Judgment

SINHA J.: This is an appeal against the judgment and order dated 4-9-1951 of the Calcutta High Court in its appellate jurisdiction reversing those dated 29-8-1950 of a Judge of that Court sitting on the Original Side granting the appellant s prayer for revoking and annulling the probate granted in respect of the last will and testament dated 29-7-1912 of one Binod Lal Ghosh, deceased, whom we shall call the testator in the course of this judgment.

2. The testator is said to have executed a will on 29-7-1912 which was registered on the same date at the Calcutta registry office. By the said will the testator appointed the following five persons as executors or executrices:

1. Anil Nath Basu, Attorney-at-Law

2. Brindaban Chandra Mitter (These two also figure as attesting witnesses to the will).

3. His adopted son Charu Chandra Ghose (whom we shall call Charu for the sake of brevity) a minor on his attaining majority.

4. His wife Haimabati Dasi, and

5. His brother s widow Muktakesi Dasi.

He also directed that on the death of the said Anil Nath Basu, his son Achintya Nath Basu, and on the death of Brindaban Chandra Mitter, his son Debi Prosad Mitter will take their places respectively as executors; and on the death of his wife Haimabati Dasi, Charu s wife Latikabala Dasi, and on the death of Muktakesi. Dasi, his nephew s wife Sushamabala Dasi will take her place respectively as executrix. It is not necessary to set out in detail the legacies created by the will except to state that he created annuities in favour of a number of persons including his wife, his brothers widow Muktakesi Dasi, his daughter-in-law, his niece-in-law aforesaid and Charu.

He also made provision in his will for annual payments in respect of the expenses of certain deifies and festivals, as also for the funeral expenses of himself and the annuitants aforesaid. He directed his executors to accumulate Rs.12,000/- a year out of the balance left after meeting the annuities and the other annual expenses aforesaid to be paid over to Charu upon the death of the said Latikabala Dasi and Sushama Bala Dasi who were to share the residue, if any, after paying the annuities and other outgoings referred to above. It would thus appear that though the testator intended Charu to be the owner of his entire estate including the accumulations after meeting the annuities and the other annual expenses, he did not trust him to the extent of putting that estate into his hands immediately on his attaining majority. He trusted Charu s wife and the other ladies in his family more than Charu himself, though he specifically stated in the will-

"Provided always that the said adopted son shall be deemed to have a vested interest in the said estate immediately on my death."

He appointed his wife Haimabati Dasi as the guardian of the parson and property of Charu and of his wife Latikabala Dasi aforesaid.

3. On 5-3-1920 the testator is said to have been murdered by Charu who was placed on his trial, convicted for murder and sentenced to transportation for life. Charu served his term of imprisonment and was released from jail some time in 1933.

4. On 30-9-1921 an application for probate of the will aforesaid was made on the Original Side of the Calcutta High Court on behalf of Anil Nath, Muktakesi Dasi and Latikabala Dasi aforesaid. The application stated that the testator died on 5-3-1920 at Baranagar, leaving him surviving his adopted son Charu and his widow Haimabati Dasi. The will dated 29-7l912 was recited and the five persons named above were said to have been appointed executors and executrices of the will. It also stated that Brindaban Chandra Mitter, one of the executors named in the will, had died in July 1913 and his son Debi Prosad Mitter was a minor.

It also recited the death of Haimabati Dasi on 22-5-1921, thus explaining why out of the five executors and executrices named in the will the application had been made only on behalf of the surviving three persons. The assets of the testat