Probate application requirements were misinterpreted; beneficiaries do not need to be notified when probate is sought by an executor in their interest.

Judgment :

Partha Sarathi Sen, J.

1. Challenge in this appeal is against the Order No. 15 dated 05.05.2022 as passed by the learned District Delegate, Baruipur in Miscellaneous Probate Case No. 15 of 2021, whereby and whereunder the said court rejected the appellant/petitioner's application under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as “the said Act”) for grant of probate to the last Will and Testament of the deceased Mukulika Mitra.

2. We have heard learned Advocate for the appellant. We have also perused the order (deemed decree), which is impugned before us.

3. On perusal of the entire materials as placed before us, it reveals that the appellant, being the executor to the last Will and Testament of the deceased Mukulika Mitra, approached the said court of the learned District Delegate, Baruipur, with a prayer for grant of probate by filing an application under Section 276 of the said Act.

4. It appears that after completion of the formalities of service of notice of citation upon the interested parties having caveatable interest, the said case was taken up for final hearing.

5. The present appellant, being the executor to the said Will and Testament, tendered himself as PW 1 and in course of examination-in-chief, he duly proved the death certificate of the deceased and adduced evidence that the deceased, that is, the testatrix prior to her death executed her last Will and Testament for which probate has been sought for. It further appears to us that one of the attesting witnesses, namely, Debasis Roy Chowdhury, also deposed as PW 2 and in course of his examination-in-chief he duly proved the Will-in-question, the signature of the testatrix and the signatures of the attesting witnesses, including the signature as put by him in the said will as an attesting witness.

6. It appears to us that the learned District Delegate while passing the impugned order (deemed decree) duly appreciated the evidence as adduced by the PW 1 and PW 2 as well as the documentary evidence. The said Court noted that the consenting parties, namely, Tripti Sarkar and Pradip Mitra alias Pradip Kumar Mitra, while receiving the notice of citation have given their due consent for the grant of the probate as prayed for.

7. The learned trial court however while passing the impugned order (deemed decree) found that notice of citation was not served upon the beneficiary of the Will, which ought to have been done under Section 283(1)(c) of the said Act which according to the learned District Delegate is an incurable defect affecting the merit of the petition seeking probate. The learned District Delegate also came to a finding that the Part II of the schedule 'A' though speaks about the details of the movable assets of the deceased of the application for probate but the same found no place in the Will-in-question.

8. In course of his submission, learned Advocate for the appellant submits before this Court that while passing the impugned order (deemed decree), learned District Delegate has failed to visualize the true spirit of the said Act.

9. It is contended that it is the duty of the learned District Delegate to ensure that notice of citation has been served upon the persons claiming to have any interest in the estate of the deceased and there is no requirement to serve notice of citation upon the beneficiary especially when the named executor to the Will is seeking probate basically for the benefit of the beneficiary.

10. Learned Advocate appearing on behalf of the appellant further submits that the learned District Delegate ought not to have gone into the wordings of the Will in absence of any doubt with reg