Calcutta High Court
Sasanka Sekhar Maity vs Dulal Kumar Maity And Ors. on 4 February, 2005
Equivalent citations: 2005(3)CHN259
Author: Asok Kumar Ganguly
Bench: Asok Kumar Ganguly, Tapan Kumar Dutt
JUDGMENT Asok Kumar Ganguly, J.
1. This appeal has been filed against the judgment and decree dated 30.05.1988 passed by the learned Assistant District Judge at Contain in Other Suit No. 116 of 1980/Other Suit No. 29 of 1979.
2. By the judgment and decree under appeal, the learned Judge held that the Probate of the Will was earlier obtained fraudulently by the defendant No. 1, the appellant before us, and the same is liable to be revoked and, accordingly, the learned Judge granted a decree for revocation of the grant of the Probate of the Will by a reasoned judgment. In the said judgment, it was held that the grant of the Probate of the Will obtained in Judicial Miscellaneous Case No. 126 of 1961 in the Court of the learned District Delegate is liable to be revoked and the same was revoked by the judgment under appeal.
3. The material facts of the case are that one Upendra Nath Maity, father of the original plaintiff, viz. Subodh Kumar Maity, died on 10.01.1960 leaving behind his wife, three sons including the plaintiff and a daughter. The wife of Upendra Nath was Barada Sundari, and three sons were Subodh Kumar Maity, Sasanka Sekhar Maity, Sudhir Kumar Maity and his daughter's only son, was Amiya Kumar Mahapatra.
4. The original plaintiff, viz. Subodh Kumar Maity, used to stay in Calcutta in connection with his work and his wife, sons and daughter used to stay at the paternal house of Subodh Kumar at Monoharchak. The said Subodh Kumar, since deceased, came to learn that the defendant No. 1, viz. Sasanka Sekhar, had obtained the Probate of a Will purported to have been executed by their father, viz. Upendra Nath, and, as a result of the said Probate, Sasanka was claiming a very large share of the property left by Upendra Nath. It was alleged that the said Will was forged and created after the death of Upendra Nath and by ante-dating the same and by acting in collusion with the others. Thereafter, a proceeding was initiated, being Miscellaneous Case No. 126 of 1961 in the Court of the learned District Delegate and, in the said proceeding, it was contended that the Probate was obtained without impleading all the heirs of deceased Upendra Nath to the said Probate proceeding and by not serving any notice on the heirs of the deceased Upendra Nath. As such, subsequently Subodh Kumar, since deceased, filed a suit for revocation of the Probate granted previously.
5. The learned Judge, upon a contested hearing, was pleased to allow the prayer for revocation as stated above. On such suit being filed, the learned Judge framed the following issues:
"1. Is the suit maintainable in its present form?
2. Is the suit barred by limitation?
3. Was the Probate obtained earlier fraudulently? Is the same liable to be revoked?
4. Is the petitioner entitled to get a decree for revocation of the grant of the Probate?
5. To what relief is the petitioner (plaintiff) entitled?"
6. In assailing the said judgment under appeal, the learned Counsel for the appellant, Sasanka Sekhar, has raised various factual contentions, which are noted below.
7. The first contention was that the application for revocation was filed very belatedly by Subodh on 05.06.1978, whereas the Probate was granted in the year 1962.
8. Apart from that, it was contended that under the will, which was probated, sufficient properties were given in favour of Subodh and he has no reason to feel aggrieved. If there had been no Will, then the objector will get 175th portion of the share of the properties left by Upendra. But, under the Will, he has got 1/3rd shares in respect of all the properties of Upendra save and except the residential premises left by Upendra.
9. It was also contended that under the Will dated 01.11.1959, late Upendra, the testator, dedicated his bedroom in the residential house at Monohorchak in the memory of his father, late Madhav Chandra Maity, describing the same as "Madhav Memorial Pathagar". This was done with a view to providing share to his grandson and granddaughter for their studies in School and College at Kanthi in Midnapore. The testator permitted his son to reside at the Monohorchak house as guardian of the children, who were prosecuting their studies and further permitted his son to reside at Monoharchak house, if are practising either as a doctor or a lawyer.
10. Under the Will, the testator also permitted his son to build a house in the open space for the purpose of residence. But, the Will did not confer any right on the land comprised in the house and the Will further restricted any personal right or adverse claim on the said land. It was made clear in the said Will that none of the sons will be entitled to demand a share of the land in the said 'Monoharchak Bastu' save and except that Upendra gave 1/3rd shares to each of his three sons in respect of the other movable and immovable properties. Upendra made his eldest son, the appellant herein, the trustee of the said "Pathagar" and executor of the Will. After the death of Upendra on 10.01.1960, the Will was probated as stated above and the Probate Case was allowed on 05.01.1963.
11. The learned Counsel also submitted that after the grant of Probate, the same was accepted without any objection by everybody. In support of the said contention, the learned Counsel relied on ordersheets dated 10.11.1965 and 12.11.1965 of Judicial Miscellaneous Case No. 126 of 1961.
12. It was also stated that the other two sons, Subodh and Sudhir, acknowledged their respective shares in the Will and such acknowledgement was filed in the Court of the learned District Delegate at Midnapore on 10.11.1965 and it was further contended that the said acknowledgement receipt filed by Subodh Kumar form part of the records of the Judicial Miscellaneous Case No. 126 of 1961.
13. It was, therefore, submitted that Subodh Kumar, since deceased, and the predecessor-in-interest of the respondents in this proceeding had acknowledged the Probate Case and also derived benefit under the said Will. It was also submitted that after the grant of Probate, the appellant applied for mutation of the Monoharchak property in his name, vide Miscellaneous Case No. 74@. P-I of 1373 B.S.
14. Initially, Subodh Kumar, since deceased, objected to the grant of mutation, but, thereafter, the appellant produced the Will and several documents in connection with the Judicial Misc. Case No. 126 of 1961 in the Court of the learned District Delegate at Midnapore and Subodh withdrew his objection and the mutation of the name of the appellant as trustee on behalf of the said 'Pathagar' was allowed. Thus, the name of the appellant was mutated as trustee of the said 'Pathagar' in place of late Upendra Nath. It was, therefore, submitted that in the year 1965 Subodh came to learn of the existence of the said Will and the grant of its Probate, but, never raised any objection.
15. The learned Counsel submitted that previously, an attempt was made by Amiya, son of the daughter of the testator, Upendra Nath, for revocation, but, the said case of revocation in Misc. Case No. 11 of 1978 stood dismissed for default. It was also submitted by the learned Counsel that only when in the year 1976, the appellant initiated a proceeding against Subodh, predecessor-in-interest of the respondents, for recovery of possession of a portion of the property from Subodh and his family as they were enjoying the property contrary to the disposition made in the Will in respect of the said 'Pathagar', Subodh, by way of a counter-blast, filed this application for revocation of the grant of Probate.
16. The learned Counsel further submitted that in the said application for revocation, which was made very belatedly, only two grounds are mentioned. The first ground is that the Will was a forged one and the second ground is that a wrong date of death of Upendra was given in the probate application.
17. The learned Counsel further submitted that after obtaining the benefit under the said Will, it is not open to Subodh to file an application for revocation. It was also submitted that general citation was served and there was no infirmity in the grant of Probate and no prejudice was suffered by the objector in respect of the share allotted to him under the Will. The learned Counsel for the appellant cited a number of judgments, which this Court will consider subsequently.
18. The learned Counsel for the respondents, on the other hand, urged that the nature of the Probate proceeding is slightly different from other proceedings. It was also urged that the grant of the Probate amounts issuing of a certificate under the seal of the Court and before the Court could give the certificate to the Will, the conscience of the Court must be satisfied. The learned Counsel also submitted that the Will means a lawful declaration of the intention of the testator in respect of his property, which he wants to be carried out after his death.
19. Relying on the definition of 'Probate', and 'Will' under Sections 2(f) and 2(h) of the Indian Succession Act, 1925 (hereinafter referred as that 'said Act"), the learned Counsel submitted that in the facts of the case, it is amply demonstrated that the learned Judge of the First Court acted in proper exercise of his discretion, while acting in accordance with the conscience of the Court in revoking the grant of the Probate and this Appeal Court may not interfere with the same.
20. The learned Counsel further submitted that the application for revocation of the grant of Probate can be made under the provisions of Section 263 of the said Act and such revocation can be done for a 'just cause'. It was also submitted that under Section 263 of the said Act, 'just cause' has been explained and it was also pointed out that if there is a defect of substance in any proceeding under which the Probate was granted, the same would amount to a 'just cause' under the provisions of Section 263 of the said Act.
21. It was also pointed out that if the grant of the Probate was obtained fraudulently and by concealing from the Court something material to the case, that would also amount to a 'just cause'.
22. In the application for Probate, only the name of the wife of the testator was disclosed as a near relative of Upendra. This appears from Ext. C. Subodh, Sudhir and Amiya Mahapatra were not impleaded in the probate proceedings and this has been admitted by the appellant in his evidence. It was also admitted by the appellant that the only citation, which was given, was in 'Hizli Hitaishi', a local newspaper. No other notice was given anywhere. It has admitted that the said local newspaper, 'Hizli Hitaishi' was not in existence at the time, when the trial in connection with the revocation of the Probate was going on.
28. Relying on this part of the evidence, the learned Counsel for the respondents submitted that there was a defect of substance in the procedure, as such probate cannot be granted. The learned Counsel also submitted that from the order granting Probate dated 05.01.1963 (Ext.F), it appears that the case was taken up for ex parte hearing and the only opposite party, was the wife of the testator and she was absent on call. The Court granting probate only examined two witnesses, Sasanka Sekhar, the appellant who is the propounder, and one Gopi Nath Bera, as the only attesting witness.
24. From the evidence of the appellant, it appears that there were several attesting witnesses, viz. Gopi Nath Bera, Thakopada Das, Panchu Gopal Maity and Amulya Kumar Bera. It appears from the order granting probate save and except Gopi Nath Bera, no other attesting witness was" examined. There was nothing on record to show that Gopi Nath has seen any other attesting witness to sign the Will in his presence.
25. According to the learned Counsel, only one attesting witness cannot prove the execution of the Will in terms of provisions of Section 63(c) of the said Act, unless the said sole attesting witness says that he has seen other witnesses signing in his presence.
26. P.W.1, the appellant, further stated in his evidence in the revocation proceedings in the Court below "I did not see Gopi Nath Babu coming to the house of my father." D.W.2, Gopal Chandra Senapati, submitted that one Harekrishna Das was the scribe of the Will. However, that Gopal is not an attesting witness and the scribe has not been examined.
27. Apart from that, the learned Counsel submitted that the testator, Upendra Nath Maity, used an unusual mode of signature on the Will as Upendra N. Maity and there was absence of signature in all the pages of the Will. It is not in dispute that the admitted signature of the testator is Upendra Nath Maity, appearing in Ext.4. In this connection, the expert's evidence also does not support the case of the appellant. It was also pointed out that there was no evidence that the testator had signed as Upendra N. Maity on any other document and no such document was ever produced.
28. The learned Counsel also pointed out that, in the instant case, the propounder, the appellant herein, took a substantial benefit and the most valuable property at Kanthi was bequeathed in favour of the appellant and the testator's wife was totally deprived in the Will. In view of these facts, the learned Counsel submitted and considering the unnatural nature of disposition, it is difficult for the Court to sustain the grant of the Probate and the unnatural circumstances have not been explained by the appellant, the propounder.
29. The learned Counsel also submitted that the purported mutation proceedings on which the learned Counsel for the appellant relied on, is no proceeding in the eye of law inasmuch as the statutory authority, who is empowered in the law to carry on such mutation proceeding, did not initiate any such proceeding. The learned Counsel also submitted that the documents showing sale of the property under the Will are of 1980 and by that time, proceeding for revocation of the grant of the Probate has already been instituted. As such, those transactions have no material bearing to prove the validity of the probate proceeding.
30. Considering these rival submissions and also the detailed judgment given by the learned Judge, which is under appeal, this Court is of the view that no interference is called for with the detailed and well-reasoned judgment given by the learned Assistant District Judge at Contai and by which the grant of Probate has been revoked.
31. The learned Counsel for the respondents also cited a number of judgments, which will be considered later.
32. The learned Counsel for the appellant first relied on the judgment of the Division Bench of this Court in the case of Sadafat Kanu v. Sadari Hajam, reported in AIR 1931 Cal. page 497. The learned Counsel relied on the said judgment for the purpose of contending that mere non-citation will not vitiate the grant of the Probate. The learned Counsel also relied on the passage at the concluding portion of page 499 in support of the aforesaid submissions. This Court is unable to accept the said contention.
33. The decision in the case of Sadafat Kanu turned on the question whether an objector to the grant of the Probate can merely rely upon the fact of the non-issuance of the citation for invalidation of a Will. The learned Judges held that in order to succeed in his objection, the objector must show something, which would entitle the Court to hold that the proceeding was defective in substance and has resulted in prejudice to anyone.
34. In the instant case, it is obvious that in the valuable property at Kanthi, the objector had not been given any share and the appellant had obtained substantial benefit under the Will having regard to its bequest on him in respect of the said valuable property and, in this case, the application for revocation does not rest merely on the question of non-citation. There are other factors also.
35. In the case of Sadafat Kanu, the objector was not claiming that any citation should have been served on him. In fact, both the Courts held that he had no locus standi to object to the grant of the Probate. The objector was complaining of the non-citation on one Khublal Mistri, who is said to be the first cousins of the testator who, in the event of intestacy, would have been one of the heirs. The Court discarded this objection on the ground that non-citation on Khublal Mistri is not of much consequence in the facts of the case as it was open to Khublal Mistri, if he is so advised, to apply for revocation. But, the facts in this case, are totally different. Here, it is no doubt true that Subodh was entitled to be served with the citation and non-citation, in this case, has vitiated the grant of the Probate as there was no citation on any of the interested person, namely on Subodh, Sudhir or Amiya.
36. In Anil Behari Ghosh v. Latika Bala Dassi, , it has been held that omission to issue citation to persons, who should have been apprised of the probate proceedings may well be, in a normal case, by itself, a ground for revocation of the Probate. But, the learned Judges have said that the proposition is not absolute and has further added that the law has vested a judicial discretion on the Court to revoke a grant where the Court may have prima facie reasons to believe that, in the facts of the case, it was necessary to have the Will proved afresh in the presence of interested parties (see paragraph 16).
37. The object of giving citation is to give adequate notice to the persons interested in the estate of the deceased and who are affected by the Will. The grant of the Probate is a proceeding 'in rem'. Therefore, the proceedings should be given wide publicity and in the absence of citation on a party, who should have been cited, the proceedings become defective in substance and the grant is liable to be revoked (see the decision in Dinabandhu v. Sarala, reported in AIR 1940 Calcutta at page 301).
38. In this case, the discretion in the matter of revocation of Probate was rightly exercised by the learned Trial Judge on the ground of absence of citation on other two sons of the testator and also on Amiya the son of the only daughter of the testator.
39. The decision rendered in the case of Dinabandhu (supra) was based on the decision of the Privy Council in the case of Ramananda Keure v. Mt. Kalabati Keur, reported in AIR 1928 Privy Council 2. The learned Judges in the case of Ramananda Keur held that the service of notice before the grant of the Probate must be such as would give to the person alleged to have been served an opportunity to oppose grant and require the Will to be proved in the presence of the person. In that case, the Court held that the service was not such as to give opportunity to the person served to contest the grant of the Probate and that service was of no greater effect than the personal service on an infant of tender years. (See page 6).
40. In that case, it was also decided that whether a defect in the matter of service is substantial or not must be judged on the facts of each case.
41. From the facts of this case as discussed above, it is clear that there was 110 service of citation either on Subodh, Sudhir or Amiya and they were not impleaded parties in the probate proceedings.
42. The learned Counsel for the appellant further relied on the decision in the case of Dinbandhu Roy (supra), but, the ratio in the case of Dinbandhu Roy, as discussed above, does not support the contentions of the learned Counsel for the appellant on the question of non-service of citation.
43. The learned Counsel for the appellant also relied on the decision in the case of Ranmaya Gaorangini v. Betty Mahbert and Ors., reported in 31 CWN 160, on the question of citation. In that case, the learned Judges themselves held that there is a broad distinction between cases of Wills and cases of intestacy in the matter of citations.
44. The learned Judges held that in the former cases, the proof of a Will in a majority of cases, if not in all, acts prejudicially to the legitimate rights of those, who would inherit the properties in the absence of a Will. In such case, an omission to cite is likely to affect their rights in their absence. But, in the case of intestacy, such omission only affects the preferential rights of the parties to administer or prevents the parties from objecting to the personnel of the administrators and the learned Court held that unless there is some maladministration, the parties are not affected. The decision in the case of Ranmaya was one of the intestacy.
45. Apart from that, from the facts of the case, it appears that in Ranmaya, the parties, who ought to have been cited, did not themselves complain that the proceedings were taken in their absence. As such, the learned Judges held that the omission to cite them did not call for a revocation of grant. This Court is in respectful agreement with that conclusion. But, in the instant case, it is not the case of intestacy, it is a case of grant of Probate of a Will and the parties, who have not been cited, have themselves made the complaint. Therefore, the ratio in Ranmaya is clearly distinguishable from the facts of this case.
46. The learned Counsel for the appellant also relied on the decision in the case of Radhashyam Dass and Anr. v. Ranga Sundari Dassi, reported in 24 CWN 541 on the question of citation. In the case of Radhashyam Dass, it is clear that the petition for revocation was presented by the widow of the testator and that petition was signed on behalf of the widow by her father, namely, Srish Chandra Dhar and the widow was about 16 or 17 years old, when her husband died. The finding in that case was that general citations were issued and the District Judge directed that special citations on certain persons including the widow and the District Judge also directed that a guardian ad litem should be appointed for the widow. Srish Chandra was appointed as guardian and it is not disputed that he was the proper person to act for his daughter.
47. It was clear from the records that the citation was served on him as widow's guardian and such service was proved by the Peon and by the evidence of two witnesses, one of whom did put his name on the citation at the time. But, Srish Chandra refused to receive the service and it was affixed on the door of his house. From this aforesaid piece of evidence, the learned Court refused to accept, and rightly so that Srish Chandra was not served. This being the factual position in the case of Radhashyam Dass, the ratio in that case has no application to the present case, where the facts are totally different.
48. The learned Counsel for the appellant also relied on the decision in the case of Kunja Lal Chowdhury v. Kailash Chandra Chowdhury and Ors., reported in 14 CWN 1068. In that judgment, it was held that the proceedings in a Probate Court are proceedings quasi-in-rem and a Probate granted in solemn form is binding not only on the parties who have appeared or who have been formally cited, but, also on parties, who being cognisant of the proceedings and having an opportunity to intervene have chosen not to do so.
49. From the facts, it is clear that the said principles do not apply. Here, two sons of the testator, viz. Subodh and Sudhir, and the only son of the testator's daughter, viz. Amiya, were not impleaded in the probate proceedings and no service was made on them. General citation was published through "Hizli Hitaishi", a local newspaper, whose existence could not be proved at the time of trial of the revocation proceedings. It is clear that the probate proceeding was concluded ex parte in the year 1961 and nobody had any knowledge of the same. Therefore, the ratio in the case of Kunja Lal (supra) is not attracted to the facts of this case.
50. On the question of the evidence of the attesting witness, reference may be made to the judgment of the Division Bench of Bombay High Court in the case of Roda Framroze Mody v. Kanta Varjivandas Saraiya, reported in AIR (33) 1946 Bombay 12. The learned Judges of the Division Bench of Bombay High Court on a conjoint reading of the provisions of Section 63(c) of the Succession Act and Section 68 of the Evidence Act held where a Will is duly signed by the testator and was attested by two witnesses, not in the presence of each other, but at a different times, in that case the evidence of one of the attesting witnesses is not sufficient to prove execution of the Will. In the instant case the only attesting witness, who was examined did not state that he has seen the other attesting witness signing in his presence.
51. To the same effect is the judgment of Madras High Court in the case of N. Ramaswamy Padayachi v. C. Ramaswamy Padayachi, . The learned Judges of the Division Bench of Madras High Court, by relying on the decision of Bombay High Court referred to above, held that where a gift deed, signed by the donor, was attested by two witnesses but it is not proved that each of the attesting witnesses saw the other attesting witness sign in his presence, the evidence of one of the attesting witnesses is not sufficient to prove the execution of the gift deed. (See paragraph 3)
52. In a recent judgment by the Hon'ble Supreme Court rendered in the case of Janki Narayan Bhoir v. Narayan Namdeo Kodm, , Section 63(c) of the said Act and Sections 68 and 71 of the Evidence Act came up for consideration. Considering these provisions, the learned Judges held that the requirement of execution of Will under Section 63(c) of the said Act is its attestation by two or more witnesses and this is mandatory. The learned Judges also held that on a combined reading of Section 63 of the said Act and 68 of the Evidence Act, it appears that the person propounding the Will has to prove that the Will was duly and validly executed and that cannot be done by simply proving the signature of the testator on the Will. It must also be proved that the attestation was properly done under Section 63 of the Act. But if the Will is to be proved by one attesting witness, in that case that attesting witness in his evidence has to satisfy the attestation of the Will by him and also by the other attesting witnesses in order to prove that there was due execution of the Will. But if one attesting witness does not satisfy the requirement of attestation of the Will by the other attesting witness in that case it falls short of attestation of the Will at least by two witnesses for the simple reason that the execution of the Will does not merely mean the signing of it by the testator, it means fulfilling the requirement under Section 63 of the Succession Act. (See paragraphs 9 &10)
53. In this case, on the question of signature in the Will, there is sufficient reason for doubt. The propounder stated in his evidence that his father, the testator, signed in his presence. But the propounder never stated that his father ever signs as Upendra N Maity. In fact, the admitted signature of the testator shows that he always signs as Upendra Nath Maity. Therefore, this departure from this admitted signature of the testator has not been explained. In this connection about the evidence of P.W.-1, Shankar Prasad Sinha, the handwriting expert is very positive. The said Shankar Prasad Sinha worked as Deputy Superintendent of Police, Midnapore and as Examiner of questioned documents from October, 1963 to July 1985. The said expert proved his report and categorically stated that signature appearing on the Will was not genuine. In his cross-examination also the said opinion of the expert could not be shaken.
54. On the question of signature it is well-settled that the Court can use its own eyes in addition to the handwriting expert's evidence or even in the absence of such expert evidence on the point. (Please see the decision of the Division Bench of this Court in the case of Bisseswar Poddar v. Nabadwip Poddar, reported in 64 CWN 1067, at page 1080).
55. Relying on the provision of Section 73 of the Evidence Act, the learned Judges came to the conclusion that there is no reason for attributing the theory of judicial blindness and a Judge can apply his own eyes to the disputed question along with the evidence of the handwriting expert. In the instant case this Court has looked into the signature on the Will and also the admitted signature of the testator. Comparing those two signatures it is quite apparent to the Court that the signature on the Will, in all probability, is not the signature of the testator. As such, in the facts of this case, the execution of this Will becomes shrouded in mystery and suspicion but the propounder has not been able to dispel of doubts and the conscience of the Court has not been satisfied. This Court is therefore, unable to reach any conclusion different from the one reached by the learned Judge of the First Court that the grant of probate ought to be revoked.
56. The learned Counsel for the appellant has cited a judgment of the Supreme Court in the case of S. Gopal Reddy v. State of Andhra Pradesh, . The learned Counsel relied on the said judgment in order to contend that the expert evidence is a weak type of evidence and Court should not consider it as conclusive and therefore, it is not safe to rely upon the same without seeking independent corroboration. The aspect on expert evidence was considered in that case in paragraphs 26 and 27 of the judgment. In paragraph 26 of the judgment, the evidence of the expert has been quoted. From the excerpts of the evidence of the expert, as quoted in the said paragraph, it appears that the opinion of the expert was not definite and the expert has stated that no definite opinion can be given on the basis of the materials produced before him and opined that extensive admitted writings are required for offering definite opinion. But in the instant case the opinion of the expert, as pointed out above, is a definite opinion and the expert was given extensive admitted writings. Therefore, factually speaking, both the cases are not on the same footing. In the instant case the evidence of the expert, is very definite and which could not be shaken in cross-examination, that is also corroborated by the opinion of the Court. In that view of the matter the ratio in the case of S. Gopal Reddy is not of much relevance.
57. The last question which survives for consideration of this Court is whether the probate proceeding is vitiated by acquiescence or waiver on the part of the objector. It is well-known that mere delay does not amount to waiver and there is no estoppel against provision of statute namely the provision of Section 263 of the said Act which provides for revocation of the grant of probate for a just cause.
58. In the instant case having regard to the glaring facts stated in the revocation proceedings that the Will is vitiated by forgery and that in the probate application very material facts have been suppressed, to the extent that in that application only the name of wife has been mentioned as close relative but the names of the objector and Sudhir, two other sons of the testator, have been suppressed, mere delay cannot be a ground for throwing out the revocation proceeding. It may be noted that where the revocation proceeding makes out a case for just cause, the same cannot be thrown out just because it is filed at a belated stage. (See the decision in the case of Mokshadayini Dassi v. Karandhar Mondal, reported in 19 CWN 1108).
59. In the facts of the case, in support of the ground of acquiescence, the learned Counsel had referred to a mutation proceeding but the records of the mutation proceeding, as disclosed in this appeal, would show that such mutation was recorded by Circle Inspector, even though the mutation proceeding was initiated by JLRO. It is well-known that under the provisions of Section 50 of the Land Reforms Act mutation proceedings are initiated. First of all, mutation does not decide question of title or any person's right to property. Apart from that under such provision, prescribed authorities are defined under Section 2(9A) of the Act and such mutation proceedings are conducted under definite statutory rules. Neither in the Act nor in the Rules, Circle Inspector is statutorily empowered to carry out the job of mutation. So this instant mutation proceeding, in any event, is not a valid proceeding in the eye of law and cannot operate as a waiver of right of any individual specially when it is referred to as affecting one's title to the property. Therefore, the question of validity of probate proceeding cannot be decided on the basis of such an invalid mutation proceeding.
60. Now, coming to the question of the deeds on which reliance was placed by the learned Counsel for the appellant in order to show that the objector has waived his right to object to the grant probate, this Court finds that the first document is one between the wife of the objector and Sudhir Kumar Maity and in the said deed, Sudhir Kumar Maity has referred to his property as his ancestral property. Therefore, there is no reference in the said deed about the probate of any Will. In any event Sudhir Kumar Maity was not the objector to the probate proceedings. Therefore, any act by Sudhir Kumar Maity cannot take away the rights of Subodh, predecessor-in-interest of the objector. Similarly, the other deed on which reliance has been placed namely, registered deed of sale executed by Sudhir in favour of Mriganka Mouli Maity on 24th June, 1980 cannot affect the right of Subodh to object to the proceeding. Sudhir, as noted above, did not object to the probate proceeding. Therefore, the sale of property by Sudhir cannot take away the right of Subodh to object to the probate proceeding. In any event, those deeds are of the year 1980 and before that Subodh had initiated his revocation proceeding in 1976. Therefore, by any deed of later date, rights in a proceeding, which has been initiated at an earlier point of time, cannot be waived.
61. The learned Counsel for the appellant relied on two judgments in support of his contention that the revocation proceedings are vitiated by waiver and acquiescence. Reliance was first placed on a decision reported in a case of Manorama Chowdhurani v. Shiva Sundari Mazumdar, reported in ILR 42 Calcutta 480. The principle decided in the said case does not support the contention of the appellant. In the said case it has been decided that neither acquiescence nor lapse of time are, by themselves, operative as a bar to a proceeding for revocation of Probate Court has to see that if such revocation proceedings are filed belatedly, the proceedings must be bona fide and there must be some reasonable explanation for the delay. The facts in the case of Manorama were that the Will was made in 1883 and the probate was taken out in 1884, the disposition of the Will was being worked out and acted upon. Thereafter a suit for account was filed in 1909 and in 1910 the objector filed a proceeding by alleging that the Will was forged and the probate was fraudulently obtained. In that case the proceedings were initiated after about 26 years and there was no explanation for the delay. On those facts, the learned Judges found that the application was not bona fide. But, same is not the factual position here. Therefore, in the facts of this case, it cannot be said that the revocation proceeding is either barred by unreasonable delay or by the principles of waiver or acquiescence.
62. The other decision relied on was rendered in the case of Babui Bacha Kumar v. Babui Suraj Kal Kumar, reported in Indian Cases Volume XVII, 763. In Babui Suraj, the sole heiress of the testator applied for probate and the probate was granted. The probate was acted upon for several years. Then after several years, the said heiress, who previously accepted the genuineness of the Will came forward with a prayer for revocation with a mere suggestion of fraud. This, the Court did not allow and the Court found that the case of the heiress consists of a tissue of falsehood.
63. This Court fails to appreciate the relevance of the ratio of that case to the facts of the present case.
64. Therefore, the contentions of the appellant cannot be sustained and this Court does not find any reason to interfere with the well-considered judgment of the learned Judge of the First Court. The appeal is, accordingly, dismissed.
65. There will be no order as to costs.
Later on:
66. Xerox certified copy of the order, if applied for, be supplied expeditiously.
Tapan Kumar Dutt, J.
67. I agree.