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Calcutta High Court
Hurro Lall Shaha vs Kamona Soondury Dassee on 27 February, 1882
Equivalent citations: (1882) ILR 8 Cal 570
Author: Field
Bench: Mcdonell, Field


Field, J.

1. In this case the plaintiff asks for the revocation of probate of a will alleged to have been executed by one Huri Mohun Shaha as far back as 27th Magh 1279 (8th February 1873). Huri Mohun Shaha, the alleged testator, died in the following month, that is Falgoon 1279. No application for probate of the alleged will was made until some four years after the testator’s death; and probate was granted on the 22nd June 1877. The present petition for revocation of this probate was presented to the Court of the District Judge of Pubna on the 22nd May 1880; and the petitioner explains his delay in applying for revocation by saying that he had no information as to probate of the alleged will having been granted until a few months before making this application, when for the first time he became aware of the grant. Now the District Judge has dealt with the materials put forward by the petitioner and with the evidence produced as to the execution of the will in a way that is, to our minds, not altogether satisfactory. There are certain observations in his judgment with which we are unable to concur. We may mention, as an example, his remarks as to the possession of certain ornaments by the alleged testator’s widow, Kamona Soondury Dassee. We do not think that it is at all probable that a Hindu widow would have sold her ornaments, which are her own stridhun, and applied the proceeds towards the payment of her husband’s debts. In consequence of not being able to accept the District Judge’s reasons for the conclusion at which he has arrived, we have reconsidered the whole evidence and have arrived at an independent conclusion of our own.

2. Before dealing with the evidence as to the factum of the will, it is necessary to dispose of two points which have been raised by the pleader for the appellant. These points are: first, that the District Judge of Pubna had no jurisdiction to revoke the probate; and secondly, that the petitioner had not sufficient interest in the property of the alleged testator to entitle him to maintain this suit.

3. As to the first point, it is admitted on all sides that probate of the will was originally granted by the District Judge of Rajshahye, and that between June 1877, the date of the grant of probate, and May 1880, the date on which the petition for revocation was filed, the Pubna District was removed from the local limits of the jurisdiction of the Rajshahye Court, and was constituted into a separate District Judgeship. Now it is said, that because the probate was originally granted by the District Judge of Rajshahye, the application for revocation ought to have been made to the same Judge in his Court at Rajshahye and not to the District Judge of Pubna; and, in support of this contention, the case of In the matter of the Petition of Kasi Chunder Mozoomdar I.L.R., 6 Cal., 440 has been relied upon. We think that that case is not on all fours with the case with which we have now to deal. In that case the statement, alleged to be false, and in respect of which the Court was asked to sanction a criminal prosecution, was made in proceedings which had been commenced and completed in the district of Rajshahye. The application in the present case is not concerned merely with proceedings that have been commenced and concluded in the Rajshahye Court. No doubt, if this application be successful, the grant of administration made by the Rajshahye Court will be cancelled; but the present proceedings are distinct from the former proceedings,–the allegations are different, the evidence is different, there is a new party, and the trial is inter partes and not ex parte. Section 235 of the Indian Succession Act (which is applicable to Hindu wills) enacts, that “the District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district.” Now, in order to ascertain what is a case within his district, we must turn to Section 244, which directs that, in petitions for probate, the following, among other particulars, shall be inserted,–viz., that the deceased at the time of his death had his fixed place of abode, or had some property, moveable or immoveable, situate within the jurisdiction of the Judge. Now, it is clear from these words, that, in order to determine the district within which a case for grant of probate is to be instituted, we must see whether the deceased, at the time of his death, had his fixed place of abode, or had some property, moveable or immoveable, situate within the jurisdiction of the particular District Judge to whom the application is made. There is no similar provision in express language applicable to a case of revocation of probate; but it appears to us that the reasonable construction is, that the same test of jurisdiction is to be applied. Were it otherwise, there is no test of jurisdiction to be found in the Succession Act, and it is admitted that if we are to look for that test in the Code of Civil Procedure, the case has been properly instituted in the Court of the District Judge of Pubna. Now it is admitted, that the testator, at the time of his death, had his fixed place of abode and also had property within the jurisdiction of the Pubna Court. Section 18 of the Bengal Civil Courts Act provides, that the “Local Government shall fix, and may from time to time vary, the local limits of the jurisdiction of any Civil Court under this Act; “and under the provisions of Section 15 of the same Act, a District Judge is a Civil Court within the meaning of the Code of Civil Procedure. It is clear that the Local Government, in the exercise of the power hereby conferred, varied the local limits of the Rajshahye Court. It is also clear that, after the Pubna District had been constituted a separate jurisdiction with a separate District Court, any petition for grant of probate of this will must have been presented to the Pubna Court, inasmuch as the deceased resided and had property within the local limits of that Court. It follows from what has been already said, that, if the Pubna Court had jurisdiction to grant probate, it had also jurisdiction to revoke. Then, is this latter jurisdiction affected by the fact of the grant having been made in the Rajshahye Court? We cannot see that it is, more especially as the judicial jurisdiction of the two Courts is exactly equal, and neither party suffers any disadvantage by the revocation-suit being tried at Pubna. On the contrary, there is a positive advantage to the parties and their witnesses, inasmuch as Pubna is nearer their houses than Rajshahye. There is nothing to show that, by having the revocation-suit tried at Rajshahye, it would come before the same Judge who originally made the grant, and indeed it has been admitted that this would not be so, while it may well be that the jurisdiction of the Rajshahye Court has been taken away by the removal of the Pubna District from the local limits of its jurisdiction. For all these reasons, we think that the petition for revocation was properly presented to the Pubna District Judge.

4. The second question is concerned with the right of the plaintiff to maintain this suit. It appears to us, that the plaintiff, who is admittedly the next presumptive reversioner, had a sufficient interest in the property with which this will deals to entitle him to maintain a suit in respect of such property. In support of this view we may refer to the case of Ranee Anund Kunwar v. The Court of Wards I.L.R. 6 Cal. 764 decided by the Privy Council on the 19th November 1880. Then, inasmuch as the plaintiff had a sufficient interest in the property to maintain a suit in respect thereof, we think, upon the authority of the case of Nobeen Chundra Sil v. Bhobo Soondury Dabee I.L.R. 6 Cal., 460, that he was entitled to maintain this case for the revocation of the probate. Having disposed of these two preliminary points, we now turn to the evidence as to the factum of the will.

5. (The learned Judge then went into the evidence as to the execution of the will, and found it was insufficient to enable the Court to come to the conclusion that the will had been executed by Huri Mohun Shaha, and continued:) In the first place, the application for probate of the will was not made until nearly four years after its execution. Now, the will contains a recital that it was executed in order to provide for the payment of certain debts that were due by the testator; and the fact that no probate of the will was applied for till nearly four years after the testator’s death, which occurred soon after the execution of the will, is not very consistent with this recital. In the second place, no special citation was served upon the petitioner, who was the next presumptive reversioner. We think that, in every case in which probate of a Hindu will is asked, a special citation ought to be served upon those persons whose interests are directly affected by the will. In this case no such special citation was served. It is said that it is not the usual practice in the mofussil to serve anything more than a general citation. There may be some truth in this statement, and in dealing with the case now before us, we, in consequence, assign less weight to this consideration than we might give to it, if a more careful practice prevailed. We desire to observe, however, that the practice of a mere general citation in all cases is one which in this country may tend to encourage fraud, and the fabrication and propounding of forged wills. Section 250 of the Succession Act vests the District Judge with full discretion, which should be exercised with proper care: and when a will is propounded which alters the devolution of property, a special citation should be directed to be served upon the person or persons who is or are immediately affected by the will. The other grounds on which the learned Judge was of opinion that the will had not been executed by Huri Mohun are not material to this report. Taking all these facts into consideration, and further having regard to the positive evidence which has been produced to prove the execution of the will, it appears to us, although we do not agree in the judgment of the District Judge, or in the reasonings upon which he has arrived at his conclusion, that this conclusion is substantially correct, and that we ought not to interfere with the order for revoking probate of the will.

6. This appeal must, therefore, be dismissed with costs.

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