Madhab Prosad Rigmi vs Havildar Dutta Thapa and Another

Thadani, C.J.—This is a revision application under Rule 36 of the rules framed for the administration of justice in the K. & J. Hills, directed against an appellate order passed by the learned Additional. Dominion Agent, Khasi States, dated 1-8-49, by which he affirmed the judgment & decree of the Trial Court, namely, the Assistant Dominion Agent, who had dismissed the plffs. suit with, costs.

The suit before the Assistant Dominion Agent was instituted in September 1947, in the following circumstances. One Sobarna Devi, died in Benares on 15-11-38 Her husband, Havildar Putkey Thepa, had predeceased her at Quetta during the earthquake of 1935. When Sobarna Devi went to Benares, she was escorted by defdt. 2 one Subedar Durga Thepa, who left her in the house of the plff. Shortly afterwards, Sobarna Devi is alleged to have executed a will by which she left all her movable & immovable properties to the plff. The plff. was appointed the sole executor under the will. After the death of Sobarna Devi, the plff. applied for a probate of the will in the District Court at Benares in Misc. case No. 6 of 1939 of that Court. The probate was granted to the plff. on 17-9-46. On the strength of this probate, he brought a suit in the Court of the Asst. Dominion Agent, Khasi States, on 3-9-47, claiming certain property which was situated in the administered area of Shillong and was in possession of the defts. The defts. denied the right of the piff. to bring & suit on the strength of tha probate granted to him by the District Court at Benares.

Upon the pleadings, some 14 issues were framed by the Asst. Dominion Agent, Khasi States, but he dismissed the suit on the sole ground that the plff. had failed to prove his representative character and was not, therefore, entitled to bring the suit. On appeal, the, learned Addl. Dominion Agent, Khasi States, was not content to dismiss the, suit on the ground upon which the Trial Court had dismissed it, but Went into the merits of the case on issues Nos. 7 and 10--issues upon which the Trial Court had not given any finding and came to the conclusion that the deceased was not competent to make a will.

Since the decision of the appeal on 1-8-49 by the Addl. Dominion Agent, Khasi States, certain complications have arisen. The probate, as originally granted on 17 9-46, made no reference to any certificate. In January 1950, it incorporated a certificate to the following effect:

It is further certified that the value of property & estate affected beyond the limits of the Province does not exceed Rs. 10,000 & therefore, this certificate shall have effect throughout the whole of Indian Dominion.

After 26-1-50, the Indian Dominion as such having ceased to exist, the plff. made a second application to the Dist. J. Benares, to certify that the probate was effective throughout the Union of India; the amended certificate was given on 3-4-50 during the pendency of this revision application. The certificate was in due course forwarded to this Court.

Mr. Ghose for the petitioner contends that the amended probate, dated 3-4-50, being effective throughout the Union of India, is conclusive & that the judgment of the appellate Court on the 7th & the 10th issues cannot, therefore, be sustained. I am unable to accept this contention in view of the principle enunciated by the learned Judges of the Allahabad High Court in a F.B. case reported in Fateh Chand v. Muhammad Bakhsh 16 ALL 259 , which was later followed by a Division Bench of the same High Court in a case reported in Kasumari Das Vs. Makku and Others, In these two cases, the plffs. who were the legal representatives, had not produced before the Trial Court a Succession certificate & the suit was dismissed after time had been given to the plffs. to produce such a certificate. It was held that a certificate produced at the appellate stage for the first time could not be given retrospectives effect.

I wish however to make a few observations as to the propriety of recording findings by an appellate Co art, upon issues in respect of which the Trial Court has deliberately refrained from recording its finding. The Trial Court in this case refrained from giving any decision on the other issues in the suit except the one upon which it non-suited the plff. If the learned Additional Dominion Agent, Khasi States, wished to dispose of the other issues in the suit as well, I think the proper course for him was to remand the appeal to the Trial Court for recording its findings on the remaining issues. It may be that there was material before the appellate Court on issues Nos. 7 & 10, but having regard to the fact that the Trial Court expressed to opinion as to the validity of the will, I do not think that the learned appellate Judge was justified in recording his findings upon issues Nos. 7 & 10. I have made these observations because I am given to understand that the plff. may file Anr. suit on the strength of the amended probate, dated 8-4-50. I do not wish to express any opinion as to the effect of the findings of the learned Appellate Court on issues Nos. 7 & 10, but I wish to say that these findings in my opinion were wholly unnecessary in view of the findings of Trial Judge on the issue on which he non-suited the plff.

With these observations, the revision application is dismissed, with costs. Hearing fee Rs. 30. The Rule is discharged.