Back
2006 Supreme(Cal) 97
High Court Of Calcutta
Kalyan Jyoti Sengupta
DIPTI BAVISHI - Appellant
Versus
ASHOKE KOTHARI - Respondent
P. L. A. 116 Of 2004
Decided On : 02/20/2006
DHRUBA GHOSH, Pradip Kumar Ghosh, PRATAP CHATTERJI, S.N.MUKHERJEE
Non-service of citation, even with knowledge of the probate proceedings, does not amount to acquiescence or waiver if the party comes to contest the grant at the first available opportunity.
Headnote:
REVOCATION OF PROBATE - NON-SERVICE OF CITATION - JUST CAUSE - ACQUIESCENCE - WAIVER - KNOWLEDGES OF PROCEEDINGS - GRANT OF PROBATE WITHOUT CITING PARTIES - DEFECTIVE PROCEEDINGS - DISCRETION OF COURT - SECTION 263, SUCCESSION ACT, 1925
Fact of the Case:
The petitioner, Dipti, daughter of the deceased Pravin Kumar Kothari, filed an application for revocation of the grant of probate of the testamentary instrument of her father. The probate was granted to the respondent, Ashoke, son of the deceased, on 23rd September 2004. The petitioner contended that the probate was obtained fraudulently and without serving any citation, and that there was calculated concealment in obtaining the probate as the existence of a codicil was not disclosed to the Court.
Finding of the Court:
The court found that the citation issued by the Court was not delivered upon the petitioner through postal communication, despite the petitioner's request to serve all letters at her address otherwise than by postal communication. The court also found that the petitioner had knowledge of the application for grant of probate through the interaction of the solicitors of the executor, but that the petitioner did not stand by and acquiesce to the grant as she had come to contest the grant at the first available opportunity.
Issues: 1. Whether the non-service of citation constituted a just cause for revocation of the grant of probate? 2. Whether the petitioner's knowledge of the probate proceedings and her failure to object to the grant amounted to acquiescence or waiver? 3. Whether the grant of probate was defective due to the non-disclosure of the existence of a codicil?
Ratio Decidendi: 1. The court held that the non-service of citation was a just cause for revocation of the grant of probate, as the petitioner was not given a chance to see the application for probate and to contest or to give consent to the same. 2. The court held that the petitioner's knowledge of the probate proceedings and her failure to object to the grant did not amount to acquiescence or waiver, as she had come to contest the grant at the first available opportunity. 3. The court held that the grant of probate was defective due to the non-disclosure of the existence of a codicil, as this was one of the examples of "just cause" mentioned in the Illustration of Section 263 of the Succession Act, 1925.
Final Decision: The court revoked the grant of probate to the said Will and directed the propounder for the time being to surrender the original probate to the Registrar-in-Insolvency.
( 1 ) -THIS was an application for revocation of grant of probate of the testamentary instrument of one pravin Kumar Kothari (hereinafter referred to as the said deceased) who was a resident of texas, U. S. A. The deceased left him surviving the petitioner, Dipti, daughter, and Ashoke, son who was appointed executor in the said instrument. The probate was granted on 23rd september, 2004 while this application was made on 21st February, 2005. The fight between the parties is queer event which has unusually happened unlike in case of ordinary testamentary fight. It appears to me that the petitioner executor, Ashoke started taking steps to obtain probate in respect of the testamentary instrument in India, in Calcutta High Court on the one hand and on the other hand, the daughter, Dipti being the applicant herein, started taking steps for obtaining letters of administration of the estates and properties left behind by the said deceased in Texas Court, thinking that the said deceased had died intestate. Both the parties took steps in the manner as follows: after death of the said Pravin on 10th february, 2004 Ashoke on or about 8th April, 2004 applied for grant of probate. On 23rd april, 2004 the citation from this Court was issued and it was sought to be served in terms of the order of the Court by registered post and it was dispatched on 28th April, 2004. The service returned on 18th June, 2004 with an endorsement of refusal. On the other hand, on 22nd June, 2004, Dipti filed appropriate proceedings for grant of letters of administration in the appropriate Court of Texas, U. S. A. and also prayed for appointment of temporary administrator in respect of the property of the deceased. On 22nd July, 2004 one Mr. Robert Brownrigg was appointed temporary administrator of the estate of the said deceased and also made an application for temporary restraint order and/or injunction against ashoke from directly or indirectly dealing with the estate of properties of said deceased. On 26th July, 2004 the said temporary Administrator started making inventory of assets left behind by the said deceased. In course of such inventory the respondent Ashoke informed brownrigg that there are no assets in U. S. A. , no bank account. On 28th July, 2004 there was a conference between the respondent, and the Attorney of the petitioner. Handcock and brownrigg, the temporary Administrator, and in course of such interaction the respondent handed over the documents viz. amongst other the application for grant of probate. In terms of the order of appropriate Probate Court at texas the Administrator went on functioning without any difficulty till 24th September, 2004. After having obtained the probate documents and necessary documents the petitioner made this application for revocation of grant of probate.
( 2 ) OBVIOUSLY the probate was granted without any contest. I ask the Department for production of the original records. From the records I find that citation was issued in terms of the Court's order by registered post and the envelope shows endorsement of the refusal. It further appears from the records that before grant of the probate, the petitioner. Ashoke himself, filed a caveat in connection with the estate of the said deceased and thereafter an application was made for discharge of caveat with reference to the aforesaid testamentary suit. It appears that on 9th September, 2004 one Mr. Sanjoy Banerjee, learned Advocate appearing in support of the application, submitted that under wrong impression his client filed the caveat and he submitted that he had instructions, not to press his client's caveat. Thus, the caveat was discharged.
( 3 ) WHAT impression was given by the learned Counsel to the Court is only known to the learned Counsel. In the body of the petition for discharge of caveat it was of course stated that the caveat was filed ordinarily and it was further stated that an application for grant of probate was made. I
