Chotoo Mahton and Another vs Mt. Lachmi Kuer

Jwala Prasad, J.—This is an application against the order of the District Judge of Patna dated 10th May 1929 passed in a probate proceeding. The applicant for the probate was the widow of one Ragsho Prasad Mahton who died in 1927 leaving behind him his widow and two daughters Ramkala and Ram Kuer. Citation of the notice has been served upon the petitioners who were brothers of the deceased Ragho Prasad. They filed an objection to the grant of probate, urging (1) that the will was a forged one and (2) that the testator was a member of a joint Mitakshara Hindu family of which the objectors were also members, and had no property which could be disposed of by will.

A preliminary issue was raised as to whether the objectors had a locus standi to contest the grant or they should be excluded as claiming an interest adverse to the testator and the estate, and not claiming any interest in the estate. The learned District Judge upon the authority cited by him of the Patna High Court, Kalajit Singh v. Parmeshwar Singh [1917] 1 Pat. L.W. 308, held that the objectors claiming as joint brothers of the deceased Ragho Prasad, testator, had no locus standi to contest the probate. After this the will was proved ex parte and probate was granted on 14th May 1929.

On 13th June 1929 the petitioners filed an application in revision against the order of the District Judge dated 10th May 1929 deleting them from the proceeding and holding that they had no locus standi to contest the grant of the probate. Mr. Khurshaid Husnain on behalf of the opposite party raises a preliminary objection to this right of the applicants to coma in revision to this Court inasmuch as he says that they ;had a right to appeal u/s 299, Succession Act (39 of 1925) the probate shaving been finally granted to the opposite party. There is some substance in this ground.

Apart from this, the petitioners have, as a matter of fact, no locus standi to contest the grant of the probate when they claimed no interest in the estate of the deceased on the ground that he was a member of a Mitakshara joint Hindu family and died in a state of jointness with them. Their objection to the order of the District Judge is that, even if they had no interest in the estate of the deceased testator, they were the reversionary heirs in case it was held that he was separate from them and was in possession of the property which could have been conveyed by will. Hence Mr. Pugh says ''that they have a right to contest the genuineness of the will.

It is not necessary to pursue this matter further inasmuch as they having been not allowed by the District Judge to contest the grant of probate they are not bound by the proceeding and the order made by the District Judge cannot have the effect of conferring a title upon the opposite party in respect of any property which the testator had no right to dispose of. The application is, therefore, dismissed with costs. Hearing fee one gold mohur.