N.R Chatterjea, J.:— This appeal is against an order refusing an application for revocation of letters of administration with a copy of the Will annexed, which had been granted to the Respondent Rajkumari Dasi in 1914.
It appears that one Brojo Kishore died leaving his widow Kunja Mani, a daughter Rajkumari, a daughter's son Sarat, a widowed daughter-in-law Draupadi and two granddaughters, Sarala and Khiroda. Brojo Kishore executed a Will on the 3rd November 1896 by which he bequeathed, subject to the life-interest to be enjoyed by his widow Kunja Mani and with the exception of some properties and legacies, an 8 annas share of his estate to his widowed daughter-in-law. Draupadi and the other half to his daughter Rajkumari. In 1907, Kunja Mani applied for and obtained probate of a later unregistered Will said to have been executed by Brojo Kishore on the 8th June 1906. By this Will the right of the daughter-in-law, in the estate, was considerably cut down. Kunja Mani died in 1914 and her daughter Rai Kumari and her son Sarat obtained letters of administration with a copy of the Will annexed. On the 20th November 1914, an application for revocation was made by Draupadi on the ground that no citation had been served upon her at the time when letters of administration were granted to Rai Kumari. Rai Kumari and her son pleaded that citation had been served upon Draupadi. A large number of witnesses was examined on the point as to whether citation had really been served or not. After the evidence on both sides had been taken, at the time of argument, it was contended on behalf of Rai Kumari that Draupadi had no locus standi to apply for revocation of the Will and the learned Judge has thrown out the application, on that ground.
We are of opinion that this case ought not to have been disposed of in this way. The fact that there was an earlier Will is admitted: and in the later Will itself it is stated that the earlier Will is thereby revoked. There are many references in the evidence on both sides to the earlier Will. Now, if the later Will stands, Draupadi cannot claim any rights under the first Will under which she has a substantial interest. She had therefore sufficient interest to oppose the grant of the later Will and to apply for revocation of the later Will.
It is contended that she cannot apply for revocation of the later Will unless and until she obtains probate of the earlier Will. We think that it is not necessary that Draupadi should obtain probate of the earlier Will for the purpose of enabling her to apply for revocation of the letters of administration. If she succeeds in showing that there was no later Will, it will be open to her to prove the earlier Will and to apply for letters of administration with a copy of the Will annexed. We think therefore that she has locus standi to make the application.
In this view, it is unnecessary to consider how far the right of Draupadi for maintenance is affected by the later Will and whether she is entitled to apply for revocation of the later Will on that ground.
The order of the lower Court is set aside and the case sent back to that Court for decision on the question whether Draupadi had been served with citation in the proceedings for grant of probate in 1907 and for letters of administration with a copy of the Will annexed in 1914 to Rai Kumari upon the evidence on the record.
Costs will abide the result. We assess the hearing fee at two gold mohurs.
Walmsley, J.:— I agree.
S.C.M
Appeal allowed.