- Bookmark
- Share
- CaseIQ
Haridasi Dosi And Others v. Bidhumukhi Dasi .
Summary of Opinion — Probate Revocation Appeal
Factual and Procedural Background
The deceased, Priya Nath Ghose, died on 13 November 1907, leaving a widow (Bidhumukhi Dasi), a daughter (Haridasi Dasi), and two grandsons through the daughter (Pramatha Nath and Anadinath). On 16 July 1908 the widow applied for probate of a will said to have been executed by the deceased on 26 October 1907. The probate application was supported by affidavits from two attesting witnesses and did not mention that the testator had left a daughter or two sons by her who would succeed in the event of intestacy. A general citation was issued (special citations could not be served on the relatives). Because there was no opposition, probate was granted on the affidavits on 21 August 1908.
On 21 May 1919 Haridasi and her two sons, Pramatha Nath and Anadinath, applied for revocation of the probate alleging the will was not genuine. The widow opposed the application. The District Judge refused Haridasi's application on the ground that she was aware of the probate proceedings and that the absence of a special citation to her was not sufficient to justify revocation, relying on Prem Chand Day v. Surendra Nath Saha. As to the two sons, the District Judge held they had no interest in the property during their mother's lifetime and therefore were not necessary or proper parties to the probate proceedings.
Legal Issues Presented
- Whether Pramatha Nath and Anadinath (the daughter's sons), as the ultimate reversioners in the event of intestacy, had a sufficient interest to apply for revocation of the probate and were thus proper parties to the probate proceedings.
- Whether the knowledge or omission of the natural guardian (the father of the two sons) of the earlier probate proceedings could prejudice the infants' right to seek revocation later (i.e., whether their competency to apply was defeated by the guardian's prior inaction).
- Whether the absence of a special citation to nearer relatives (in particular the daughter) in the original probate proceedings justified revocation of the probate (this issue underlay the District Judge's refusal of Haridasi's application, though the appellate court stated it was not necessary to decide all issues raised).
Arguments of the Parties
Applicants (Haridasi Dasi; Pramatha Nath and Anadinath)
- The application for revocation alleged that the will produced and probated was not genuine.
- Pramatha Nath and Anadinath contended that, as ultimate reversioners who would succeed in the event of intestacy, they had been adversely affected by the grant of probate which altered the line of succession; consequently they were prima facie entitled to intervene in and challenge the probate.
- Where the immediate reversioner (the daughter) by reason of her conduct had made it impossible for her to maintain the application successfully, the ultimate reversioners should be allowed to apply for revocation.
Respondent (the Widow)
- The widow opposed the revocation application and relied on the fact that the original probate proceedings had been conducted on affidavits and that there was no opposition at the time.
- The District Judge (and by implication the respondent) relied upon the principle that the absence of a special citation under the circumstances was not sufficient to justify revocation (citing Prem Chand Day v. Surendra Nath Saha).
- It was also argued (relying on earlier authorities) that because the natural guardian (the father of the applicants, in his capacity as guardian) was aware of the probate proceedings and did not intervene, the infants (the two sons) should be held incompetent to reopen the matter in the same way as their mother.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court in This Opinion |
|---|---|---|
| Prem Chand Day v. Surendra Nath Saha, 9 C.W.N. 190 | Principle that failure to issue a special citation may not, in certain circumstances, be sufficient to justify revocation of probate. | The District Judge relied on this case to refuse Haridasi's application; the appellate court noted that the District Judge had so held but did not rest its decision solely on that point. |
| Ramgopal Das v. Radha-krishna Das, 3 C.L.J. 37n | Decision relating to whether probate may be properly granted on affidavits. | The appellate court stated it was unnecessary to consider, in view of this decision, whether the probate was properly granted on affidavits in the present case. |
| Abinash Chandra Mazumdar v. Harinath Saha, 32 C. 62 at p.66 : 9 C.W.N. 25 | Explication of the position of successive female heirs (holders of limited estates) and the right of a male reversionary heir to challenge unauthorised alienations by holders of qualified estates. | The court relied on this exposition to show that the daughter's sons (male reversionary heirs) would prima facie be entitled to intervene in probate proceedings affecting the succession. |
| Harsh Chand Babu v. Bijoy Chand Mahatab, 2 C.L.J. 87 at p.95 : 9 C.W.N. 795 | Adoption of the view about reversioners deriving title from the last full owner rather than through nearer reversioners. | Cited as an example where the principle respecting the rights of reversioners was adopted; used as supporting authority. |
| Gazzala Veerayya v. Gazzala Ganamma, 16 Ind. Cas. 339 : 36 M. 570 : 12 M.L.T. 168 : 23 M.L.J. 269 (1912) M.W.N. 912 | Application of the reversioner principles by the Madras High Court. | Noted as a case where the same principle has been followed by the Madras High Court; offered corroborative authority. |
| Narayana Aiyar v. Rama Aiyar, 20 Ind. Cas. 625 : 38 M. 396 : (1913) M.W.N. 588 : 14 M.L.T. 89 : 25 M.L.J. 219 | Another Madras decision following the reversioner principle. | Cited as additional authority confirming the principle relating to successive reversioners. |
| Srinibash Das v. Monmohini Dasi, 3 C.L.J. 224 | Illustrative authority on the rights of reversioners and limitations on alienation by holders of qualified interests. | Referred to among other illustrations supporting the court's view of reversioners' rights. |
| Bepin Behari Kundu v. Durga Charan Banerji, 35 C. 1086 at p.1090 : 12 C.W.N. 914 : 8 C.J. 120 | Principle that an alienee cannot take a larger estate than the alienor possessed; coalition of limited estates does not enlarge the resultant estate. | The court quoted the principle and cited it as applied in later authorities; used to support the broader principle that limited interests cannot be amplified by collusion. |
| Raja Dei v. Umed Singh, 13 Ind. Cas. 632 : 34 A. 207 : 9 A.L.J. 158 | Application of the rule that an alienee cannot obtain a larger estate than the alienor. | Referenced as one of the cases where the quoted principle was applied. |
| Chidambara Reddiar v. Nallammal, 5 Ind. Cas. 164 : 33 M. 410 : 7 M.L.T. 44 | Application of the principle limiting the quantum of estate transferrable by holders of qualified rights. | Cited as another authority applying the same principle. |
| Khettramoni Dasi v. Shyama Churn Kundu, 21 C. 539 : 10 Ind. Dec. (n.s.) 989 | Decision indicating that a reversioner under Hindu law, though having no present interest, is nevertheless interested in protection of the estate and entitled to be heard in probate proceedings. | Relied upon to show that reversioners, male or female, have a substantive interest entitling them to appear and be heard; supported allowing the ultimate reversioners to apply. |
| Brindaban Chander Shaha v. Sureshwar Saha, 3 Ind. Cas. 178 : 10 C.L.J. 263 | Authority for the proposition that reversioners may be heard in probate matters despite having no present estate. | Used as support for the contention that ultimate reversioners are proper parties to probate proceedings. |
| Shyama Charan v. Prafulla Sundari, 30 Ind. Cas. 161 : 21 C.L.J. 557 : 19 C.W.N. 882 | Similar authority establishing the right of reversioners to be heard and to protect the devolution of the estate. | Cited with others to demonstrate that ultimate reversioners were unquestionably proper parties to the probate proceedings. |
| Brindabati Ohunder Skaha v. Sureshwar Saha (as cited) and Shyama Ohurn v. Prafulla Suridari, 30 Ind. Cas. 161 : 21 C.L.J. 557 : 19 C.W.N. 882 | Reinforcement of the principle that reversioners have standing to contest probate or alienations affecting the estate. | Invoked to strengthen the conclusion that the sons, as ultimate reversioners, could properly apply to revoke probate. |
| Nistariny Dabyu v. Brahmomoyi Dabya, 18 C. 45 : 9 Ind. Dec. (n.s.) 31 | Authority where an infant's purported guardian intervened and the Court held that, after appeal reversed, the infant could not re-open proceedings through another guardian. | The appellate court distinguished this case: here no guardian had successfully protected the infants in earlier proceedings, so Nistariny did not bar reopening by the applicants. |
| Kunja Lal Chowdhury v. Kailash Chandra Chowdhury, 7 Ind. Cas. 740 : 14 C.W.N. 1063 | One of the authorities relied on to argue incompetence of parties where a guardian was aware and did not act. | Cited by respondents' side as supporting incompetence; the appellate court considered these authorities but did not apply them to defeat the infants' claim, distinguishing the facts. |
| Nalini Sundari Gupta v. Bejoy Kumar Boy Chowdhury, 30 Ind. Cas. 12 : 21 C.L.J. 555 | Another authority cited in support of the competence argument based on guardian's awareness. | Cited by respondents; court considered the line of authority but held the present facts distinguishable and did not follow them to deny relief to the infants. |
| Prem Chand Ban v. Swerdra Natk Saha, (1) 9 C.W.N. 190 | Listed among authorities on which counsel relied regarding competence/incompetence arising from guardian's conduct. | Considered but distinguished by the appellate court in the present facts. |
| Prafullananda Goswami v. Brojendra Nandan Goswami, 51 Ind. Cas. 693 | Decision dealing with laches or great lapse of time as a basis for refusing to re-open matters in the Court's discretionary powers. | The appellate court said that the circumstances calling for application of that theory did not arise in the present case. |
| Brinda Chowdhrain v. Radhica Chowdhrain, 11 C. 492 : 5 Ind. Dec. (n.s.) 1087 | Another authority on refusing to re-open matters after a great lapse of time under discretionary principles. | Cited to show where the discretionary refusal to re-open might apply; the appellate court found those considerations inapplicable here. |
Court's Reasoning and Analysis
The appellate court proceeded step-by-step and confined its decision to the matter that was not in serious controversy: whether the application made by Pramatha Nath and Anadinath should have been granted.
Key analytical points the court relied on (as stated in the opinion):
- The sons, as the eventual heirs in the event of intestacy, would be ultimately entitled in their own right (and not through their mother) to succeed to the estate of Priya Nath Ghose. Therefore, if the will was not genuine, the probate adversely affected their substantive succession rights by diverting the estate.
- The established principle (explained at length in Abinash Chandra Mazumdar v. Harinath Saha and reiterated in other cases) is that where succession passes through a series of female heirs who take only qualified estates, a male reversionary heir who would acquire an absolute estate ought to be allowed to challenge an unauthorised alienation by a holder of a qualified estate. The court quoted and relied on this principle.
- The court surveyed a body of authorities (including Harsh Chand Babu, Madras decisions such as Gazzala Veerayya and Narayana Aiyar, and others) which endorse the position that reversioners, although having no present estate, are substantively interested in the protection and devolution of the estate and are therefore entitled to appear and be heard in probate proceedings.
- Although Haridasi (the immediate reversioner) could have made a revocation application, her own conduct had made it impossible for her to succeed; in that circumstance the ultimate reversioners (the sons) must be allowed to intervene. The cited authorities (Khettramoni Dasi; Brindaban Chander Shaha; Shyama Charan v. Prafulla Sundari, etc.) support that position.
- The respondents urged that because the natural guardian (the father) was aware of the original probate proceedings and did not intervene, the infants should be barred. The court examined authorities relied upon for that proposition (including Nistariny Dabyu and others) and found them distinguishable: in Nistariny the guardian had intervened and obtained a favourable decision that was later reversed on appeal, and the Court would not allow reopening through another guardian. No such successful guardian intervention had occurred here, so the infants were not precluded.
- The court also rejected any argument that extreme delay or laches barred reopening on the discretionary grounds exemplified in Prafullananda Goswami and Brinda Chowdhrain, finding those considerations inapplicable on the facts before it.
On that basis the court concluded that the two sons were unquestionably proper parties to the probate proceedings and that their application for revocation should have been granted.
Holding and Implications
APPEAL ALLOWED; APPLICATION FOR REVOCATION GRANTED.
Direct consequences ordered by the court (as stated in the opinion):
- The appeal was allowed and the application for revocation was granted.
- The probate will be re-sailed and the original probate proceedings will stand revived.
- The present respondent (the widow) will be at liberty to prove the will in solemn form.
- The costs of all the parties in both this Court and the Court below were ordered to come out of the estate; the hearing fee in this Court was assessed at three gold mohurs.
The opinion does not state that a new legal precedent is being established; rather, it applies and distinguishes existing authorities to the facts and grants relief to the ultimate reversioners in accordance with those principles.
1. This appeal is directed against an order of dismissal made on an "application to revoke a Probate under Section 50 of the Pre bate and Administration Act. Priya Nath Ghose, the alleged testator, died on the 13tb November, 1907. He left a widow, Bidhumukhi Dasi, a daughter, Haridasi Dasi, and two sons by her Pramatha Nath and Anadinath, On the 16th July 1908 the widow applied for Probate of a Will said to have been executed by the deceased on the 26th October 1907. The application, which was supported by the affidavits of two of the attesting witnesses, did not mention that the testator had left a daughter or two sons by her who would successively take the estate in the event of intestacy. A general citation was thereupon issued but no special citation was or could be served upon the relatives of the deceased. As there was no opposition, the Prelate was granted on the affidavits on the 21st August 1908. On the 21st May 1919, the present application for revocation of the Probate wag made by Haridasi and her two sons, Pramatha Nath and Anadinath, on the allegation that the Will set tip was not genuine. The application was opposed by the widow. The District Judge has refused the application of Haridasi on the ground that she was aware of the Probate proceedings, arid that the fact that no special citation had been issued to her was in the circumstances not sufficient to justify the revocation of the Probate, on the principle explainer by this Court in the case of Prem Chand Day v. Surendra Nath Saha 9 C. W. N. 190., As regards the application by Pramatha Nath and Anadinath, the District Judge has held that they had no interest in the property during the lifetime of their mother and were not consequently necessary or proper parties to the Probate proceedings.
2. It is not necessary to consider whether in view of the decision in Ramgopal Das v. Radha-krishna Das 3 C. L. J. 37n., the Probate was properly granted on affidavits or whether the application made by Haridasi Dasi has been properly refused, because there is no room for serious controversy that the application made by Pramatha Nath and Anadinath should have been granted. It is plain that in the event of intestacy Pramatha Nath and Anadinath would be ultimately entitled to succeed to the estate of their maternal grandfather, Priya Nath Ghose, in their own right and not through their mother. Consequent, if the alleged testamentary instrument is not genuine, their position has been seriously affected by the grant of the Probate, inasmuch as the result of the Will is to alter the line of succession and to divert the estate into new channels. In such circumstances, the daughter's sons would prima facie be entitled to intervene in the Probate proceedings, on the well-established principle relating to the true position of reversioner of the record degree, as explained in the ease of Abinash Chandra Mazumdar v. Harinath Saha 32 C. 62 at p. 66 : 9 C. W. N. 25. in the follow-terms:
In the case in which, upon the death of a fall owner, the estate successively passes through the hands of a series of female heirs, who take only a qualified estate, before the property vests in another full owner, they may rightly be regarded in the aggregate as the holder of a limited interest which intervenes between the fall ownership of the original owner and the ultimate taker. Each of these recipients of the limited interest has three common characteristics, namely, first, each possesses only a qualified right of alienation; secondly, not one of them can transmit the property to her own heirs, but it passes upon her death to the heir for the time being of the last full owner, and, thirdly, not one of them can alienate the estate absolutely even with the consent of the next female reversionary heir, for where the next reversioner is herself a female who only takes a life-estate, her consent will not bind the next reversioner who takes an absolute estate: in other words, the assent of a female reversionary heir to an alienation made by a female heir cannot confer upon it a character of greater validity than it would have possessed if it had been made by herself. . . There is a substantial distinction between the case in which a remote reversioner who would take an absolute interest, sues for a declaratory decree in the presence of a nearer male reversionary heir and the case in which such a suit is brought in the presence of a nearer female reversionary heir. It follows corsequently that a male reversionary heir who would be entitled to the property absolutely, if he succeeded to it, ought to be allowed to challenge an unauthorised alienation by the holder of a qualified estate, whether or not such female heir is his immediate predecessor or is separated from him by the interposition of other possible female heirs.
3. The view thus expounded has been adopted and applied in a variety of cases. As an example, reference may be made to the judgment of this Court in the case of Harsh Chand Babu v. Biioy Chand Mahatab 2 C. L. J. 87 at p, 95 : 9 C, W. N, 795. where the following observation was made:
4. where there are several reversioners entitled successively under the Hindu Law to an estate held by a Hindu widow, no one such reversioner san rightly be held to claim through or derive his title from another, but he derives his title from the last full owner, and, therefore, although the right of the nearest reversioner for the time being to contest an alienation or an adoption by the widow may have become barred by limitation against him, this will not bar the similar rights of the subsequent reversioner." This principle has been followed by the Madras High Court in Gazzala Veerayya v. Gazzala Ganamma 16 Ind. Cas. 339 : 36 M. 570 : 12 M. L. T. 168 : 23 M. L. J, 269 : (1912) M. W. N. 912 and Narayana Aiyar v. Rama Aiyar 20 Ind. Cas. 625 : 38 M. 396 : (1913) M. W. N. 588 : 14 M, L. T. 89 : 25 M. L. J. 219.
5. For other illustrations, reference may be made to the decisions in Srinibash Das v. Monmohini Dasi 3 C. L. J. 224. and Be pin Behari Kundu v. Durga Charan Barerji 35 C. 1086 at p. 1090 : 12 C. W. N. 914 : 8 C. J. 120. In the case last mentioned, Mr. Justice Doss stated the principle in these words:
"if the widow had, with the concurrence of the daughters alienated the property in favour of a stranger, the alienee would not have taken any larger estate than the limited and qualified estate of the widow or of the daughters, for the alienee cannot have a larger estate than that possessed by the alienor, and the coalition of the estate of the widow with that of the daughters not having the effect of amplifying the quantum of the resultant estate,"This principle wan applied in Raja Dei v. Umed Singh 13 Ind. Cas. 632 : 34 A. 207 : 9 A. L. J. 158. and Chidambara Reddiar v. Nallammal 5 Ind. Cas. 164 : 33 M. 410 : 7 M. L. T. 44.
6. In the case before us, there its no doubt that, apart from all questions of acquiescence, the application for revocation could have been made and was properly made by Haridasi Dasi, the immediate reversioner. The decisions in Khettramoni Dasi v. Shyama Churn Kundu 21 C. 539 : 10 Ind. Dec. (n s.) 989. Brindaban Chander Shaha v. Sureshwar Saha 3 Ind. Cas. 178 : 10 C, L. J. 263 and Shyama Charan v. Prafulla Sundari 30 Ind. Cas, 161 : 21 C. L. J. 557 : 19 : C. W. N. 882. show that although a reversioner under the Hindu Law has no present interest in the property left by the deceased, the reversioner, whether male or female, is substantially interested in the protection or devolution of the estate, and, as such, is entitled to appear and be heard in a Probate proceeding. If the immediate reversioner is a female, the male reversioner in the second or third degree, as the case may be (for instance where the deceased hag left a widow, daughter, mother and brother), is similarly entitled to be heard. In the present case, the immediate reversioner, Haridasi, has rendered it impossible for herself by her own conduct, to maintain the application successfully; consequently, the application may be made by Pramatha Nath and Anadinath who, as the ultimate reversioner?, were unquestionably proper parties to the Probate proceedings, this is clear from the decisions in Brindabati Ohunder Skaha v. Sureshwar .Saha (12) and Shyama Ohurn v. Prafulla Suridari 30 Ind. Cas, 161 : 21 C. L. J. 557 : 19 : C. W. N. 882.,
7. We have been pressed, however, to hold on the authority of the decisions in Nistariny Dabyu v. Brahmomoyi Dabya 18 C. 45 : 9 Ind, Dec. (n. s.) 31., Kunja Lal Chowdhury v. Kailash Chandra Chowdhury 7 Ind. Cas. 740 : 14 C. W. N. 1063; Nalini Sundari Gupta v. Bejoy Kumar Boy Chowdhury 30 Ind. Cas, 12 : 21 C. L. J. 555, Prem Chand Ban v. Swerdra Natk Saha (1)9 C. W. N. 190. that ,Pramatha Nath and Anadinath should be held incompetent to maintain the present application in the same way as their mother, because the evidence indicates that their father who was their natural guardian was aware of the Probate proceedings. It is clear, that at the time of those proceedings, Anadinath and possibly Parmatha Nath also had not attained majority. Assuming that their father was aware of the Probate proceedings and yet did not intervene therein, on their behalf, we cannot hold that his omission can prejudice the position of the infants. The case of Nistariny Dabya v. Brahmomoyi Dabya. 18 C. 45 : 9 Ind, Dec. (n. s.) 31. is clearly distinguishable. There a person professing to be the guardian of the infants had intervened for their protection. He succeeded in the Court of first instance, hat upon appeal the decision of the primary Court was reversed. In these circumstances, this Court held that the infant could not be permitted to re open the proceedings through another guardian, No such consideration obviously arises in this case. Nor is there room for application of the theory, as there was in the case of Prafullananda Goswami v. Brojendra Nandan Goswami 51 Ind. Cas. 693.; that there has been so great a lapse of time as to justify a refusal by the Court to re-open matters in controversy in exercise of its discretionary powers: Brinda Chowdhrain v. Radhica Chowdhrain 11 C. 492 : 5 Ind. Doc. (n. s.) 1087.
8. The result is that this appeal is allowed, and the application for revocation is granted. The Probate will be re sailed, the original Probate proceedings will stand revived and the present respondent will be at liberty to prove the Will in solemn form. The costs of all the parties to the present proceedings, both in this Court and in the Court below, will come out of the estate. We assets the hearing fee in this Court at three gold mohurs.
Alert