Calcutta High Court
Mrs.Ram Dulari Devi(Dec.) vs Unknown on 22 July, 2015
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA NO.112 OF 2009
PLA NO.295 OF 2006
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY AND INTESTATE JURISDICTION
ORIGINAL SIDE
IN THE GOODS OF:
MRS.RAM DULARI DEVI(DEC.)
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 22nd July, 2015.
MR.SUDIP SARKAR,ADVOCATE FOR PETITIONER
MR.ARIF ALI, ADVOCATE FOR THE RESPONDENT
The Court : This is an application for revocation of the grant of probate. The applicant is the son of Ram Bilas Shaw, since deceased.
Under the Hindu Succession Act, Ram Bilas Shaw would have succeeded to the estate of the testatrix had there been no Will. The special and general citations were issued against the legal heirs of the said testatrix who would have succeeded to the estate of the said deceased. The orders of this court would show that citations were served by way of substituted 2 service. After the grant of probate, this application has been filed for revocation of the grant on the ground that the executor has deliberately given an incorrect address of Ram Bilas Shaw in order to mislead this court and had obtained the probate fraudulently.
It is submitted that it would be evident from the documents disclosed that a family settlement had entered into by and between the parties in which the testatrix had relinquished the right in respect of the property mentioned in serial no."C".
It is submitted that there is a discrepancy in the body of the Will and the Schedule appended to the said Will, whereas in the body of the Will it only referred to properties mentioned in Schedule-A and B, whereas in the Schedule appended to the Will there is a property mentioned as Schedule "C", which relates to Jamtara property. It is further submitted that the Will was executed under suspicious circumstances as would be evident from the fact that while in the body of the Will there is no reference to Schedule-"C", but in the annexure to the Will a property is mentioned of Jamtara as serial no."C".
Mr.Arif Ali, learned Advocate, appearing on behalf of the executor submits that there is no document on record to show that the father of the testator was not residing at the place mentioned in the body of the petition for grant of probate or had been residing or was residing at the place mentioned by the petitioner.
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It is submitted that the family settlement was of 1972 but subsequently there are documents to show that the testatrix was treated to be the absolute owner of the pond. The deed of conveyance relating to the said pond was, in fact, signed by the father of the applicant as a witness.
Under such circumstances, it is submitted that this application is mala fide.
I have called for the probate application. I have perused the orders passed in the said proceedings. It would appear that some of the citations sent by registered post were returned unserved. Subsequently there was an order of substitution of service. Pursuant to the said order, notices were published in two news papers, once in "The Hindustan Times" and once in "Aaj Tak".
The main purpose for filing the application appears to be that in a suit pending before the appropriate Civil Judge at Jamtara, the beneficiaries under the Will had claimed certain right in respect of the Jamtara property. The applicant would submit that having regard to the family settlement, the said plaintiffs could not have claimed any right, title and interest in respect of the said property. The inclusion of the Jamtara property in the Will itself would create a suspicious for which the grant of probate is required to be recalled.
I am, however, unable to accept the said submission after considering the documents which appeared to be have been executed with the knowledge and consent of the father of the applicant. Moreover, the probate 4 court does not decide the question of title. The grant of probate is not conclusive with regard to any claim based on title. Moreover, the petitioner had no caveatable interest and the said petitioner was not entitled to service of any notice before the grant of probate. The petitioner also could not satisfy this court that the address mentioned in the probate application with regard to the father of the petitioner was incorrect or that at the relevant point of time the father of the petitioner was residing at different address or some other place. The petitioner having failed to make out a just cause, there is no reason to recall the grant of probate.
This application, accordingly, stands dismissed. I have, however, made it clear that this order cannot be construed as if this court has adjudicated any right, title and interest of the beneficiaries under the Will in respect of the Schedule "C" property.
(SOUMEN SEN, J.) sb.