N.N.TIWARI, J. - (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. Subsequently renewal was required for the leasehold properties. By order dated 12.6.1984, the Additional Collector, Ranchi held that the lease will be renewed in favour of the executors who are the legal representatives. The lease of the property in question was renewed up to 31.8.2014 in favour of Ram Chandra Mukherjee. By that time Bhagchand Jain died. The claim of Mehndi Hassan over 2.70 acres of land was not accepted as he was not the executor of the Will and he had already accepted the Will in the compromise petition filed in T.S. No. 6/59. The heirs of Mehndi Hassan filed an application before the 2nd Additional Judicial Commissioner, Ranchi for annulment and revocation of the probate under Section 263 of the Indian Succession Act (hereinafter referred to as the said Act). The same was registered as Misc case No. 3/ 1985. The executors contested the said application filed by the heirs of Mehndi Hassan, namely, Sakina Khatoon, Mubarak Hussain and Ors. It was contended that Ram Chandra Mukherjee and Bhagchand Jain had played fraud and Mehndi Hassan had signed the compromise petition without knowledge of the contents. In Misc. Case No. 3/1985 it was, inter alia held by the 2nd Additional Judicial Commissioner, Ranchi that the applicants failed to prove any fraud and coercion on Mehndi Hassan in filing the compromise petition. It was further held that the Probate Court had rightly not incorporated the contents of the compromise petition as a part of the decree as the compromise petition could not prevail over the probate which is a judgment in rem and binds the whole world. It was further held that the probate was not revocable and that the applicants have no locus standi to file the petition for revocation of probate. Sakina Khatoon and Ors. thereafter challenged the said order In Misc. Appeal No. 38/1986 in the Patna High Court, Ranchi Bench. The said appeal was dismissed as abated. A case was also instituted before the D.C., Ranchi being Case No. 36R8/03 -04 wherein it was held that any entry of Jamabandi in the name of Mehndi Hassan was baseless and was liable to be cancelled. The writ application being WP (C) No. 3656/2004 filed by Mubarak Hussain challenging the order passed by the D.C. was dismissed as withdrawn to enable him to avail other remedy available under law. One J.E. Wiltshire made an application under Sections 192, 193 & 194 of the Indian Succession Act, 1925 against the heirs of Mehndi Hassan in the Court of the 1st Additional Judicial Commissioner, Ranchi in Execution Case No. 1/05. After making enquiry in terms of Sec.193 of the Indian Succession Act and after hearing the parties, the 1st Additional Judicial Commissioner, Ranchi has passed the impugned order dated 29.3.04 whereby J.E. Wiltshire has, been appointed as a new executor to administer the unadministered estate of the deceased William Surridge Hitchcock in Probate Case No. 3/1959.
(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.;