IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION

ORIGINAL SIDE

Present:

The Hon’ble Justice Debangsu Basak

And

The Hon’ble Justice Md. Shabbar Rashidi

APO 335 of 2014

IA No. GA 4 of 2024 IA No. GA 5 of 2024

Swadesh Ghosh and Another

Vs.

Mrs. Lagnajita Saha and Others

For the appellants : Mr. Swarnendu Ghosh, Sr. Adv.

Mr. Surya Maity, Adv.

Ms. Suchismita Ghosh, Adv.

For the respondents : Mr. Suman Dutta, Sr. Adv.

Mr. Debmalya Ghosal, Adv.

Mr. Sourath Nath Dutta, Adv.

Ms. Abhipiya Sarkar, Adv.

Hearing concluded on : 10.11.2025 Judgment on : 10.12.2025

Md. Shabbar Rashidi, J.:-

1. The appeal is in assailment of judgment and order dated August 11, 2014 passed in GA No. 2705 of 2013 arising out of PLA No. 292 of

2012.

2. By the impugned judgment and order, the learned Single Judge revoked the probate granted on January 7, 2013 in respect of the last will of late Jibendra Nath Biswas by an order passed in PLA 292 of 2012. It was held in the impugned judgment and order that the respondent No. 1 herein had sufficient caveatable interest under Section 283 (1)(c) of the Indian Succession Act and directed issuance of special citation upon respondent No. 1 to enable her to contest the probate proceeding.

3. It was contended by learned Senior Advocate for the appellant that learned Single Judge erred in holding that the probate granted in common form was liable to be revoked and ordered revoking of the probate granted dated January 7, 2013 in PLA 292 of 2012. Learned Single Judge was not justified in directing special citation upon respondent No.1 in order to give her an opportunity to contest the probate proceeding.

4. Learned Senior Advocate for the appellant further submits that the learned Single Judge erred in holding that the appellant practiced fraud and misrepresentation in obtaining probate of the Will of late Jibendra Nath Biswas. The respondent No.1 was in possession of the demised property on the strength of an agreement to assign and construction coupled with a power of attorney in this regard. She constructed a four storied building on the suit property on the basis of such agreements and power of attorney. It is contended that the learned Single Judge committed error in holding that respondent No.1 had sufficient interest in the suit properties to contest the probate proceeding merely on the ground that she had entered into an agreement of assignment and development.

5. Learned Senior Advocate for the appellant also submitted that the conduct of respondent No.1 was not that of a purchaser from heirs of the deceased testator, nevertheless, the learned Single Judge held her position in respect of the demised property as that of a purchaser. Learned Single Judge erred in holding that the connotation any person having slightest of interest in the estate of a testator does not include a tenant or any person holding a property under agreement. It was also contended that the learned Single Judge could not have acted as a court to decide title in a probate proceeding. Respondent No.1 did not purchase the properties at Salt Lake from the heirs of the deceased testator and as such, her interest in such property was wrongly held to be sufficient for assailing a probate. The rights of a tenant or assignee are quite distinguishable with that of a purchaser.

6. Learned Senior Advocate for the appellant also argued that although, a probate court had the jurisdiction to revoke a probate suo motu, but learned Single Judge erred in directing issuance of special citation upon the respondent No.1. Findings of the learned Single Judge as to fraud allegedly practiced by the appellants were unfounded and without any basis. It was urged that the impugned judgment and order is liable to be set aside.

7. During the continuance of the instant proceeding, the sole executor of the Will of late Jibendra Nath Biswas i.e appellant No. 2 expired. It was contended by learned Senior Advocate for the appellant that on the expiry of the sole executor, respondent No.2 is entitled