IMPORTANT POINT
A testamentary court cannot adjudicate on the status of a party without a declaratory decree, and non-citation does not automatically warrant revocation of probate.

JUDGMENT :

APURBA SINHA RAY, J.

1. The applicant, Michael Soumen Ghosh filed the instant petition praying for revocation of the Probate of the Will granted in favour of the respondents on 12.10.2023 on the grounds that inspite of being a biological son of the testator, Satyabrata Ghosh, he was never cited in the proceedings and the propounder/executor was able to obtain the Probate of the relevant Will as a “non-contentious” matter.

2. Admittedly, the applicant was born in the year 1956 when his mother was a legally wedded wife of one Sudhindra Narayan Roy, but according to his mother, Phyllis Irene Roy, he was fathered by the testator, Satyabrata Ghosh who was a good friend of Mr. Roy as aforesaid. Subsequently, the mother of the applicant married the testator Satyabrata Ghosh in or about 1964. However, during his birth as his mother was the wife of Mr. Roy, the birth certificate of the applicant contained the name of Mr. Sudhindra Narayan Roy, as his father but which was actually not true and correct.

3. The applicant being the biological son of the testator has caveatable interest in the estate of the deceased and as such he is entitled to be cited in the proceeding of Probate of Will as per law of the land, but as the same was not done, he prays for revocation of the grant of probate in favour of the respondents.

4. In support of her contention, Mrs. Malabika Roy Dey, appearing for the applicant, has placed on record a letter written by the mother of the petitioner contending that the petitioner was fathered by the testator during legal wedlock of the mother of the petitioner with Mr. Sudhindra Narayan Roy. The learned counsel has also drawn the attention of this court to the relevant paragraphs of the affidavit-in-opposition filed by the respondent wherein the respondent admitted that during probate proceedings, attempt was made to obtain consent affidavit from the petitioner but he refused to give his consent. This goes to show that the facts that applicant was the biological son of the testator and he had caveatable interest in the estate were known to the executor/propounder, otherwise there would not have been an attempt to obtain a consent affidavit from the applicant.

5. The learned counsel of the applicant further argues that her client is ready to undergo any sort of DNA Test/DNA Lineage Test for the purpose of proving his contention. According to her, in several documents the testator admitted the applicant as his biological child, and, therefore, he has been wrongly described as ‘step son’ in the Will for the purpose of obtaining the probate without issuing any notice to the biological son of the testator.

6. In support of her contention that when citation upon the legal heirs is insufficient, the probate granted in favour of the concerned person should be revoked and the original probate proceeding should be revived, Mrs. Roy Dey cited judicial decisions reported at 2015 (2) CLJ 506 (Shri Arun Chandra Dey Vs. Debashis Ghosh), AIR 2002 Calcutta 140 (Arindam Ghosh V. Chittaranjan Ghosh & Ors.).

7. By citing reported decision of Basanti Devi Vs. Rabiprakash Ramprosad Jaiswal, AIR 2008 SC 295, Mrs. Roy Dey has vehemently argued that the probate application is a proceeding in rem and it binds all the parties before the court as well as other persons in all proceedings arising out of Will or any claim thereunder, and any person who has been aggrieved for non-citation, is entitled to file an application for revocation.

8. Further, Mrs. Roy Dey has relied upon the case of Mutukdhari Singh Vs. Smt. Prem Debi & Ors. AIR 1959 Patna 570 to buttress her contention that the interest of any aggrieved person under Section 283(1) of Indian Succession Act, 1925 may be slight or there is a bare possibility of such an interest or the interest dependent upon remote contingencies etc. is sufficient to entitle the person concerned to oppose a Will.

9. In opposing the prayer for revocation, learned counsel Mr. Mitra, appearing for the responden