Calcutta High Court
Arindam Ghosh vs Chittaranjan Ghosh And Ors. on 24 December, 2001
Equivalent citations: AIR2002CAL140, (2002)1CALLT311(HC), AIR 2002 CALCUTTA 140, (2002) 4 CIVLJ 383, (2002) 1 CALLT 311, (2002) CAL WN 728
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
JUDGMENT
The Court
1. All these applications are taken up for hearing for convenience sake. The most comprehensive application being No. 169 of 2000 is dealt with elaborately and specifically as the decision on which will have direct result and/or bearing upon the other applications.
2. By this application one Smt. Manju Ghosh, daughter of one Bolal Chand Ghosh has taken out this application for condonation of delay and recalling and/or cancelling and/or modifying my order dated 1st October 1999 as modified dated 4th October 1999 passed on the application being No. 4124 of 1999. The brief history of this case is required to be narrated.
3. One Bolal Chand Ghosh died on 16th August 1980 is alleged to have executed his last Will and Testament on 25th December 1977 which was alleged to have been registered on 4th January 1978. By this alleged Will, Arindam Ghosh being the son of third wife of the deceased has been appointed Sole Executor and is also sole beneficiary of the said Will (hereinafter referred to as Arindam). After death of the testator on or about 18th May, 1981 Arindam filed the application for grant of probate of the Will. On 31st July 1981 the probate of the said Will was granted.
4. After the probate was granted on or about 18th September 1986 an application for revocation of the grant of probate had been made by one Bhabesh Ghosh being one of the sons of the deceased by second wife and the same was dismissed by the Hon'ble Justice Pratibha Bonnerjea (as His Lordship then was) by the Judgment and order dated 18th September 1986. In this Judgment it was found all the heirs and heiress of the deceased were either served with citations or refused to accept service.
5. After dismissal, on 25th March 1987 second application for revocation of the grant of probate was made by sons of the first wife of the said deceased and three sons and two daughters of the second wife of the deceased in spite of they being parties to the above application and notwithstanding dismissal as above.
6. On 9th July 1987 by an order the Hon'ble Mr Justice Ajit Kumar Sengupta (as His Lordship then was) revoked the said grant of probate which was passed ex parte. It is significant in the second application that the aforesaid fact of dismissal of first application was not mentioned.
7. Meanwhile, on 21st September 1981 other heirs and legal representatives filed the suit for partition Impleading the Executor herein as a party defendant. It appears in the said partition suit the preliminary decree was passed and an appeal has also been preferred not by any of the parties but by some other persons who have allegedly acquired interest from the Executor herein. The appeal Court did not interfere with, in substance, except little variation, the decree and order passed by the learned trial Judge. Once the Executor/appellant had made an application for recalling of the order of Justice Ajit Kumar Sengupta dated 9th July 1987 revoking grant of probate. At the time of hearing of these applications on 12th April 2001 the learned senior counsel Mr. P.K. Mullick recorded that his client had abandoned the said application for recalling of the order of Justice Ajit Kumar Sengupta dated 9th July 1987.
8. Even during pendency of the above application the Executor made an application in or about September 1999 in this Court in view of the revocation of grant for the following orders namely.
"(a) The application made by the petitioner for grant of Probate in the above being No. 83/1981 be treated as revived.
(b) Special citations be issued to the persons mentioned in para 13.
(c) Costs of and/or Incidental to this application be paid from the estate of the deceased.
(d) Such further or other order or orders be made and/or direction or directions be given as Your Lordships may deem fit and proper."
9. On 1st October 1999 and 4th October 1999 I passed orders in terms of prayers (a) and (b) hereinabove. The purchaser, viz., Crystal Developers preferred Special Leave Petition before the Hon'ble Supreme Court against the Judgment and decree upholding decree of the suit Court and the same is pending and interim order has been passed by Hon'ble Supreme Court not to dispossess any person.
10. On the factual matrix of this case as above now the present application has been taken out for recalling of my earlier orders dated 1st October 1999 and 4th October 1999.
11. Mr. Gour Roychowdhury, learned Advocate in support of this application contends that both my aforesaid orders were passed ex parte and no notice nor any opportunity of being heard was given. Therefore, this order is liable to be recalled, He contends also that in view of the preliminary decree passed in the partition suit and the same being subsequently affirmed by this Court the efficacy of the so-called Will has been extinguished. Therefore, the application for grant of probate of the Will has become so to say infructuous by the act and conduct of the Executor herein. The alleged Will has been abandoned by his conduct as he did not prefer any appeal against the aforesaid preliminary decree and, in fact, be contested the partition suit. The applicant herein did not take any step for getting the probate proceedings heard and allowed all the persons to conduct themselves as if the said deceased died intestate.
12. Mr. Das, learned senior advocate while supporting Mr. Roychowdhury, contends further that the Will is forged and this Court need not look into the Will any more. The factum of forgery Will be substantiated by the conduct of the Executor himself, as he did not take any Interest to obtain probate of the Will again after revocation of grant. This silence on the part of the Executor strengthens the case that the Will is not genuine one. Moreover, he contends, once grant of probate is revoked Executor applicant has no option but to proceed afresh by filing fresh application for grant of probate. In support of his argument he has relied on the following decisions :
(I) AIR 1949 Cal 462.
(II) AIR 1930 Bombay 370. (III) ILR 20 All 109 and (IV) 15 CLJ 305.
13. Therefore, the order passed by me should be recalled, as there is no use to maintain the order on an infructuous and/or a dead proceeding so to say.
14. Mr. P.K.Mulllck, learned senior advocate while opposing the application contends that it is an absurd proposition that once the grant of probate is revoked on any ground the probate proceeding will come to end. He contends that If the grant of probate is revoked then probate proceeding has to be heard de-novo. There is no order recording cancellation of the Will nor there is any order of dismissal of the probate proceeding. In support of his submission he has relied on two decisions and .
15. He has explained the delay for not taking any step for obtaining fresh grant of probate after revocation of order of Justice A.K. Sengupta. He contends that the order of Justice A.K. Sengupta was passed ex parte so that application was made for recalling of that order as it was not drawn attention of Justice A.K. Sengupta to the fact that previously one application for revocation of the grant of probate was dismissed by Justice Pratibha Bonnerjea and no appeal was preferred therefrom.
16. I have gone through the Judgment and order of Justice Pratibha Bonnerjea which recorded clear findings that citation was served and in spite of service of citation none appeared to contest the grant. The applicants, at whose instance Justice A.K. Sengupta was pleased to revoke the grant, were made parties and were represented by their learned Advocates in the proceedings for same relief and the Court recorded that there was no grievance as regard the service of special citation. However. Mr. Mullick's client has accepted the order of Justice A.K. Sengupta as the original grant of the probate has been surrendered pursuant to a contempt proceeding. Therefore, there is no Illegality nor infirmity of the orders passed by me, he contends, so much so any interference is necessary.
17. Having heard respective contentions and submissions it appears to me since Mr. Mullick has submitted that his client docs not want to press the application for recalling the order of Justice A. K. Sengupta I am bound to examine the application made by Mr. Gour Roychowdhury's client supported by Mr. Das's client. The aforesaid two orders were passed at a certain point of time when neither the client of Mr. Gour Roychowdhury nor the client of Mr. P.K. Das was party to the proceedings so to say. Order Issuing citation or reviving the probate proceeding should not affect or prejudice any party ordinarily but in this case there are some rights by passage of time have been created in favour of Mr. Das's client and Mr. Roychowdhury's client as well. Though they are not technically parties to the probate proceedings, their cases are to be considered and decided. Admittedly, my aforesaid two orders were passed ex-parte as no notice was served nor could be served upon Mr. Roychowdhury's client.
18. Mr. Das contends since by virtue of order of Justice A.K. Sengupta the probate proceeding itself has been perished and this is a clinching issue in this matter that order passed by Justice A.K. Sengupta brought all the controversies to an end so far as the probate proceeding is concerned.
19. I have examined all decisions cited by Mr. Das. I am unable to accept the proposition laid down by the aforesaid decisions. The language and wording of sections 261 and 263 of the Indian Succession Act, 1925 is absolutely clear to hold that only grant is revoked but probate proceeding is not dismissed. 1 am unable to accept the ratio decided in the aforesaid decisions so far as the same deal with on the question of revocation of grant of probate in view of the Division Bench Judgment of the Patna High Court and that of our Court particularly the same are later pronouncements. In the Division Bench judgment of Patna High Court cited by Mr. Mullick It has been held amongst other that probate proceeding has to be heard de novo after service of citation. Similar view has also been taken in the decision of our Court . The grant of probate is revoked under Section 263 of the Succession Act 1925 on just cause. This 'Just cause' in generic term that Includes non-service of citation upon the deserving person and forgery as well. In case of non-service of citation on revocation of grant, the proceeding has to be heard de novo after citation being served, but in case of revocation on the ground of Will being forged, no question of proceeding being heard again arises as the very foundation of proceeding perishes. The case on hand revocation of grant of probate was done on sole ground of non-service of citation. This is what was exactly observed by the Division Bench Judgment (Southern Bank Ltd. v. Kesardeo Ganeriwalla and Ors.) in paragraph 46 part of which is reproduced hereunder:
"...... Prima facie it seems to be somewhat inaccurate to say that aperson entitled to revocation under Section 50 (or Section 263 of the present Act) is entitled to claim that the Will should be proved in solemn form, for that person is entitled to the destruction of the Will and not interested in Its being upheld. It is for the party supporting the Will to ask for an opportunity to prove the Will again and this Will naturally be granted to him provided of course the revocation had not been ordered on the ground that the Will was not genuine. What Woodroffe, J. meant was that the person who is entitled to the revocation can say that If the Will is to be proved again it should be on notice to him in solemn form. Where probate is revoked on the ground of non-citation the Will may be proved again but then the right to prove the Will again is in the person wishing to uphold the Will and not in the person wanting the revocation of the probate. The claim to prove the Will again therefore be made by the former and not the latter."
20. The Patna High Court in case of Matukdhari Singh v. Mst. Radha Kuer and Ors. it has been held considering decision of Privy Council and old decision of this Court in paragraph 3 as follows :
"In our opinion the District Judge of Muzaffarpore was erroneous in law in rejecting the application of the petitioner and in requiring him to file a fresh application for grant of letters of administration. It is manifest that the revocation of the letters of administration was made in this case on the ground that there was no citation given to the opposite party No. 3. The effect of the revocation in these circumstances is not to revoke the entire proceeding, but only to revoke the actual order of the District Judge granting letters of administration to the petitioner. It follows, therefore, that the original proceeding in probate case No. 2 of 1948 is revived after order of revocation, and it is open to the petitioner to request the Court to restore the original Probate Case No. 2 of 1948 and to issue special citations to the opposite parties named in that petition, namely, opposite parties Nos. 1 to 6.
The view that we take is supported by the observations of the Privy Council in Ramanandi Kuer v. Kalawati Kuer, ILR 7 Pat 221 at p. 229 (AIR 1928 PC 2 at pp. 4-5) and of the Calcutta High Court in Aswini Kumar Chakravarty v. Sukhaharan Chakrawarty . There is also an observation of Mookherjee, J. In Brindaban Chandra v. Sureswar Shaha, 10 Cal LJ 268 at p. 275 that the effect of revocation of a probate is to revive the original proceeding for the grant of probate. For these reasons we hold that this application should be allowed, the order of the District Judge of Muzaffarpore dated the 31st of January, 1959 should be set aside and the District Judge of Muzaffarpore is ordered to treat the application of the petitioner filed on the 22nd of January 1959, as an application for revival of the original probate case and to proceed in accordance with law."
21. The decisions cited by Mr. Das reported in AIR 1949 Cal 462 is wholly inapplicable in this case as the same was decided while dealing with an application under Section 302 of the Indian Succession Act, 1925. There is no dispute nor it is a point here that Court has no Inherent power to deal with an application to set aside an order made ex-parte and set it aside upon a proper case being substantiated. This decision has not discussed about the legal Implication if the grant of probate is revoked what is the fate and position of the application on which the grant was made.
22. As far as the decision cited by Mr. Das reported in AIR 1930 Bombay 370 is concerned the same is also not applicable at all as it was decided in a case dealt with under the provisions of Section 15(c) of Petroleum Act.
23. The decision of Allahabad High Court reported in ILR 20 All 109 and the decision of this Court reported in 15 CLJ 305 cited by Mr, Das are no longer good law in view of the subsequent Division Bench Judgments of this Court and the Patna High Court discussed by me as above.
24. Therefore. 1 hold that the implication and effect of order of Justice A.K. Sengupta is that application for grant of probate has to be heard de novo. No application has been made for setting aside or recalling of the order of Justice A.K. Sengupta excepting by Mr. Mullick's client who has abandoned the same. My subsequent orders are so to say surplusage. However, since the probate has been revoked the original probate proceeding revives all the heirs and legal representatives in case of the death intestacy have to be cited. So in order to expedite the matter as logical consequence I passed the aforesaid order. I do not find any Illegality and Infirmity in my previous orders relating to Issuance of citation.
25. As far as question of forgery or genuineness of the Will are concerned or for that matter act or conduct of the applicant/Executor is concerned the same may be factor or Issues to contest the application for grant of probate in this case at least. The probate Court may or may not take note of it while considering the question of grant afresh. On this application I cannot decide this matter in spite of having materials and relevant subsequent fact or event of passing preliminary decree in a partition suit. The aforesaid partition suit has not come to a finality, the matter has been taken to Supreme Court, There is no order of Supreme Court nor of this Court that a probate proceeding has become wholly infructuous. My orders sought to be Impugned, hardly matter, as the effect of order of Justice A.K. Sengupta is revival of proceedings, even if I recall any orders, effect of order of Justice A.K. Sengupta still remains.
26. Therefore, all parties viz.. heirs and legal representatives being represented by Mr. Gour Roychowdhury and Mr. Das are deemed to have waived service of special citations and they may or may not file their caveat within time as prescribed in the Rules to be reckoned from date and may also file affidavit in support of caveat.
27. Excepting the property which is and/or are the subject matter before Hon'ble Supreme Court the status quo as regards rest of the property shall be maintained for a period of eight weeks after vacation or until further order whichever is earlier but the parties would be at liberty to approach before regular appropriate Court to pray for modification, vacating of this interim order upon mutual notice to the parties.
All parties are to act on a signed copy of the operative portion of this Judgment.