Calcutta High Court
An Application For Revoking The Grant Of ... vs Unknown on 6 October, 2010
Author: K.J. Sengupta
Bench: Kalyan Jyoti Sengupta
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G.A. No. 3616 of 2008
P.L.A. No. 108 of 2007
IN THE HIGH COURT AT CALCUTTA
Testamentary & Intestate Jurisdiction
Original Side
PRESENT:
THE HON'BLE JUSTICE KALYAN JYOTI SENGUPTA
In the Goods of:
Sri Anil Kumar Basu
And
In the matter of:
An application for revoking the grant of Probate issued on 12th October
2007 in PLA No.108 of 2007 and
In the matter of:
Suprotim Das vs.
Sri Sujoy Kumar Basu
And
In the matter of:
Sri Ranjit Kumar Basu, defacto respondent.
Judgment on: 6.10.2010.
K.J. Sengupta, J.:
The Motion in the aforesaid application has been taken out for revocation of grant of the probate dated 12th October, 2007 in P.L.A. 108 of 2007 and also interim relief incidental thereto.
In the petition the ground for revocation is that after the probate having been granted another subsequent Will and testament dated 23rd December, 2005 has been discovered. Thus, it constitutes "just cause" within the meaning of 2 Section 263 of the Indian Succession Act, 1925 (hereinafter referred to as the 'Act of 1925').
The case of the petitioner is that one Anil Kumar Basu has executed last Will and Testament on 23rd December, 2005 bequeathing unto and in favour of the applicant Suprotim 94,260 number of equity shares in three companies namely Dhakeswari Cotton Mills Limited, The Adarsha Cotton Spinning and Weaving Mills Limited and The United Vegetable Manufacturers Limited to the exclusion of all others.
It is contended in the petition that he was not aware of the earlier Will dated 30th March 2005 to which probate has been granted by this Court. It is alleged that he was not cited though he is the son of niece of the said testator Anil Kumar Basu. Having come to know of the grant and existence of the said Will he had applied for certified copy thereof as well as the grant and other cause papers in the said probate proceedings. He came to know thence that by the earlier Will not only the shares but also 50% ownership of the premises No.1A, Outram Street, Kolkata --700 017 have been bequeathed and/or given away in favour of the said Sujoy Kumar Basu. In the said Will one Ranjit Kumar Basu, Advocate has been appointed Executor for obtaining grant of probate. The said executor applied for and did obtain grant. He has admitted in his petition that said 50% share of the property given away under the Will has been sold away after obtaining the grant, however, he is not concerned with the share of the immovable property.
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This application is opposed not only by the beneficiary of the earlier Will but also by the named executor who has obtained the probate of the same had filed affidavit. It is appropriate to mention that at the time of filing of the said application no probate proceeding in relation to the alleged last Will and testament was initiated. In or about January 2009 during pendency of this application an application was made for obtaining probate to the District delegate in the District of 24 Parganas (South).
After affidavit-in-opposition and affidavit-in-reply are filed, the aforesaid subsequent development was brought to the notice of the Court by filing a supplementary affidavit by the applicant. The said supplementary affidavit was also dealt with by filing further affidavit by the respondents.
In the affidavit-in-opposition it is alleged that subsequent document is not a genuine one and in any event the said last instrument does not record revocation of the earlier Will and furthermore this alleged last Will concern the shares only and has nothing to do with the immovable property.
The legatee Sujoy Kumar Basu has stated in his affidavit that after obtaining probate of the Will all lawful steps have been taken by the executor to the notice and knowledge of the applicant, and in the process shares and immovable property have been sold away. It is stated in the affidavit-in- opposition by Sujoy Kumar Basu as well as Ranjit Basu that in the earlier Will the petitioner's father was the attesting witness and he has also sworn in an affidavit in support of the grant. The mother of the applicant initially lodged Caveat. Later, the Caveat was discharged as she had given consent by filing an 4 affidavit in this Court. Therefore, the applicant was having knowledge of the pendency of the probate proceedings. The executor Ranjit has also repeated the same fact as has been done by Sujoy. In addition thereto he reveals that the parents of the petitioner namely Subhas Das and Lily Das at material point of time had knowledge of the prior will and grant of probate thereof. Even the petitioner is aware of his mother consenting to grant of Probate.
It is further stated by Ranjit in paragraph '8' that the petitioner/applicant herein is residing with his parents Subhas Das, and Lily Das and the former was an attesting witness of the Will dated 31st March 2005. The petitioner knew of the probate proceedings but chose not to come forward with any will allegedly dated 23rd December 2005.
On the factual backdrop as above Mr. Das appearing for the applicant contends that his client was not cited as he is not the heirs and legal representatives of the deceased in case of death intestacy, as such he had no occasion to contest earlier grant. The moment, he submits, he came to know about existence of the grant he at the earliest possible opportunity made this application. It is settled law the discovery of the subsequent Will or codicil is just cause for revocation of grant at least partially in this case. His client has already applied for grant of probate of the last Will and a codicil. According to him under Section 70 of the said Act it is permissible for the testator to change his mind with regard to disposition of the property by revoking the will made or by executing subsequent Will. Here by the earlier Will all the properties were given away by the testator to Sujoy. Subsequently on his change of mind because of 5 estranged relationship with Sujoy he gave away all the shares as stated in the petition to his client. In the last Will he has given reason as to why he had to change his mind. According to him, the aforesaid facts and circumstances is appropriately just and proper for revocation of grant so far as it relates to the shares are concerned.
Mr. Shyamaprasad Sarkar learned Senior Counsel appearing for the respondent Sujoy submits that this application is not maintainable as the same being mala fide and meritless. The said Will dated 23rd December, 2005 is not a genuine one and even if it is assumed to be so it cannot be said to be a Will to revoke or supersede earlier Will and at the most it could be described a codicil substituting the petitioner as a legatee in place of respondent named in the earlier Will, so far the shares in the said companies are concerned. He also brought the fact mentioned his client's affidavit to the notice of the Court that applicant's mother though being cited and Caveat being lodged, did not contest the grant rather consented to. His father was the attesting witness of the earlier Will. The factum of probate proceedings was within the knowledge of the petitioner, in spite of that he did not come forward to contest the same. In this case, the later Will dated 23rd December 2005 was not discovered after grant of probate of the earlier Will. The existence of the earlier Will was within the knowledge of the applicant and it was within the knowledge of the applicant that the probate proceeding is pending. Therefore, despite having knowledge he stood by and has acquiesced in the grant. The judicial pronouncement did not support any indolent person in his action for revocation of grant who all the time stood by 6 without raising any objection. In this context, he has referred to an old decision of the Bombay High Court reported in ILR 5 Bombay 638.
He further says that the applicant at the moment is not at all entitled to any relief regarding share as following grant of probate assent has been given by the executor to the respondent in respect of such legacy perfecting his title to such share. Even if, in the unlikely event the grant is overlooked, action taken by the executor legally cannot be disturbed as revocation always take place retrospectively. In the Supreme Court pronouncement in a case reported in AIR 2004 SC 4980 it has been held so.
Mr. Samit Talukdar learned Senior Counsel while appearing for executor Ranjit, supports Mr. Sarkar and additionally submits that the applicant is residing with his parents namely Subhas Das in the same premises and despite knowledge of pendency of the probate proceeding he did not come forward to resist grant of probate.
We have taken note of the respective submission of the learned counsel as well as the fact mentioned in the affidavit. Legally Mr. Das is right when the case is made of discovery of subsequent Will or codicil after grant of probate of an earlier Will, it is a "just cause" within the meaning of Section 263 of the said Act. It is well settled principle of law the Court may or may not revoke grant under Section 263 as it is always discretionary power of the Court, and it will appear from the word "may" in the said Section. The discretion of course, has to be exercised rationally and equitably, and not capriciously nor arbitrarily. 7
Under what circumstances such discretion shall be exercised depends upon individual facts and circumstances made out and also the conduct of the applicant. In this case as rightly argued by Mr. Samit Talukdar the statement made in his client's affidavit which remains uncontroverted that applicant was aware of the fact that his father was attesting witness and his mother has consented to grant and he knew the pendency of the probate proceeding has to be accepted. The applicant despite having knowledge of pendency of probate proceeding in relation to earlier Will did not come forward to contest the same on the strength of another will of the same person said to be subsequent one. I am unable to accept the contention of Mr. Das that his client has no locus to contest the grant. I am of the view that executor and the beneficiary of the later Will had caveatable interest to contest the proceedings for grant of earlier Will. When he came to know he should have come forward to lodge a Caveat and to contest the proceeding for grant. He chose not to do so rather stood by.
I respectfully accept the legal proposition laid down by the Learned Single Judge of the Bombay High Court in the case of Pitamber Girdhar (Supra) wherein the learned Judge has observed at page 640 of the report that probate when granted after proof in solemn form cannot be revoked at the instance of one who had been caveator or who was cognizant of the previous application for probate. According to me (emphasis supplied) 8 a person who would have been a caveator while remaining silent and not coming forward to question the grant he rendered himself disentitled by his act and conduct.
I am not commenting about the legality and validity of the later Will nor I am examining the effect of the later Will viz. whether the same supersede the earlier one wholly or partly. I only hold that the applicant has failed to establish a just cause for which I can exercise my discretion. Therefore, decision of Supreme Court cited by Mr. Sarkar does not require any consideration now. I, therefore, dismiss this application and parties will take steps in accordance with law, dismissal of this application will not prejudice right of either of the parties, if any.
There will be, however, no order as to costs.
(K. J. Sengupta, J.)