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  • (c) of sec. 50 of the Probate and Administration Act
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  • (c) of sec. 50 of the Probate and Administration Act
Smart Summary

Judgment Summary — Application under Section 50, Probate and Administration Act

Factual and Procedural Background

The present appeal arises from an application under section 50 of the Probate and Administration Act seeking revocation of letters of administration with the Will attached that had been granted to Umasundari Debi (the testator's mother) on 21 May 1875.

Key facts as stated in the opinion:

  • Paramatma Lal Goswami executed a Will on 5 April 1875 and died the same day, survived by his mother Umasundari and his wife Sourabini (who was then enceinte).
  • Umasundari had the Will registered on 6 April 1875 and applied for letters of administration with the Will attached on 24 April; an order for those letters was made on 21 May 1875 and letters issued on 18 June 1875.
  • Sourabini gave birth to a daughter, Durgagati (the present applicant), on 12 September 1875.
  • Between 1876 and 1881 there were proceedings in which Sourabini sought administration and revocation; those attempts were unsuccessful, and on 11 May 1881 a judgment in favour of Sourabini was confirmed by this Court. Sourabini thereafter was in possession of the property as widow and life tenant.
  • Subsequently Sourabini adopted a son under a power in the Will; the applicant Durgagati claims she only became aware of the adoption in April 1896.
  • Durgagati filed the present application for revocation on 12 April 1902 seeking that the Will be proved in solemn form and, indirectly, aiming to have the adoption declared invalid.
  • The application was heard by Mr. Roe (District Judge) who restricted the applicant to proving fraud as a prerequisite to further evidence; later Mr. Platel (successor District Judge) followed that approach and dismissed the application for failing to make out fraud.
  • The present appeal is from that dismissal.

Legal Issues Presented

  1. Whether an applicant for revocation of letters of administration with the Will attached must, in the first instance, prove fraud as a prerequisite to being permitted to contest the validity of the Will (i.e., the scope of permissible grounds under section 50 of the Probate and Administration Act).
  2. Whether, under illustration (c) of section 50 or sub-section 3 of the same section, the applicant could challenge the Will as a forgery or show that the grant was obtained by misrepresentation due to ignorance or inadvertence.
  3. Whether the English practice (as described in Tristram and Coote's Probate Practice) permitting a reversioner to impeach a common-form grant without limitation as to time is applicable in the Indian probate practice governed by the Probate and Administration Act.

Arguments of the Parties

Appellant (Durgagati) — Arguments advanced by her counsel

  • Mr. Roe was wrong to require that the applicant must prove fraud in the first instance before being allowed to contest the Will.
  • The applicant could rely on illustration (c) of section 50 to prove that the Will was a forgery.
  • The applicant could rely on sub-section 3 of section 50 to show that the grant had been obtained by some misrepresentation due to ignorance or inadvertence.
  • On authority of English practice (Tristram and Coote's Probate Practice) a party interested as a reversioner, whose interest is adversely affected by a grant made in common form, is entitled without limitation as to time to call in question the grant and require proof of the Will in solemn form.
  • Earlier, before Mr. Roe, the contentions raised on behalf of Durgagati included that no citation had been served (because she was unborn when proceedings purportedly occurred) and that prior proceedings by Sourabini were fraudulent (alleging collusion prejudicial to Durgagati's rights).

Respondents (Umasundari / Sourabini) — Account of their arguments

The opinion does not contain a detailed account of the respondents' separate legal arguments. The record reflects factual steps taken by Umasundari and Sourabini (registration of the Will, obtaining letters, prior proceedings) and the procedural posture relied upon by the Court (that revocation after grant is governed by section 50), but no distinct, detailed respondent brief is set out in the text.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
This Court's 1877 judgment (opinion of Mr. Justice Markby) on the earlier appeal by Sourabini Debi The principle that "when probates or letters of administration have once been granted they can only be revoked or annulled on the grounds stated in that section" (referring to sec. 234 of Act X of 1865, equivalent to sec. 50 of the Probate and Administration Act). The judgment expressed that the Court ought to abstain from considering the true validity of the Will in such a revocation application and from reconsidering the original grant at that stage. The Court in the present appeal followed and applied this view, holding that revocation after grant is governed by the grounds in section 50 and that the District Judge was correct to require the appellant to make out a case under those grounds (here, fraud) before going into the validity of the Will.
Katama Natchier v. Raja of Shivagunga The opinion cites this case as supporting the proposition that a party would be bound by a prior decision affecting the estate unless able to make out a case to set it aside (as to preclusive effect of earlier judgment). The Court cited this authority to support the point that the present petitioner (claiming as next heir) would be bound by the earlier decision in the 1876 proceedings unless she could establish collusion or other grounds to avoid that decision.
Pertab Narain Singh v. Triloki Nath Singh Used similarly as a supporting authority for the binding effect of earlier adjudication on subsequent claimants. Referenced to reinforce that the petitioner would be bound by the prior decision unless she could make out the exceptional case (for example, collusion) urged before the District Judge.

Court's Reasoning and Analysis

The Court proceeded by tracing the chronological and procedural history and then addressing the legal contentions raised on behalf of the applicant. The analysis can be summarized in the following steps, strictly as presented in the opinion:

  1. The Court recognized the form of the relief sought: revocation of letters of administration with the Will attached under section 50 of the Probate and Administration Act.
  2. The applicant's counsel contended that she could impugn the Will either as a forgery (illustration (c) of sec. 50) or under sub-section 3 for misrepresentation due to ignorance or inadvertence; he also relied upon English practice permitting a reversioner to challenge common-form grants without temporal limitation.
  3. The Court observed that Indian probate practice (particularly in mofussil courts) is governed by the Probate and Administration Act (secs. 62–78) and that historically in many mofussil courts sec. 69 practice—examining witnesses before grant—was followed, resulting in an ex parte grant after witnesses had sworn. However, once a grant (probate or letters with Will attached) is made, the only statutory procedure for revocation is that provided by sec. 50.
  4. The District Judge (Mr. Roe) had held that the applicant, initially, must make out a case of fraud before being allowed to go into other matters; that is, proof of fraud was required to entitle the applicant to further evidence. The applicant had earlier raised two contentions: (a) that no citation had been served (she was unborn), and (b) that earlier proceedings by Sourabini were fraudulent (collusion with Umasundari). Mr. Roe rejected the first point on the ground of the applicant's unborn status at the time and required proof of fraud for the second point.
  5. Attempts to prove a different species of fraud (that the Will itself was a forgery) were met by refusal from the District Judge to enter into the question of the Will's validity until the petitioner had established grounds for revocation under sec. 50.
  6. The Court relied on the earlier 1877 judgment of this Court (Markby J.) which held that grants, once made, "can only be revoked or annulled on the grounds stated in that section" and that the Court ought to abstain from reconsidering the true validity of the Will in a revocation application. The present Court saw no reason to differ from that interpretation of the law.
  7. Applying these principles, the Court concluded that the petitioner had failed to make out the case of fraud before the District Judge and that the District Judge therefore correctly dismissed the application for revocation of the grant.
  8. The Court further noted that, because Sourabini (who had been in possession as life tenant) had earlier failed in her 1876 application for revocation, the present petitioner (claiming as next heir) would be bound by those earlier decisions unless she could establish collusion or other exceptional circumstances — a point supported by the cited authorities.

Holding and Implications

Holding:

APPEAL DISMISSED. The appeal fails and is dismissed with costs. The Court fixed the hearing fee at Rs. 500.

Implications:

  • The direct effect is that the dismissal below is affirmed and the letters of administration with the Will attached granted to Umasundari remain undisturbed by this revocation application.
  • The Court adhered to the interpretation that revocation of a grant already made is governed strictly by the grounds enumerated in section 50, and a petitioner must first establish such grounds (in this case fraud) before being permitted to litigate the intrinsic validity of the Will in that revocation proceeding.
  • The opinion does not assert that a new legal principle or wider precedent is being established beyond reaffirming the prior 1877 view of this Court and the cited authorities regarding the binding effect of earlier adjudications; no broader change in law is identified in the text.

Decision rendered as stated in the provided opinion.

    Durgagati Debi v. Sourabini Debi

    The present appeal arises out of an application made under sec. 50 of the Probate and Administration Act, for the revocation of letters of administration with the Will attached granted to Umasundari Debi, the mother of the testator, on the 21st of May 1875.

    The testator, Paramatma Lal Goawami, executed a Will on the 5th of April 1875 and died the same day leaving him surviving his mother Umasundari and the wife Sourabini who was at that time enciente. On the 6th of April the mother Umasundari applied to the Sub-Registrar, and bad the Will registered at her house on that day. Then, on the 24th April, she applied for letters of administration with the Will attached; and, on the 21st May 1875, an order was passed granting the issue of letters of administration with the Will attached; and, on the 18th June 1875, letters of administration were in fact issued to her. Sourabini Debi, the widow of the deceased, gave birth to a daughter, Durgagati, the present applicant, on the 12th September 1875; and, on the 3rd July 1876, Sourabini applied for the grant to her of letters of administration to the estate of her husband and at the same time stated that Umasundari, to whom letters of administration had previously been granted, wished to be relieved of the administration. A petition was put in purporting to be a petition from Umasundari, consenting to the application. But on the 19th July 1876, another petition was put in by Umasundari herself disclaiming the genuineness of the petition put in on her behalf on the previous 3rd July and objecting to the grant of the letters of administration to Sourabini Debi. Sourabinl's application appears then to have been rejected; and, on the 2nd August 1876, Sourabini put in two applications, one applying for revocation of letters of administration with the Will attached granted to her mother-in-law on the ground that the mother-in-law had concealed facts contained in the Will; and the second petition applying for letters of administration for ???. The application for revocation was rejected; and on appeal to the High Court ??? the 19th June 1877 that decision was confirmed. On the 22nd July 1878 Sourabini brought an administration suit against Umasundari claiming an account from her and praying that Umasundari should be directed to make over the property left by Sourabini's husband to her as his widow. On the 17th February 1879, judgment was passed in favour of Sourabini by the District Judge, and on the 11th of May 1881 that judgment was confirmed by this Court. Since that time Sourabini appears to have been in possession of the property left by Paramatma Lal Goswami as his widow. In February 1886 the daughter, the present applicant, Durgagati, was married; and on the 15th of August 1894 Umasundari, the mother of Paramatma, died. About that time,—the exact date is not stated,—Sourabini under the power given in the Will of her husband adopted a son and the case of the applicant is that she knew nothing about this power of adoption or that her mother had adopted a son, until April 1896. On the 12th of April 1902, Durgagati presented the present application for revocation of the letters of administration with the Will attached, which had been granted to Umasundari in order that the Will might be proved in her presence in solemn form. Her object, or rather the object possibly of the persons who are behind her in these proceedings, was to have the adoption of the son by Sourabini declared invalid and set aside. This application first came up before Mr. Roe as District Judge and, on the 27th ??? August 1903, he delivered a judgment ??? with the grounds taken on behalf ??? Durgagati by her Counsel and holding ??? in order to make out a case for vocation of ??? the grant she must prove fraud, and refusing to allow her to enter into evidence on any other point until that allegation had been proved. Objections were put in afterwards on behalf of Durgagati when Mr. Roe had left the District and had been succeeded by Mr. Platel, with the object of avoiding this decision of Mr. Roe; but in the end Mr. Platel, the District Judge, followed that decision and having confined Durgagati to proving that fraud had been committed, he held that she had failed to make out a case, and accordingly dismissed the application.

    The present appeal is now preferred on behalf of Durgagati, the applicant; and, on her behalf it has been argued that the District Judge, Mr. Roe, was wrong in holding that she had in the first instance to prove fraud. It is contended that it was open to her under illustration (c) of sec. 50 of the Probate and Administration Act to prove that the Will was a forgery or under sub-sec. 3 of the same section to prove that the grant had been obtained by some misrepresentation which was due to ignorance or inadvertence. It was further argued on the authority of the English practice as described in Tristram and Coote's Probate Practice, 13th Edition, p. 353, that Durgagati being a party interested as reversioner in the estate of the deceased whose Interest had been adversely affeoted by the grant of letters of administration with the Will attached made in common form was entitled without limitation as to time to call in question the grant and put the party who obtained it or her representative upon proof of the Will in solemn form. It must, however, be observed that the practice in probate and administration suits, is in India, at least so far as mofussil Courts are concerned, governed by the Probate and Administration Act and is laid down in secs. 62 to 78 of that Act. Until late years it had been the usual practice in the mofussil Courts to proceed under sec. 69 of the Act and to issue citations and to examine witnesses to prove due execution of the Will before the grant of probate or of letters of administration with the Will attached; and from the written statement filed in this case it would appear that this was the praotice followed before the grant was made to Umasundari. This is not quite the same as a grant of probate in common form, for the grant is made after the execution of the Will has been sworn to by the witnesses to the Will and the only circumstance which distinguishes it from the grant in solemn form is that the grant is made ex parte. After the grant of probate or letters of administration with the Will attached has been made, the only procedure provided by the law for the revocation of such a grant is that laid down in sec. 50 of the Act, and this, indeed, seems to have been realised by the present applicant and was the course which was adopted on her behalf by her Counsel. It seems that before Mr. Roe the grounds taken on behalf of Durgagati by her Counsel were, first, that no citation was served upon the Petitioner Durgagati and secondly, that it was apparent that the proceedings of the former Petitioner Sourabini Debi were fraudulent. Mr. Roe held that the first contention could not prevail, as Durgagati being at the time unborn could not be served with a citation, and he found, so far as the second point was concerned that before she could succeed the Petitioner must make out the case of fraud which was then alleged. So far as we can judge from the record, the fraud which was then alleged was collusion between Sourabini and Umasundari by which the rights of the present Petitioner were prejudiced. After adjournment it was attempted apparently before Mr. Platel to prove what was a different case of fraud, namely, that the Will was a forgery, and an attempt was made before that Judge to prove that the document produced was not in fact the Will of the deceased. The District Judge, however, refused to go into the question whether the Will was or was not the Will of the deceased, holding that until the case for revocation had been made out the Petitioner was not entitled to go into that matter; and, in arriving at that conclusion he appears to have been guided by the opinion expressed by this Court in 1877 on the appeal by Sourabini Debi in the case which she then brought against Uma-sundari for revocation of the letters of administration. Mr. Justice Markby in his judgment remarks “I think the meaning of the law is this,—that when probates or letters of administration have once been granted they can only be revoked or annulled on the grounds stated in that section” (referring to sec. 234 of Act X of 1865, which are the same as those of sec. 50 of the Probate and Administration Act). “I think ??? that the District Judge was ??? when upon this application he ??? into a consideration of the true ??? of the Will. And, although we had been asked to consider that matter upon this appeal, I think we ought to entirely abstain from doing so. And we ought also to abstain from considering whether or not if the original application had been now before us or if the order upon that original application had been appealed from to us, we should have made the grant which the Judge then made. I think we are not under the law at liberty to consider that now.” We see no reason to differ from the view of the law as laid down by this Court in that judgment; and, we think as the Petitioner failed to make out any case of fraud before the District Judge that the District Judge was right in dismissing the application for revocation of probate. We may also add that after Sourabini, who was then in possession of a life interest in the properties of her husband after his death, had failed in 1876 in her application against Umasundari for revocation of the letters of administration granted to her with the Will attached, the Petitioner who claims to be the next heir to Sourabini and would be the next heir if the Will were set aside, would be bound by the decision in that case, [see Katama Natchier v. Raja of Shivagunga and Pertab Narain Singh v. Triloki Nath Singh], unless, she were able to make out the case, which her Counsel tried to support before Mr. Roe in 1903, that there was collusion between Uma Umasundari ??? and Sourabini Debi in those ???. This certainly has not been ???.

    The result is that the appeal fails and dismissed with costs. We fix the hearing fee at Rs. 500.

    S.C.S
    N.G
    Appeal dismissed.

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    Comments

    Durgagati Debi v. Sourabini Debi
    (Jun 7, 1906)