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HIGH COURT OF CALCUTTA
P. C. Mallick
GOPI DEBI MEMANI - Appellant
Versus
CHUNILAL KOTHARI - Respondent
Testamentary Suit 4 Of 1954
Decided On : MAY 14, 1962
INDIAN SUCCESSION ACT, 1925 - SECTIONS 246, 254 - LETTERS OF ADMINISTRATION - GRANT TO DAUGHTER OF DECEASED - LUNACY OF WIDOW - APPOINTMENT OF FIT PERSON UNDER SECTION 254 - CONSANGUINITY, AMOUNT OF INTEREST, SAFETY OF ESTATE AND PROBABILITY OF PROPER ADMINISTRATION - GRANT TO BROTHER OF LUNATIC WIDOW.
Fact of the Case:
The deceased, Meghraj Kothari, died intestate leaving behind a widow, Gahar Bai, who was of unsound mind, and a daughter, Gopi Debi. Gopi Debi applied for Letters of Administration to the estate of her father, claiming that she was the sole heir. The application was contested by the three brothers and a nephew of the deceased, who claimed that Meghraj had executed a will appointing them as executors and that Gopi Debi's title was disputed by custom.
Finding of the Court:
The court held that the application for Letters of Administration could not be dismissed on a preliminary objection by way of demurrer under Section 246 of the Indian Succession Act, 1925, as the application was not made under that section and the sole beneficiary in the estate was not admitted to be a lunatic. The court further held that the petitioner, as the only daughter of the deceased, had an interest in the estate and was entitled to apply for a grant. However, the court found that the widow, Gahar Bai, had a preferential claim to the estate and that, due to her lunacy, an appointment under Section 254 of the Act was required.
Issues: 1. Whether the application for Letters of Administration could be dismissed on a preliminary objection by way of demurrer under Section 246 of the Indian Succession Act, 1925? 2. Whether the petitioner, as the only daughter of the deceased, had an interest in the estate and was entitled to apply for a grant? 3. Whether the widow, Gahar Bai, had a preferential claim to the estate and whether an appointment under Section 254 of the Act was required due to her lunacy?
Ratio Decidendi: 1. The court held that the application for Letters of Administration could not be dismissed on a preliminary objection by way of demurrer under Section 246 of the Indian Succession Act, 1925, as the application was not made under that section and the sole beneficiary in the estate was not admitted to be a lunatic. 2. The court held that the petitioner, as the only daughter of the deceased, had an interest in the estate and was entitled to apply for a grant. 3. The court held that the widow, Gahar Bai, had a preferential claim to the estate and that, due to her lunacy, an appointment under Section 254 of the Act was required.
Final Decision: The court appointed Gangadas Benani, the brother of the lunatic widow, as the administrator of the estate, considering him to be the fittest person having regard to consanguinity, amount of interest, safety of the estate, and the probability of proper administration.
( 1 ) THIS is an application by Sm. Gopi Debi Memani for grant of Letters of Administration to the estate of Meghraj Kothari, who died on April 18, 1953. The petitioner is the only daughter of Meghraj who died leaving no son, but the petitioner as his only daughter and a widow named Gahar Bai. The widow at the time of the death of Meghraj was of unsound mind. She was not, however, adjudged a lunatic, nor has a manager been appointed by the Court of her estate. Meghraj left also other relations whose names are set out in paragraph 3 of the petition. They are three brothers -- Chunilal, Hiralal and Kanhaialal -- and two nephews by a predeceased brother as also the father's mother. The present petition was presented on May 26, 1953 and there was an order directing notice to be served on the caveators to file affidavits. Special citations were ordered to be issued to the relations named in paragraph 3 of the petition. The caveators referred to are the three brothers and a nephew. It is alleged that the properties Meghraj died possessed of are separate properties. The deceased was separated from the coparcenary before his death. It is further alleged that the widow of Meghraj -- Gahar Bai --is a lunatic since 1944 and that either Gahar Bai or the petitioner has become in law entitled to the estate left by Meghraj. The assets have been valued at Rs. 2,50,000/ -. It is to be noted that though in the petition the title of the widow to inherit the estate hag not been categorically denied, in the affidavit of assets the petitioner describes herself as "the only daughter and heir and legal representative of Meghraj Kothari who died intestate. " She does not state however that she is the sole heir.
( 2 ) THE grant is being contested by the three brothers -- Chunilal, Hiralal and Kanhaialal --and the nephew Srigopal. They are the defendants in this action. They filed a joint affidavit in support of caveat. It is alleged that Meghraj died after having executed a will dated October 6, 1952, whereby the three brothers have been appointed executors. A copy of the will is annexed to the affidavit. It is also alleged that an application for grant of probate has already been made on June 5, 1953. It is further alleged that apart from the self-acquired properties, Meghraj died possessed of joint property which has devolved by survivorship on the other coparceners, including one Giridharilal who was adopted as a son by Meghraj on October 2, 1952. Girdharilal is the son of Chunilal a brother of Meghraj and a defendant. Gopi Debi's title has therefore, been disputed. Another ground on which Gopi Debi's title is disputed is that by custom prevailing at Bikaner a married daughter can never inherit the father's property. It is admitted that Gahar Bai' is a lunatic, as alleged. It is submitted that citation should be issued to Giridharilal who is vitally interested in the estate. Apart from being one of the legatees under the Will in respect to self-acquired properties, Gopi Debi's title to the estate has been disputed. It is contended that the application is misconceived and has been brought mala fide and the applicant is not entitled to the grant.
( 3 ) IN due course, both the proceedings in the above goods, namely, the proceeding for grant of probate and the proceeding for the grant of Letters of Administration were marked as contentious cause. According to the Rules, they have been registered and numbered as suits. The probate suit was heard by me first. The suit was not proceeded with by the alleged executors. By my order dated August 17, 1961, the application for grant of probate was dismissed with costs. The other application for grant of Letters of Administration to the daughter on the basis of intestacy is now before me.
( 4 ) THE learned Standing Counsel appearing for the caveators took a preliminary point by way of demurrer. His contention is that Section 246 of the Indian Succession Act will apply to the facts of this ca
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