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High Court Of Calcutta
GIRISH CHANDRA GUPTA AND MANIK MOHAN SARKAR, JJ.
ASHOK KOTHARI - Appellant
Versus
DIPTI BAVISHI - Respondent
P. L. A. 116 Of 2004
Decided On : 08/18/2006
PROBATE REVOCATION - SERVED CITATION - COMMON FORM - LOST WILL - CODICIL EXISTENCE - JUST CAUSE - INDIAN SUCCESSION ACT, 1925 - SECTIONS 263, 279, 283(1)(C), 70 - CODE OF CIVIL PROCEDURE - SECTION 268 - RULES OF THE HIGH COURT OF JUDICATURE AT FORT WILLIAM IN BENGAL - RULE 33 - ENGLISH PROBATE PRACTICE - COMMON FORM AND SOLEMN FORM - INDIAN SUCCESSION ACT, 1925 - SECTIONS 62 TO 78 - HINDU WILLS ACT - REPEALED.
Fact of the Case:
Executor appealed against the revocation of a probate grant, arguing proper service of citation, no objection to the will by the respondent, and the existence of a codicil.
Finding of the Court:
1. The court found that the postal peon tendered the special citation at the respondent's residence in Texas, USA, but the maidservant refused to accept it, resulting in its return unserved with the endorsement 'refused'. 2. The court held that despite knowledge of the proceedings, the respondent's failure to appear did not bar her from contesting the grant. 3. The court rejected the appellant's argument that the respondent's letter dated 14th January, 2001, showed her acceptance of the will, as the respondent contested the deceased dying intestate and the original will was not forthcoming. 4. The court found no merit in the appellant's contention that the judgment in Bhuggobutty Dassee (1900) 4 CWN 757 applied, as that case involved privies and parties in a case tried per testes, whereas the present grant was ex parte. 5. The court also rejected the appellant's reliance on Latikabala Dasi v. Anil Behari (AIR 1953 Cal 103), as the respondent's contention was that the deceased died intestate and the original will was not forthcoming. 6. The court held that the peculiar procedure adopted by the appellant, including lodging a caveat and obtaining an order discharging the caveat, suggested that the court was misled, and agreed with the trial court's suggestion. 7. The court noted that the standard practice in non-contentious cases or where the contention had terminated was to grant probate in common form, but in this case, the appellant's actions led to the grant being obtained in common form. 8. The court discussed the English practice of proving a will in common form or solemn form, highlighting the distinction and the consequences of each form. 9. The court noted that the Indian Succession Act provided for the application of the Code of Civil Procedure in probate and administration proceedings, and that Section 283(1)(c) gave the court discretion to issue citations. 10. The court held that the vulnerability of a grant in common form required the appellant to prove the will per testes after the citation was returned unserved, and that the appellant's failure to do so justified the revocation of the grant. 11. The court also considered the appellant's allegations in the application for probate, including the loss of the original will, which raised a presumption of revocation under Section 70 of the Indian Succession Act, and the subsequent disclosure of the respondent's application for letters of administration in case of intestacy, which contradicted the appellant's earlier statements. 12. The court found that the existence of a codicil could not be ruled out at that stage, given the timing of the application for probate and the disclosure of the copy containing a reference to the codicil.
Issues: 1. Whether proper service of citation was effected on the respondent. 2. Whether the respondent's letter dated 14th January, 2001, showed her acceptance of the will. 3. Whether the judgment in Bhuggobutty Dassee (1900) 4 CWN 757 applied to the present case. 4. Whether the judgment in Latikabala Dasi v. Anil Behari (AIR 1953 Cal 103) applied to the present case. 5. Whether the appellant's actions in lodging and discharging a caveat misled the court. 6. Whether the standard practice of granting probate in common form in non-contentious cases applied to this case. 7. Whether the English practice of proving a will in common form or solemn form was relevant to the present case. 8. Whether the Indian Succession Act provided for the application of the Code of Civil Procedure in probate and administration proceedings. 9. Whether the court had discretion to issue citations under Section 283(1)(c) of the Code of Civil Procedure. 10. Whether the vulnerability of a grant in common form required the appellant to prove the will per testes after the citation was returned unserved. 11. Whether the appellant's allegations in the application for probate, including the loss of the original will and the subsequent disclosure of the respondent's application for letters of administration in case of intestacy, affected the grant. 12. Whether the existence of a codicil could be ruled out at that stage.
Ratio Decidendi: 1. Proper service of citation is presumed when the postal peon tenders the citation at the respondent's residence and the maidservant refuses to accept it, resulting in its return unserved with the endorsement 'refused'. 2. The respondent's failure to appear in the proceedings despite knowledge of them does not bar her from contesting the grant, as the grant was ex parte. 3. The judgment in Bhuggobutty Dassee (1900) 4 CWN 757 does not apply to cases involving ex parte grants, as it dealt with privies and parties in a case tried per testes. 4. The judgment in Latikabala Dasi v. Anil Behari (AIR 1953 Cal 103) does not apply to cases where the respondent contests the deceased dying intestate and the original will is not forthcoming. 5. A peculiar procedure adopted by the appellant, including lodging and discharging a caveat, may suggest that the court was misled, and the court may agree with the trial court's suggestion. 6. The standard practice of granting probate in common form in non-contentious cases or where the contention has terminated does not apply when the appellant's actions led to the grant being obtained in common form. 7. The English practice of proving a will in common form or solemn form is relevant to the present case, as it highlights the distinction and consequences of each form. 8. The Indian Succession Act provides for the application of the Code of Civil Procedure in probate and administration proceedings, and Section 283(1)(c) gives the court discretion to issue citations. 9. The vulnerability of a grant in common form requires the appellant to prove the will per testes after the citation is returned unserved, and the appellant's failure to do so justifies the revocation of the grant. 10. The appellant's allegations in the application for probate, including the loss of the original will, which raises a presumption of revocation under Section 70 of the Indian Succession Act, and the subsequent disclosure of the respondent's application for letters of administration in case of intestacy, which contradicts the appellant's earlier statements, affect the grant. 11. The existence of a codicil cannot be ruled out at the stage when the application for probate was made and the copy containing a reference to the codicil was disclosed.
Final Decision: The appeal against the revocation of the probate grant was dismissed, and there was no order as to costs.
( 2 ) THE learned Court negatived the contention that the letter dated 14th January, 2001 written by the sister of the executor, during the lifetime of the testator, establishes that she had no objection to the grant of Probate. The learned Trial Court has impliedly suggested that a sharp practice was perpetrated upon the Court by the appellant in obtaining the grant which is illustrated by the fact that the appellant himself had lodged a caveat and he thereafter obtained an order discharging the caveat whereby an impression was given that the contention had ceased to exist whereupon the grant was made. Lastly, it was found that there was admittedly in existence a codicil which was not brought to the knowledge of the Court.
( 3 ) AGGRIEVED by the order revoking the grant, the executor has come up before this court in appeal. Mr. Kapoor, learned senior advocate appearing in support of the appeal drew our attention to the records which would go to suggest that the special citation was tendered by the postal peon at the residence of the respondent in Texas in the USA. But the maidservant of the respondent refused to accept the same and it is in those circumstances that the registered cover containing special citation was received back unserved with the endorsement 'refused'. He, therefore, contended that in the facts of the case proper service of citation has to be presumed.
( 4 ) IN spite of knowledge about the proceedings initiated in this Court if the respondent chose not to appear she cannot be now heard to say that the citation was not duly served. He submitted that the learned trial court was wrong in concluding that the presumption about good service arising out of an endorsement of refusal had been rebutted by the respondent.
( 5 ) HE submitted that it is equally wrong to proceed on the basis that there is a codicil; no such allegation is there in the application for grant of probate nor is any codicil, in fact, in existence. The executor in his proposed draft application, a copy whereof was given to the temporary administrator appointed at the instance of the respondent by the Courts at Texas, made an incorrect statement that there was a codicil on the basis of misapprehension about the true purport of the letter dated 30th September, 2000 addressed by the testator.
( 6 ) HE also submitted that when the respondent has accepted the Will by her letter dated 14th January. 2001 there can no longer be any ground for revocation of the grant. He drew our attention to a judgment in the case of Latikabala Dasi v. Anil Behari, reported in AIR 1953 Cal 103 for the proposition that a grant shall not be revoked, when the applicant admits that the Will was duly executed and was a genuine Will, merely because the special citation was not served upon him. The letter dated 14th January, 2001 written by the respondent, according to him, goes to show that the respondent had no objection to the Will of her father which is also an admission about proper execution of the Will.
( 7 ) HE also relied on a judgment in the goods of Bhuggobutty Dassee (deceased) reported in (1900) 4 CWN 757 for the proposition that "if a party is cognizance of proceedings for probate or letters of administration and chooses to stand by and allow the proceedings to be concluded in his absence, he will not be allowed to come in afterwards and have the grant revoked". He, therefore, submitted that the order revoking the grant should be set aside and the appeal should be allowed.
( 8 ) THE judgment in the case of bhuggobutty Dassee (supra) in our considered opinion has no mariner of application to the case in hand. The law laid down therein is applicable to the privies and parties
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