MALATI BALA DE Vs. DHANAPATI DUTTA

JUDGEMENT

(1.) This appeal arises out of a probate proceeding. It is at the instance of a person whose attempt to intervene in the said proceeding by filing a caveat was rejected by the learned District Judge and thereafter, the will in question (Ex. 1) was probated on the sole testimony of the scribe who was also one of the attesting witness to the said will.

(2.) The testatrix was one Mokshadabala Dutta. The propounders were two persons Dhanapati Dutta and Raghupati Dutta who are the first two Respondents in this appeal. The present Appellant claimed a tenancy in respect of one of the properties left by the testatrix. She tried to intervene in the probate proceeding by applying for permission to file a caveat. The permission was refused by the learned District Judge by his order, dated May 21, 1962. Thereafter, the will (Ex. 1) was probated on May 25, 1962, there being no caveat on the record and the evidence of the sole witness, the scribe of the will (who was also one of the attesting witnesses, as said above) being considered sufficient by the learned District Judge for the grant of the said probate. Form this grant the present appeal was taken by the Appellant.

(3.) At an earlier stage, a preliminary point was raised as to the maintainability of this appeal on the ground that, in view of the order of the learned District Judge, refusing the Appellant permission to ' file a caveat on the ground that she had no locus standi in the matter, the present appeal at her instance was incompetent. This preliminary point was heard by this Court (Bhattacharya, J. and myself) and the Respondents' objection to the maintainability of the instant appeal was overruled by a judgment, which is Malati De v. Dhanapati Dutta,1962 66 CalWN 879. In that judgment, we expressly reserved consideration of the point whether the Appellant had locus standi to file the caveat in the instant probate proceeding and whether the learned District Judge was right in refusing her prayer in that behalf. We proceeded on the footing that there was a distinction between the locus standi to file a caveat and a locus standi to file an appeal from the ultimate order, granting probate after refusal of the Appellant's prayer to file a caveat on the ground of want of locus standi in that behalf and we held that the criterion for the one was not the same as the criterion for the other and in the instant case, the Appellant had locus standi to file an appeal.