A creditor of an heir has the locus standi to apply for the revocation of a probate if the grant was obtained fraudulently, as they are a party injured by such fraud.

Judgement

Appeal (No. 6 of 1942) from a decree of the High Court (August 9, 1939) which reversed a decree of the District Judge of Pabna (June 22, 1936).

The suit which gave rise to this appeal originated in an application made by the respondents to set aside probate of the will of Haralal Saha, the deceased husband of the appellant, which had been granted to her.

28 Law. Rep. 71 Ind. App. 1 ( 1943- 1944) Sarala Sundari Dassya V. Dinabandhu Roy Brajaraj Saha

129

The following facts are taken substantially from the judgment of the Judicial Committee The circumstances were that Haralal Saha was a man of some age, who had been very successful in his business, which was principally that of a moneylender. He owned immovable property in several districts in Bengal and in one district outside. He died in 1927, and, on his death, there was no doubt that his three sons who survived him took possession of the properties. In some instances they had joined in a suit with their mother, and they were substituted for their father in a partition suit. They got a certificate of succession to enable them to sue on certain debts which were due, no doubt, on the moneylending business. They collected the rents of the immovable properties, and they proceeded, both they and the widow, precisely as they would have proceeded if there had been an intestacy. It would appear that the sons did not pursue the moneylending business which, at any rate in five or six years time, had, as the learned judges of the High Court found, disappeared ; but they had in the name of a company conducted a business in electric lighting equipment, and they had incurred a debt to the present respondents, also for the purpose of their business, of Rs. 5000. In November, 1933, the respondents had obtained a decree against them for Rs. 5000 odd. At that time they were in financial difficulties, as was shown by the fact that in the next year they were adjudicated insolvent.

On March 27, 1933, more than six years after the death of the alleged testator, the present appellant applied for, and was granted, probate of a will, which she produced then for the first time, and by which the bulk of the immovable properties were left to her. On August 5, 1935, the respondents filed the application which gave rise to this appeal for revocation of the grant of probate. In their petition the respondents alleged that the will had been propounded by the appellant with the sole object of defeating the claim of the respondents against her sons. In their grounds they claimed, inter alia, that the will was a forgery, and that it did not bear the genuine signature of the testator. The appellant contested the respondents application, which was thereupon converted into a suit.

The main questions in this appeal were whether the respondents had a locus standi to apply for revocation of the probate, and whether the will was a forgery.

The relevant provisions of the Indian Succession Act, 1925, appear from the judgment of the Judicial Committee.

The District Judge and, on appeal, the High Court (Mitter and Akram JJ.) were of opinion that the respondents had a locus standi to apply for revocation and the High Court, contrary to the view of the District Judge, held that the will was a forgery. In the result the suit was decreed by the High Court, and the probate was revoked.

1943. Nov. 1, 2. Sir Thomas Strangman K.C. and U Sen-Gupta for the appellant. The respondents had no locus standi to apply for revocation of the probate granted to the appellant, for the proceedings to obtain such probate were not defective in substance or fraudulent. Section 263 of the Indian Succession Act, 1925, deals with the grounds on which probate may be revoked, which include that the grant was obtained fraudulently ; and under s. 283 of that Act a person who can apply to see the proceedings before the grant of probate must be someone who has an " interest in the estate of the deceased." The respondents unquestionably have an i