P L D 1954 Dacca 155 (PLP)

ISPAHANI, J.‑‑This is an appeal by the defendants against the judgment and decree passed by the learned District Judge, Faridpur, on the 29th April 1948, in a Probate suit. The suit was filed for Letters of Administration in respect of the properties left by the deceased Kanai Lal Mondal of Betgram village. The said Kanai Lal Mondal held certain properties being 2 raiyati holdings, one consisting of R. S. Dag No. 654 measuring 7'88 acres recorded in Khatian No. 97 of Mouza Betgram, and another consisting of R. S. Plot Nos. 7, 43, 95, 97, 622, 623 and some other plots measuring in all 6'86 acres recorded in Khatian No. 317 of the same Mouza. He died sometime in the first part of Bhadra, 1334 B. S. leaving Ananda Moyee Mondal his widow Bishur Dasi, a rriarried daughter and Bengi Dasi alias Jashu alias Jashoda, an unmarried daughter and Kutiswar Sikdar, his nephew as his heirs. Before his death he executed a Will on the 25th Sravan, 1334 B. S. at Mochna village where Kutiswar resided in respect of all his properties whereby he appointed his nephew Kutiswar as executor. According to the provisions of the Will, Kutiswar after the testator's death was to get 3 bighas of land out of the Jama recorded in Khatian No. 97 of Mouza Betgram but the rest of the properties were bequeathed to his widow Ananda. Moyee Mondal for life and after her death to his two daughters. On the strength of the Will, Kutiswar executed a Kabuliyat in favour of Khetra Bala Basu the landlord on the 9th Aswin, 1333 B. S., corresponding to the 27th September 1927, in respect of 1'97 acres of land. After that Kabuliyat Kutiswar died and his sons Jagadish and Dinabandhu transferred the Kabuliyat lands to the plaintiffs for Rs. 800 by a registered Kabdla, dated the 14th Sravan, 1353 B. S., corresponding to the 1st August 1946. The testator's widow Ananda Moyee Mondal also leased out some of the lands to various people and sold some lands by a registered Kabala to some of the lessees and as the lessees and kabaladars were interfering with the plaintiffs' possession, the present action was brought for Letters of Administration. The suit was contested by some of the defendants who challenged the bona fides of the Will and contended that the Will was not legally executed and attested. They also alleged that the testator had never been to the house of Kutiswar but had died at his own residence in Betgram village. The learned District Judge decreed the suit with costs and ordered that Letters of Administration be issued to the plaintiffs, holding that the Will was legally executed and attested and the testator had sound disposing capacity. From that decision, the present appeal has been preferred. Mr. Nirmal Chandra Nandi, appearing for the appellants, urged two grounds before us, namely that the Court below should have held on the facts and circumstances of the case that the execution and attestation of the Will had not been legally proved and that it had not 'been proved that the testator put his thumb impression on the Will after being apprised of the contents of the same. He next contended that the respondents Nos. 1 to 3 had no locus standi to, apply for Letters of Administration in respect of the said Will. So far as the first ground urged is concerned, we have been taken through the evidence adduced by the parties on the question of execution and attestation of the Will. The Will, as already stated, was executed on the 25th Sravan, .1334 B. S., about a fortnight before the death of the testator in the house of Kutiswar, his nephew. The scribe of ‑the Will is one Ramani Kanta Biswas and the attesting witnesses are Rasik Chandra Chakravarty and Sitanath Ghosh both of Mochna village where Kutiswar resided. The scribe also for the time being was a resident of that village. Out of these persons, the sole surviving witness Sitanath Ghosh was examined on commission. He is an elderly man whose eye‑sight was defective at the time he was examined and when the Will was read over to him from beginning to end, he stated that the Will which was drafted in their presence contained the same contents as that Will. He further deposed that Kanai Lal executed the Will in the presence of the scribe, the other witness and himself by putting his thumb impression and they became witnesses in the presence of Kanai Lal Mondal and the Will was drafted in his presence. The witness, because of the eye defect at the time he was deposing could not prove the thumb impression of the testator on the Will and (lid not say that the contents of the Will were read over to the testator. That defect, however, was removed by P. W. 7, Aswini Kumar Gain, a son‑in‑law of the testator, who was present when the scribe wrote the Will in his presence and the attesting witnesses put their signatures on the Will. He stated that the Will was written at the, desire of Kanai Lal Mondal who put his thumb impression on the same after the Will was read over to him. In addition to this witness, P. W. 1 Jiban Krishna Biswas has proved the signature of the scribe on the Will. He is a son of the scribe and the signature of his father on the Will is marked "Y". We are not prepared to accept the evidence adduced by the appellants to show that the testator was all along residing in his own house and had not visited the house of Kutiswar at 'Mochna where the Will was executed. There is no reason why Ramani Kanta Biswas, the scribe a school teacher, Rasik Chandra Chakravarty, a Professor of Dacca College and Sitanath Ghosh, a pension‑holder would be a party to the execution and attestation of the Will unless the Will was a genuine document. We find from the evidence on record that all the formalities have been observed in the due execution and attestation of the Will and that the Will was executed by Kanai Lal Mondal when he had sound testamentary capacity. So far as this point is concerned, we are in agree ment with the finding of the trial Court. A difficulty, however, arises in regard to the second ground urged before us, namely, the locus standi of the respondents to institute the suit for Letters of Adminis tration. The plaintiffs are transferees of lands from jagadish and Dinabandhu, sons of Kutiswar, in whose favour a bequest of 3 bighas of land was made in the Will. They purchased the land for Rs. 800 in Sravan, 1353 B. S., corresponding to the 1st part of August 1946. Mr. Nandi, appearing for the appellants, has placed various sections of the Succession Act to show that the plaintiffs have no locus standi to file a suit for Letters of Administration and in particular referred to section 232 of the said Act. That section provides amongst others that when the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the Will .a universal or a residuary legatee may be admitted to prove the Will, and Letters of Administration with the Will annexed may be granted to him .In the present case Kutiswar the executor died many ears after the death of the testator and during his lifetime took no steps to prove the Will. There is no material on record to show that during his lifetime, he did anything in respect of the Will for having it proved in a Court of law. When this is the position, the transferees from the heirs of Kutiswar obviously have no locus standi to come before the Court for Letters of Adminis tration. Besides they cannot be held to be transferees from a universal or a residuary legatee having regard to the facts of the present case. No provision of law or any authority has been placed before us by the learned Advocate for the respondents to show that a transferee from the heirs of a specific legatee is entitled to apply for Letters of Adminis tration. We find, therefore, that although our finding is that the Will is genuine, and was legally executed and attested, the suit of the respondents must fail on the ground that they have no locus standi to file the same. The result is that the appeal is allowed and the judgment and decree of the learned District judge are set aside and the suit dismissed. There will be no order regarding costs in this Court and in the trial Court. CHOWDHURY, J.‑

I agree. A.H. Appeal allowed.