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2016 Supreme(Cal) 549
IN THE HIGH COURT AT CALCUTTA
SANJIB BANERJEE, J.
In The Goods of : Nand Bherumal Advani Alias Nandu Advani (Deceased)
GA 3436 of 2014 In PLA 59 of 2010
Decided On : 21-11-2016
For the Petitioner: Mr. J. Chowdhury, Mr. M.S. Tiwari, Mr. S.K. Tiwari, Mr. R. Das
For the Respondents: Mr. Surojit Nath Mitra, Mr. Sakya Sen, Ms. Sanchari Chakraborty
Non-compliance of Section 283(3) of the Succession Act, 1925 is not a ground for revocation of probate unless a prima facie case touching upon the validity or authenticity of the Will is made out.
Headnote:
SUCCESSION - REVOCATION OF PROBATE - GROUNDS - NON-COMPLIANCE OF SECTION 283(3) OF THE SUCCESSION ACT, 1925 - WHETHER MANDATORY - WHETHER NON-COMPLIANCE ENTITLES REVOCATION OF PROBATE - HELD, NON-COMPLIANCE OF SECTION 283(3) IS NOT A GROUND FOR REVOCATION OF PROBATE UNLESS A PRIMA FACIE CASE TOUCHING UPON THE VALIDITY OR AUTHENTICITY OF THE WILL IS MADE OUT.
Fact of the Case:
Petitioner, claiming to be the legatee of the testator's immovable property under a previous Will, filed for revocation of the probate granted by this Court to a subsequent Will. The petitioner contended that the mandatory pre-condition under Section 283(3) of the Succession Act, 1925 was not complied with prior to the grant of probate of the subsequent Will, as the general citation was not published in Mumbai where the immovable property of the testator was situate. The petitioner also questioned the signature of the testator in the subsequent Will and claimed that the testator died a bachelor and issueless.
Finding of the Court:
1. The Court held that the mandatory pre-condition under Section 283(3) of the Succession Act, 1925 was not complied with prior to the grant of probate of the subsequent Will, as the general citation was not published in Mumbai where the immovable property of the testator was situate. 2. The Court further held that the petitioner, as the executor or beneficiary under a previous Will of the same testator, was entitled to be cited in the proceedings for the grant of probate of a subsequent Will of the same deceased. 3. However, the Court held that the mere non-compliance of the mandatory requirement under Section 283(3) of the Act of 1925 would not entail the revocation of the grant unless a prima facie case touching upon the validity or authenticity of the Will was made out.
Issues: 1. Whether the non-compliance of the mandatory pre-condition under Section 283(3) of the Succession Act, 1925 is a ground for revocation of probate. 2. Whether the petitioner, as the executor or beneficiary under a previous Will of the same testator, was entitled to be cited in the proceedings for the grant of probate of a subsequent Will of the same deceased.
Ratio Decidendi: 1. The Court held that the mandatory pre-condition under Section 283(3) of the Succession Act, 1925 was not complied with prior to the grant of probate of the subsequent Will, as the general citation was not published in Mumbai where the immovable property of the testator was situate. 2. The Court further held that the petitioner, as the executor or beneficiary under a previous Will of the same testator, was entitled to be cited in the proceedings for the grant of probate of a subsequent Will of the same deceased. 3. However, the Court held that the mere non-compliance of the mandatory requirement under Section 283(3) of the Act of 1925 would not entail the revocation of the grant unless a prima facie case touching upon the validity or authenticity of the Will was made out.
Final Decision: The petition for revocation of the grant of probate was dismissed.
Sanjib Banerjee, J.
The petition is for revocation of the grant of a probate filed by a person claiming to be the legatee in respect of the only immovable property of the testator under a previous Will. Probate of the previous Will has been granted by the Bombay High Court. The previous Will is said to be of June 14, 2006, of which probate was obtained on May 26, 2014. The later Will, which has been probated by this Court on February 3, 2014, is of July 24, 2009.
2. The principal ground urged by the petitioner, on the strength of a recent Supreme Court judgment, is that the mandatory pre-condition under Section 283(3) of the Succession Act, 1925 was not complied with prior to probate of the later Will being granted by this Court. The petitioner claims to be a resident of Mumbai and alleges that since the general citation was not published in Mumbai, where the immovable property of the testator is situate, the petitioner had no notice of the petition for grant of probate and could not object thereto prior to the grant. The petitioner claims to be the niece of the husband of a predeceased sister of the testator. The relevant uncle of the petitioner predeceased the testator. The petitioner, however, does not assert her tenuous relationship with the testator to claim the estate or the non-issuance of any special citation on the petitioner as a ground for revocation; though she maintains that she was liable to be cited as the executor and beneficiary under a previous Will.
3. On merits, the petitioner merely questions the signature of the testator in the later Will and claims the same to be forged. It is also the case of the petitioner that the testator died a bachelor and issueless and his three sisters predeceased him and all such sisters were issueless; and, as a consequence, the testator had no heirs under either class in the Schedule to the Hindu Succession Act, 1956. The petitioner also asserts that the testator “left no heirs either named under Class I to IV entry I to VIII of Schedule I or II (sic, there is only one Schedule) of the Hindu Succession Act … nor any Agnates or Cognates.” Indeed, the same averment was made by the petitioner in her petition for grant of probate before the Bombay High Court and paragraph 3 of the present petition is a substantial reproduction of paragraph 8 of this petitioner’s petition for grant of probate in respect of the earlier Will (including the spelling mistakes).
4. The narration in the present petition leading upto the prayer for revocation of the grant made by this Court may be summarised. The petitioner claims that since the testator’s “relations and friends” all lived in Mumbai, the testator purchased a flat in a cooperative housing society in Chembur. According to the petitioner, the testator would reside in the flat along with his sister, Vishni Bherumal Advani, whenever he went to Mumbai. The petitioner claims that the testator and sister Vishni “were all along fond of and close to” the petitioner “who used to take care of them.” The petitioner says that upon sister Vishni’s death in June, 2006, the testator went to Mumbai for the funeral, “but could not reside alone in his flat.” The petitioner claims that the testator stayed with the petitioner at the petitioner’s residence after the funeral and even after he left for Kolkata thereafter, the testator “used to keep in touch with the Applicant from time to time.” The petitioner asserts that during the testator’s stay in Mumbai in June, 2006, “he executed his last Will and Testament on 14th June 2006 and handed over a copy to the Applicant and asked the Applicant to keep the same carefully.”
5. The narrative continues thereafter from June, 2009 and the case run by the petitioner is best seen in the petitioner’s words from paragraphs 7 and 8 of her petition:-
“7. The Applicant states that some time since June 2009 the deceased stopped calling the Applicant and inspite of best efforts the Applicant was unable to get in touch with
