HAIMABATI MITRA Vs. KUNJA MOHAN DAS

JUDGEMENT

(1.) This is an appeal from a judgment of the Additional District Judge of Sylhet refusing to revoke the grant of probate of the will of Ramlochan Das, father of the appellant. Probate was granted so far back as the year 1895. The grant is attacked on two grounds principally, namely : (1) no citation was issued upon the appellant or upon her mother who was described as her guardian ad litem in the probate proceedings, (2) that the will was a forged will. The learned District Judge while holding that there really there was no service of the citations in fact upon an interested person refused to revoke the grant of probate on the ground of the long delay in applying for revocation.

(2.) The circumstances which have led to the application for revocation are these : In 1895 Krishna Prosad Das, an uncle of Ramlochan, applied for the probata of an alleged will of the latter stating that he had executed the will on 23 January 1895, a short time before his death which took place in June of the same year. At the time of the execution of the will Ramlochan had his wife, three unmarried daughters and a married daughter living. The will appears from its terms to be an almost inofficious will for neither the wife nor daughters were given any share in the inheritance but provision was made only for maintenance of the wife and for the marriage of the daughters and it was provided by the will that in the absence of an adopted son or natural son the uncle of the testator would become the absolute owner of all the moveable and immovable properties left by Ramlochan. After the death of Ramlochan his widow Monomohini lived in joint mess with Kristoprosad and under his care and protection and the unmarried daughters lived with their mother. The daughters including the applicant for revocation of the grant (now appellant) were all infants. The uncle who was also the executor applied for probate and citation was issued to the mother and to the three infant daughters represented by their mother and to Mahamaya Dasi, married daughter of the testator : see Exs. A and A-l, at p. 1, part 2 of the paper-book. And one of the main questions in the appeal is whether citation was issued to Haimabati, who was one of the infant daughters of the testator. The mother either for self or as guardian of her infant daughters did not enter any caveat nor did the married daughter do so. The matter was treated as a non-contentious proceeding and after examination of one of the attesting witnesses to the will probate was granted by the District Judge. In 1927 Monomohini, the mother of the applicant for revocation died and the present application for revocation was filed on 25 May 1927 a short time after, Haimabati became entitled to the reversion on the death of her mother Monmohini.

(3.) Kunjamohan Das, the son of Krishna-prosad the executor under the will put in objections to the petition for revocation. The grounds of objection fall substantially under five heads : (1) there is no just cause for revocation of probate; (2) probate cannot be revoked in the absence of all the parties now interested in the properties left by the testator as there have been numerous alienations in their favour since the grant of probate; (3) the will was a genuine will and was duly executed by the testator; (4) proper citations were issued and the proceedings to grant probate were not defective in any way and (5) the application for revocation could not be entertained after such a. lapse of time when the executor and all the witnesses to the will are dead. The learned District Judge practically gave effect to the last objection and held that the contention that appellant's inheritance opened only on her mother's death in 1333 was no valid reason why she should be permitted to contest the probate after an age, and dismissed the application as already stated without deciding on the objection as to the genuineness or otherwise of the will.