Regular Appeal from an order passed by the Judge of ??? Hooghly.
This was an application for probate of the will of ??? the widow of Nund Mohun Gossain. The application was ??? by the Executor Behari Lall Sandyal, the brother of the ??? it was opposed by Juggo Mohun Gossain, the sole ??? brother of Nund Mohun, who denied the genuineness of the will as well as the power of the lady to devise the property ??? therein, which he alleged to be the ancestral estate of Nund Mohun, in which the widow had only a life interest.
Two issues were raised in the Court below: First—Is the will the last will of the deceased Kadumbini Dabee; and is Behari Lall Sandyal entitled to receive probate thereof as her executor? Secondly—Was the deceased, Kadumbini Dabee, entitled to make a will disposing of the property that she inherited from Nilmadhub Gossain, (a son whom she had adopted under the authority of her husband, and who had predeceased her, unmarried,) that is property with accumulations that he had inherited from Nund Mohun Gossain, his adoptive father.
On the first issue it was found that the will was genuine and properly executed. The petitioner then objected to a consideration of the matter in the second issue. The objection was overruled ??? the ground that as, ordinarily, the widow would have no power to make a will, it was necessary to determine that point.
The property dealt with in the will consisted of (1) a house and Rs. 7,400 in Company's paper, which were in possession of the ???; and (2) Rs. 15,000 which were in the hands of the heirs of ??? Mohun Gossain, the eldest brother of Nund Mohun. The learned Judge held that there was no evidence that the ??? had any streedhun except a few ornaments; that the Rs. ??? was part of the husband's estate in which the widow had ??? a life interest; that the house and the Company's paper ??? Rs. 7,400 were accumulations from her husband's estate over which she had no power; and he refused probate of the will, on ??? ground that the properties attempted to be disposed of therein ??? part of the husband's ancestral estate. The petitioner ???.
Baboo Tarini Kant Bhuttacharji, for Appellant.
Phillips, for the Respondent. Baboo Opendro Chunder Bose, ??? with him.
The judgment of the Court (1) was delivered by
Garth, C.J:— The questions involved in this case are of great general importance; and, having considered them carefully, we are of opinion that the view taken by the Judge in the Court below was erroneous. [His Lordship here stated the facts above set out, and continued.]
It has been argued for appellant: first, that the question raised by the second issue was one which the Judge had no right to entertain in a proceeding of this nature; and, secondly, that even if he had a right to decide whether the testatrix had any disposable property at all, there was sufficient evidence that she had some streedhun, which would be quite enough to justify the grant of probate. We do not think it expedient to enter upon the consideration of this latter point, because we do not wish to prejudice the rights of either party in case of any future litigation upon that subject. It is sufficient for us to say that if it were necessary to establish that the lady had some streedhun, we think there is sufficient evidence of that fact to justify the grant of probate. But it is not necessary, in our opinion, to enter upon these considerations, because we think that, upon an application for probate of a will, so long as it is made bona fide, it is not the province of the Court to go into questions of title with reference to the property of which the will purports to dispose.
Since the passing of the Succession Act (Act X of ???) no executor can make title to any property of ??? testator, whether disposed of by the will or not, nor can be ??? for or claim any such property, or clothe himself with his representative character for the purpose of ??? or paying debts, or otherwise legally inter meddling with ??? the affairs of the testator, without first obtaining ??? of the will. Nor, again, can any person, who may be interested under the will, devisees or others to whom property is bequeathed, make any title or attempt to ??? their right to it, unless probate of the will has first been ???. On the other hand, it is clear that the grant of ??? to the executor does not confer upon him any title to the ??? which the testatrix had no right to dispose of. It ??? perfects the representative title of the executor to the ??? which did belong to the testatrix and over which she had a ??? posing power.
??? Phillips endeavoured to make a distinction in the case ??? made by Hindoo widows, upon the ground that prima fide they have no right to make a will; and this apparently one of the considerations which influenced the Judge in Court below. But there is no rule of law that we are ??? of which forbids a Hindoo widow to make a will of ??? which belongs exclusively to herself. She cannot, ??? for special purposes, alienate her husband's estate by ??? or otherwise, because she has only a life interest in it. But ??? only like other persons in that respect, and the grant of ??? to the executor in this case will not prejudice in any ??? the objector's right, if the property really belong to him ??? to the testatrix.
??? Phillips also argued that, under section 240 of the ??? Act, the Judge had no right to grant probate, ??? testatrix in this case had a fixed place of abode, and some ???, moveable or immoveable, within the jurisdiction of the ??? Court. But this is really an objection to the jurisdiction of the Judge, and it was never raised in the Court below; ???, if it had been, it appears that the testatrix had ??? abode at the time she died within the district. We are ???, therefore, that the judgment of the Court below ??? be reversed, and that probate should be granted to the ??? in accordance with the petition.