Calcutta High Court
For The vs Debashis Ghosh) on 14 June, 2024
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY AND INTESTATE JURISDICTION
ORIGINAL SIDE
I.A. No. G.A. 1 of 2023
In
PLA No. 80 of 2023
IN THE GOODS OF:
SATYA BRATA GHOSH ALIAS SATYABRATA
GHOSH
Before: The Hon'ble Justice Apurba Sinha Ray
For the Petitioner : Ms. Malabika Roy Dey, Adv.
For the Executors : Mr. Reetobroto Mitra, Adv.
/Respondents Mr. Arindam Guha, Adv.
Ms. Arpita Dey, Adv.
CAV On : 09.05.2024 Judgment On : 14.06.2024 Apurba Sinha Ray, J. :-
1. The applicant, Michael Soumen Ghosh filed the instant petition praying for revocation of the Probate of the Will granted in favour of the respondents on 12.10.2023 on the grounds that inspite of being a 2 biological son of the testator, Satyabrata Ghosh, he was never cited in the proceedings and the propounder/executor was able to obtain the Probate of the relevant Will as a "non-contentious" matter.
2. Admittedly, the applicant was born in the year 1956 when his mother was a legally wedded wife of one Sudhindra Narayan Roy, but according to his mother, Phyllis Irene Roy, he was fathered by the testator, Satyabrata Ghosh who was a good friend of Mr. Roy as aforesaid. Subsequently, the mother of the applicant married the testator Satyabrata Ghosh in or about 1964. However, during his birth as his mother was the wife of Mr. Roy, the birth certificate of the applicant contained the name of Mr. Sudhindra Narayan Roy, as his father but which was actually not true and correct.
3. The applicant being the biological son of the testator has caveatable interest in the estate of the deceased and as such he is entitled to be cited in the proceeding of Probate of Will as per law of the land, but as the same was not done, he prays for revocation of the grant of probate in favour of the respondents.
4. In support of her contention, Mrs. Malabika Roy Dey, appearing for the applicant, has placed on record a letter written by the mother of 3 the petitioner contending that the petitioner was fathered by the testator during legal wedlock of the mother of the petitioner with Mr. Sudhindra Narayan Roy. The learned counsel has also drawn the attention of this court to the relevant paragraphs of the affidavit-in- opposition filed by the respondent wherein the respondent admitted that during probate proceedings, attempt was made to obtain consent affidavit from the petitioner but he refused to give his consent. This goes to show that the facts that applicant was the biological son of the testator and he had caveatable interest in the estate were known to the executor/propounder, otherwise there would not have been an attempt to obtain a consent affidavit from the applicant.
5. The learned counsel of the applicant further argues that her client is ready to undergo any sort of DNA Test/DNA Lineage Test for the purpose of proving his contention. According to her, in several documents the testator admitted the applicant as his biological child, and, therefore, he has been wrongly described as 'step son' in the Will for the purpose of obtaining the probate without issuing any notice to the biological son of the testator.
6. In support of her contention that when citation upon the legal heirs is insufficient, the probate granted in favour of the concerned 4 person should be revoked and the original probate proceeding should be revived, Mrs. Roy Dey cited judicial decisions reported at 2015 (2) CLJ 506 (Shri Arun Chandra Dey Vs. Debashis Ghosh), AIR 2002 Calcutta 140 (Arindam Ghosh V. Chittaranjan Ghosh & Ors.).
7. By citing reported decision of Basanti Devi Vs. Rabiprakash Ramprosad Jaiswal (AIR 2008 Supreme Court 295), Mrs. Roy Dey has vehemently argued that the probate application is a proceeding in rem and it binds all the parties before the court as well as other persons in all proceedings arising out of Will or any claim thereunder, and any person who has been aggrieved for non-citation, is entitled to file an application for revocation.
8. Further, Mrs. Roy Dey has relied upon the case of Mutukdhari Singh Vs. Smt. Prem Debi & Ors. (AIR 1959 Patna 570) to buttress her contention that the interest of any aggrieved person under Section 283(1) of Indian Succession Act, 1925 may be slight or there is a bare possibility of such an interest or the interest dependent upon remote contingencies etc. is sufficient to entitle the person concerned to oppose a Will.
9. In opposing the prayer for revocation, learned counsel Mr. Mitra, appearing for the respondents, has argued that there are sufficient 5 documentary evidences which show that the applicant was born during the wedlock of one Mr. Sudhindra Narayan Roy and Phyllis Irene Roy in the year 1956, and there were sufficient materials from which it is transpired that Mr. Roy had access to his wife, i.e. mother of the applicant during relevant period. The birth certificate and passport/visa of the child contained the name of Mr. Roy as the biological father of the applicant. Therefore, presumption of Section 112 of Indian Evidence Act, 1872 in acknowledging Mr. Roy as father of the applicant is so conclusive that a mere production of a letter purportedly written by the mother of the applicant does not rebut or displace the presumption under the above referred section. Moreover, Mr. Mitra has challenged the authenticity and custody of the said letter.
10. Mr. Mitra, has also submitted that the main contention of the applicant that as he has been described as 'step son' in the Will, he thought it fit to present the application for revocation, is baseless since the testator himself described the applicant in the Will as his step son.
11. The learned counsel has further submitted that the prayer for DNA Test/DNA Lineage Test cannot be allowed as a routine manner, particularly when there are sufficient materials on record to show that 6 Mr. Roy had access to his wife i.e. mother of the applicant, during the relevant period. Moreover, in the facts and circumstances of the case, DNA Report may not be beneficial for adjudication of this case. In support of his contention, the learned counsel has placed reliance upon Smt. Dukhtar Jahan Vs. Mohammed Farooq (1987) 1 SCC 624 (paras 12, 13 & 14), Goutam Kundu Vs. State of West Bengal and Another (1993) 3 SCC 418 (paras 21, 22, 24, 26 & 27), Kamti Debi Vs. Poshi Ram (2001) 5 SCC 311 (paras 7, 8, 9, 10, 11, 13 and 14), Banarasi Dass Vs. Teeku Dutta (Mrs.) and Another (2005) 4 SCC 449 (paras 8 to 15), Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia 2023 SCC Online SC 161 (paras 36 to 43, 52 & 60).
12. It is also argued that the applicant was well aware of the fact that the respondent was going to obtain probate of the Will dated 05.08.2014 but inspite of knowing the said fact, he chose not to contest the said proceedings. Mere discussion and conversations between the parties will not confer the applicant with any right which he otherwise does not have. The case of Narendra Nath & Another Vs. Smt. Fakirmani Dassi & Others (AIR 1952 Cal 20) has been relied upon.
13. The learned counsel of the respondent has also distinguished the case laws cited by the applicant's learned counsel. The case of Shri 7 Arun Chandra Dey (supra) has been distinguished by the respondents by contending that:-
"The judgement deals with Class II heirs not being cited which falls well within the realm of Section 263 of the Indian Succession Act, 1925. In the present application, the applicant is not a son or an intestate heir as per The Schedule [Section 8] Heirs in Class I and Class II of Hindu Succession Act, 1956 and hence he does not have any right to be cited."
13.1. The case law of Arindam Ghosh (supra) has been distinguished by pointing out that:-
"The judgement deals with Class I heirs not being cited and upon satisfying the court, without any challenge to their title as intestate heirs, and on the ground of forgery the grant of probate was revoked, and upon revocation, the question of revival of probate proceedings arises. In the present application, the applicant has failed to prove his title as per The Schedule [Section 8] Heirs in Class I and Class II of Hindu Succession Act, 1956 and therefore he fails to satisfy the ingredients of Section 263 of the Hindu Succession Act following which his contention for revocation of the grant of probate fails."8
13.2. Mutukdhari Singh (supra) has been distinguished on the plea that:-
"The judgement deals with Class II heirs not being cited upon and also clearly states that an application for revocation of probate is a matter of substance and not mere right, thereby clearly conditioning the revocation to be granted only when the applicant has prima facie satisfied that they are intestate heirs who ought to be cited. In the present application, the applicant is not an intestate heir as per Class I and II of the Schedule, Hindu Succession Act, neither has he furnished any cogent document to satiate his application, therefore the question of revocation of grant does not arise."
13.3. The judicial decision of Basanti Devi (supra) has also been distinguished by contending that:-
"The judgement deals with a Class II heir being to a party to the Will, who was not cited and was unaware of the probate proceedings. In the present application, not only does the applicant fails to qualify as an heir as per S. 283 who ought to be cited, but also fails to conceal his knowledge about the probate proceeding which was due to be instituted."9
14. In fine, according to learned counsel of the respondent, the applicant is a persona non grata in the proceeding and cannot call for revocation of the grant which has been allowed by this court after necessary scrutiny.
Court's view
15. Admittedly, the applicant was born in the year 1956 when there was a valid legal wedlock between Mr. Sudhindra Narayan Roy and Phyllis Irene Roy. It is also admitted case of the parties that the birth certificate and passport/visa of the appellant contained the name of Mr. Roy as his biological father. There are materials on record to show that Mr. Roy had sufficient access to his wife Phyllis at the relevant time. The respondents have taken shelter under Section 112 of the Indian Evidence Act, 1872 to fortify their stand.
16. However, brushing aside all unnecessary details, I would like to say that a testamentary court's function is very limited. It has been enjoined under the law only to see whether a testamentary disposition has been made by the testator according to his/her own will and desire or not, or whether there was fraud, collusion in obtaining the testamentary document in violation of law or not. Needless to mention, 10 the testamentary court has also another important function, and that is, if, subsequent to grant of probate, any interested person shows that the grant was obtained by misrepresentation, suppression of material facts etc, the testamentary court can revoke such grant. These are the two broad functions of a testamentary court.
17. In the present revocation case, the issue is not confined only to non-citation of the applicant but on the other hand, the status of the applicant as alleged biological son of Mr. Satya Brata Ghosh is also involved. Without adjudicating the question of status of the applicant or, in other words, without deciding the question whether the applicant is the biological son of Satyabrata Ghosh or not, the prayer for revocation of the grant cannot be adjudicated upon.
18. The record contains the birth certificate of the applicant showing the name of his father as Mr. Sudhindra Narayan Roy and mother as Phyllis Irene Roy. Moreover, the said birth certificate further shows that it was Mrs. Phyllis Irene Roy at whose application dated 15.06.1956 such particulars of the applicant were recorded by the concerned officer of the United Kingdom Registration office at Calcutta. It is further found that the name of the present applicant was shown in the said birth certificate as Soumendra Narayan Roy which 11 resembled the name of Mr. Sudhindra Narayan Roy who was shown to be the biological father of the child therein.
19. Now, the present revocation application being I.A. GA No. 1 of 2023 contains the name of the applicant as Michael Ghosh @ Michael Soumen Ghosh s/o Satya Brata Ghosh @ Satyabrata Ghosh. From the submission of both the parties' counsels it appears that there is no dispute regarding the identity of Michael Ghosh and Soumendra Narayan Roy as one and same person, and accordingly, relying on such submission of the learned counsels of the parties there is no impediment for this court to treat Michael Ghosh and Soumendra Narayan Roy as one and the same person. But the question which troubles this court is that when and how the name of the applicant's father has been changed. Needless to mention, any person can change his own name by certain legal process, but to substitute one's father's name it requires a detailed and long legal process, since it involves the status of such person. Can anybody on his own substitute his father's name without adopting such legal process? In this case, the question whether the applicant had taken any legal process to substitute his father's name as Mr. Satya Brata Ghosh @ Satyabrata Ghosh in place of Mr. Sudhindra Narayan Roy, remains unanswered. No document is produced before this court to show that any order is obtained from 12 Civil Court declaring that Michael Ghosh @ Soumendra Narayan Roy is the son of Satya Brata Ghosh @ Satyabrata Ghosh. Even the alleged admission of the testator acknowledging the applicant as his child or step child would not be of much help since the birth certificate containing the name of Mr. Sudhindra Narayan Roy as biological father of the applicant is staring at him. Only the declaration of a Civil Court could have changed the status of Michael Ghosh @ Soumendra Narayan Roy S/o Sudhindra Narayan Roy to Michael Ghosh @ Michael Soumen Ghosh S/o Satya Brata Ghosh @ Satyabrata Ghosh. But nothing that sort of declaratory decree is produced before this testamentary court.
20. The testamentary court, as I have already indicated, has limited roles to play in respect of testamentary disposition of the concerned person, and it has no power to pass any declaratory decree or any order declaring the status of any person. Therefore, the contention of Mrs. Malabika Roy Dey, learned counsel, for taking up evidence with regard to the status of the applicant as the biological son of Mr. Ghosh or for ordering DNA Test/DNA Lineage Test cannot be considered by this testamentary court. The law has given enough power to the applicant for seeking appropriate relief in the competent civil forum in declaring his status as biological son of the testator in contradiction of 13 the relevant birth certificate dated 21.06.1956 by producing evidence including the letter dated 25.10.1955, DNA Test report etc. subject to the order of the Civil Court.
21. I have gone through the case laws cited by both the parties, and the instant case is unique and different from the factual matrix of the cited decisions. Furthermore, not a single case law shows that the testamentary court has any power to direct production of DNA Test report to ascertain the status of a party to the proceedings. Without making a detailed discussion on the said case laws, this court gives liberty to the parties to place the same before the relevant civil forum, if such occasion arises, since any observation on such case laws may adversely affect the civil proceedings, if any, in future.
22. In fine, in view of the materials on record, I do not find it appropriate to allow the prayer of the applicant at this stage. Hence, the instant petition for revocation of the probate granted on 12.10.2023 stands dismissed on contest, but no order as to costs.
23. Urgent Photostat certified copies of this Judgment, if applied for, be supplied to the parties on compliance of all necessary formalities.
(APURBA SINHA RAY, J.)