GAUDIYA MISSION versus SHOBHA BOSE & ANR.

Citation: [2008] 1 S.C.R. 674 · Decided: 15-01-2008 · Supreme Court of India · Bench: C.K. THAKKER · Disposal: Case Allowed

Judgment (excerpt)

[2008) 1 S.C.R. 674 
A 
GAUDIYA MISSION 
v. 
SHOBHA BOSE & ANR. 
(C.A. No. 398 of 2008) 
B 
JANUARY 15, 2008 
(C.K. THAKKER AND ALTAMAS KABIR, JJ.) 
' ... 
Indian Succession Act, 1925; S.384: 
Statutory appeal - Testamentary/Intestate jurisdiction of 
c High Court - Elder sister of respondent No. 1 allegedly 
bequeathed her share in movable and immovable properties 
inherited from her father in favour of appellant-Mission by 
executing a Will and Codicil - Filing of Testamentary suit by 
respondent No. 1 for the estate of her deceased sister -
D Objected by the Mission claiming properties in question on 
the basis of Will - Single Judge of High Court, doubting the 
execution of Will, held Respondent No. 1 entitled to Letter of 
Administration of the estate and credits of the deceased -
Affirmed by Division Bench of the High Court - Correctness 
E of- Held: Incorrect -Appeal filed by Mission before Division 
Bench of High Court was a statutory appeal - Since it was a 
regular appeal, all questions of fact and of law could be urged 
before the appellate Court/Division Bench of the High Court -
Arguable points have been raised by the Mission - Hence, 
.{. 
F the matter remitted to the Division Bench of the High Court to 
... 
decide the case in accordance with law on merit - Appeal -
Statutory appeal - Regular appeal. 
Statutory appeal - Consideration of 
G 
Words and Phrases: 
'Relevant facts' - Scope of in the context of statutory 
~--
appeal. 
One 'N' died leaving behind three unmarried 
daughters. Later, one of them died. It is the case of the 
H 
674 
GAUDIYA MISSION v. SHOBHA BOSE & ANR. 
675 
~; 
appellant-Mission that the second daughter of 'N' was A 
disciple of Gaudia Mission and that after her retirement 
from service, she started living in their Vrindaban Ashram. 
She allegedly executed a Will bequeathing her properties 
in favour of the Mission, and later, she also executed a 
Codicil in favour of the Mission in relation to certain further 8 
sums and movable properties. She died in Vrindaban. 
I 
After her death, her sister-respondent No.1, applied for 
.. 
issuing a Letter of Administration in respect of the estate 
of the deceased concealing real facts about execution of 
the Will and the Codicil in favour of the Mission by her c 
deceased sister. The Letter of Administration was granted 
to her but on an application at the instance of the appellant 
Mission, the certificate was cancelled by the Court. In the 
meantime, respondent No. 1 filed Testamentary Suit for 
the estate of the deceased. The Mission filed objections 
D 
claiming the properties bequeathed by the deceased 
.:>· 
sister of respondent No.1 in favour of the Mission. Single 
Judge of the High Court held that the Will was surrounded 
by suspicious circumstances; that the deceased was not 
living in Vrindaban and was not being looked after by the 
Mission as claimed by the Mission; and that respondent E 
was the real sister of the deceased, in tl'lat capacity, she 
was entitled to a Letter of Administration of the estate and 
credits of the deceased. Appeal filed thereagainst by the 
appellant was dismissed in limine by the Division Bench 
) 
of the High Court. Hence the present appeal. 
F 
... 
Appellant-Mission contended that the appeal filed 
before Division Bench of the High Court was a regular 
statutory appeal/First Appeal and therefore all questions 
- questions of fact as well as of law could be agitated; 
that dismissal of the appeal in Ii mine by the Division Bench G 
--; 
was improper and on that ground alone, the impugned 
order deserves to be set aside; that as many as thirteen 
issues were framed by the trial Court/Single Judge and 
all those issues were required to be considered by the 
Division Bench; that there was a Will and also a Codicil H 
676 
SUPREME COURT REPORTS 
[2008) 1 S.C.R. 
A executed by the deceased which were duly registered. 
' . 
They ought to have been considered but they were not 
considered by the Division Bench in their proper 
perspective; that if respondent No.1 challenged legality 
and validity of the Will, the proceedings initiated on the 
B Original Side of the High Court were not maintainable; and 
that this Court has held in several cases that no 
comparison of hand-writing should be made by a Court 
• ,. 
as it is the function of an expert. In the instant case, though 
the said objection was taken before the trial Court by the 
c appellant and an application was also made to send the 
hand-writ

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