1. This appeal has been preferred by an objector to an application for probate who was unsuccessful in the Court below. The probate applied for was in respect of a will said to have been executed by one Polak Mistri Lobar on 11th October 1927. The will is a simple one in which it is stated that one Godari Hajam, the applicant for probate who was a son born of the womb of the testator's mistress is appointed executor. By the will the testator provided that after his death the said Godari Hajam would be entitled to take probata without any security and would pay off his debts by selling some portions of the immovable properties left by him and would carry out his other directions. The will provided that the testator's mistress Nanki Hajam would enjoy during her lifetime all the moveable and immovable properties that would be left after payment of the testator's debts. It further provided that on Nanki's death Godari, and if he was not alive, his sons would take the properties absolutely. The learned District Judge held that the objector had no interest sufficient to give him a locus standi; to object to the proceedings. He held also on the merits that the will was proved and that it had been duly and regularly executed by the testator. On both these grounds the learned District Judge overruled the objector's contention and granted probate of the will to the petitioner.
2. The appellant contends that in the view which the learned District Judge took both on the question of his locus standi as also as regards the merits of his contention to the effect that the will was a forgery and had not been duly executed or attested the learned Judge was wrong. So far as the first of these matters is concerned the objector's position seems to be this: He executed a kobala in favour of the testator in respect of a certain share in some of the lands which must now be taken as covered by the testator's will as being properties belonging to the testator. He states that the testator promised to defray his expenses in connexion with a certain suit of his that was pending at the time as between himself and some other persons and on that condition the conveyance was executed by him in favour of the testator. He further states that although he did so, he received no money from the testator. His case further is that although consideration did not pass and possession in respect of the conveyed lands remained with him, the testator obtained mutation of his own name in the Collector's records in respect of the properties so transferred. In these circumstances, he claims to have an interest sufficient to give him a locus standi within the meaning of Section 283 of the Succession Act. The learned District Judge has overruled this contention of the objector.
3. It has been urged before us that in the view that the learned Judge has taken of this matter he is in error. We are inclined as at present advised, to agree with the learned District Judge in the view that he has taken so far as this matter is concerned. But we do not desire to pronounce any definite opinion on the question, because, in our opinion, it is not necessary for the purposes of the present appeal to do so. We have heard the arguments that have been advanced on behalf of the appellant as regards the merits of the case and inasmuch as we agree with the learned District Judge in the view that he has taken as regards the merits as well, we do not feel called upon to express any decided opinion on the question of the appellant's locus standi. So far as the merits are concerned it seems to us clear upon the evidence that has been adduced on behalf of the parties in this case that the will or, at least, the first three paragraphs of it must be taken to have been duly executed by the testator and attested by the witnesses. There is some little dispute with regard to the last paragraph, however, which contains an explanation as to why in addition to the testator's signature there also appears a thumb impression of the testator upon the will. This portion is stated by one of the witnesses to have been written after the testator had put down his signature as well as his thumb impression on the will and before the witnesses attested the will. Be that as it may, so far as the material portion of the will is concerned it must be, as we have already pointed out, taken to have been duly executed and attested. The will itself is a perfectly natural one. The testator was living apart from his family and with a mistress by whom he had a son and the properties that he had intended should be enjoyed by the mistress so long as she was alive and the son would act as executor by paying off his debts by the sale of a portion of the properties and when the mistress would die the son would take the properties absolutely, and if he was not alive then his sons would do so. The real ground upon which the validity of the grant has been questioned relates to an omission on the part of the respondent to have citation issued upon a certain person by the name of Khublil Mistri who is said to have been a first cousin of the testator and who in the event of intestacy would have been one of his heirs. Khublal Mistri, as appears upon the papers, lives at Arab, a long way off from the District of Cachar from which this case comes.
4. On 1st February 1928, the objector in his petition of objection made a statement that the proceedings, could not go on according to law without notice having been served upon Khublal Mistri. Some time later, the respondent made an application on 12th March 1928, in which be stated he had not been able to serve notice upon Khublal, he being at that time in the District of Arah and he prayed for time to enable him to have? the notice upon the said Khublal Mistri properly served. No further action, however, appears to have been taken either by the Court or by the respondent to have the notice served upon Khublal and eventually, as far as can be gathered from the record, the question of service of notice upon him was altogether lost sight of and the proceedings were bad, the only contestant being the appellant who cross-examined the applicants witnesses and also adduced evidence in, support of his own case. It has been urged on behalf of the appellant that by reason of the omission to have citation issued and served upon the said Khublal Mistri, the grant of probate has been irregular and that for that reason the will should be set aside and the case ordered to be reheard on notice to the said Khublal Mistri. It has been contended that a ground which would be sufficient for revocation of a probate-would ordinarily be sufficient to invalidate a grant and that inasmuch as if Khublal Mistri had come forward and alleged that he being a person who-would be the heir to the testator in the event of intestacy, was entitled to special citation and had not been so cited, the Court would have been justified in revoking the grant and ordering the proceedings to be taken in his presence therefore upon the circumstances to which reference has already been made, the proper course for this Court to adopt would be to set aside the decision of the learned District Judge and to direct that the proceedings be reopened and then gone on with upon notice being served upon Khublal. Now it need not be disputed for the purpose of the present appeal that if it is established in any particular case that the proceedings which resulted in the grant have been defective in substance, the grant may be set aside and the case reopened and reheard. It may also be conceded that it is obligatory upon the Court when it is brought to its notice that there is a person entitled to special citation to issue such citation and further that it is the bounden duty of a propounder to have special citation served on a person who under the law, is entitled thereto. At the same time, however even in the case of revocation of a probate the Court has certain, amount of discretion either to act or not to act under the powers which the law confers on it to revoke a grant. If a person is entitled to special citation and such citation has not been served on him, the absence of such special citation would not of itself be sufficient to entitle him to require a will to be proved in his presence after it has once been proved in solemn form, if he was aware of the proceedings: Nistarini Debya v. Brahmomoyi Debya . [1890] 18 Cal. 45.. Of course, if Khublal Mistryapplies in the present case for revocation of the probate on the ground of non-citation, it would be for the respondent in order to resist the application for revocation to show that notwithstanding such non-citation Khublal Mistry was aware of the proceedings. In the present case however when the appellant himself had contested the proceedings he must show that if Khublal Mistry had been cited he would have contested the grant and would have done something which he himself has not been able to do. The discretion which a Court has in this respect cannot be exercised in appellant's favour unless he shows something more than mere citation of Khublal Mistry. In our opinion the appellant has not made out any such case as would entitle this Court on appeal to set aside the decision of the Court below passed especially because Khublal himself will always have his remedy, namely, that if he was not aware of the proceedings and has been prejudiced by reasons of the proceedings having been held in his absence, he would be able to come forward and apply for revocation of the probate.
5. We are of opinion that all that the appellant has shown is that there has been no citation on Khublal and without anything further being shown which would entitle the Court to hold that the proceedings were defective in substance or have resulted in any prejudice to anybody, it is not possible, nor would it be right, for us to interfere with the decision of the Court below.
6. The result is that, in our opinion, the order appealed from is correct and that the appeal should therefore be dismissed. There has been no appearance on behalf of the respondent and there will be no order as to costs.
M.N/R.K
7. Appeal dismissed.