Patna High Court
Mutukdhari Singh vs Smt. Prem Debi And Ors. on 2 December, 1958
Equivalent citations: AIR1959PAT570, AIR 1959 PATNA 570
JUDGMENT Raj Kishore Prasad, J.
1. This appeal by opposite party 1 is under Section 299 of the Indian Succession Act, 1925 (Act XXXIX of 1925), hereinafter referred to as "the Act", from the order of Mr. H. R. Kazimi, District Judge, Muzaffarpur, made under Section 264 allowing the application of the respondent under Section 263 for revocation of the Letters of Administration granted to the appellant on the 26th May, 1944 under Section 290 of the Act by the additional District Judge of the same place in respect of an unregistered will of one Ramnarain Singh, alleged to have been executed by him on the 2nd May, 1941, before his death on the 18th November, 1942.
2. The material facts for the decision of the present appeal are as follows:
3. In village Gosainpur, otherwise called Day-anagar, there was one Udit Singh, whose widow was Most, Sohagin Kuer. They had a son Nirsu Singh. Admittedly, Nirsu had a son named Ramnaraiii Singh and a daughter. Ramnarain Singh's wife is Radha Kuer, who is respondent 2. Admittedly also, the. mother of Ramnarain Singh is Rampeyari Devi of village Beisand, who is respondent 3.
4. According to the appellant, Nirsu had a daughter Sudama who is dead and not the applicant Respondent 1, Prem Devi. The appellant alleges that Ramnarain Singh executed an unregistered will on the 2nd May, 1941 in which he provided, as will appear also from Ext. G, that after his death his grand mother, thereafter his mother Rampeyari Devi, and after her his wife Radha Kuer and after all these three ladies the appellant will get all his properties as absolute owner.
4A. Admittedly, the appellant Matukdhari is the "Chachera grandson" of Nirsu, as admitted by him in Ext. E, From the genealogical table also, which is a part of the objection (Ext. H) of Radha Kuer, widow of the testator Ramnarain Singh in the Letters of Administration proceeding, it will appear that Matukdhari Singh is the great great grandson of Mohar Thakur, own uterine brother of Bhinak Thakur, great-grandfather of Ramnarain Singh. It will further appear from Ext. E, which is an Am-Mukhtarnama executed by Nirsu Singh in favour of Matukdhari Singh on the 20th May, 1919, that he was the Am-Mukhtar of Nirsu Singh, father of Ramnarain Singh and looking after his properties.
5. According to respondent 1, Prem Devi, she was the only daughter of Nirsu, and not Sudama, as falsely alleged by the appellant, and as such she was the step-sister of Ramnarain, born of the first wife of Nirsu who came from village Malahi.
6. After the death of Ramaarain Singh on the 18th November, 1942, Matukdhari Singh made an application for grant of Letters of Administration on the 2nd January, 1943, before the Court below stating therein, as required by Section 278(1)(b) of the Act, only the names of Most, Sohagin Kuer, grandmother; Rampeyari Devi, the mother; and, Radha Kuer, widow of the testator Ram Narain Singh, Admittedly, Prem Devi; who alleges herself to be the only daughter of Nirsu and step-sister of Ramnarain Singh, the testator, was not stated amongst "the family or other relatives of the deceased", with the result that the Letters of Administration: were granted to the appellant without citing her as a party to the application for grant of Letters of Administration.
7. In the Letters of Administration proceeding, initialed on the 2nd January, 1943, by the appellant, Most. Sohagin Kuer and Rampeyari Kuer appeared on the 16th April, 1943 and filed a petition praying that Letters of Administration may be granted to the. appellant.
8. Earlier on the 30th March, 1943, Radha Kuer, the widow of the testator appeared and applied for time to file objection, which she did on the 30th April, 1943 (Ext. H). In her objection, Radha Kuer challenged the genuineness of the will on the ground that she suspected that as the appellant was in service of the testator since the time of the testator's father, the appellant might have got some thumb marks on papers either during the testator's unconsciousness owing to illness or after his death while going to the cremation ground.
She further denied that she had attested the will, as It purported to bear her thumb mark amongst the witnesses who are alleged to have attested the will. She also said that within a short time before his death the testator executed a registered document in favour of Rijhan Singh and others, and therefore, if he had executed the will, he must have registered the same. She further asserted that her husband never contemplated execution of a will depriving her of her legitimate right or depriving the immediate reversioner. She further said that Most. Rampeyari and Sohogin were in collusion with the applicant, and, therefore, she was not bound by their statements.
9. On the application of the appellant in that proceeding, the thumb impressions of the testator on the will were sent for comparison to the Finger Print Expert with his thumb impressions appearing on the admitted registered kebala executed by the testator in favour of Rijhan Singh. The report of the Finger Print Expert was received on the 16th November, 1943, and it appears that it was in favour of the appellant, because he summoned the Finger Print Expert for examination in court and he was to attend the court on the 22nd January, 1944.
10. The case, thereafter, on the 24th March, 1944, was transferred to the court of the Second Additional District Judge for disposal and before him on the 19th May, 1944, a joint petition of, compromise was filed on behalf of the appellant, and, Mostt. Radha Kuer, the sole objector, who had entered cavea,. Radha Kuer withdrew her objection and it was agreed that the appellant should get the Letters of Administration. On the same day, obviously earlier before filing the compromise in court, an Ekrarnama (Ext.D) by way of family arrangement was executed by Radha Kuer, Mostt. Sohagin Kuer, Most. Rampeyari Kuer and Matukdhari Singh jointly under which Radha Kuer withdrew her objection, and, she was given absolute interest in 8 annas share, Mostt. Sohagin Kuer and Rampeyari Kuer together were also given absolute interest in 4 annas and the remaining 4 annas interest was given to Matukdhari Singh, the appellant, with absolute rights.
11. The petition cf compromise, which was ordered to be put up on the date fixed on 19-5-1944, when it was filed, was ultimately put up before the court on 26-5-1944. On that day, one Bihari Pandey. who was an attesting witness to the will, was examined and he proved the will. The learned Additional District Judge held that the will had been duly proved, and, as the appellant appear-ed to be a residuary legatee, Letters of Administration be granted to him with a copy of the will annexed as prayed for, and, the case was accordingly disposed of.
12. About eight years later, the respondent alleging herself to be the only daughter of Nirsu by his first wife, made an application under Section 263 of the Act on the 19th May, 1952 for revocation of the Letters of Administration granted to the appellant and prayed that the will in question may be proved in solemn form in her presence. To this application of the respondent 1, the appellant fifed an objection on 25-7-1952, in which he denied that the respondent 1 was a daughter of Nirsu or that Nirsu had ever two wives and asserted that Nirsu had only one wife, namely, Rampeyari Kuer, who was opposite party 3 to the proceeding. He also challenged the locus standi of the respondent to file the application for revocation on the ground that she was neither a relation of the deceased testator nor she had any interest in the properties of the deceased on his death. The appellant, however, did not mention in his objection at all if Nirsu had any daughter and if so, who she was, and whether she was dead or alive.
13. The learned District Judge, after a very careful consideration of the evidence, oral and documentary on the record, held that the applicant respondent 1 was the daughter of Nirsu by his first wife and, as such, she was a step sister of the testator Ramnarain Singh and, therefore, as the Letters of Administration had been granted to the appellant without citing her as a party, it was liable to be revoked and, accordingly, he revoked it by his order dated 12-2-1954.
14. The present appeal, therefore, has been presented by the objector in the revocation proceeding, who was the applicant in the Letters of Administration proceeding, and to whom the grant had been made.
15. Mr. Tara Kishore Prasad, who appeared for the appellant, has put forward the following contentions in support of the appeal:
1. That the respondent 1 was not the sister of the testator;
2. That, even if she was a sister, she was not entitled to a citation, as she had no interest in the estate of the deceased testator within the meaning of Section 283(1)(c) of the Act;
3. That no "just cause", within the meaning off the Explanation to Section 263 of the Act, which alone could give jurisdiction to the court below to revoke or annul the Letters of Administration granted to the appellant, existed, or, had been made out, and,
4. That the respondent had knowledge about the Letters of Administration proceeding, but she never complained, nor, did she appear in the proceeding, although she had an opportunity to intervene, and, therefore, the delay of about eight years in initiating the revocation proceeding amounted to her waiver and acquiescence.
16. The above contentions of Mr. Tara Kishore Prasad have been refuted by Mr, Prem Lall, who appeared for respondent 1, and, he further submitted that there could be no compromise of a probate proceeding, and, therefore, the Letters of Administration granted to the appellant on compromise was invalid and without jurisdiction.
17. I propose to consider the above arguments of the learned Counsel for the parties seriatim.
18. Re : (1) The crucial question is whether respondent 1, Prem Devi, is the daughter of Nirsu, and, step-sister of Ramnarain?
19. The learned District Judge, after a consideration of the oral evidence of the parties, observed, to quote, his own words, "that there is not much to choose between the oral evidence led by the parties in support of their respective cases"; but, thereafter, he observed that "the balance in favour of the applicant (namely, respondent 1), however, tilts in view of the documentary evidence ..... i.e. Exts. 2, 2(a), and 3 series". Relying, therefore, on these documents, he, obviously, accepted the oral evidence adduced on behalf of the applicant-respondent 1, and, held that it had been established that the applicant Prem Devi is the daughter of Nirsu by his first wife, and, as such, the stepsister of the testator, Ramnarain Singh.
20. Mr. Tara Kishore Prasad hag vehemently urged that the evidence of the witnesses examined on behalf of the applicant-respondent 1, namely, A. Ws. 1 to 5 as well as her own evidence were not reliable and certainly not superior to the evidence of the witnesses examined on behalf of the objector appellant, namely, O. Ws. 1, 2, 3 and 5. He further submitted that Exts. 2, 2(a) and 3 series were not genuine documents and have been manufactured for the purpose of the present case, and, therefore, they could not be relied upon
21. I, shall, therefore, now examine the oral evidence of both the parties in order to find out of the evidence on behalf of the appellant-respondent 1 is superior to that of the objector appellant and, more reliable.
(After discussion of evidence His Lordship proceeded): After a consideration, therefore, of the oral and documentary evidence both, which were placed before me and which have been re-lied upon by the learned Judge, I hold, in agreement with him. that the respondent 1 has convincingly proved that she was the only daughter of Nirsu, and, that Sudama was not the daughter of Nirsu, as alleged by the appellant.
22. I would, therefore, answer the first question in the affirmative bv holding that the applicant respondent 1 was the daughter of Nirsu, and, as such, the step-sister of the testator, Ram-narain Singh.
23. Re: (2): Mr. Tara Kishore Prasad has strongly urged that even if the respondent 1 be the step-sister of the deceased testator, Ramnarain Singh, she had no present interest in his estate, and, as such, she had no locus standi to ask for a revocation of the Letters of Administration granted to the appellant, and, therefore, she was not entitled to claim that the will should be proved in solemn form in her presence. He, therefore, contended that she had no "interest in the estate of the deceased," so as to be entitled to a citation being issued against her also, within the meaning of Section 283(1) (c) of the Act.
24. In support of his contention. Mr. Prasad placed strong reliance on Rahamtullah Sahib v. Rama Rau, ILR 17 Mad 373. He also relied on Bibhuti Prasad Chaudhury v. Mt. Pan Kuer, 11 Pat LT 353: (AIR 1930 Pat 488) and "Ramyad Mahton v. Ram Bhaju Mahton, ILR 10 Pat 812: (AIR 1932 Pat 89).
25. The above argument of Mr. Prasad was met by Mr. Lall by relying on two other Bench decisions of this Court in Priya Nath Bhattacharji v. Saila Bala Debi, 11 Pat LT 343: (AIR 1929 Pat 385X and. Mt. Sheopati v. Ramakant, ILR 25 Pat 747: (AIR 1947 Pat 434).
26. Section 283(1)(c), with which we are concerned here, is in these terms:
"283. Powers of District Judge-- (1) In all cases the District Judge or District Delegate may, if he thinks proper--
xx xx xx
(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 or letters of administration, (2) xx xx xx (3) xx xx xx
27. The crucial question is, what is the meaning of the word "interest," occurring in the expression" interest in the estate of the deceased" in Clause (c), Sub-section (1), of Section 283 of the Act? Does the word "interest" mean present interest in the estate of the deceased existing at the time of his death, as contended by Mr. Prasad, or, does it mean any interest, however slight, and even a bare possibility of an interest, although dependent upon remote contingencies, as contended by Mr. Lall?
28. In my judgment, the authorities relied upon by Mr. Prasad have no application here and they do not support his contention. In the Madras case, ILR 17 Mad 373, which in fact is the sheet-anchor of his entire argument, the defendant, who had filed a caveat, objecting to the grant of probate on the ground that the will was not genuine, was entitled under the will to a portion of the legacies mentioned in it. He had set! up a prior will under which a debt due from him to the testator was remitted, and, he was given a legacy also. The question before their Lordships was whether, apart from the prior will set up by the defendant, there was proof of defendant's interest in the testator's estate. It was held by Shephard, J.. sitting on the original side of the High Court, that, apart from the prior will, the defendant had no interest.
On appeal from that decree, their Lordships. Muttusami Ayyar and Best, JJ. accepted the principle laid down in several Indian cases that a creditor of the testator has no right to contest his will, for the reasons that it is indifferent to him whether he shall receive his debt from an executor or an administrator. But, in that particular case, their Lordships observed that there was, however, no doubt that if the defendant before them proved the prior, will, he would have a sufficient interest to contest the will set up by the plaintiff. As the defendant had not produced at the date of the final hearing the prior will on which he relied, their Lordships remitted the case for disposal after giving him am opportunity to prove the will set up by him.
29. In considering the question as to when a person can be permitted to contest a will, their Lordships, in the above case, which was decided in 1894, in a joint judgment, observed:
The law is clear on this point. In Hinges-ton v. Tucker, (1862) 2 Sw. and Tr. 596 it was held by Sir C. Cresswell that before a person can be permitted to contest a will, the party propounding it has a right to call upon him to show that he has some interest. Section 250 of the Indian Succession Act, (then Act X of 1865) is framed on the same principles. aS for the nature of the interest which ought to be proved, it was held in Kippine v. Ash, (1845) I Rob Ecc 270: 163 ER 1035 that the bare possibility of an interest is sufficient. But this possibility should rest on existing facts and not on mere conjecture. In Cripson v. Doglioni, (1860) 2 Sw. and Tr. 17 it was :held by Sir C. Cresswell that the possibility of filling a character which would give the party concerned an interest was not sufficient but that there must be a possibility of having an interest in the result of setting aside the will."
30. If the above Madras case be considered to have accepted the principle, as it has obviously approved, that a creditor of the testator has no right to contest the will as it is indifferent to him whether he shall receive his debt from an texecutor or an administrator, then I may in this connection refer to the decision of the Privy Council in Sarala Sundari Dassya v. Dinabandhu Roy Brajaraf Saha (Firm), AIR 1944 PC 11: 71 Ind App 1 in which a contrary view has been taken regarding the locus standi of a creditor to move to revoke the probate. The Privy Council held that if a person is complaining that he has in fact been defrauded he is one of- the persons who is injured by the fraud alleged and that that person is entitled to have his redress by applying to revoke the probate and thereby cause the fraud to become inoperative, because, if he had not such a right as that, it is very difficult to know what right a creditor in those circumstances, or a person injured by the fraud, could have, otherwise the probate would stand and he would be affected bv the probate which had been obtained ex hypothesi fraudulently. The question, whether the creditor of an heir who says that he is being or is likely to be defeated in his right; 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, which arose before their Lord ships, was answered in the affirmative by answering that the applicants before them, who were creditors, had every ground for applying and had a proper locus standi to come into court and ask that the probate should be revoked.
31. In the just mentioned Madras case what happened was this: The testator by a prior Will remitted a debt due to him by the defendant of that case and also gave the defendant a legacy of Rs. 5,500/-, but by a later Will the testator gave the defendant merely a legacy of Rs. 1,000/-. The defendant entered a caveat against the second Will. It was held that the defendant had sufficient interest to attack the Second Will since, if it was disregarded he would receive the greater under the first Will. This case was considered in 11 Pat LT 353: (AIR 1930 Pat 488) and distinguished as if had no application to the facts of that case. This case, however, was followed bv this Court in R. S. Sinha v. Miss Salena Hector. AIR 1941 Pat 151: 20 Pat 75 so far as it held that a simple creditor of the testator cannot object to the grant of probate as his interest as a creditor does not amount to having some interest in the testator's estate. It is, however, not necessary to pursue the question as to whether a creditor of a testator can be allowed to move to revoke the will, and, if so, when, as this question does not arise here. But I must observe that this question of the locus standi of a creditor of a testator to apply for revocation must be taken to be settled by the decision of the Privy Council referred to above.
32. In the Madras Case the principle laid down in 163 ER 1035 that the bare possibility of an interest is sufficient was referred to with approval. The Madras case, therefore, must be taken to have decided that before a person can contest the Will of a testator, he must show that he has some interest in the testator's estate. I respectfully assent to this view of the law.
33. Mr. Prasad, however, relied on the following observations of their Lordships in the Madras case:
"In (1860) 2 Sw and Tr, .17 it was held by Sir C. Cresswell that the possibility of filling a character which would give the party concerned an interest was not sufficient, but that there must be a possibility of having an interest in the result of setting aside the will."
34. The interpretation put on the above observations of their Lordships by Mr. Prasad was that the applicant for revocation of the Letters of Administration or Probate must show that he or she possessed some present interest in the estate of the deceased and that such interest existed at the time of the death of' the testator. This argument obviously contemplates the case of the, next reversioner or the like. But I cannot accept this argument as valid. What is necessary for the locus standi of the person applying for revocation, as approved in the Madras case also, is that such a person must have some interest to contest the Will. The bare possibility of an inte-rest is sufficient, but this possibility should rest on existing facts and not mere conjectures, and such a possibility must be of having an interest in the result of setting aside "the will. The above tests are fully satisfied in the present case as I will show hereafter. In my opinion, therefore, this Madras case, so strongly relied upon by Mr. Prasad, does not support him at all.
35. The other two Patna decisions also do not help the appellant at all, as they were on different facts which distinguish them completely from the facts of the present case. In 11 Pat LT 353: (AIR 1930 Pat 488), referred to before, one R, a Hindu, died, and P applied for Letters of Administration on the strength of a Will executed by R which was unsuccessfully challenged by G, the nearest agnatic relation and heir of R, and subsequently B, the son of G, applied for revocation of the Letters of Administration granted to P, on the ground that there was no citation upon him. It was held by their Lordships, Adami and Kulwant Sahay, J.T.. that B, the son of C, had no interest in the estate left by R, because on intestacy it could devolve only upon G to the exclusion of B. While considering this question, their Lord-ships cited with approval (1845) 163 ER 1035 which was also referred to with apnroval in the Madras case and in ILR 20 Pat 75: (AIR 1941 Pat 151), just considered, where it was held that the bare possibility of an interest is sufficient-But although their Lordships accepted this principle, in that case, they held that as the appellants before them had not the barest possibility of taking the testator's estate, though of course, if their father took it, they would eventually get it, as the estate of their father passing to his sons, they were held to have no interest so as to entitle them to apply for revocation of the Letters of: Administration,
36. The second Patna case, ILR 10 Pat 81.2: (AIR 1932 Pat 89), also has no application here. In that case, an objector claimed that he was joint with the testator, and, that the property which the testator, purported to dispose of by the Will was joint Hindu family property, and, therefore, it was held that the objector had no locus standi to object to the grant of the Letters of Administration, even where citations have been served upon him. Their Lordships, Wort and Fazl Ali, JJ. relying on an earlier decision of this Court in Kalaijit Singh v. Parmeshwar Singh, 1 Pat LW 308: (AIR 1917 Pat 532(1)) and two Calcutta cases, held that the objector, in these circumstances, had no locus standi, obviously because a person who claims outside and independently of a Will or claims adversely to the testator and disputes his right to deal with the property, can in no sense be deemed to claim an interest in the estate of the deceased within the meaning of Section 283 (1) (c), and, as such, he is not entitled to move to apply for revocation.
37. The above view was also taken in a subsequent decision of this Court in Kashi Nath Singh v. Gulzari Kuer, AIR 1941 Pat 475.
38. In the present case, however, that is not the position, and therefore, the above Patna case relied upon by Mr. Prasad has also no application to the case under consideration.
39. In AIR 1944 PC 11: 71 Ind App I, their Lordships of the Privy Council, while considering the question 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, has locus standi to move to revoke the probate, considered Section 283(1)(c) of the Act, and, repelled the suggestion, 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, and held that that is putting it on much too narrow a footing, and observed:
"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."
40. The Calcutta High Court also in Nabin-chandra Guba v. Nibaran Chandra Biswas, ILR 59 Cal 1308: (AIR 1932 Cal 734); had to interpret Section 283(1)(c) of the Act. Their Lordships, Mukerji and Guha, JJ. in a joint judgment, at p. 1312 of ILR Cal): (at D, 735 of AIR) observed:
"The words in that section are 'all persons claiming to have any interest in the estate of the deceased'. These words have from time to time been explained by judicial decisions. Brindaban Chandra Saha v. Sureswar Saha, 10 Cal LJ 263 may be taken as an authority for. the proposition that any interest however slight and even the possibility of an interest is sufficient to entitle a party to oppose a testamentary paper. That apparently is the rule of English practice. And possibility of an interest" does not apply to possibility of a party filling a character, which would give him an interest, but to the possibility of his having an interest in the result of setting aside the will. (1862) 2 Sw. and Tr. 17 (22): 164 ER 897 (899). Whether this rule should be taken to be applicable in its entirety in this country seems to have been questioned in the case of Satindra Mohan Tagore v. Sarala Sundari Debi, 27 Cal LJ 320: (AIR 1918 Cal 183). Taking the words of Section 283 in their natural meaning, it is, in our opinion, sufficient to interpret them as implying a real interest, which is or is likely to be prejudicially or adversely affected by the will, (See Akhileswari Dasi v. Hari Charan Mirdha, 40 Cal. L. J. 297: (AIR 1925 Cal 223)."
41. In the above case, the appellant be-fore their Lordships was a purchaser at a court auction from an heir of some of the testator's properties after his death. He objected to the grant being made. The question was whether he had a locus standi to oppose the grant. It was observed that the purchase that the appellant, in that case, had made stood the chance of being affected, if the terms of the will were effective at the date of the suit, for then, in certain events and circumstances, what he purchased might be held to be only the right, title and interest of the judgment-debtor and not the holding thereof, It was, therefore, held that a purchaser from an heir after the death of the testa-tor has a locus standi and to have it, it is not necessary for the objector to show that he had an interest in the estate at the time of the testator's death. It was further said that an assignee from an heir of the testator after the latter's death, has a locus standi to apply for revocation of a probate already granted.
42. In Thillainayagi Ammal v. Saradambal, (S) AIR 1955 Mad 576, also relied upon by Mr. Prasad, Ramaswami, J., sitting singly, observed :
"The general proposition adumbrated in certain decisions like Hemanigini Debi v. Haridas Banerji, AIR 1918 Pat 525: ILR 17 Mad 373, Kothanda-ram Naidu v. Subbier, AIR 1927 Mad 576, that an interest however slight or the bare possibility of an interest is sufficient to entitle a person to oppose a will has been, if I may say so with respect, rightly questioned by Sanderson, C.J. and Woodroffe, J. in AIR 1918 Cal. 183, and is found too wide a proposition to admit of its being a precise and practical test."
43. I, however, respectfully do not share His Lordship's views. As I will presently hereafter show that an interest however slight or the bare. possibility of an interest is sufficient to entitle a person to oppose a will or to apply for revocation of a probate or Letters of Administration, and, that is the correct test.
44. In my view, therefore, all the authorities relied upon by Mr. Prasad have no application to the present case. On the other hand, the observations in ILR 17 Mad 373 and 11 Pat LT 353 : (AIR 1930 Pat 488) already referred to, are against his contentions.
45. 11 Pat LT 343 : (AIR 1929 Pat 385) relied upon by Mr. Lall, in my opinion, is more to the point. In that case, Courtney-Terrell, C.J., with whom Rose, J. agreed, observed :
"Now it has long been well established that a person having a reversionary interest, although such interest be inalienable and dependent upon remote contingencies, is nevertheless substantially interested in the protection or devolution of estate and as such is entitled to appear and be heard in a probate proceeding."
46. The same view was taken subsequently by another Division Bench at this Court in ILR 25 Pat 747 : (AIR 1947 Pat 434), in which Das, J., as he then was, and with whom Manohar Lall, J., agreed in a separata but concurring judgment, on this question said :
"It is, however, well established now that any interest, however slight, and even the bare possibility of an interest, is sufficient to entitle a party to oppose a testamentary paper. If has been held in, several decisions that although a reversioner under the Hindu Law has no present alienable interest on the property left by the deceased, still he has substantial interest in the protection or devolution of the estate, and as such, is entitled to appear and be heard in a probate proceeding."
47. In my opinion, therefore, the Bench decisions of this Court, which are both reported in the same volume of Patna Law Times, namely, 11 Pat. LT 343 : (AIR 1929 Pat 385), relied upon by Mr. Prem Lall, and 11 Pat LT 353 : (AIR 1930 Pat 488), relied upon by Mr. Pxasad both lay down the principle that the bare possibility of an interest, even though such interest be dependent upon remote contingencies, is sufficient to entitle the person claiming such interest to appear and be heard in a probate or letters of administration proceeding, and, as such, such person is entitled to apply for revocation of the grant and to claim the will to be proved in solemn form in his presence.
48. On a review of the above decisions of this Court and other High Courts, in my judgment, therefore, the true meaning of the expression "interest in the estate of the deceased", occurring in Section 283 (1) (c) of the Act, is, that an interest, however slight or the bare possibility of an interest or even an interest dependent upon remote contingencies is sufficient to entitle a person to oppose a will, and, such a person has an interest within the meaning of Section 283 (1) (c) of the Act entitling him to intervene in the matter of the application for probate or Letters of Administration and to call upon the propounder of the will to prove it in solemn form in his presence, and such a person has a proper locus standi to come into court and ask that the probate or the granfi of Letters of Administration be revoked, A person, who claims independently and outside of a will and disputes the right of the testator to dispose of the property, or, a person who claims paramount title adversely against the testator, has no such interest within the meaning of Section 283(1) (c) of the Act which can entitle him to oppose the will or to apply for revocation of the probate or Letters of "Administration granted.
The interest in the estate of the deceased, therefore, must be an interest under the deceased and not one paramount to that of the deceased. 3f a person is complaining that he has in fact been defrauded, he is one of the persons who is injured by the fraud alleged and that person is entitled to have his redress by applying to revoke the probate or grant of Letters of Administration and thereby cause the fraud to become inoperative.
It is not correct to say that it is only those persons who could be cited before the grant who are the persons who could apply to revoke the grant. It is, therefore, not necessary for the objector in order to have a locus standi to oppose the grant or to apply to revoke it, to show that ho had an interest in the estate of the deceased at the time of the testator's death, or, in other words, that he had a present interest.
49. Applying the above principles to the present case, we, find that if the Letters of Administration is revoked and the will alleged to be of Ramnarain Singh be found to be forged, then after the death of Ramnarain Singh, who then would be considered to have died intestate, his property will devolve upon his widow Radha Kuer and after her death it will go to his mother Ram-payari Debi, if she be alive at the time of the death of Radha Kuer, and after the death of the two widows the property of the testator Ramnarain Singh would devolve upon his heir, who, in the present case, is only his step-sister, namely, respondent 1.
In these circumstances, it is clear that respondent 1 had an interest in the estate of the deceased as contemplated by Section 283 (1) (c) of the Act which entitled her to apply for revocation of the grant and to call upon the appellant, the pro-pounder of the will, to prove it in solemn form in her presence. I, therefore, hold that respondent 1 had locus standi to apply for revocation of the grant.
50. Re : (3) : Section 263 of the Act provides for revocation or annulment for "just cause" the grant of probate or letters of administration. Where "just cause" shall be deemed to exist is given in paragraphs (a) to (e) of the Explanation to Section 263 of the Act. To this section. Illustrations (i) to (viii) are also attached. Illustration (ii) provided that the fact that "the grant was made without citing parties who ought to have been cited" is a "just cause" within the meaning of the Explanation to Section 263 of the Act.
51. The arguments of the learned Counsel for the parties centred round the words "just cause" occurring in Section 263 of the Act.
52. Mr. Prasad contended that the fact) that the grant was made without citing a party who ought to have, been cited was not a "just cause" on which the grant of Letters of Administration, in the instant case, could be revoked. In support of his contention, he relied on Ranmaya Gaorangini v. Betty Mahbert, AIR 1927 Cal 207. Mr. Prasad further submitted that the omission to issue citation to persons who should have been apprised of the Probate or Letters of Administration proceedings does not make the proceedings to obtain the grant even defective in substance within the meaning of Explanation (a) to Section 263 of the Act. Mr. Prasad, therefore, contended that the burden of proof to show some "just cause" for the revocation of the grant was on the applicant, respondent 1, and she has failed to show any such "just cause" for revoking the grant.
53. Mr. Prem Lall, however, in reply, relied on Illustration (ii) to Section 263, referred to above, and, urged that if a grant is made without citing parties who ought to have been cited it is a "just cause" within the meaning of the Explanation to Section 263 for revoking the grant. In this connection, he relied, besides relying on Section 263, Illustration (ii), on ILR 25 Pat 747: (AIR 1947 Pat 434), mentioned before.
54. As the decision of the question at issue depends upon the construction of Section 263, of the Act, I reproduce below the relevant portions thereof :
"263, Revocation or annulment for just cause. The grant of probate or letters of administration may be revoked or annulled for just cause.
Explanation. Just cause shall be deemed to exist where --
(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 x x x x x Illustrations.
x x x x x (ii) The grant was made without citing parties who ought to have been cited. (iii) The will of which probate was obtained was forged or revolted. X X X X X" 55. Section 278 deals with petitions for letters of administration and provides by els, (a) to (f) of Sub-section (1) of Section 278, the different matters which have to. be seated in the application for Letters of Administration by the, applicant. Clause (b) of Sub-section (1) of Section 278 provides that the application for letters of adminis.ration shall also state "the family or other relatives of the deceased, and their respective residences". Section 283(1)(c), which we have considered earlier, then provides that in all cases the District Judge or District. Delegate may, if he thinks proper, "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 or letters of administration." Section 284 provides for lodging of caveats against the grant of probate or letters of administration. Section 290 then empowers the District Judge or District Delegate to grant letters of admimstration to the person concerned. After such a grant of letters of administration or probate, as the case may be, is made, Section 263 provides for revocation or annulment of the grant for just cause.
56. The above is the scheme of the Act. With the above background, let us now examine the cases relied upon by the learned counsel for the parties.
57. In AIR 1927 Cal 207, it was held that where the parties themselves have not complained of the proceedings having taken place in their absence, the omission to cite them does not call for revocation of the grant. Mukerji, J., with whom Greaves, J., agreed while considering whether the proceedings were defective or not without issuing citations on the daughters, who themselves had not till :hen complained of the proceedings having taken place in their absence, at p. 209, observed:
"I wish to guard against suggesting in any way that the proceedings were not defective or that the District Judge exercised a sound judicial discretion in making the grant without issuing citations on the daughters. It has been repeatedly enjoined by this Court that citations should always issue to parties who are known to the court to be interested or to claim any interest in the estate of the deceased. This ground, however, as a ground of revocation, fails in the circumstances of the case."
58. In that case, the mother and next friend of the daughters to whom citations had not been issued, had appeared and contested the proceedings, as will appear from the following observation of Mukerji, J. at p. 208 :
In a petition filed on behalf of Betty Mahbert On the 1st September, 1924 it was stated that the infants Dhan Bahadur and Harka Bahadur were away in Burma and their mother and next friend Hiramaya Gnrangini were living at Gayabari. The notices addressed to Hiramaya Gurangini as mother and next friend of the said infants were sent to her. It is complained that only a post card notice was sent, but it matters little that it was so; for, in fact, she appeared in the proceedings and as such guardian. She appears to have taken part in the proceedings and put in a petition stating the shares which her sons would, according to her, be entitled to. She does not appear to have done anything injurious to the interest of her sons and nothing has been shown to us which may suggest that their interest was not properly looked after. It must under the circumstances be held, despite the absence of a formal order appointing her guardian ad litem on behalf of the infants, that the infants were effectively represented by her in the proceedings : Walian v. Bunkey Behari Pershad Singh, LR 30 Ind App 182 (PC). This ground accordingly must fail."
59. It will, therefore, appear that as the mother had appeared and taken part in the proceed-ings, the fact that citations were not issued on the daughters, who themselves did not complain of the grant, was not considered a sufficient ground, in the circumstances of that particular case, for revocation of the grant. Here, that is not the position, because the applicant-respondent 1, who was not cited us a party and to whom no citation was issued, herself complained and she never appeared before in the proceedings for the grant. This case, therefore, does not help the appellant at all.
60. Mr. Prasad also relied on the following observations of his Lordship B. P. Sinha, J., who delivered the unanimous judgment of the Supreme Court in Ami Behari Ghosh v. Smt. Latika Bala Dassi,t (S) AIR 1955 SC 566, at page 572 :
"The omission to issue citations to persons who should have been apprised of the probate proceedings may well be in a normal case a ground by itself for revocation of the grant. But this is not an absolute right irrespective of other considerations arising from the proved facts of a case. The law has vested a judicial discretion in the Court to revoke a grant where the Court may have 'prima facie' reasons to believe that it was necessary to have the will proved afresh in the presence of interested parties. But in the present case we are not satisfied in all the circumstances of the case that just cause within the meaning of Section 263 had been made out. We cannot ignore the facts that about 27 years had elapsed alter the grant of probate in 1921, that Girish in spite of the knowledge of the grant at the latest in 1923 did not take any steps in his life-time to have the grant revoked, that there was no suggestion that the will was a forgery or was otherwise invalid and that the will was a registered one and had been executed eight years before the testator's unnatural death. Hence the omission of citations to Girish which ordinarily may have been sufficient for a revocation of the grant was not in the special circumstances of this case sufficient to justify the Court to revoke the grant."
61. It is clear enough from the above observations of His Lordship B. P. Sinha, J. that in that case the probate was granted in 1921, there was no suggestion that the will was a forgery or was otherwise invalid, the will was a registered one, it was executed eight years before the testator's death, and Girish, to whom the citation was alleged to have not been issued in spite of his knowledge of the grant at the latest in 1933, Jid not take any step in his life-time to have the grant revoked. In those special circumstances, their Lordships held that the fact that no citation had been issued to Girish was not a just cause for revoking the grant.
62. His Lordship, B. P. Sinha, J., in the above Supreme Court case, while considering Explanation (a) to Section 263, of the Act, which says that just cause shall be deemed to exist where the proceedings to obtain the grant were "defective in substance", said :
"Section 263 of the Act vests a Judicial discretion in the Court to revoke or annual a grant for just cause. The explanation has indicated the circumstances in which the Court can come to the conclusion that 'just cause' had been made out. In this connection the appellant relied upon Clause (a) quoted above which requires that the proceedings resulting in the grant sought to be revoked should have been 'defective in substance'."
"We are not inclined to hold that they were 'defective in substance'. 'Defective in substance' must mean that the defect was of such a character as to substantially affect the regularity and correctness of the previous proceedings. If there were any suggestions in the present proceedings or any circumstances were pointed out to show that if Girish had been cited he would have been able to enter a caveat, the absence of citation would have rendered those proceedings 'defective in substance'. It may be that Girish having been found to have been the next reversioner to the testator's estate in case of intestacy and on the assumption that Charu had murdered the testator, Girish might have been entitled to a revocation of the grant if he had moved shortly after the grant of the probate on the simple ground that no citation had been issued to him."
X X X X X "The annulment is a matter of substance and not of mere form. The Court may refuse to grant annulment in cases where there is no likelihood of proof being offered that the will admitted to probate was either not genuine or had not been validly executed. But, as rightly pointed out by the lower ap~ pellate Court, in the present case where the validity or genuineness of the will has not been challenged, it would serve no useful purpose to revoke the grant and to make the parties go through the mere formality of proving the will over again. In our opinion, therefore, the omission of citation has had no effect on the regularity of the proceedings resulting in the grant of 1921".
63. In the instant case, the person asking for revocation of the grant is the person who had not been cited as a party to the proceeding and to whom consequently no citation had been issued. The applicant-respondent 1 came forward with the allegation that she was the step-sister of Ramnarain Singh, the testator, and, therefore, she had interest in the estate of the testator, and, as such, she was entitled to a citation, and, she had the right to call upon the appellant to prove the will in her presence in solemn form as, according to her, the will was a forged one.
64. Mr. Prem Lall also relied on this Supreme Court decision, because it was observed at page 572 by B. P. Sinha, J. that "section 263 of the Act also contemplates a case for revocation based on the single ground that the will was a forged one". Mr. Lall contended that here also one of the grounds taken by the applicant-respondent 1 is that the will is a forged one, and, if the will fails, then certainly the applicant-respondent 1 will be entitled to the entire estate of the deceased testator after the death of the two widows and not the appellant, and, as such, it was urged, "just cause" had been made out both under Clauses (a) and (b) of the Explanation to Section 263 of the Act.
65. In my opinion, therefore, the above two cases relied upon by Mr. Prasad have no application to the facts of the present case and the principles laid down there do not help him at all.
66. I may in this connection refer also to ILR 25 Pat 747 : (AIR 1947 Pat 434) (supra) relied upon by Mr. Lall. In this case, Das, T., as he then was, while dealing with Illustration (ii) of Section 263 of the Act. at p. 752 (of ILR Pat) : (at p. 437 of AIR), said :
"Learned Counsel for the appellant has placed great reliance on Illustration (ii) of Section 263 of the Succession Act, 1925, which corresponds to Section 50 of Act V of 1881. The substantive part of the section says that the grant of probate or letters of administration may be revoked or annulled for just cause. There is an Explanation to the section which says that just cause shall be deemed- to exist where, among other things, the proceedings to obtain the grant were defective in substance. There is no doubt, in my mind, that once it is found that the proceedings to obtain the grant were defective in substance, it must be held that just cause exists and the grant of letters of administration may be revoked. The words of the Explanation are imperative in character and say that just cause shall be deemed to exist where the proceedings to obtain the grant were defective in substance. Illustration (ii) is merely an instance of the practical application of the Explanation : the real point for decision is if the proceedings to obtain the grant were, in the particular case in question, defective in substance."
67. His Lordship, Das, J., in the above case-then proceeded to examine the several decisions cited at the Bar and held, on the facts of that case, that there was no defect of substance in that proceeding, and, therefore, no just cause had been made out in that case. His Lordship summed up his conclusions in the following words at page 760 (of ILR Pat) : (at p. 440 of AIR).
"As a result of a consideration of the authorities mentioned above, I have come to the conclu-sion that though the appellant did not receive special citation in the probate proceeding which resulted in the grant of letters of administration to the respondents, there is no just cause for revocation in the present case, inasmuch as there was no defect of substance in the said proceeding. The mother of the appellant was her natural guardian. She appeared and contested the grant light up to the High Court. She did not act injuriously to the interest of the appellant, and she was not under the influence of the propounder of the will or any one connected with him. For all practical purposes, she represented her minor daughter as effectively as she represented herself. The existence of the daughter was not concealed from the Probate Court, inasmuch as her existence was mentioned in the very petition which the mother had filed. Incoming 10 the conclusion at which I have arrived,. I have not been unmindful of the fact that the mother herself had propounded a will : the genuineness of that will was not however accepted by the Court of Probate. As far as the will propounded by Ramsewak Dikshit is concerned, she contested the grant as best as she could, right up to this Court, and all possible objections were taken to it. The contest was not a mere nominal contest, and there is no proof that the mother of the appellant was colluding with the propounder of the will or was under the latter's influence."
68. From a consideration of the above authorities, therefore, it is plain that Section 263 of the Act vests a judicial discretion in the court to revoke Or annul a grant for just cause. The Explanation to Section 263 has indicated the circumstances in which the court can come to the conclusion that "just cause" had been made out. "Defective in substance", occurring in Clause (a) to the Explanation to Section 263, must mean that the defect was of such a character as to substantially affect the regularity and correctness of the previous proceedings.
The question, if the proceedings to obtain the grant were, in the particular case, "defective in substance" would depend on the individual cases and on the particular circumstances existing in each case. The omission to issue citations to persons who could have been apprised of the proceedings for the grant may in a normal case be a ground by itself for revocation of the grant, but this is not an absolute right irrespective of other considerations arising from the proved facts of a case.
Therefore, whether the omission to issue citation to a person, on the facts of a particular case, would be a "just cause" will depend on the facts and circumstances of each case. The words of the Explanation are imperative in character and say that "just cause" shall be deemed to exist, amongst other things, when the proceedings to obtain the grant were defective in substance. Illustration (ii) of Section 263 is merely an instance of the practical application of the Explanation. Section 263 also contemplates a case for revocation based on the single ground that the will in respect of which the grant was obtained was a forged one. Illustration (iii) of Section 263 covers' such a case.
69. In the present case, on the facts proved, there can be no doubt that "just cause" existed as contemplated by both Explanations (a) and (b) of Section 263, and, therefore Illustration (ii) as well as Illustration (iii) applied to the present case. For these reasons, I hold that "just cause" had been, made out by the applicant-respondent 1 for revoking the grant made to the appellant.
70. Re : (4) : Mr. Prasad in order to bring the present case within the principles laid down in AIR 1927 Cal 207, and (S) AIR 1955 SC 566, put forward the argument that here the respondent 1 had knowledge of the proceedings, and, therefore, the fact that in spite of having knowledge she did not intervene in the proceedings for the grant of Letters of Administration or apply earlier for revocation of the grant and the fact that there had been a delay of about eight years in coming to . court and moving it for revocation of the grant did clearly show that deliberately she was content to stand by and allow the grant to be made to the appellant and thus she must be deemed to have acquiesced in the grant to the appellant.
71. It is well settled and is a fundamental rule of law that proceedings in a court of probate are proceedings quasi-in-rem, and, that a probate granted in solemn form is binding not only on the parties who have appeared, or have been formally cited but also on privies, i.e. persons who being cognizant of the proceedings and having an opportunity to intervene have chosen not to do so. If a person knowing what was passing was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and shall not be allowed to re-open the case, the reason of the rule being that if he had been dissatisfied he might have intervened at any stage of the proceedings : Kunja Lal v. Kailasn Chandra, 14 Cal WN 1068 at p. 1071; (S) AIR 1955 SC 566 at p. 572 and ILR 25 Pat 747 at pp. 760-61 : (AIR 1947 Pat 434 at pp. 440-41).
72. The real question for determination, therefore, is whether the applicant-respondent 1, Prem Devi, had knowledge of the proceedings and she deliberately lay by and did not intervene in the proceedings for the grant although she had an opportunity to do so, (After discussing evidence on this point the Judgment proceeds:) I, therefore, hold on the evidence on the record, that the respondent 1 or her husband had no knowledge either of the proceeding initiated by the appellant for grant of Letters of Administration or of the grant made to the appellant, earlier than 1951, and that she did not knowingly stand by and acquiesce in the proceedings for the grant or in the grant itself.
73. Mr. Prasad made strong comments on the delay, in that, the grant was made to the appellant on the 26th May, 1944, but the applicant-respondent 1 applied for its revocation, after about eight years, on the 19th May, 1952.
74. In Kali Das Chuckerbutty v. Ishan Chun-der Chuckerbutty, ILR 31 Cal 914 (PC), the Privy Council reversed the decision of the High Court and refused the application for revocation of the probate, because the appellants before them had not shown when they became aware of the probate and, therefore, in view of the fact that a long time had elapsed, in that, the probate was granted in 1884 and the proceeding for revocation was taken up in 1896, on the facts of that particular case, held no "just cause" had been shown for revoking the probate.
75. The question of delay assumes importance only when it is established that the person applying for revocation had knowledge of the proceedings or of the grant itself, and that he acquiesced or waived his right; otherwise it is of no material consequence at all.
76. Under what circumstances delay in applying for levocation of the grant would be fatal has been considered in (S) AIR 1955 SC 566 and ILR 25 Pat 747 : (AIR 1947 Pat 434) and, all the relevant authorities have been reviewed.
77. On the above authorities it is well established that a mere delay, without more, is no bar to revocation; unless from the circumstance-attendant upon the delay an inference of acquiescence or waiver can reasonably be made.
78. In ILR 25 Pat 747 : (AIR 1947 Pat 434) which was relied upon by Mr. Lall, in reply to the contention of Mr. Prasad that mere delay would bar the remedy of the respondent, Das, J., as he then was, held at p. 760 (of ILR Pat) ; (at p. 440 of AIR), that mere delay would not bar the remedy of the applicant for revocation of a grant in the absence of any finding of acquiescence and waiver. While considering this question, his Lordship, on the same page observed :
"As has been observed in Shyama Charan v. Prafulla Sundari, 21 Cal LJ 557 : (AIR 1916 Cal 623), there may be a distinction between a case where the acquiescence alleged occurs while the act acquiesced in, is in progress, and another, where the acquiescence takes place after the act has been completed, in the former case the acquiescence is quiescence under such circumstances as that assent may be reasonably inferred from it; in the latter case, when the act is completed without any know ledge or without any assent on the part of the person whose right is infringed, the matter must be determined ooviously on very different legal considerations. It has also been observed in cer-tain cases that a person can be barred of his remedy on the ground of waiver, only when at the time of the alleged waiver, he has been shown to have been fully cognizant of his right on the facts of the case. In the case before us all that has been found is that the appellant knew of the probate proceedings long before 1938. I do not, therefore, hink that this is a ease fn which meie delay would bar the remedy of the applicant, in the absence of any finding of acquiescence or waiver."
79. In the above case, therefore, we find that the appellant before their Lordships was found to have known of the probate proceedings long before 1938, still his mere delay by itself in making the application for revocation was held not to bar his remedy, in the absence of any finding of acquiescence or waiver. In that case, on the facts of that particular case, which are all stated at page 761, it was held that there was no just cause for revocation. The present case is much (Stronger, in that, as I have found above, neither the respondent 1, Prem Devi, nor her husband (A.W. 5) had any knowledge either of the proceedings or of the grant before the month of December, 1951.
On the facts proved it cannot also be said that the applicant-respondent 1 either acquiesced or waived her right to apply for revocation. In these special circumstances of the present case, therefore, it cannot be said that the delay of eight years in making the application for revocation was either deliberate or fatal to the respondent 1, and, that her remedy for applying for revocation was barred. The contention of Mr. Prasad, therefore, on this ground also must fail.
80. Having considered and disposed of all the contentions of Mr. Prasad, I will now deal with the objection of Mr. Lall to the grant on the ground that the grant was illegal and without jurisdiction as a proceeding for Letters of Administration or Probate could not be compromised. Mr. Lall relied tn support of his contention on a Bench decision of this Court in Janakbati Thakurain v. Gajanand Thakur, 1 Pat LJ 377 : (AIR 1916 Pat 82).
In that case, the application for probate was dismissed in terms of the petition of compromise which was embodied in the decree without deciding whether the will was proved or not. In those circumstances, it was held that there can be no compromise of a probate case in accordance with the terms of a petition of compromise, because the main issue in such a case is, whether or not the will has been proved.
81. The above view was also taken in Jugeshwar Nath Sahai v. Jagatdhari Prasad, 2 Pat LT 535: (AIR 1917 Pat 41) in which it was held that an application for probate cannot legally be disposed of by a compromise, as the law imposes on the court itself the duty of determining whether the will is genuine or not.
82. This question has also been considered and all the authorities on this point mentioned in 14 Cal WN 1068 at p. 1071. The Privy Council case decided in 1837 in Nicol v. Askew, (1837) 2 Moo PCC 88 has also been referred to therein.
83. The principles which can, therefore, be extracted from the above authorities may be restated thus:
84. In a contentious proceeding, probate of letters of administration, as the case may be, may be granted in common form in consequence of a compromise between the disputants, resulting in the withdrawal of opposition, There can be no compromise of a probate case or a letters of administration case in accordance with the terms of a petition of compromise. The main issue in such a case is, whether or not the will has been proved. The only effect of a compromise is to reduce a contentious proceeding into one which is not contentious; but this does not absolve the court from the task of either granting probate or letters of administration or refusing it. If, therefore, a compromise has been made and the objector withdraws from the contest, the Court will make the grant in common form, if the will is proved, but it cannot dismiss the suit altogether and embody the terms of the compromise in his order so as to give it the force of a decree capable of execution,
85. In the present case, the procedure as indicated in the earlier Patna case, just mentioned, was exactly followed. Radtia Kuer lodged her caveat on the 30th March, 1943 and later filed her objection on the 30th April, 1943. The compromise was filed on the 19th May, 1944, by which she withdrew her objection, and, agreed that the grant be made to the appellant.
The learned Additional District Judge then examined an attesting witness who proved the will. The learned Judge accepted his evidence and held that the will had been duly proved. He observed that there was an objection by Radha Kuer, but now she has come to terms and a petition of compromise had been filed in which it had been agreed that the present appellant should get the letters of administration. Thereafter, the court found that as the will had been duly proved, and, the present appellant appeared to be a residuary legatee, letters of administration should be granted to him as prayed for.
The case, accordingly, was disposed of. Here, therefore, we find that the will was proved. The evidence of the attesting witness was accepted, and, as there was no objection, and, the opposition was withdrawn, the court having held that the will was proved, granted letters of administration to the appellant as prayed for by him as well as by the erstwhile caveator.
If the learned Judge had not examined any witness, nor, decided the question of the genuineness of the will and allowed the application of the applicant in terms of the compromise, certainly such a grant would have come within the mischief of the principles laid down in the cases above mentioned. But that is not the position here. For these reasons, I hold that the grant of letters of administration to the appellant on the ground urged by Mr. Lall is not invalid.
86. For the above considerations, I hold, in agreement with the court below, that "just cause" das been made out by respondent 1, and, therefore, the grant of letters of administration to the appellant has rightly been revoked.
87. In the result, the appeal fails and is dismissed with costs.