196Z

Tift Camnnunt of A..dAta Prodtsh

Sy1d Mohd. KA.Jn

Gajt.ndragadkar J,

294 SUPREME COURT REPORTS [1962] SUPP.

bas to ho tried by the Central Government and it is only after the Central Goyernment has reached the conclusion that the rcspondentH have acquired the citizcnHhip of Pakistan that the appellnnt can issue orders of deportation against. them.

That . being our view, we confirm the writs issued by the

High Court restraining the <ippdlant from giving effect to the impuc:ncd orders of deportation until the question about tho respcmdents' status is deter mined by the Central Government.

There wou hi be no order aR to costs.

Appe-1ls allowed.

MRS. HEM NOLIN! JUDAH (SINCE Dl~CEASEDJ

AXD AFTER HER LEU AL ltEPRESE!'\TATIVE

MR. ?llARLEA!'\ WlLKIN::iON

t'.

MH.S. ISOLYNJ<; SAltO.J BASHINI BOt<;

AND OTHEHS

(P. B. GA.JE:>DHAGAJJI<AH, A. K. SAHKAit and

K. N. 'WAXL'llOO, JJ.)

lrilt-J>rnlirrfe-Leff ers of A rlmin isf7 a! inn -Est alili-'i h nunt of right-l..t:galrr.-Other 111'.rson.~· cla, niinq under leyrllt:c-JJar of cl11i1ns-l'r0Uate procr.t?rli ngs-Titlr--.\T ot dr.f crniin£d-Rcs-jud-icaJa-Estopp(/-l n<tir1n S"ccl!S-inn Act, !92:i(3.fl of J.92;)), s. 21.)

(1)-Co<ie of Cid/ l'roce.fore., 1rws (Acl, .-; nf JflflS) s. 11- .A Jnrlilln Etirl,, nce .1ct, 1872 (I of 1872), ' JJ.-;_

Onr- Dr. Mi~ Mitter \\'ho owncrl a house died leaving her mother and three sisters. The plaintiff repondent filed a

uit for a declaration that she \\'as the OYnier of the house.

Her case \\.'as that the dect:asr.d gave the hou:::c to frs. ~Ion1in (another sister) by a will and Mrs. fo; nin in turn gifted the house to the plaintiff. The cas.-· of Mrs. Judah, the defcndantappellant was that Dr. Miss Miller had bequeathed the house by a will in favour of hr 1noth('r who in turn bequeathed the house to her by a will. !\dmiucdly no probate . of either of the wills alleged to luvc bl'cn made by Dr. Miss

i'fit1er was taken out. The mother died and it was allegec!

3 s.c.R.

SUPREME COURT REPoRTS 295

that she had executed three wills one in favour of each of three daughters.

Applications wore flied by each of the daugr1tcrs for letters of administration each claiming that the will m her favour was the last will of Mrs. Mitter.

Each of the alleged wills include the house in question among the properties of the decea1rd.

The application of the appellant

\\'.iS granted while the other two app1ication vvere rejected.

Appeals were filed by the two sisters whose application were rejected. The appellate court while rejecting their claims for granting letter.s of administration in favout'. of the present appellant. The appellant thereupon appealed to the Privy Council and the Privy Council allowed her appeal. The respondent then filed the suit out of which the present appeal has arisen claizning a declaration that she \Vas the owner of the hous"e in whole or to the extent of two-thirds. The trial

\OUrt found the <lefendantappellant became the owner of the nouse under the will of Mrs. Mitter and the suit of the plai11liff-respondent was barred by res-judicata and estoppel.

Tbe plaintiff-respondent took the matter in appeal to the High Com t. The High Court held that as the will of Dr. Miss Mitter in favour of her mother was not probated the latter did not acquire the house uner the will and therefore the mother alongwith her three da•1gh1ers took equal share in the house.

Since the appellant got the mother's share under lier will and she had got one fourth share of the house in her own right she was entitled to one half share of the house in all. The appellant has come upto this Court on a a certificate granted by the High Court. Apart from the pleos of rcs-judicata and estoppel the appellant contended that it \Vd.S not necessary to obtain probate of the will of Dr. Miss l\1ittcr in favour of her n1other in order to successfully claim the house under the will of her mother in her favour.

field, that s. 218 of the Indian Succession Act is a bar to the establishment of any right under a will by <1:n executor or legatee unless probate or letters of administration have

bt"en obtained. This bar operates irrespective of the fact that the right is claimed by a plaintiff or a defendant in a

uit. The bar .:s not restricted only to cases in whieh the clairn is made by a person directly claiming as a legatee or execL tor Lut it applies also ti) any person who might find it necessary in order to estabUsh the right of some legatee or executor from whom he might have derived title.

Questions of title are not decided in proceedings for the grant of probate or letters of administration and therefore t!ie clecision 9iven in such proceedins Cijnnot oper'l!e Ill

Mrs. B1mNolini

Judah v • ... M,~:Iso/.yn1

Sarojbasini Bos1

.96S

M11. Htm N1Jini

Juot.h

Mts. lsolrrw Sarojbashiru' Bose

If anchoo J.

296 SUPREME COURT REPORTS [1962] SUPP.

res-judicrita in subsequent proceedings relating to the dispute title.

Estoppel r.an arise as is clear fro1n !:. 115 Evidence A.r.1 when one person ha.; by hi-. clecJ..1ati')1, ace, or omissio:1 i11tenrionally c.u1sr.rl or pcnnittcd <1notl1cr pr.rs(>n to bclievr a thing to be true and tr> act on such hcl1ef.

No estopprl arose in the prrscnt c:Jse on the facts.

Ghanshamduss V, r;,,1,11, u; fl•ti, (1927) I. L. R. 50 Med. 'J27, approved.

CrvrL ArPF.LLATJ~ , fL, msoicnox : Civil Appeal No. 273 of 1959.

Appeal from the judgment and decron dated January I it.h 1957, of the Allahauad High Court (Lucknow Bench) 1it LucknDw in firAt Cil'il Appeal No. 16 of 1950 .

Sarjoo Pmsad, k. U<La:; arathnam and S. S.

Sh1tkla, for the appellant.

C. B. Ar1aru:al1 and D. N. :Yf1ikhe1Jee, for respondent Xo. J.

1902. Febrnarv ]().

The Judgment of th " Court wa.s deli 1•ered by

WANCllOO, J.-This appeal on a certificate grnntcd uy the Allahauad High Court arise8 out of a suit filed by l\frs. Bose (plaintiff-respondent) by which sho claimed a d"elarntim1 that she was the owner of house Xo. l!J:J Gh:osiarimancli Hoad, Lucknow, or in the altr, rnat.i1e a rkelaration that she 11as the owner of two-thirds of the housP.

The previouR history of litigation wit, h respect to

thi~ house is relmant and may be 8et down.

The hous<' originally belnned to Dr. :\fiss Mitt.er, who

died in July l\J25.

At th<J tim~ of her dPath she left three sisters, namely, \.he appdlant :\!rs .. Judah, the plaintiff respon, lent ~Irs. Bose and the defen- <lant.-responclent fr. ~Iomin, :incl lwr motlwr Mrs. 1\littor.

Tlw plaintiff'' c:aso was that Dr. Mi•s Mitter had madn a will in favour of 'Irs. :\Tomin in April I 921 by which she gave the whole house to her.

Mra. '.lfon:iin in turn m1•fo a gifo of the hous~

to the plaintiff who thus became the ownir of the house.

The defence of the appellant on tho othee baud was that Dr. :\Iisd Mittct ha<! executd a will in June 1925 beq1iecithi•1g thi ho:Be to h'r 1n0th'l' Mea. Mitter. Subsequently the mother ma.de a will in favour of the appell.int in April 1930. It appears that no 'probat;;; of the two alleged wills Ly Dr. Miso Mitter of April 1921 nnd June 192:i wern

taken out. It appJan forthcir th'Lt Mrs. Mittee was Ii viug in this house when she died in 1934. On her death three wills allege I to have been made by her wore propounded one in favour of each of hee three

daghters, namely, Mrs. Bose, Mrs. Judah and Mrs.

Momin.

Applications for letters of adminis•ration were made by the three sisters eilch claimiu.; that the will in her favour was the last will of Mrs.

Mittr, and among the property left by Mrs. Mitler by the three wills waq included. the house in dispute.

Ftll'ther the house in <Jnestion w11s also shown iu the applications made by the three si.<ter• for letterR of administration of the alleg2d wills in theie favour. Letters of administration WE're granted to the appellant while the applications of Mrs. Bose and .Mrs.

Momin were dismissed.

Tb.is was followed by appeals to the then Chief Court of Oudh.

The said Court rejected the 1ippeals of Mrs. Bose and Mrs. Momin. and thus their applications fOl' letters of adminisLJ ation on the b:isis of the wills propounded by them stood finally dismissed.

The Chief Court however allo, ved the appeal against. tho gr,1nt of lettera of administration to the appellant and dismissed hel' appli cation also.

The matter was then taken before their Lordships of the Privy Council by the appellant and in J 9i5 the appeal of the appetlant was all'lwcd and thr1 decree of the Chief Ccmrt was Set asido ancJ lint of the trial judge granting Jdtel'R of administration to the appelhmt was restoted.

Jn th\! meantime, howcver, certain other

196Z

Yrs, Hem Nolini

.!udah

v. .'t.frs. ljolyne SaroJbashini Bose

lVanchoo J,

._J96a

,..-- 4f.r1:Jl,1m, •Nolini

,1.ud.Ji

" ..,.M.r s. I tq{.vne 311tpjbashini Bose

'!!K..,,, oo J.

-29S SGPREM-E COBRT REPORTS [1962] SUPP. . '

events hd transpired.. In 1942, Mrs. Bose filed a suit for pMl iti<m.

This suit was still •pending whPn the JudicialDl11.Ilmittee of the Privy CJJuncil allowed the appeal oft.he appellant in March 1945. .ti.a in December I ~45 Mrs. Born made an application, to withdraw the partition mit with permission to bring a fresh suit, and she was allowed to _do -so .on th" condition that she would pay the costs , of the appellant before :fl.ling the fresh suit. In July 1946 :Mr.•. Momin made a gift of.her interest in the house in dispute in favour .of Mrs. Bose. Thereafter in the same year viz., 1946, Mrs. Bose filed an application for grant of letters of administration of the will alleged to have been executed by D:r. Miss .Mitter in Mrs. Momin's favonr.

This was objected to by the appellant and crtain preliminary issues were framed in 1947; but eventua\ly Mrs. Bose did not pursue ti.tis application for letters of administration .and it \vas dismissed in 1948.

In the meantime, Mrs. Bose had filed "'n application for the revocation of the letters of administration granted to the appellant but this was also dim; ssed..

About the same time in Sephimber ID l6, the present suit was filed by Mt's. praying for relifs alread, v set out. Eventually this suit was the only proc!Jeding which was pursued to the end by ill rs. Bose.

In th' trial court.-the case baed on tho will of'Dr. Miss Mitter was given up and the plaintiffrespondent only preS8°ed her alt-ernative prayer for a declaration that she was entitled to two-thirds of the house. The trial court however found that there was a will by Dr. Miss Mitter in favour of hor mother, though no probate or let.ters of administration were taken out in that behalf. The trial court also found that Mrs. Mitter made a will in favour of the appellant and that letters of administration, as ulready indicated, were granted to t)l.p appellal\t with respect to Mrs. Mitter's will b; v

the judgment of the Privy Council in 1945. The trial jnd!!e therefore hekl that the appellant was entitled to the house by virtue of the letters of admini, tration granted to her of Mrs. Milter's will.

It repelled the contenticn of the plaintiff-respondent that as no let It rs < f r.dministration were tak< n out of the will of Dr. Mi>H Mitter in fav<, ur of Mrs.

Mitter, no right to the housn could be established by the appellant on 1 he basis of the l..tters of administration grantul to lier. .The trial court also held that the suit was barred by the principles of res judicata and estoppel. It therefore dismissed the suit. The plaintiffrespondent then went in appeal . to the High Court, and the main contention rnised

on behalf of the respondtnt before the High Court was that in view of s. 213 of the Indian Succession

Act, No. 39 of 1925, (hereinafter referred to as the Act), the appellant could nnt claim any right to the house in dispute as the will of Dr. Miss Mitter in favour of her mother was neith!'r prubated nor letters of administration were obtained with respect thereto.

The Hiirh Court accepted this contention of the plaintiff.respondent. The High Court also negatived the other contentions raised on behalf of the appdlant aud nllowecl tho appeal in part.

The High Colli t pointe l out that on the d('ath of Dr. MiEs Mitter her three sisters and mother were alive and they \V<'Je entitled equally to the property left by her.

But as th" share of Mrs. Mitter must be de< med to have been willed away to the appellant and as tho sl1a1e of Mrs. Momin must be dcl'mrrl to have been gifted to the plaintiff.respondeJJt, the plaintiff-u, spondent was entitled to half the house.

The High Court therefore gave her a declaraLion that she was entitled to a half share in the house in dispute.

As tho dei:ree was one of reversal the appellant applied for and obtained a certificate Lo appeal to this Comt; and that is how tµ© matter has come before s.

19~2

Mrs.tHemNoliTl i

Judah ' v.

M r1 .. JsoJJn• Barajbashini 8011

Wanchoo J.

J!rs. Htm NoFni

J"dah ..

Mrs. l1ol; rit Sarojbashi111 Bn1t

JYanclwo J.

300 SUPHEJIIB COURT ItEPORTS (1962] SUPP.

Learnl'<l counsel for the appellant has urged only three eontentionR before UR, namely, (i) that the High C<111rt was not right in holding that if was

neccsary to obtain probate or lettors of administration of th" will executed by Dr. ~Iiss Mitter in favour of fr~. Mitter ancl that as neither probate nol' J., ttor.i of administration of that will were obtained i• was not open to the appollant is view of s. 213 of the Act to tako ad vantage of that will;

(ii) that the suit was bar rod hv re~ judicata, and (iii! that the plaintiff-respondent was estopped from contesting tho title of Mrs. Mitter to the propl•rty in dispute.

Re. (i). \Ve have already pointed out that though it was said that Dr. ;\[iss ;\litter had executed a will in favour of her mother Mrs. Mitter in June 192!J heque11.thing the house in dispute to her, no probate orletters of :idministration were ever obtained by Jirs. :'\litter. It. ii! true that Mrs. Mitter in her tum made a will in favour of the appellant and she obtained

letters of administration of that will. In that will the house in dispute was ment.ioned as the property of l\Irs. illitt!'r an:! was bequeathed to tho appellant and in the letters of administration granted to her this propcrt.v w, is mentioned aq onl! of c:1e properties coming to her by the will of her mot.her.

Tho quest io11 tlwreforo that arises is whether it was necessary bPfnre the appellant could tako advantage of the !,,, quest in favour of Mrs. !\"fitter that letters of administration of tho will of Dr. Misd :\litter should havPbeP-n obtained by i\lrs. Mitter Section 21'.l (I) which governs this matter is in those

terms :-

"{!) o right 1is executor or h•g,1tco Pan be Ptahlighed in anv Court of Justian, Dnless a Conrt of competent .iurisdiction in India ha• granted probate of thA will nuder which the right is claimed, or has granted Jetteq

j -

'. 301

of administration with the will or with a eopy of an authenticated copy of the will annexed," This section clearly creates a bar to the establishment of any dght under a will by an executor or a legatee unless probate or letters of administration of the will have been obtained. It is now well-settler! that it is immaterial whether the right under the ill is claimed as a plaintiff or a defendant ; In either case s. 213 will be a bar to any right being claimed by a person under a will whether as a plaintiff or as a defendant unless probate or letters of administration of the will have been obtained: (see Ganshamdoss v.

Gulab Bi Bai) ('). But it is urged on behalf of the appellant that this section will not bar her because she obtained letters of administmtion of the will of her mother Mrs. Mitter under which she is claiming and that it was not . necessary for Mrs. Mitter to have obtained probate of the will of Dr. Miss Mitter in her favour. Now it is not in dispute that the grant of probate or letters of administration does not establish that the person making the will was the owner of the property which he may have given away by the will, and any person interested in the property included in the will can always file a suit to establish his right to the property to the exclusion of the testator in spite of tbe grant of probate or letters of admi- -nistration to the legatee or the executor, the reason being that proceedings for probate or letters of administration :ire not concerned with titles to property but are only concerned with the due execution of the will.. Therefore; when the plaintiff respondent contended in effect that the appellant could not establish her right to the full ownership of this property on the basis of the will of Mrs.

Mitter because Mrs. Mitter had not obtained probate or letters of administration of the will of Dr. Miss Mitter, she was really contending that Mrs. Mitter was not the full owner of this property so that

(1) (1927) I.LR. 50 Mad. 927.

196S

J.f rs. Hem N alini

 Judah v.

Mrs. lsol)ne Stlfojbashini Bose

Wanclwo J.

1962

• \frJ.· Hnn }lolim Jndali

M11. l•ol, Jn~ SnojbaJhi11i Bf>h

!{02 Sl'PRRME COURT RF.PORTS [1962) SUPP.

she could rli8p<>se it of as sho willed.

Tho plaintiffl'<'pnnrlP11t. was thus diput.ing the tit Io of :\Im . !llitt"r to di.'f'''s· of r.h., entire disputed house by hrr will on the .roull'I that Mrs. 'fitter was ncit the sole ow1wr of t-hi8 house ; ifter the de1t.h of Dr. :\IiH> .\Titter.

In ''rrlr therefore that the appcllnnt should rne01cd on the l.msi8 of tho lett,)rn of administration ,, f th<' will of .\Irs. litter which had been i.:ranted to hn with respfel to t.hi~ house, she had to show that frs. lliittn '"as the full owner of this house a.t the time she made the will in her favour. !\ow the app•llant could show this by other evi<l!!HCl; but if UH'. appellant wanted to relv on any will of Dr . .\Ii" .\lit lcr in fauur of ~[rs. litter, i<; proof of full •>WIH, rsl1ip of :Hrs. litter of this house, it would amount to this th11t the appelln11t was saying that Mrs.

Mitter was the own, r of t.he houso as t.he legatee under the will made hy Dr. l\Iiss Mitter.

The appellant. would tl11rn he asRcrting the ownership of ill rs. :\litter oft h" whole ho us" as a legatee, '.ind this is what snb-s. (I) of s. 213 clearly forbids, for it says that- 110righ1 a~ a legatee can be l'stabliRbed in a Court. of .lust.ice, unless the probutH or letters of a<lministrat-ion 'have beon obtained of the will undl!r which the right as a legatee is claim 0 d.

It is true that rn far as the will of llirs. Mit.tcr in favour of the appellant is concerned, she has obtained letters of aclministration of that and Phe can maintain her right as a J,•gatec under that will : but that will in her favour only gives her those properties which really and truly belonged to Mrs. :\litter, that will however do(S not create title in the appellant in properties which did not really

and truly belong to Mrs. l\Iitt!'l' but which l\frs.

]\fitter might have thought it fit to include in t.he will.

Therefore, as soon as the appellant, in order succeed on the basis of the will in her favour of which she obtairnd ldt<>rs of administration, alleges that Mrs. Mitter was full owner of the property able to will it away to her, ijhe had to prove the

title of Mrs. Mitter to the property. Now it that title rrnts on Mrs. !\fitter's being legatee of Dr. Miss Mitter the appellant will have to prove that Mrs.

Mittn had the right r•s a legatee under the will of Dr. Miss Mitter. As soon as the appellant wants to proye that, s. 213 will immediately stand in her way for no right as an executor or a legatee can be proved unless probate or letters of administration of the will under which such right is claimed have been obtained. The words of s. 213 arc not restricted only to those cases where the claim is made by a person directly claiming as kgah e.

The secti( n does not say that no pnson can claim as a legatee or as an Pxecutor unless be obtains piabatc or letters of administration of the will under \\hid1 he claims. What it says is that no right as au executor or legateee can be established in any Court of Justice, unless probate or letters of administration have been obtained of the will under whirh the right is claimed, and therefore it is immaterial who wishes to establish the right as a legatee or an executor.

Whosoever wishes to establish that right, whether it be a legatee or an executor himself or somebody else who might find it 11cccssary in . order to establish his right to establish the right of some legatee or executor from whom he might derived title, he cannot do so unless the v; ill under which the right as a legatee or executor is claimed has resulted in the grant of a probate or letters of administration. Therefore, as soon as the appel lant wanted to eshblish that Mrs. Mitter was the legatee of Dr. Miss Mitter and was therefore entitled to the whole house she could only do so if the will of Dr. Miss Mitter in favour of Mrs. Mitter had resulted in the grant of probate or letters of administration. Admittedly that did not happen and theroforo s. 213(1) would be a bar to the appellant showing that her mother was the full owner of the propPrty by virtue of the will made in her favour by Dr. Miss Mitter. The difference between a right

196B

Mrs. Hem NOlini

Julah ·

Airs. fsolyn~ S arojbashini Bose

J.1' anchoo J.

jfrs. Hnn Noli"i

Juda/I

Mrs. l "'1J111 S 1rojliashirii Beat

lf'ancl.oo J,

~04 SUPHEME COURT REPoRTS (l!J6~] SUPl'.

claim('(! a> <l ]Pgatoe under a will and a right which

rniht arioe othcnvi8c is clear in this very case. Tho

ri."ht. under tlw will which was claimt>rl was that Mm.

~Jitter lw!'ame thP 1mnr.r of thP. entire house. Of

ourse, wi1 hout t.hc will ~Irs. i\litter was an rqual ht ir with her d,1ughters of the prope1ty left hy Dr.

Mifis ~Itltt>r, as the latter would be taken to have died intestate, and would thUH be entitled to ono fourth. It will be i; ccn from the judgrn<nt of tho HiglJ Court that it. has held thnt the appellant is entit.lcd to the one-fourth share to which i\irs. Mitter was cntitkd as an heir to Dr. i\Iiss Mitter and grnntrrl the plaintiff.respondent a dcclarat ion with

r<'S[H'd to nuly hnlf the house. Therefor,,, the High Court was 1 igh t in holding that s. 213 would bar the af'pellant from totablishing the right of her mother aH a legatee from Dr. Miss !\'litter as no prt..- bate or lctt<lfs of adrninistr:ition had been obtained of tho alleged will of Dr. Mi8s i\Jittn in favour of i\lrs. }litter. The conlPnti<Jn of the appellant on this head must therf'fore fail. .

Re. (ii).

Turning now lo the question of res judiait,,, loamed counsel for the appellant has been unable to point out any judgment intn p:trtics in which

the question of tit le to this house has been dee ided and which would bar the plaintiff-respondent from raiAing the question of title which she has raised in the JH'csent suit.

As wn ha, e :tlrcady said qucs tions of title are not decided in proceedings for tho gmnt of probate or letters <if administration. What ever thPr<'fore might have happened in those proceedi11gs would not establish the title t.o the house oither of the appellant or of Jl.lrs. i\fitter.

Jn pnrticular, learned counsel for the appellant relied on tho order of the High CJurt dated Decembor II, l!l-18, by which the applic<1tion of the plaintiff.rt•spond ent for letters of administration of tt.e will of Dr.

Miss Mitter was dismissed. In that case certain

preliminary issues were framed one of which related to estoppel with respect to Mrs. Mitter's right to this property. What happened in that case was that Mrs. Bose who had made the application did not appear and thereupon her application was dismissed for that reason obviously under O. XVII . r. 2, of the Code of Civil Procedure. In these cir- . cumstances there can be no question of res fudi cata as to the title to the property in dispute. The contention on this head must therefore be rejected.

Re. liii).

As to estoppel, reliance is mainly placed on the applications of Mrs. Bose herself for the grant of letters of administration of a will alleged to have been made in her favour by Mrs. Mitter. In that application Mrs. Bose had shown the house as if it belonged to Mrs. Mitter. Her application was as we have already noted dismissed. It ma:v be that Mrs.

Bose in her application for letters of administration showed this house as the property of her mother Mrs. Mitter; but as we have already said. proceedings leading to the grant of probate or letters of administration have nothing to do with titles. Further estoppel can only arise a~ is clear from s. 115 of the Indian Evidence Act, when one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief.

Therefore before Mrs. Bose can be estopped from pleading that Mrs. Mitter was not the owner of the entire property it must be shown that by her showing the house as the property of Mrs. Mitter in her application for letters of administration she intentionally 0aused or permitted the appellant to believe that thing to be true and to act on that belief. It is obvious that the appellant cannot be said to have acted in her turn with respect to :_this

Mrs. Hem Nolii

ludah

Mrs. lsolyne Sarojbashini Bos1

11' anchoo J.

Mr1. Htm Nalini

JiuJ.h . •• ilfrs. /solyru Sorojba.shini Bo!t

F1hru"1J 19.

306 SUPREME COURT REPORTS (I9e2) SUPP.

house simply because Mrs. Boso said in hnr appli

cation for letters of administration that the house belonged to Mrs. )fitter. It 11p1wars th:it after the death of Mrs. '.\Jitter the thrt>e sisterR put forward three separate wills each in her f:wour and there was no question of one sister acting on Any representation made by another. 'Ve are therefore Of Opinion that llO question of PS(Oppcl ariRf'8 in this case.

The appeal therefore fails and is hereby dismissed: N(• order as to costs.

Appeal dismissed.

;\tfS. SOORAJ!lfULL NAGAR:'IIULL

"· COM.\IISSIONER OF IXCO:llE-TAX, CALCUTTA

(And connected appeal)

(~. K. DAS, III. HIDAYATGLLAH and .J.C. SHAIJ, J.T.)

Income Tax-Order nf Tribu.nal--Application.s by a.<S<ssee and Commi., sioner of Income-tax to state a cn.se, diJJmissr.d byl lliqh Court-Appeal to Supreme rourt ag1inst nr.kr ofTri.huna -If maintainable-Indian /ncomr-ta.t Act, J.~22 (II of /.922)' ss. 33(4), 66(2)-Cons!itution of India, Art. 130.

The Income-tax Appellate Tribunal pa.scd an order •· 33(4) of the Indian Income-tax Act disposing of an appeal.

The asscssec as well as the Con1mis., ioner of Incorne-tax, Calcutta, applied to the High Court for orders requiring the Tribunal to state a case under s. 66(2), wl1ich applications were dismiss1:d by the 1-Iigh Court. l'hc asscssce ancl the Commissioner of Income-tax appealed to thr: Suprcu1c- Court against the order of the Tribunal, ":ith speci::tl leave. rhc main contention before the Supreme Go1:rt was that cvi:o:n if the appeal .agaiust the order of the Hih Court under s. 66(2) fails on merits, the court has pO\VCr to consider the appeal against the order of the Tribunal.