Calcutta High Court
Atalendu Roy vs Smt. Bina Roy & Ors on 7 March, 2008
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Sailendra Prasad Talukdar
And
The Hon'ble Justice Aniruddha Bose
A.P.O. No. 73 of 2003
A.P.O.T. No. 794 of 2002 arising out of
P.L.A. No. 92 of 2000
In the Goods of:
Arun Chandra Roy (Deceased) And
In the matter of:
Atalendu Roy
Vs.
Smt. Bina Roy & Ors.
A.P.O. No. 162 of 2004
A.P.O.T. No. 159 of 2004 arising out of
P.L.A. No. 92 of 2000
In the matter of
Ashitendu Roy
Vs.
Smt. Bina Roy
Advocate for the Appellant: Mr. Piyush Dutt (Sr. Adv.)
Mr. C. K. Saha
Advocate for the Respondents: Mr. H. Mitter (Sr. Adv.)
Heard On: 09.3.07, 23.3.07, 30.3.07, 13.4.07, 20.4.07, 27.4.07, 04.5.07, 11.5.07, 18.5.07, 27.7.07, 03.8.07, 10.8.07, 17.8.07 & 29.2.2008.
Judgment On: 07.03.2008 ANIRUDDHA BOSE, J.:-
1. Both these appeals arise out of a probate proceeding in respect of the Will of one Arun Chandra Roy, who passed away in the year 1988. He had executed a registered Will bequeathing his business comprised in two concerns, Grand Tower Hotel and Restaurant (GTHR in short) and Tower Hotel to his wife and daughter. His wife, Bina Roy was appointed as the executrix of the said Will. On 17th May 2000, the executrix applied for grant of probate of the said Will before this Court. The probate was granted on 29th September 2000.
2. Thereafter, two applications were taken out, one for revocation of the grant and the other one for a direction for handing over the management control and day to day business of Tower Hotel to one of the brothers of the testator, being Ashitendu Roy, being the appellant in A.P.O. 162 of 2004. The applicant before the Hon'ble First Court in the former proceeding, being G.A. No. 801 of 2001 was the third brother of the testator, Atalendu Roy. The application of Ashitendu, being the fifth and youngest brother of the testator was under Section 302 of the Indian Succession Act, 1925, being G.A. No. 4208 of 2001. Both these applications were contested by the respondents. These two applications were dismissed by the Hon'ble First Court by two separate judgments delivered on 20th May 2002 and 14th August 2003. In G.A. No. 801 of 2001, though the prayer was for revocation of grant of probate, the applicant's concern and claim was in respect of GTHR, whereas the claim of the applicant in G.A. No. 4208 of 2001 was confined to Tower Hotel.
3. In A.P.O. No. 73 of 2003, the appellant is Atalendu Roy whereas in A.P.O. No. 162 of 2004, the appellant is Asitendu Roy. At the time of death of the testator on 29th July 1988, he was survived by his widow and their married daughter, Smt. Chitrita Chanda. The testator had five brothers, all living at that point of time. The will in question was registered on 6th July 1984. The subject of disposition was, as we have already indicated, the business in connection with "Grand Tower Hotel and Restaurant" situated at 24, Acharya Prafulla Chandra Road, Calcutta-700009 and the "Tower Hotel" situated at 27, Acharya Prafulla Chandra Road. The management of the latter is the main dispute in A.P.O. No. 162 of 2004. In the Will, the ownership of the business in respect of these hotels and restaurant have been recorded to be that of the testator. The appellant in APO No. 73 of 2003 had applied for revocation of the grant mainly on the ground of non-issuance of citation before grant of probate. Revocation of the grant was applied for on certain other grounds as well, which we shall discuss in the later part of this judgment. The case of the appellant (i.e. Ashitendu) in the application of Section 302 of the Act has been founded on his claim that it was he who was the proprietor of the Tower Hotel.
4. We propose to dispose of both these appeal in this judgment, as certain common facts and issues are involved in these two appeals. We shall discuss first the common factors, and then refer to the specific issues of the individual appeals.
5. Prior to the filing of application for grant of probate, on 12th September 1990, it appears that the testatrix had obtained a succession certificate from the District Delegate, Sealdah. Earlier on 30th June 1990, Ashitendu had affirmed an affidavit before a Notary Public in which he had stated that the business of Tower Hotel was founded by the testator and the testator had been running the day to day activities by himself and by his manager. Ashitendu was also an attesting witness to the Will of Arun Chandra Roy. Reproduced below are certain paragraphs from this affidavit, (copy of which has been included in the Paper Book of A.P.O. No. 73 of 2003) which is relevant for adjudication of the appeal filed by Ashitendu (A.P.O. 162 of 2004).
"4. That, my eldest brother Late Arun Chandra Roy was the founder of Tower Hotel and was running the day to day business activities by himself as well as by his Manager.
5. That, my elder brother Late Arun Chandra roy had invested the entire sum of money for the business and I have not invested any money for the business.
6. That the monthly rent for Tower Hotel had been paid regularly by Late Arun Chandra Roy took the Landlord. Late Sankar Prosad Mitra although the rent receipt was issued in the Joint names of Late Arun Chandra Roy & Shir Ashitendu Roy, myself.
7. That, the Police Licence of the business, Tower Hotel was issued in my name.
8. That, although, the Licence was issued in my name, the said business was not owned by me but was owned by my eldest brother Late Arun Chandra Roy.
9. That, on the event of death my eldest brother Late Arun Chandra Roy residing at 298, Bagmari Road, Calcutta- 700 054, on July 29, 1988 and by a family settlement, the trade licence and rent receipt have been transferred in favour of Mrs. Bina Roy, wife of Late Arun Chandra Roy. I hereby declare that the licence be transferred in favour of Sm. Bina Roy."
6. The case made out by the respondents before the Hon'ble First Court as well as before us was that the executrix was not aware of the Will for about eleven years after the death of the testator. She came to know of the Will only from a letter of 7th June 1999, addressed to her, signed jointly by Atalendu and Ashitendu. The first paragraph of this letter has a bearing on the present proceedings, and the same is reproduced below:
"We have come across a copy of the registered Will executed by our late lamented eldest brother Arun Chandra Roy only two months ago and the contents therein have been surprisingly contrary to what you and your family members have been representing to us since the death of my beloved brother."
7. Both Atalendu and Ashitendu had filed a suit in the learned at City Civil Court at Calcutta, being Title Suit No. 1295 of 2000 claiming the following reliefs:-
"a) A decree declaring that the business of Grand Tower Hotel Restaurant is a Joint family business of the heir of Late Annada Charan Roy run in the benami of Late Arun Chandra Roy.
b) Decree declaring the Will of Late Arun Chandra Roy and the Succession Certificate obtained by the defendants in respect of the properties are void.
c) Decree for declaration that the plaintiff Ashitendu Roy is the Sole Owner of the business carrying on under the name and style Tower Hotel situated at 27. Upper Circular Road, P.S. Muchipara, Calcutta-
700 009, more fully and particularly described in Schedule below and that the right, title and interest in the said business.
d) Decree for declaration that the plaintiff Ashitendu Roy is Joint tenant in respect of the suit property described in schedule below;
e) Decree for perpetual injunction restraining the defendants their men agents and representatives from interfering the plaintiffs right of free access, ingress to and egress from the Grand Tower Hotel Restaurant and Tower Hotel premises till the disposal of the suit.
f) Decree for permanent injunction restraining the defendants, their men, agents and representatives from disturbing the plaintiffs in peaceful running of Grand Tower Hotel Restaurant situated at 24, Upper Circular Road and Tower Hotel situated at 27, Upper Circular Road, Calcutta-700 009, described in the Schedule below;-
g) Decree directing the defendants and each of them to render true, correct faithful accounts of the business of Tower Hotel and Grand Tower Hotel Restaurant;
h) Temporary injunction in terms of paragraphs (e) and (f);
i)Receiver;
j) Cost;
k) Such other relief or reliefs to which the plaintiffs are entitled under the law & equity."
8. Both Bina Roy and Chitrita Chanda were impleaded as defendants in the said suit. This suit was dismissed on contest by a judgment delivered on 25th January 2004. We have been informed by the learned counsel for the respondents that no appeal has been preferred against the said judgment and decree.
Re:- A.P.O. No. 73 of 2003
9. It is in this factual context the instant appeals have been heard. We shall take up first the appeal of Atalendu, being A.P.O. No. 73 of 2003, which arises out of the application for revocation of grant of probate. In this application, it has been alleged that GTHR was being run as a joint family business, and the claim of Atalendu is confined to GTHR only. It has been pleaded in the application.
"This application is exclusively related to the business of "Grand Tower Hotel and Restaurant", with the business of "Tower Hotel"
being left aside."
The ultimate prayer, however, was for revocation of the grant.
10. The main ground of challenge in the application for revocation for grant was that no citation was issued to the interested parties before the grant of probate and the testator had no right, title or interest, in respect of the business of GTHR. The succession certificate was obtained by Bina Roy and Chitrita on suppression of the disputed Will. On this count, it was submitted by Mr. Dutta, learned Senior Counsel appearing for the appellant that the probate granted was liable to be revoked for just cause in terms of Section 263 of the Indian Succession Act. In this regard illustration (v) to the said provision was relied upon by Mr. Dutta.
11. His further case is that the probate was obtained in suppression of the factum of obtaining of succession certificate. He drew our attention to certain portion of the Will in which he has referred to his wife and also the married daughter as well as his four brothers. The original Will is in bengali, and the english translation of this Will has been included in the Paper Book. The relevant portion from the english translation of the Will in this regard is set out below:
"I having executed this will being in possession of senses in sound health declare that I do not have any male issue, there is only one daughter Shrimati Chitrita Chanda wife of Shri Dhiraj Mohan Chanda and I have married her in due time to a suitable bride-groom and she is leading a family life in happiness and affluence. On the other hand I have four brothers (1) Amalendu Roy (2) Atalendu Roy (3) Alokendu Roy (4) Aritendu Roy are alive at present. After the death of our father I, being the eldest brother, brought them up with utmost endeavour by educating them at my own cost and have married them and my four brothers being in service and by carrying on business are spending the days in great happiness with their sons and daughters and I have established business for them with my own money. Therefore the business which is there in the aforesaid address in my own name shall be received after my death, by my only daughter Chitrita Chanda and my wife Shrimati Bina Roy. My said son-in-law Shri Dhiraj Mohan Chanda have all along been looking after and nursing my wife Shrimati Bina Roy and myself like his own parents. I have been very much pleased and satisfied with his nursing and looking after and I have the full confidence that for my remaining days he will nurse and look after my wife Shrimati Bina Roy and myself like his own parents and owing to the same for the peace of my soul I declare to this effect that the said provisions (property?) shall be received in equal shares by my wife Shrimati Bina Roy and my only daughter Chitrita Chanda after my death being vested with the rights, similar to mine, to effect all kinds of transfers by way of gift, sale, mortgage etc. and they shall continue to enjoy and possess the same down to their sons, sons' sons heirs and representatives in succession. To that no plea or objection by any of my other heirs or representatives in succession shall be admissible. I have been able to establish the said business with great hardship and with my own money. Be it known that I am "the founder and sole proprietor of the said Grand Tower Hotel & Restaurant" and the "trade licence" of the said business is in my name and I have been continuing to pay a rent of Rs.225/- per month to the Landlord Shankar Prasad Mitra and the Landlord has been issuing rent receipts in my name and Tower Hotel which is situated at no. 27, Acharya Prafulla Chandra Road, I am the founder of the said Hotel though my brother Ashitendu Roy is the proprietor of the said Hotel but the monthly rent for the said Hotel being Rs.450/- is being paid by me and Shankar Prasad Mitra the owner of the house is issuing the rent receipts in the names of my brother Ashitendu Roy and myself. But my brother Ashitendu Roy has not invested any money in the said business nor has conducted the business. I have invested the entire money for the said business and I myself have been conducting the said business.........."
12. Mr. Dutta has drawn our attention in particular to that part of the Will, in which the testator has made reference to his brothers and while referring to Tower Hotel he has indicated that his brother Ashitendu Roy was the proprietor of the said hotel. On this count he submitted that the Grand Tower Hotel and Restaurant could not have been the property of the testator and he wanted to apply the "armchair rule", incorporated in Section 74 of the Indian Succession Act, for construing the Will in its proper scope. He has also submitted that upon obtaining the Succession Certificate for the property of the testator earlier, the probate could not be obtained in respect of the Will.
13. The Hon'ble First Court, however, dismissed the application for revocation of grant of probate, accepting the case of the respondents therein that the widow and daughter of the testator did not have any knowledge of the Will prior to 7th June 1999, being the date on which both the appellants addressed a joint letter to the executrix. The Hon'ble First Court also opined that the procedure adopted by the applicant was not the proper procedure for declaration of title. The Hon'ble First Court rejected the claim of the appellant that he ought to have been issued citation, observing:
"Admittedly, the petitioner is not the heir of the said testator and cannot ask for any citation to issue in favour of him for grant of the probate....."
On the aspect of obtaining of succession certificate, the Hon'ble First Court held:
"Admittedly, at that point of time they did not have any knowledge of the will in question. Accordingly, no steps were taken by them. The point which has been taken by the petitioner as well as the respondent no. 7 that during the subsistence of the succession certificate no probate can be granted under the Indian Succession Act. To decide the said question it has to be accepted that the respondent nos. 1 and 2 had no knowledge of the said Will till 7th June 1999. In fact they came to learn of the said Will from the petitioner. It was the duty of a person who is in possession of a Will of a deceased should inform the same to the deceased's relation or who has knowledge of the Will should intimate the relations. The petitioner himself did not take any steps until 7th June 1999. Therefore, in this case in my opinion Court should not be so technical but only direct the respondent nos. 1 and 2 not to act further on the said succession certificate. In these circumstances, I further hold that further probate has been granted by this Hon'ble Court and in these facts in my opinion the probate should not be revoked."
14. The impugned judgment has been assailed, inter-alia on the ground that the Hon'ble First Court had treated certain facts as admission, in respect of which there was no admission made by the appellant. Mr. Dutta specifically assailed the finding of the Hon'ble First Court to the effect that in the judgment it has been observed that admittedly the petitioner is not the heir of the testator, and he submitted that there was no admission to that effect. He also brought to our notice the reference to reports in the impugned judgment and he submitted that there was no report before the Hon'ble First Court. He further submitted that contrary to the observation in the judgment, there was no further probate granted by the Court.
15. On the aspect of the affidavit of Ashitendu Roy affirmed before the Notary Public, Mr. Dutta submitted that Ashitendu was the proprietor of the Tower Hotel, and such property could not be given away by an affidavit. His second defence in respect of the content of this affidavit is that it is not permissible under the law to arrive at a settlement contrary to the will. He has relied on a decision of the Hon'ble High Court of Orissa in the case of Chetti Balakrishnamma Vs. Chetti Chandrasekhar Rao reported in AIR 1991 Orissa. 332 in support of his submission that a settlement arrived at by the successors of the testator contrary to the will is void.
16. Reference was made to the decision of the Hon'ble Madras High Court in the case of G. Shammugham Vs. Chinnammal reported in AIR 1978 Madras.
304. in support of his case that in the event the basis of grant is untrue, such grant of probate ought to be revoked for just cause. His case is that suppression of the grant of succession certificate constituted suppression of a vital fact which would warrant revocation of the grant of probate. Two authorities, being the decision of Hon'ble Supreme Court in the case of Crystal Developers Vs. Asha Lata Ghosh reported in (2005) 9 SCC 375 and a Bench decision of this Court in the case of Sasanka Sekhar Maity Vs. Dulal Kumar Maity reported in (2005) 3 CHN 259 were relied upon by Mr. Dutta for the proposition that the absence of citation in a probate proceeding is likely to affect rights of interested persons. In the latter judgment an Hon'ble Division Bench of this Court held:
"The object of 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 Vs. Sarala, reported in AIR 1940 Calcutta at Page 301)."
The last authority on this point relied on by the appellant was the decision of an Hon'ble Single Judge of this Court in the case of Arindam Ghosh Vs. Chittaranjan Ghosh reported in AIR 2002 Cal. 140. In this case, it was held:-
"The grant of probate is revoked under Section 263 of the Succession Act, 1925 on just cause. This just cause is 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 the proceeding vanishes."
17. Before we examine the impact of non-citation on the grant of probate, we shall deal with the submission of the appellant as regards certain observations made in the impugned judgment. On the aspect of user of the expression "admittedly", we are of the view that user of the expression "admittedly", in the judgment does not convey the meaning that there was admission on the part of the appellant. This expression was used to project an established position of law as to who all comes within the ambit of the expression "heirs". "Heirs" means all the persons who are entitled to property of another under the law of inheritance. In the present proceeding, the executrix and her daughter both belonging to the First Class heirs in the Schedule to the Hindu Succession Act, 1955 has equal rights to the estate of the deceased. The appellant, in the context of the present case, could not come within the ambit of the expression "heirs" as it has been specified in Section 8(b) of the Hindu Succession Act that property of a male Hindu dying shall devolve according to the provisions of Chapter II of the Act upon the relatives specified in Class II of the Schedule if there is no heir of Class I. Thus, we do not find any irregularity in user of such expression in the judgment impugned.
18. Mr. Dutta has submitted that his client had caveatable interest in the property. Failure to issue citation thus renders the entire process of grant of probate defective. The cases relied on by him on this point is another Bench decision of this Court in the case of Dinanath Shaw Vs. Surati Devi reported in 2002 (IV) CHN 583. To demonstrate that any person having slightest interest in the estate is entitled to citation, he relied on two decisions of this Court, being the case of Satindra Mohan Tagore Vs. Sarala Sundari Debi and Another, reported in XXVII CLJ 320 and the case of Annapurna Kumar Vs. Subodh Chandra (AIR 1970 Cal. 433). He has also argued that there was vagueness of the Will because of which the grant should be revoked and the case relied on this point is the decision of the Hon'ble Supreme Court in the case of Gurswarup Joshi Vs. Beena Sharma and Others reported in 2006 (5) SCC 119. In support of his argument on the application of "armchair rule", he has referred to the decision of the Hon'ble Supreme Court in the case of Navneet Lal Vs. Gokul (AIR 1976 SC 794). He has also cited the judgment of the Hon'ble Supreme Court in the case of Elizabeth Anthony Vs. Michael Charles John reported in AIR 1990 SC 1576 for the proposition that even if some persons do not have caveatable interest, they can maintain an action for revocation of Will. In this case it was observed:
"The learned Counsel, however, lastly submitted that the petitioner in spite of having substantial interest in the estate is losing her right to prove that the alleged Will by Miss Zoe Enid Browne (sic) is not a genuine one and that it is a fictitious one. We must point out that by granting a probate, the Court is not deciding the disputes to the title, even with regard to a probate granted, it can be revoked as provided under Sec. 263 of the Act in any one of the cases mentioned therein. But the learned Counsel for the petitioner submits that the findings of the Sub Court and the High Court regarding the caveatable interest will come in the petitioner's way in seeking revocation of the grant of probate. It is needless to say that the findings regarding the caveatable interest of the petitioner have a limited effect and are relevant only to the extent of granting of probate. But they cannot deprive his right, if he has any, to invoke Sec. 263 of the Act it is up to the petitioner to satisfy the Court."
19. The other decision relied on by Mr. Dutta is a judgment of the Lahore High Court in the case of Hari Chand & Anr. Vs. Hargopal reported in AIR 1930 Lahore 574. In this case a succession certificate was obtained in respect of certain property (being sums of money) of a deceased person, who had made a Will during his lifetime for which probate was granted. This succession certificate was held to be invalid in view of the provisions of Section 385 of the Indian Succession Act.
20. Mr. Mitra, learned Senior counsel appearing for the respondents strongly resisted the plea of the appellant. His main defence is that the appellant's interest in the estate of the deceased was far too remote and there was no probability of his succeeding the estate of the deceased resting on the existing state of affairs. Thus the appellant could not have any right to maintain this action. The authority relied on in this regard was a decision of this Court in the case of Pryambada Birla (since deceased) Vs. Madhav Prasad Birla (since deceased) reported in AIR 2006 Cal. 6. His further submission was that the appellant's claim as regards the business of the hotel in question stood already rejected by the learned City Civil Court, Calcutta in Title Suit No. 1295 of 2000 in which the appellants were the joint plaintiffs. In that case, the learned City Civil Court came to have a finding that the plaintiffs had no right, title and interest in the business which was the subject of the suit. In the suit, the plaintiffs had claimed that the GTHR was joint family business, and Ashitendu was the proprietor of Tower Hotel. In the light of this judgment, which acquired finality, not being appealed against, the issue of ownership of business could not be reopened again in a probate proceeding. It was also contended on behalf of the respondents that the question of title cannot be gone into in a probate proceeding, and the locus of the appellant to maintain the proceeding has also been questioned. On this basis, dismissal of the appeal has been prayed for.
21. Before we proceed to examine the case of the appellant on the aspect of revocation of Will for non-issuance of citation, we feel it would be appropriate to refer to the provision of Section 263 of the Indian Succession Act, 1925, which provides for revocation of grant of probate for "just cause". The said provision is reproduced below:-
"263. Revocation or annulment for just cause.- The grant of probate or Letters of Administration may be revoked or annulled for just cause.
Explanation.- Just cause shall be deemed to exist, where-
(a) the proceedings to obtain the grant were defective in substance; or
(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case; or
(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant though such allegation was made in ignorance or inadvertently; or
(d) the grant has become useless and inoperative through circumstances; or
(e) the person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect."
Illustrations
(i) The court by which the grant was made had no jurisdiction.
(ii) The grant was made without citing parties who ought to have been cited.
(iii) The will of which probate was obtained was forged or revoked.
(iv) A obtained Letters of Administration to the estate of B, as his widow, but it has since transpired that she was never married to him.
(v) A has taken administration to the estate of B as if he had died intestate, but a will has since been discovered.
(vi) Since probate was granted, a later will has been discovered.
(vii) Since probate was granted, a codicil has been discovered which revokes or adds to the appointment of executors under the will.
(viii) The person to whom probate was, or Letters of Administration were, granted has subsequently become of unsound mind."
22. Substantial argument has been advanced on behalf of the appellant in this appeal that by not issuing citation, the grant of probate had become invalid. The authorities relied on this point are the decisions reported in (2005) 9 SCC 375 and (2005) 3 CHN 259. But in both these authorities, the applicants for revocation of the grant were persons who could be said to have real interest in the estate of the deceased. Under the applicable law of succession, they would have had immediate stake in the estate in the event the testator had died intestate. In the case of Crystal Developers (supra), the revocation was on the ground of fraud. So far as the decision of this Court in the case of Sasanka Sekhar Maity (supra), the allegation was the Will in question was a forged one. The object of citation has been spelt out in the Bench decision of this Court, and we have quoted above the relevant passage of this judgment. The question thus arises is as to whether the appellant could be said to have any interest in the estate of the deceased.
23. In the decision of this Court in the case of Annapurna Kumar (supra), it has been held that any person having slightest interest in the estate of the deceased ought to be issued citation. The case of Arindam Ghosh (supra) lays down the proposition that in the event grant of a probate is revoked on the ground of non-service of citation, the application for grant of probate has to be heard de novo.
24. But could the appellant held to have any real interest in the estate of the deceased? This question is of critical importance in the present proceeding, because if the appellant is found to have even a small degree of interest in the estate of the deceased, non-issuance of citation could constitute "just cause", warranting revocation of the grant. In the instant case, it has been alleged that probate was granted without issuance of any citation, whether general or special. Mr. Dutta has argued that his client being the brother of the testator is recognised as Class II heirs by the Hindu Succession Act and hence at least had bare possibility of interest in the estate of the testator.
25. We are to test the degree of interest the appellant has in the subject of disposition, being the business of GTHR. The testator's natural heirs, entitled to succession in the event of intestacy were his widow and daughter, who are the legatees in the Will as well. Thus, in case of intestate succession, the property would have devolved upon them in equal shares, as per the prevailing law of succession. In the event one of them had died, the full share in the property would have devolved on the other. Only, and if both the widow and the daughter had passed away, the appellant would have become entitled to a part of the estate. We find such possibility to be far too remote, based on conjecture and not based on any existing fact. On this aspect we concur with the opinion of the Hon'ble Single Judge of this Court in the case reported in AIR 2006 Cal 6. Mr. Dutta has submitted that this judgment is under appeal before the Hon'ble Supreme Court of India and may not qualify for being a ratio for this proposition. We are of the opinion, however, that the principle of law laid down in this judgment is well established, anchored in several authorities from the past. In the case reported in AIR 1970 Calcutta at page 434, the applicant for revocation of grant of probate claimed to be the widow of the deceased person, and had alerted the applicant for Letter of Administration through her Solicitor's communication that she was claiming the properties as widow of the deceased. It was in that context the Hon'ble Division Bench of this Court held that any interest, however, slight and even the bare possibility of interest is sufficient to entitle a party to oppose a testamentary paper. In the present case, we find the appellant had no such interest. The decision of this Court in the case of Satindra Vs. Sarala Sundari (supra) also does not assist the appellant, as it was observed:
".....I intend to base my judgment in this case on the facts of this case and not to lay down any general rule upon the question whether any interest, however, slight or even the bare possibility of an interest is enough to entitle a party to oppose a testamentary paper........"
The decision was thus rendered in the factual context of that case.
26. Another factor which has to be considered on this aspect is that the appellants had staked claim on the subject of disposition in the City Civil Court, but their claim was rejected. The rights of the parties in this judgment, has acquired finality. The claim of the appellant that the business of GTHR was joint family property thus cannot be entertained at this stage. Such a claim would be barred under the principle of res judicata. Moreover, it is also not permissible for the applicant for revocation of grant to question the title of the demised property. [vide: Parvati Vs. Chhitramal (AIR 1986 Rajasthan 24), Thomas P. Jacob Vs. M.G. Verghese and Others (AIR 1987 Kerala 193).]
27. Learned Senior Counsel appearing for the appellant also cited the authorities reported in (2005) 3 CHN 259 in support of his contention that a probate proceeding is a proceeding in rem. The decision reported in AIR 1990 SC 1576 was referred to by him to distinguish between caveatable interest and locus standi to maintain a revocation application. There can be no doubt that a proceeding for grant of probate is proceeding in rem but it does not follow therefrom that any person can maintain an application for revocation for grant of probate. The decision of the Hon'ble Supreme Court reported in AIR 1990 SC 1576 is not an authority for this proposition. In the absence of some element of real interest in the estate of the deceased, a person cannot contest a testamentary instrument. A judgment of the Hon'ble High Court of Patna in the case of Kalika Singh Vs. Awadesh Narain Singh and Others (AIR 1983 Patna
149) was cited on the question of locus standi. In this case, it was held that if a person can maintain a suit in respect of the property of the testator, such person can be said to have interest in the estate of the deceased and he may enter into a probate proceeding as a caveator, but title of the testator on the subject matter of the probate proceeding cannot be decided by the probate court. In the present appeal, one plank of attack of the appellant has been on title of the testator, which has been finally determined by the City Civil Court in the suit to which we have referred to earlier. Thus, the question as to whether GTHR is jointly family business or not cannot be decided in this proceeding. We thus do not find that there has been any irregularity in not issuing citation to the appellant. The Bench judgment of the Hon'ble High Court of Madras in the case of G. Shanmugham Vs. Chinnamul (AIR 1978 Madras 304) does not advance the appellant's case.
28. We also decline to accept submission advanced on behalf of the appellant that in the absence of issuance of citation, the grant of probate must be revoked. That could have been the case, if the appellant had some element of interest in the estate of the deceased. Such interest was sought to be established on twin props, the first one being lack of title of the testator in the subject of disposition. Secondly, it was contended that as brothers of the testator, the appellants had real interest in the estate of the deceased. In view of the judgment of the City Civil Court in Title Suit No. 1295 of 2000, the appellant's claim on the business of GTHR stands rejected. We do not think the appellant could be said to have any interest in the subject of disposition on the strength of their status as Class II heirs of the testator. Absence of citation by itself would not constitute ground for revocation of grant in the facts of the present case.
29. While testing the locus of the applicants to maintain a revocation proceeding, one has to look at their degree of interest in the estate sought to be bequeathed, having regard to the factual context of the present proceedings. In view of the judgment of the City Civil Court, the plea of Atalendu that GTHR was joint family business and the claim of Ashitendu that he was the sole owner of the business of Tower Hotel stands already rejected. In the two proceedings out of which the present appeal arises, the interest of the appellants were sought to be established on the same plea only. This issue, has become res judicata so far as the parties to the present proceedings are concerned. Moreover, it was the appellants themselves who had brought to the notice of the executrix that the testator had executed the Will, and were aware of the content of the Will, as would be apparent from the content of the letter of 7th April 1999, the relevant extract from which we have reproduced in the earlier part of this judgment. In the light of these facts, non-issuance of citation, in our opinion, would not be fatal to the grant of probate.
30. A case of suppression of fact was made out by the appellant, as the grant of succession certificate was not disclosed in the application for grant of probate. But we do not find that any prejudice was caused to the appellant by such non- disclosure. The case reported in AIR 1930 Lahore at page 575 also relates to a situation where succession certificate was sought to be obtained after grant of probate for the same estate. Section 385 of the Indian Succession Act specifically provides that such a grant would be invalid. No authority was cited before us for the proposition that grant of probate is prohibited if a succession certificate is obtained earlier for the same estate. We agree with the course directed by the Hon'ble First Court in this regard, being a direction upon the respondent nos. 1 and 2 in the application for revocation for grant not to act further on the succession certificate. We also do not find any anomaly in user of the expression "further probate" by the Hon'ble First Court in the impugned judgment. It appears to us that the expression "further" was used in relation to the earlier proceeding for obtaining succession certificate. On a plain reading of the judgment, we find that it was never meant to convey that a second probate proceeding was taken out.
31. The authorities cited by Mr. Dutta to establish what constitutes real interest, in our opinion, are not applicable in the present appeal, as we have already held that the appellant has no real or even possibility of interest in the estate of the deceased. Thus, the appellant cannot complain that the grant was defective on the ground of non-issuance of citation. It cannot be held that Just Cause exists for revocation in the light of explanation (a) of Section 263 of the Indian Succession Act, 1925. We also do not think the conditions specified in explanation (b) or (c) exist in the facts of the present case, warranting revocation of the grant of probate. In our opinion, there has been no defect in the proceeding to obtain the grant. We are also of the view that illustration (v) to Section 263 of the Indian Succession Act envisages a situation where administration to the estate of the deceased is taken on projection that he died intestate, and a Will is discovered thereafter. In such a case the Will shall prevail. But on the strength of this illustration, it cannot be contended that grant of probate of a Will shall be revoked because a succession certificate for the estate of the deceased was obtained earlier.
32. Argument was also advanced on the affidavit of Ashitendu, by which he had acknowledged the testator as proprietor of the Tower Hotel. Mr. Dutta's contention was that right, title or interest in the subject property could not be conveyed by way of an affidavit. But the controversy as regards the ownership of Tower Hotel already stands resolved by the judgment of the Learned City Civil Court. Accordingly, the legitimacy of the alleged conveyance through such affidavit does not require any further examination.
33. The ratio of the decision of the Hon'ble Orissa High Court in the case of Chetti Balakrishnamma (supra) is also not applicable in this case, as we do not find the affidavit of Ashitendu contemplates any settlement contrary to the manner of disposition contemplated in the Will.
34. It was also contended on behalf of the appellant that the Will was vague and that armchair rule should be applied to interpret the wording of a Will. Authorities were cited on these two points. But the scope of examination of these issues in a probate proceeding is restricted, and we do not find any vague wording in the Will. In the case of Gurswarup Joshi reported in 2006 (5) SCC 119, the Hon'ble Supreme Court considered the provision of Section 89 of the Indian Succession Act, which is reproduced below:-
"A Will or bequest void for uncertainty.- A will or bequest not expressive of any definite intention is void for uncertainty."
We have been taken through the will and we do not find the same lacking in any definite intention. There is also no scope of interpretation of any provision of the Will. Applying the principle incorporated in the provision of Section 74 of the Indian Succession Act, we find the intention of the testator to be clear and unequivocal on the manner of disposition of his estate. The case of Navneet Lal (supra) thus does not assist the appellant in any way. We do not find any reason to interfere with the judgment of the Hon'ble First Court in this appeal. Another authority, Manorama Chowdhurani Vs. Shiva Sundari Mozumdar reported in Volume XVII ILR, Calcutta 480 for the proposition that neither delay, nor acquiescence could preclude the next of kin of the deceased to call upon the executrix to prove the Will in solemn form. We accept this proposition of law. But the case of the appellant has not been rejected by the Hon'ble First Court on the sole ground of lapse of time, and the appellant has not been precluded from contesting the grant of probate on the ground of delay. Thus, the ratio of this judgment is not applicable in the present case.
,,,,, RE:- A.P.O. No. 162 of 2004.
35. In the application out of which this appeal arises, the applicant (Ashitendu) primarily seeks control of Tower Hotel. He is an attesting witness to the Will of the testator. A preliminary objection was taken by Mr. Mitra on maintainability of the appeal, and it was submitted by him that an order under Section 302 of the Indian Succession Act, 1925 is not an appealable order. He relied on a judgment of the Hon'ble High Court of Oudh in the case of Dwarka Nath Vs. Raj Rani reported in AIR 1945 Oudh at page 54.
36. We are, however, of the opinion that this decision is not applicable to this Court, where the jurisdiction to entertain an appeal is derived from Clause 15 of Letters Patent. The decision in the case of Dwarka Nath (supra) was delivered considering the provisions of Oudh Courts Act. In view of the decision of the Hon'ble Supreme Court in the case of Shah Babulal Khimji Vs. Sudha Ben (AIR 1981 SC 1786) and a Bench decision of this Court in the case of Indrajmul Shyamsukha Vs. Bhagat Singh Dugar (96 CWN 441), in which intra-Court appeal has been held to be maintainable taking a liberal view of the expression "judgment" used in Clause 15 of the Letters Patent, we reject this preliminary objection.
37. On merit, we find that the foundation of the appellant's claim over Tower Hotel is his proprietary right on this business. This point was directly in issue in the suit instituted by Ashitendu before the City Civil Court, Calcutta and the appellant's case on this count was dismissed. Thus, we find this issue cannot be reopened by an application under Section 302 of the Succession Act. This would not be permissible under the principle of res judicata.
38. We thus do not find any reason to interfere with the judgment of the Hon'ble First Court in this appeal also. We are of the view that the Hon'ble First Court had rightly exercised its discretion against the applicants in both the applications.
39. Both these appeals are accordingly dismissed.
40. There shall, however, be no order as to cost.
I agree, (SAILENDRA PRASAD TALUKDAR, J.) (ANIRUDDHA BOSE, J.) Later:
Learned advocate appearing for the appellant prays for stay of operation of this judgment.
Such prayer is granted. Let there be stay of operation of the judgment for a period of four weeks.
Urgent Xerox certified copy of this judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities.
(SAILENDRA PRASAD TALUKDAR, J.) (ANIRUDDHA BOSE, J.)