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High Court Of Calcutta
CHITTATOSH MUKHERJEE, AMITABHA DUTTA
SARAL PATWAR - Appellant
Versus
SUSHILA DASSI - Respondent
Civil Order No. 3792 of 1983
Decided On : 02/09/1983
PROBATE - INTEREST IN ESTATE - LOCUS STANDI - PERSON CLAIMING TO HAVE INTEREST IN ESTATE OF DECEASED - CONSENT TO GRANT OF PROBATE BY PREDECESSOR-IN-INTEREST - BINDING ON DERIVATIVE HEIR - ADMISSION BY HEIR AT LAW - BINDING ON DERIVATIVE HEIRS - COURT TO BE SATISFIED ABOUT GENUINENESS AND CLARITY OF ADMISSION - CONSENT FILED ON BEHALF OF PREDECESSOR-IN-INTEREST - COURT TO DECIDE WHETHER GENUINE - OPPORTUNITY TO PROVE ALLEGATION OF FORGERY TO BE GIVEN TO DERIVATIVE HEIR.
Fact of the Case:
Lachmani Dassi died leaving a will. Her brother, Benarasi Lal Patwar, initially gave consent to the grant of probate in favor of the propounder, Sushila Dassi, but later his widow, Girija Patwar, filed a caveat claiming title to the property mentioned in the will. Benarasi Lal Patwar died, and his son, Saral Patwar, filed an application to contest the probate, alleging that the consent given by his father was forged. The District Delegate rejected the application, holding that Saral had no locus standi since his father had already consented to the grant of probate.
Finding of the Court:
The court held that Saral Patwar had a locus standi to contest the probate as a person claiming to have an interest in the estate of the deceased. However, the court also held that if Benarasi Lal Patwar had genuinely given his consent and acquiesced to the grant of probate, Saral would be bound by such consent and admission. The court remitted the matter back to the trial court to decide whether Benarasi Lal Patwar had in fact consented and whether Saral had any further locus standi to contest.
Issues: 1. Whether the petitioner, Saral Patwar, had a locus standi to contest the probate as a person claiming to have an interest in the estate of the deceased Lachmani Dassi? 2. Whether the consent given by Benarasi Lal Patwar, the petitioner's father, to the grant of probate was genuine and binding on the petitioner?
Ratio Decidendi: 1. The court held that the petitioner had a locus standi to contest the probate as a person claiming to have an interest in the estate of the deceased. The court relied on the fact that Benarasi Lal Patwar, the petitioner's father, was alive when Lachmani Dassi died and would have been an heir to her estate if she had died intestate. The court also held that the petitioner could not be bound by the consent given by his father if it was found that the consent was forged. 2. The court held that the consent given by Benarasi Lal Patwar to the grant of probate was not binding on the petitioner if it was found that the consent was forged. The court also held that the trial court should have given the petitioner an opportunity to prove his allegation that the consent was forged.
Final Decision: The court remitted the matter back to the trial court to decide whether Benarasi Lal Patwar had in fact consented and whether Saral had any further locus standi to contest.
( 1 ) SM. Sushila Dassi, the opposite party in this Application, has made an application before the District Delegate, Alipore, 24-Parganas, for granting probate in respect of the alleged will of late Lachmani Dassi, Benarasi Lal Patwar was the brother of the deceased testatrix, Lachmani Dassi, and he was also the father of the propounder, Sm. Sushila Dassi, and of Saral Patwar, the petitioner in this Revisional Application. On 24th July, 1981 said Benarasi Lal Patwar had appeared in the probate case filed by her daughter, Sm. Sushila Dassi and had purported to give his consent to the granting of probate in respect of the alleged will of Lachmani Dassi. On 4th September, 1981 Sm. Girija Patwar, the wife of said Benarasi Lal Patwar, had appeared in the said probate case and had filed a caveat. Thereupon, the said case had been treated as a contested one and registered as a suit.
( 2 ) ON 14th April, 1982 said Benarasi Lal Patwar, died and thereupon his widow, Girija Patwar, who was the plaintiff in the said case had filed an application for bringing on record the present petitioner and others heirs and legal representatives of deceased Benarasi Lal Patwar. On 21st April, 1982 the court had rejected the said application holding, inter-alia, that in his lifetime Benarasi Lal Patwar having given his consent to the grant of probate, his heirs had no locus standi to challenge the alleged will of Lachamani Dassi propounded by Sm. Sushila Dassi. Girija Patwar had herself claimed title in respect of Premises No. 2/1, Sambhu Babu Lane, Calcutta -14 mentioned in the alleged will made by Lachmani Dassi. Girija Patwar, inter-alia, claimed that Lachmani had no right to bequeath by will the said property. Girija Patwar's caveat was not entertained and the application for probate filed by Sm. Sushila Dassi was again treated as an uncontested one.
( 3 ) IN July,1982 the present petitioner filed two applications before the District Delegate, Alipore, 24-Parganas. He stated that he was one of the legal heirs of Lachmani Dassi after the death of his father, Benarasi Lal Patwar. He had come to learn that the general notice was served on 25th May,1982. He alleged that Sm. Sushila Dassi had propounded a fictitious will only to deprive the rights of the petitioner and others. Saral Patwar, the petitioner, prayed that he may be allowed to contest her application for granting probate. He also prayed before the learned district Delegate for appointing a hand-writing expert to compare the signature of his father, Benarasi Lal Patwar, in the declaration with his alleged admitted signature in the Vokalatnama and the written objection in Case No. 54/76-TR-387/76. The applicant alleged that the signature appearing in the declaration giving consent to the grant of probate was not the genuine signature of his father, Benarasi Lal Patwar and the said consent was a forged document.
( 4 ) THE learned District Delegate by his order complained of, has rejected the aforesaid prayers of the petitioner holding, inter-alia, that he had already found by his order dated 21st April, 1982 that the heirs of Benarasi Lal Patwar had no locus standi to challenge the will in question because the applicant's father, Benarasi, had appeared and had filed consent petition. Therefore, the applicant who was one of the sons of Benarasi was not entitled to file any objection. As he was not a party in the case, his prayer for referring the handwriting of his father in the consent petition to an expert could not be entertained.
( 5 ) THE short point is whether the petitioner can be considered as a person ? claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate?. Mr. Dutt, learned advocate for the petitioner, has rightly submitted that it is settled law that the aforesaid expression ? claiming to have any interest in the estate of the deceased? in section 283 (C) of the Indian Su
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