SARALA SUNDARI DASSYA Vs. DINABANDHU ROY BRAJARAF SAHA (FIRM)

JUDGEMENT

(1.) This is an appeal from the High Court of Judicature at Fort William in Bengal which reversed the judgment of the District Judge at Pabna on an application by the respondents for the revocation of the probate of a will of an alleged testator Haralal Saha, which had been obtained by his widow, who is the appellant, in the year 1933. The circumstances were that Haralal Saha was a man of some age and had been very successful in his business, which was principally that of a moneylender. He owned immovable property in several districts in Bengal and in one district outside. He died in 1927 and, upon his death; there can be no doubt, that his three sons who survived him took possession of the properties. In some instances they had joined in a suit with their mother and were substituted for their father in a partition suit. They got a certificate of succession to enable them to sue on certain debts which were due, no doubt, on the money lending business. They collected the rents of the immovable properties and they proceeded, both they and the widow, precisely as they would have proceeded if there had been an intestacy.

(2.) It would appear that the sons did not pursue the moneylender's business which, at any rate, in five or six years' time had, as the learned Judges found, disappeared; but they had in the name of a company conducted a business in electric lighting equipment, and they had incurred a debt to the present respondents, also for the purpose of their business, of 5000 rupees. In November 1933, the respondents had obtained a decree against them for 5000 odd rupees. Their Lordships have no doubt that at that time they were in financial difficulties, as is shown by the fact that in the next year they were adjudicated insolvents. In February 1933, more than six years after the death of the alleged testator, the present appellant applied for probate of a will which she produced then for the first time. It is not surprising that that attracted a good deal of suspicion. The respondents came to the conclusion that the will was a forged document and in August 1935, they applied for revocation of the probate. The first question that arises is more or less a technical question as to whether or not the respondents had a locus standi so as to be in a position to apply for revocation of the probate. That depends upon certain clauses in the Succession Act, 1925. By S. 263 "The grant of probate may be revoked for just cause." By the explanation, "just cause shall be deemed to exist where" - only three of them need be read - "(a) the proceedings to obtain the grant were defective in substance or (b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case, or (c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently."

(3.) It may be noticed that the section does not deal expressly, so far, with forgery, but one of the illustrations given in the section is (iii), "The will of which probate was obtained was forged or revoked." The question arises whether the creditor of an heir who says that he is being or is likely to be defeated in his rights against the heir by reason of property which otherwise appeared to be in possession of the heir being withdrawn by a will, is allowed to move to revoke the probate. Attention has been called to S. 283, which provides: "In all cases the District Judge may"-then "(c) issue citations calling upon all persons, claiming to have any interest in the estate of the deceased, to come and see the proceedings before the grant of probate." It is suggested that it is only those persons who could be cited before the grant of probate who are the persons who could apply to revoke the probate. In their Lordships' view that is putting it on much too narrow a footing. One of the grounds for revoking probate is that the grant was obtained fraudulently by making a false suggestion, which obviously covers the case of putting forward a forged will, just as (c) would cover the case of a person putting forward a forged will even if when he or she propounded it he or she did not know it was a forged will.