IMPORTANT POINTS
(1) Revocation of Probate – Limitations starts from date of grant of probate and not from date of knowledge about probate proceedings.
(2) Probate Court is a court of conscience – Approach of a probate court is different from that of a civil court.

JUDGMENT

The Court: The instant application, namely, GA 1 of 2019 is filed under Section 263 of the Indian Succession Act, 1925 for revocation of grant of probate of the last will and testament of the testator Subir Sen.

2. The case made out in the application is that Subir Sen, father of the present Petitioner died intestate on 07/01/1987 at his residence at Kolkata living behind him, his widow being the Respondent no. 1, his son being the Respondent no. 2 and the present Petitioner. At the time of death, the father of the Petitioner was owner of a portion of his ancestral family residence at 114/5/1A, Hazra Road, Kolkata – 700026. Since the applicant was married and living with her husband she did not make any query into the properties of the testator. Disputes and differences arose between the Petitioner on the one hand and the Respondent no. 1 and 2 on the other hand. The present Petitioner filed a declaratory suit in the Court of Civil Judge (Junior Division) at Alipore. In course of the suit, in the month of June, 2018 the Petitioner came to know about grant of probate of the last will and testament of her father.

3. When the Petitioner came to know about grant of probate she filed the instant application for revocation of grant on the grounds that the will was unregistered and the entire will was type-written but the date was hand-written; the alleged will was a mere draft only without having any indication as to when the draft was made by whom. Secondly, it is averred that one P.K. De, Advocate filed an affidavit as the attesting witness of the alleged will who was Advocate-on-Record of the executor of the probate proceeding. However, there are two other attesting witnesses of the alleged will.

4. One of the averments made in the application is that affidavit of assets is false and suppressed. Sometime in the month of April/May 1987, on demise of the testator the brother of the Petitioner being Respondent no. 2 obtained the signature of the applicant on some blank papers in the pretext of mutation of properties. She trusted her brother and signed papers without reading those papers. Her consent to the probate proceeding was obtained by her brother by fraud and misrepresentation. It is averred further that the mother of the Petitioner being Respondent no. 1 herein has been suffering from mental disorder and is under psychiatric treatment. In nutshell, the present Petitioner prayed for revocation of grant of probate.

5. The executor being the mother of the present Petitioner opposed the application by filing affidavit-in-opposition. Contention of the Respondent no. 1 is that probate was not granted to her surprise. The Petitioner was well-aware of the probate proceeding. After grant of probate the Respondent no. 1 gave assent to specific legacies by delivering an amount of Rs.42,500/- and Rs.1,800/- to the Petitioner and she acknowledged the receipt thereof. It is further submitted that the Petitioner with full knowledge and consciousness gave her consent to grant of probate and received benefit out of the said grant. According to the Respondent no. 1 the application for revocation of grant, being devoid of merit should be dismissed.

6. Mr. Dhruba Ghosh, the Learned Senior Counsel appearing for the Petitioner made multipronged arguments.

7. The first point of argument placed by Mr. Ghosh is that execution of the will was surrounded by suspicious circumstances; the will is neither an authentic nor a genuine one. Probate was granted as a matter of course in common form without citation and without examination of common attesting witness on the basis of alleged consent of the legal heirs of the deceased. Since probate was granted in common form, there was no enquiry by this Court into existence of suspicious circumstances relating to execution of the will. Explaining what are the suspicious circumstances, Mr. Ghosh argued firstly, that the alleged will was unregistered and the entire will was type-written but the date was h