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High Court Of Calcutta
Kalyan Jyoti Sengupta
ARINDAM GHOSH - Appellant
Versus
CHITTARANJAN GHOSH - Respondent
P. L. A. 83 Of 1981
Decided On : 12/24/2001
PROBATE - REVOCATION - EFFECT - SUBSEQUENT ORDERS - VALIDITY - INDIAN SUCCESSION ACT, 1925 - SECTIONS 261, 263.
Fact of the Case:
The deceased Bolai Chand Ghosh executed a Will on 25th December 1977 and died on 16th August 1980. Arindam Ghosh, the son of the third wife of the deceased, was appointed the sole Executor and beneficiary of the Will. Probate of the Will was granted on 31st July 1981. An application for revocation of the grant of probate was dismissed by Justice Pratibha Bonnerjea in 1986. A second application for revocation was made in 1987 and the grant of probate was revoked ex parte by Justice Ajit Kumar Sengupta. The Executor applied for recalling the order of revocation and for reviving the probate proceeding. The Court passed orders in terms of the prayers and issued special citations to the persons mentioned in the application. An application was filed to recall the Court's orders on the ground that they were passed ex parte and without notice to the applicants, and that the Will was forged and abandoned by the Executor. The Executor opposed the application and contended that the grant of probate was revoked on the ground of non-service of citation and not on the ground of forgery, and that the probate proceeding had to be heard de novo.
Finding of the Court:
The Court held that the effect of the order of revocation of the grant of probate was to revive the original probate proceeding and that the Executor had to apply for fresh grant of probate. The Court also held that the orders passed by it for issuance of citation were not illegal or infirm and that the question of forgery or genuineness of the Will could not be decided in the present application.
Issues: 1. Whether the revocation of the grant of probate resulted in the termination of the probate proceeding? 2. Whether the Court's orders for issuance of citation were illegal or infirm? 3. Whether the question of forgery or genuineness of the Will could be decided in the present application?
Ratio Decidendi: 1. The Court held that the revocation of the grant of probate under section 263 of the Indian Succession Act, 1925, on the ground of non-service of citation, did not result in the termination of the probate proceeding. The proceeding had to be heard de novo after service of citation. 2. The Court held that the orders passed by it for issuance of citation were not illegal or infirm, as the effect of the order of revocation of the grant of probate was to revive the original probate proceeding. 3. The Court held that the question of forgery or genuineness of the Will could not be decided in the present application, as it was a matter to be contested in the probate proceeding.
Final Decision: The Court dismissed the application to recall its orders for issuance of citation. The Court also directed that all parties were deemed to have waived service of special citations and could file their caveat within time as prescribed in the Rules. The status quo as regards the property was to be maintained for a period of eight weeks after vacation or until further order whichever was earlier.
( 1 ) THE Court : All these applications are taken up for hearing for convenience sake. The most comprehensive application being No. 169 of 2000 is dealt with elaborately and specifically as the decision on which will have direct result and/or bearing upon the other applications.
( 2 ) BY this application one Smt. Manju Ghosh, daughter of one Bolai Chand Ghosh has taken out this application for condonation of delay and recalling and/or cancelling and/or modifying my order dated 1st October 1999 as modified dated 4th October 1999 passed on the application being No. 4124 of 1999. The brief history of this case is required to be narrated.
( 3 ) ONE Bolai Chand Ghosh died on 16th August 1980 is alleged to have executed his last Will and Testament on 25th December 1977 which was alleged to have been registered on 4th January 1978. By this alleged Will, Arindam Ghosh being the son of third wife of the deceased has been appointed Sole Executor and is also sole beneficiary of the said Will (hereinafter referred to as Arindam ). After death of the testator on or about 18th May, 1981 Arindam filed the application for grant of probate of the Will. On 31st July 1981 the probate of the said Will was granted.
( 4 ) AFTER the probate was granted on or about 18th September 1986 an application for revocation of the grant of probate had been made by one Bhabesh Ghosh being one of the sons of the deceased by second wife and the same was dismissed by the Hon'ble Justice Pratibha Bonnerjea (as His Lordship then was) by the judgment and order dated 18th September 1986. In this judgment it was found all the heirs and heiress of the deceased were either served with citations or refused to accept service.
( 5 ) AFTER dismissal, on 25th March 1987 second application for revocation of the grant of probate was made by sons of the first wife of the said deceased and three sons and two daughters of the second wife of the deceased in spite of they being parties to the above application and notwithstanding dismissal as above.
( 6 ) ON 9th July 1987 by an order the Hon'ble Mr Justice Ajit Kumar Sengupta (as His Lordship then was) revoked the said grant of probate which was passed ex parte. It is significant in the second application that the aforesaid fact of dismissal of first application was not mentioned.
( 7 ) MEANWHILE, on 21st September 1981 other heirs and legal representatives filed the suit for partition impleading the Executor herein as a party defendant. It appears in the said partition suit the preliminary decree was passed and an appeal has also been preferred not by any of the parties but by some other persons who have allegedly acquired interest from the Executor herein. The appeal Court did not interfere with, in substance, except little variation, the decree and order passed by the learned trial Judge. Once the Executor/appellant had made an application for recalling of the order of Justice Ajit Kumar Sengupta dated 9th July 1987 revoking grant of probate. At the time of hearing of these applications on 12th April 2001 the learned senior counsel Mr. P. K. Mullick recorded that his client had abandoned the said application for recalling of the order of Justice Ajit Kumar Sengupta dated 9th July 1987.
( 8 ) EVEN during pendency of the above application the Executor made an application in or about September 1999 in this Court in view of the revocation of grant for the following orders namely. " (A) The application made by the petitioner for grant of Probate in the above being No. 83/1981 be treated as revived. (b) Special citations be issued to the persons mentioned in para 13. (c) Costs of and/or incidential to this application be paid from the estate of the deceased. (d) Such further or other order or orders be made and/or direction or directions be given as Your Lordships may deem fit and proper. "
( 9 ) ON 1st October 1999 and 4th October 1999 I passed orders in terms of prayers (a) and (b) hereinabove. The p
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