(Mahant) Ram Das vs Prem Das

Macpherson, J.—In this appeal we have not found it necessary to call upon the respondents.

It is preferred from a decision of the District Judge of Patna rejecting an application of February 1929, for revocation of a probate granted in 1916 of the unregistered will of one Beni Das, dated 21st Jeth, 1321 F.

The first petitioner states that he is Mahant of the Piparpanti mutt in the district of Monghyr to which the Pundark math in the Patna district, of which Beni Das, deceased, was Mahant, is subordinate. The other two petitioners state that they and Beni Das were descended from Mahant Nanak Baksh Das as shown in the genealogy annexed to the petition. They all set out that Prem Das who has obtained probate, having accepted the post of pujari under them and having in 1927 refused to account for the proceeds of the properties they made inquiry and learnt of the will for the first time, where upon they filed a regular suit but were confronted with the difficulty that the genuiineness of the will could not be gone into except in the probate Court. It is admitted that in the regular suit mentioned they claimed that the properties in suit did not belong to the testator but were properties of his mutt or of the Thakurji. In their application for revocation they also set out as follows in para. (9):

For that the applicant obtained the grant of probate fraudulently also by concealing from the Court the fact that Beni Das had no property of his own and all the properties datailed in his petition belonged either to the mutt or to the Thakurji and thus no citation was issued to the ultimate Mahant your petitioner No. 1.

4 Upon this issue No. 5 was framed:

Are the applicants disqualified from maintaining this application by their denial in para. 9 there of that the testator had any estate of his own.

This reference is of course to Section 283(1)(c), Succession Act, under which a citation is to be issued to all persons claiming to have any interest in the estate of the deceased and the numerous decisions that a person disclaiming interest in the estate is not entitled to citation and has no locus standi in the Probate Court. When this issue was framed the petitioners-appellants applied to withdraw para. (9) of their application on the ground that the averment therein contained that the properties detailed in the application for probate never belonged to Beni Das is liable to misconstruction, and purported to explain their ground for revocation as really heirship.

The application was rejected by Mr. Wali Mahomed as inconsistent and confusing, and when the case came to trial his successor cited numerous rulings, including Abhi Ram Das v. Gopal Das [1889] 17 Cal. 48, Srigobind Pershad v. Mt. Laljhari Kuar 2 Ind.Cas. 402, Kalajit Singh v. Parmeshar Singh 39 Ind.Cas. 573, Mt. Mahasundar Kuar v. Ratan Prasad Sahi 35 Ind.Cas. 416, Devendra Prasad Sukul v. Surendra Prasad Sukul [1920] 5 Pat. L.J. 107, and came to the conclusion that, on the state of the authorities which could not be distinguished and which were binding upon him, he had no option but to hold that the petitioners had no locus standi to maintain the application to revoke the grant of probate.

Mr. Baldeo Sahay on behalf of the appellants eventually comes to the position that he cannot withstand the weight of authority which has been cited. Indeed there are also other decisions to the same effect: Pirojshah Bikhaji v. Pestonji Merwanji [1910] 34 Bom. 459 and Gopal Chandra Bose v. Asutosh Bose 20 Ind.Cas. 342 and the law may be taken to be settled.

But the learned advocate strenuously contends that the rulings cited do not cover his case inasmuch as petitioners 2 and 3 are heirs of the deceased in any view of the case. To my mind the petition itself in particular para. (3) taken with the genealogy by which it is expressly controlled, goes to show that petitioners 2 and 3 are not at all blood relations of the deceased Beni Das. The genealogy is a mixture of blood and spiritual relationship and a perusal of it leaves no room for a claim that there is any actual relationship at all between the deceased and petitioners 2 and 3. The application for revocation is really based upon the same dispute as to title as the civil suit is. There is indeed a definite allegation that the deceased had no estate, and the substance of the application is that the properties which the testator purported to make over by will were properties which he held not in his personal but in his official capacity and which actually belonged to the mutt or the Thakur. In my mind it is clear that the decision under appeal is correct and that the petitioners had no locus standi to maintain the application for revocation of the probate.

I would accordingly dismiss the appeal with costs; hearing fee five gold mohurs.

Fazl Ali, J.

I agree.