S.C. Ghose, J.

1. This is an appeal from an order revoking the probate of awill granted to Muddun Mohun Sircar, the appellant before us. The will is saidto have been executed by the deceased Hurro Mohun Sircar on the 14th Assar 1297B.S. The application for probate was made on the 14th July 1890. On the 25thidem Bishtu Charn Sarma Sircar, alleging that he was one of the heirs of the lateHurro Mohun Sircar, executed a byana patra for the sale of the properties leftby the deceased; and this document states that Bishtu Charn has received fromthe respondents before us, Kali Churn Dey and Srinath Dutt, Rs. 220 out of thesum of Rs. 300 which was fixed as the consideration for the sale. On the 4thAugust following, a caveat was entered by Bishtu Charan; and upon that day hefiled a petition asking for a months time to put in objections to theapplication for probate. This request was granted, and the 4th of September wasfixed for the hearing of the matter. But it appears that on the 29th of AugustBishtu Charn presented a petition to the Court stating that he had learnt uponenquiry that the will propounded by the petitioner was genuine, and that he nolonger objected to probate being granted. The Court accordingly ordered thatupon formal evidence being given of the execution of the will probate might begranted to Muddun Mohun; and such formal evidence having been given on thefollowing day, the 30th August, an order was made granting probate to thepetitioner. Then, on the 6th September, an application was presented by KaliChurn Dey and Srinath Dutt, the respondents before us, setting up the byanapatra from Binhtu Charn, and stating that they were ready to put in theirobjections on the 4th September, but that on that day they learnt that thematter had been disposed of on the 30th August, and alleging at the same timethat a fraud had been practised upon them both by Bishtu Charn and theapplicant for probate. The learned Judge of the District Court, however, so faras one can gather from the record, instituted no enquiry as to the genuinenessof the byana patra transaction, and without any evidence assumed that the byanapatra was true, and acting upon that assumption and upon such materials as werethen before him, he came to the conclusion that a fraud had been practised uponthe respondents, and that the probate must therefore be revoked. He accordinglyrevoked the probate and fixed a day for the hearing of the matter in thepresence of both parties. The present appeal is by the applicant for probate,Muddun Mohun Sircar; and the main ground that has been urged before us by thelearned vakil on his behalf is, that the respondents Kali Churn Dey and SrinathDutt have no locus standi in this matter, and that the order made by theDistrict Judge recalling the probate is therefore illegal.

2. The argument that has been addressed to us turns uponSection 69 of the Probate and Administration Act (Act V of 1881), which statesthat "in all cases it shall be lawful for a District Judge or DistrictDelegate, if he thinks fit, to examine the petitioner in person upon oath, andalso to require further evidence of the due execution of the will, or the rightof the petitioner to the letters of administration as the case may be, and toissue citations calling upon all persons claiming to have any interest in theestate of the deceased to come and see the proceedings before the grant ofprobate or letters of administration," and so on.

3. It has been contended before us that the respondents KaliChurn Dey and Srinath Dutt did not acquire, by reason of this byana patra,supposing it to be genuine, any such interest in the estate of the deceased asto entitle them to come in and oppose or apply for revocation of the probate.In the case of Komollochun Dutt v. Nilrutton Mundle I.L.R. 4 Cal. 360 aDivisional Bench of this Court was of opinion that a purchaser from the heir ofa deceased person has an interest within the meaning of this section, entitlinghim to come in and apply for revocation of the probate of a will said to havebeen executed by the deceased, and the opinion thus expressed has never beendissented from; and I may say that I agree with it. The principle of thisruling applies to the present case, and it seems to us that if it be found uponenquiry by the District Judge--an enquiry which has not yet taken place--thatBishtu Churn actually entered into a contract to sell the property of the deceasedto the respondents, and received the greater part of the consideration money,the respondents have acquired an interest in the estate, such as would entitlethem to come in and ask for a revocation of probate, if it were improperlygranted. As matters stand at present, there is no evidence on the record toshow that this deed of byana patra is true, or that any consideration reallypassed under it.

4. We think, therefore, that the order of the District Judgemust be set aside and the case sent back to him with directions that he shoulddetermine upon evidence, which the parties may adduce, whether or not thisbyana patra is true, and whether the earnest-money mentioned in it passed,before he proceeds to determine the question as to the authenticity of the willpropounded by the petitioner. The costs will abide the result.

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Kali Churn Dey and Ors. vs. Muddun Mohun Sircar (05.08.1892- CALHC)