This was a suit for revocation of probate of the Will of one Gobinda Chandra Das Majumdar calling upon the executor to the Will in the presence of the Petitioner.
The testator died on the 27th or 28th December 1883 of Cholera in a boat, and the Will was said to have been executed on the 27th December 1883. He left a widow and five minor daughters unmarried as well as two brother's sons, the objectors in this case, who were then also minors. By the Will the widow got a life-estate with remainder to the brother's sons, and the daughters were given allowance for maintenance of Rs. 12 a year each. The Petitioner Monorama Chowdhrani is the only one of the daughters who has borne sons, and she claims to come in, because, admittedly although general citations were issued and her mother obtained probate of the Will, no separate guardian ad litem was appointed to represent the minor daughters or the minor brother's sons in the probate-proceedings. The eldest daughter Kusum Kumari, now a childless widow, was born about 1869: the elder brother's son Sashi Mohan Das Majumdar was born in 1872: the second daughter Kumudini was born, in 1871: the Petitioner was born in 1876: the fourth daughter Kadarnbini was born in 1880 and the younger brother's son Kamini Mohan’ Majumdar was born in 1883. The fifth daughter is dead.
It is fully established by evidence that Siva Sundari, the widow of the testator, took out probate on the 20th March 1884, and in a rent-suit in 1886 the Will was filed by her confidential servant Kali Kanta Biswas and returned to her. In 1887, the Petitioner, then 11 years of age, was married, and there is evidence that the Will was read out to her husband, a pleader's clerk, who has since become a vernacular copyist in the Munsif's Court at Lukhipur and herself at the time of the marriage. In accordance with the terms of the Will, Kusum Kumari, one of the daughters, gave receipts for her allowance to her mother in 1887, and to her mother and khuri, the mother of the objectors, jointly for the years 1888 and 1891. Two subsequent receipts of her, the first given to her mother and Sashi Mohan jointly, and the second to her mother alone have also been produced. Receipts of a similar nature granted by Kumudini for 1890 and 1901 are produced and from Kadamfrni for 1903. But the most important document is the receipt given by the Petitioner herself in 1901 for Rs. 200 being the arrears of her maintenance for 16 years from 1885 to 1900 and three-quarters of her allowance of 1901. All these receipts clearly recite that her father Gobinda before his death executed a Will on the 18th Pous 1290, and in the said Will he made directions for payment of Rs. 12 annually to the recipient as allowance out of the profits of the estate. In 1909, the objectors Sashi Mohan and Kamini Mohan had occasion to bring a suit for accounts against Kali Kanta Biswas, who was managing for Siba Sundari and for their own mother, and they made Siba Sundari a Defendant also. This appears to have annoyed Siba Sundari, who separated from her sister in-law and the objectors, and went over to the side of the Petitioner and her husband, and in 1910, this petition was brought making Siba Sundari alone a party. Upon this, the objectors came in and said, that the petition was fraudulent and collusive and got up by Siba Sundari. At the trial Siba Sundari and all the surviving daughters denied the Will altogether and denied they had received any allowance, and supported the Petitioner in her allegation that she had no knowledge of the Will of her father or of the probate case until Kartik 1316, when she went to visit her father's house.
As regards the facts, we may at once say that we have carefully perused the documents and can have no doubt that the receipt (Ex. A) is in the handwriting of the Petitioner herself, and the other receipts are genuine. Numerous specimens of the handwriting of the ladies have been produced in the shape of affectionate letters and post-cards written by them to the objectors and to their own mother, the authority of which cannot for one moment be doubted, though the witnesses of the Petitioner have had the audacity to deny all knowledge of them. It is clear from the correspondence that up till 1909, the sisters were on the most affectionate terms with their cousins, the objectors. One of the letters speaks of the objectors as the only hope of carrying on their father's name.
We therefore find two main facts against the Petitioner: first, that her petition is not bonâ fide but collusive and fraudulent, made solely as an answer to the suit for accounts against their mother and her agent, and, secondly, that no reasonable account is given of the circumstances which entitled the Petitioner to re-open the probate after so many years. The account she does give is entirely false, and as Shiva Sundari herself undoubtedly obtained the probate and they knew of it and acquiesced in it for many years, they must on the authorities give some good and true reason why they had not proceeded earlier. This doctrine is clearly laid down in Hoffman v. White(1) which was cited with approval in Merryweather v. Turner(2), where it was stated that the ground or principle upon which the Court proceeded in Hoffman v. White was that the Petitioner was not barred by lapse of time, if he can show good reason why he did not proceed at an earlier period: but if he does not show good cause, the Probate Court will not allow him to call in the Will after such a lapse of time. The same view has been taken by this Court in Kunja Lal Choudry v. Kailas Ch. Choudry(3).
It is argued that in all these cases, there had been collateral litigation in other Courts to which the Petitioner had been a party and was thereby saddled with knowledge and acquiescence. But it does not seem to us to matter by what facts such knowledge and acquiescence are established, for neither knowledge, nor acquiescence, nor lapse of time are of themselves operative as a bar to the proceeding which every person interested in the estate of the testator had a right to bring, if they were not made parties in the probate-proceedings. What is held is that where knowledge, acquiescence and lapse of time are shown, the Petitioner must give some reasonable and true explanation of the delay, or in other words, the application must be made bonâ fide.
We are of opinion, apart from all authority, that our finding that this petition is a dishonest and vindictive proceeding supported by false evidence and not putting the true facts at all before the Court is certainly a bar to the re-opening of the probate obtained 30 years ago under circumstances which created no suspicion of a Will the provisions of which have been accepted by all the parties as reasonable and proper and such as the testator would be likely to make.
The appeal is therefore dismissed with costs. We assess the hearing fee at three gold mohurs.
Appeal dismissed.