakurain Dharam Raj Kunwar is still alive and the junior wife is alive and the senior wife is dead. Mutation did not follow the provisions of the will and the will was not put forward at the time of the death but mutation was made for the senior wife. On no construction of the will could the daughter be entitled to possession at present specially in view of the existence of her mother who is in possession. The application for letters of administration was objected to by the present appellant before us, B. Debi Bakhsh Singh, who claims that he is the nearest reversioner of the deceased talukdar and an objection was also filed by respondent 2, Lal Bhupendra Narain Singh, who is the son of a daughter of Thakurain Dharam Raj Kunwar. We have already mentioned the point that only a small portion of the property exists in the judgeship of Benares and the question of jurisdiction arose in the Court of the District Judge. On pp. 27 and 29 there is an order of the District Judge of 25 February 1931 on the issue of jurisdiction in which he held that he had jurisdiction and that the petition should not be refused. That matter went in appeal before this Court, and on p. 87 there is an order of a Bench of this Court holding that the Court is not able to interfere because no appeal lay and it is not a case where interference should be made in revision under Section 115, Civil P.C. The matter of jurisdiction has however again been argued before us as it properly arises now that a first appeal has been brought in this Court. Now the importance of the question of jurisdiction is because of the provisions of Section 13, Oudh Estates Act of 1869. This section requires that a will by a talukdar of talukdari estate should be registered within one month of the execution and the present will has not been registered until 1920. The registration of the will would however not be necessary for the administration of the very small area of property in Jaunpur District. The provisions of the Succession Act of 1925 relevant to the matter are Secs.270 and 271, and these sections give a District Judge jurisdiction to exercise powers of granting letters of administration if there is any property within the area of his-judgeship, but it is stated: It shall be in the discretion of the Judge to refuse the application if in his judgment it could be disposed of more justly or conveniently in another district, or, where the application is for letters of administration, to grant them absolutely or limited to the property within his own jurisdiction.