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1989 Supreme(Cal) 271
High Court Of Calcutta
Monoranjan Mallick
ANIL KUMAR KUNDU - Appellant
Versus
NETAI CHANDRA BORAL - Respondent
Testamentary Jurisdiction Matter 38 Of 1987
Decided On : 05/30/1989
The omission to issue special citations to persons interested in the grant of probate, who ought to have been apprised of the probate proceedings, may be a ground for revoking the grant of probate.
Headnote:
INDIAN SUCCESSION ACT - SECTION 283 - REVOCATION OF PROBATE - SPECIAL CITATION - PERSON INTERESTED - ADOPTION - VALIDITY - ADMINISTRATION SUIT - PENDENCY - EFFECT.
Fact of the Case:
An application was filed to revoke a probate granted on the basis of a Will leaving all the deceased's rights as trustee and Shebait of a debuttar estate to the respondent, Netai Chandra Boral, who claimed to be the adopted son of the deceased. The petitioners, who were the brother and sister of the deceased, challenged the adoption and the genuineness of the Will, alleging that they were not served with special citations before the grant of probate.
Finding of the Court:
The court found that the respondent had obtained the probate surreptitiously without serving special citations upon the petitioners, who had a possibility of interest in the deceased's estate if the adoption was invalid. The court also noted that an Administration Suit was pending at the time of the grant of probate, in which the validity of the adoption was being challenged.
Issues: 1. Whether the petitioners were persons interested in the grant of probate and entitled to special citations? 2. Whether the omission to issue special citations to the petitioners was a ground for revoking the probate?
Ratio Decidendi: 1. The court held that the petitioners, as the brother and sister of the deceased, had a chance of succession if the Will was not genuine and the adoption invalid, and were therefore persons interested in the grant of probate. 2. The court found that the omission to issue special citations to the petitioners was a ground for revoking the probate, as it deprived them of the opportunity to contest the Will.
Final Decision: The court allowed the application and revoked the probate granted earlier.
( 1 ) THIS is an application far revocation of the probate under section 263 of the Indian Succession Act.
( 2 ) THE facts are briefly as follows: a probate has been granted by this Court in Matter No. 38 of 1987 on the basis of the application filed by one Netai Chandra Boral alias Netai Chandra Das praying for a probate on the last Will and testament of Subodh Chandra Boral.
( 3 ) THE said Netai Chandra Boral, who is the respondent in this application, applied for probate on the basis of the Will left by Subodh Chandra Boral alleging that he is the adopted son of Late Subodh Chandra Boral and that Late Subodh Chandra Boral by his last Will and testament dated 13th January, 1980 bequeathed all his right as trustee and Shebait of the debuttar estate mentioned in the Will in his favour and has also appointed him the executor under the Will and on the basis thereof he was applying for probate. In the said application, Netai Chandra Boral alleged that he being the adopted son, the properties of the deceased would have devolved upon him even on intestacy and consequently, there was no other heir in intestacy on which a special citation was to be issued.
( 4 ) ON the basis of the said averment made by the said Netai Chandra Boral, this Court granted him probate treating the said application for probate as a non-contentious one on 17th February, 1987.
( 5 ) THEREAFTER, the present application has been filed by one Anil Kumar Kundu and Smt. Binapani Gayan alleging that the grant of probate in Matter No. 38 of 1987 may be revoked. It is alleged as follosws: subodh Chandra Boral, who was an unmarried person and governed by Hindu Succession Act, at the time of death, left the following and no other persons as heirs and legal representatives:1. Sudhir Chandra Rural - Brother2. Smt. Binapani Gayen - Widow of Binode Behari Gayen - sister (petitioner No. 2)3. Rabindra Nath Biswas - Son of predeceased sister, Usharani Biswas. 4. Smt. Mahamaya Pramanick - Daughter of predeceased sister, Usharani Biswas.
( 6 ) LONG before the death of Subodh Chandra Boral, the petitioner No. 1 filed Suit No. 512 of 1980 as a next friend of the deities mentioned in the Will against the said Subodh Chandra Boral praying for administration of the Debuttar Estate, for construction of the Deed of Debuttar Settlement dated 1st November, 1935, for a declaration that the plaintiff No. 6 being the petitioner No. 1 is entitled to become a Shebait and trustee and for appointing him trustee of the Debuttar Trust Properties and alternatively, for framing of scheme for worship and the seva puja of the said deities and a scheme for administration of the debuttar estate.
( 7 ) LATE Subodh Chandra Boral filed a written statement in that suit and also submitted a geneological table in which he did not disclose that he had adopted the said Netai Chandra Boral alias Das as adopted son. The petitioners very much challenge the alleged adoption and also the genuineness of the Will of Late Subodh Chandra Boral. The petitioner No. 1 who has been ordered by the Court to act as next friend of the deities in the above Administration Suit is a person interested and the petitioner No. 2 being the sister of Late Subodh Chandra Boral would have inherited the interest of Late Subodh Chandra Boral in intestacy, and Sudhir Chandra Boral, being the brother, is also an heir in intestacy, but the respondent without serving any special citation upon any one of them obtained the probate surreptitiously and on coming to know about such grant of probate, the petitioners have applied for revocation of the grant of probate.
( 8 ) AN affidavit-in-opposition has been filed by the respondent Netai Chandra Boral alias Das, disputing all the allegations. It is contended that he being the adopted son is the only heir in intestacy and none of the petitioners has any locus standi to move this application and none of them is entitled to get any special citation not being a person intere
