Calcutta High Court
For The vs Dinabandhu Roy Brajaraf on 14 February, 2025
OD-4
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Testamentary & Intestate Jurisdiction
ORIGINAL SIDE
IA No. GA/1/2023
In PLA/16/2022
IN THE GOODS OF:
SAMIR JANA, DECEASED
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date : February 14, 2025.
Appearance Mr. Aniruddha Mitra, Sr. Adv.
Mr. Debraj Sahu, Adv.
Mr. Subhabrata Chowdhury, Adv.
Mr. Vinit Kumar Choubey, Adv.
... for the applicant in GA/1/2023 Mr. S. Sanyal, Sr. Adv.
Mr. Sukanta Das, Adv.
Mrs. T. Das, Adv.
Mr. Chandrachur Lahiri, Adv.
Mrs. A. Bera Maiti, Adv.
... for the petitioner The Court : The applicant has filed the present application being GA/1/2023 praying for revocation of probate dated 4 th January, 2023 in PLA/16/2022 (In the Goods of: Samir Jana, Deceased).
Counsel for the applicant submits the deceased Samir Jana died on 26th October, 2021. As per the death certificate, the place of death of deceased is mentioned as Dakbunglow Road, Kotwali, Medinipur Municipality, Paschim Medinipur, West Bengal and permanent address of the deceased is mentioned as Shyamraipur, Gokulpur, Kharagpur-II, Paschim Medinipur, West Bengal.
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Counsel for the applicant submits that the deceased had left behind his Will in Bengali language dated 4th July, 2013 which was duly registered before the District Sub Registrar-I of Paschim Medinipur. In the said Will, the applicant has been appointed as executor and beneficiary of his said Will. He submits that after the death of the deceased, the applicant has filed an application before the District Delegate, Pachim Medinipur for grant of probate. On issuance of citation, the opposite parties have appeared in the said proceeding. Accordingly, the Learned Civil Judge (Senior Division) 3rd Court, District Delegate, Paschim Medinipur by an order dated 5th May, 2022 has returned the original petition for probate to the petitioner with a direction to file the case before the appropriate Court as the case has become a contentious.
After the order dated 5th May, 2022, the applicant has filed a suit being Other Suit No. 08 of 2022 before the Learned Court of District Judge, Paschim Medinipur. In the said suit, publications were made and the opposite parties (the petitioner and legal heirs of deceased) have appeared in the said suit. On 13th October, 2023, the opposite parties (the petitioner and legal heirs of deceased) have filed an application praying for dismissal of the suit on the ground that this Court has already granted probate of the last Will dated 25th October, 2021 of the deceased.
Counsel for the applicant submits that when the applicant came to know about the probate granted by this Court, the applicant has filed the present application for revocation of probate granted by this Court.
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Learned counsel for the applicant has relied upon the judgment in the case of (a) Sarala Sundari Dassya v. Dinabandhu Roy Brajaraf Saha reported in 1943 LawSuit (PC) 36 (b) Elizabeth Antony v. Michel Charles John Chown Lengera reported in (1990) 3 Supreme Court Cases 333 (c) In the Goods of : Srila Bhakti Sundar Govinda Dev Goswami reported in 2011 SCC OnLine Cal 455 (d) G. Gopal vs. C. Baskar and Others reported in (2008) 10 Supreme Court Cases 489
(e) Basanti Devi v. Ravi Prakash Ram Prasad Jaiswal reported in (2008) 1 Supreme Court Cases 267.
He submits that though the petitioner has obtained the probate of the alleged last Will and Testament of the testator on 17th November, 2022 but in the said probate application, the petitioner has not disclosed that the applicant is having caveatable interest over the property left behind by the deceased on the basis of the Will of the deceased dated 4 th July, 2013.
Counsel for the applicant submits that the petitioner has obtained the probate by suppressing the material facts and no notice has been issued upon the applicant and as such, the applicant could not get an opportunity to file caveat in the said probate proceeding. He prays for revocation of the probate granted by this Court.
Per contra, Learned Advocate appearing for the petitioner submits that the petitioner has filed the probate application by disclosing the name of the legal heirs of the testator and accordingly, the legal heirs have filed their affidavit of consent and the attesting witnesses have filed 4 their affidavit and on the basis of the same, this Court has granted probate.
Counsel for the petitioner further submits that the applicant is not having caveatable interest. He submits that the applicant is the brother of the deceased and the testator died leaving behind Class-I heirs and as such, Class-II heirs cannot claim any caveatable interest over the property left behind by the deceased during the lifetime of Class-I heirs.
Heard the learned counsel for the respective parties. Perused the materials on record.
The petitioner has filed the probate case on the basis of the Will alleged to have been executed by the testator on 4th July, 2013 wherein the applicant has been appointed as executor as well as a beneficiary of his last Will and Testament. The petitioner has filed the probate application before this Court on the basis of the Will dated 25th October, 2021.
In the probate application filed by the petitioner, the petitioner has disclosed the name of the legal heirs of the testator and the legal heirs have filed their affidavit of consent and the attesting witnesses have also filed affidavit and on the basis of the same, this Court has granted probate.
After the grant of probate, the petitioner has informed the learned District Judge, Paschim Medinipur that this Court has already granted probate. when the applicant came to know about probate granted by this Court, the applicant has filed the present application for revocation of probate.
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The applicant is claiming probate in terms of the Will dated 4th July, 2013 and the petitioner has obtained probate of the Will dated 25th October, 2021.
Admittedly, the petitioner has not made the applicant as party to the probate application. The applicant is claiming the caveatable interest over the property of the deceased in terms of the Will dated 4th July, 2013.
In the case of Jagdish Prasad Tulshan (D) by LR. v. Yasheel Jain reported in 2007 SCC OnLine Cal 241, the Hon'ble Division Bench of this Court held that where a person claims caveatable interest by virtue of subsequent Will alleged to have been executed by the testator, he must establish the fact that he has already settled his right arising out of subsequent Will by filing either an application for grant of probate or Letters of Administration.
In the present case, the petitioner has filed the probate case before this Court which is alleged to be the last Will and the petitioner has obtained probate. The applicant has initially filed a probate case before the District Delegate and on receipt of notice, the applicant and the petitioner and other legal heirs of the testator have appeared in the said probate proceeding. Accordingly, the Learned District Delegate has returned the probate application with the direction to the applicant to file a suit.
The applicant has filed the suit and in the said suit, the petitioner has disclosed before the Learned District Judge that this Court has already granted probate when the applicant came to know about the 6 probate granted by this Court, the applicant has filed the present application for revocation of probate.
Considering the above, this Court finds that the applicant has already filed a suit for grant of probate and now the applicant when came to know that the petitioner has obtained probate has filed the present application. Accordingly, this Court is of the view, the applicant is having caveatable interest on the estate of the deceased in terms of the alleged Will dated 4th July, 2013.
The order passed by this Court granting probate dated 17th November, 2022 is recalled.
Consequently, the probate issued by this Court dated 4th January, 2023 in connection with PLA/16/2022 is revoked. The petitioner is directed to surrender the probate granted to the petitioner in terms of order dated 17th November, 2022.
As the applicant has filed a suit before the learned District Judge being Other Suit No.8 of 2022, this Court is of the view, the suit is to be transferred from the learned Additional District Judge, R.D. Court, Paschim Medinipur to this Court so that the suit filed by the applicant and the probate case filed by the petitioner being PLA/16/2022 be taken up for hearing analogously to avoid any conflict decision.
The Additional District Judge, R.D. Court, Pachim Medinipur is directed to send the total record of Other Suit No.8 of 2022 (CNR No.WBWM01-000173-2022 Sri Pintu Jana versus Smt. Tapati Jana and Others) before this Court within a period of three weeks from date of receipt of this order.
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The department is directed if the said record is received from the learned Additional District Judge, R.D. Court, Pachim Medinipur in connection with Other Suit No.8 of 2022, the department shall assign a new number in the said suit and to place before this Court along with PLA/16/2022.
GA/1/2023 is disposed of.
(KRISHNA RAO, J.) Sbghosh