Calcutta High Court
Hari Taran Sarkar vs Basanta Kumari Dasi And Anr. on 6 December, 1909
Equivalent citations: 5IND. CAS.164
JUDGMENT
1. This appeal is directed against a decree of the District Judge of Murshidabad by which he dismissed an application for revocation of the probate of the Will of Sreeram Mondal, granted on the 18th August, 1905. The appellant before us who was the applicant in the Court below is admittedly the sister's son of the testator, and as a reversionary heir was entitled to be made a party to the proceedings. He was, however, not made a party. At the time of the pendency of the probate proceedings, he was moreover an infant, and it was, therefore, necessary, that he should not only be made a party but also be represented by a disinterested person as guardian ad litem. As this was not done, he is entitled to ask for revocation of the probate. This view is clearly well founded on principle and is supported by the decision of this Court in cases of Rebells v. Rebells 2 C.W.N. 100, Shoroshibala Debi v. Anandamoyee Debi 12 C.W.N. 6 and Brindaban v. Sureshwar 3 Ind. Cas. 178 : 10 C.L.J. 263. The result, therefore, is that this appeal must be allowed, and the decree of the Court below set side. We direct that the probate be revived and the petitioner for probate be called upon to prove the Will in solemn form. The appellant is entitled to the costs of this appeal We assess the hearing fee at three gold mohurs.