Calcutta High Court
The Court: Ga No. 2 Of 2022 Is Filed By The ... vs Kirandeep Kaur (2008) 8 Scc 463 on 16 June, 2023
Author: Sugato Majumdar
Bench: Sugato Majumdar
OD-1 & 2
ODER SHEET
IN THE HIGH COURT AT CALCUTTA
Testamentary & Intestate Jurisdiction
ORIGINAL SIDE
IA NO.GA/2/2022
In PLA/238/1995
IN THE GOODS OF SMT. GOURI PROVA SEN
IA NO.GA/4/2023
In PLA/238/1995
IN THE GOODS OF SMT. GOURI PROVA SEN
BEFORE:
The Hon'ble JUSTICE SUGATO MAJUMDAR
Date: 16th June, 2023 Appearance:
Mr. Sudeep Sanyal, Adv.
Mr. Sukanta Das, Adv.
Ms. Lopamudra Moitra, Adv.
Mr. Surodeep Sanyal, Adv.
Mr. Chandrachur Lahiri, Adv.
Mr. Purna Chandra Paul Chowdhury, Adv.
The Court: GA No. 2 of 2022 is filed by the present Petitioners under Section 263 of the Indian Succession Act, 1925 praying for revocation of probate granted by this Court, of the last will and testament of Gouri Prova Sen, since deceased, the testatrix herein.
GA No. 3 of 2023 is filed by the Executor of the will praying for extension of time to file inventory under Section 317 of the Indian Succession Act, 1925.
GA No. 2 of 2022, by which the grant of probate is sought to be revoked should be considered first. Gouri Prova Sen, the testatrix breathed her last on 8th October, 1989. Prior to her death, she executed her last will and testament on 9th July, 1989, appointing Dhiraj Dutta as Executor of the will. On her death the original probate proceeding was drawn up for grant of probate of the aforesaid will. This Court granted probate on 22nd September, 1995. GA No. 2 of 2022 is filed to revoke the grant.
It is the case of the Petitioners in GA No. 2 of 2022, (for the sake of convenience, be mentioned as "the Petitioners",) that one Ram Kamal Sen originally owned the concerned properties situated at Baikuntha Pur Mouza and Kalinijore Mouza, within jurisdiction of Daspur Police station. While in possession, Ram Kamal Sen died leaving behind him two sons Bidhu Bhushan Sen and Sashi Bhushan Sen. They inherited the properties of Ram Kamal Sen in equal shares. It is in the pleading that the two sons of Ram Kamal Sen namely Bidhu Bhushan Sen and Sashi Bhushan Sen formed two branches.
Sashi Bhushan Sen died leaving behind him two sons Jatindra and Sachindra. They inherited the properties of their father Sashi Bhushan in equal shares. Jatindra died as bachelor. As a result, on his death all his rights, titles and interests devolved upon his brother Sachindra. Thus Sachindra became owner of the share of Sashi Bhushan of the aforesaid properties. Share of Sashi Bhushan was half of the properties left by Ram Kamal Sen. Name of Sachindra was entered into the record of rights. While in possession of the properties, Sachindra died intestate leaving behind him two sons Sankar Prasad Sen and Aswini Sen. They inherited the shares of Sachindra of the properties in question.
Bidhu Bhushan Sen was another son of Ram Kamal Sen who formed another branch. Bidhu Bhushan Sen died leaving behind him his only son Amulya. Amulya inherited the share of Bidhu Bhushan Sen. Amulya died issueless leaving behind him his widow, the testatrix herein, who inherited the share of Amulya.
It is specifically stated in the Petition that on death of Gouri Prova Sen, Aswini and Shankar inherited the rights, title and interests of Gouri Prova Sen in the properties in question as Gouri Prova Sen was their aunt. It is specific case of the Petitioners that mutation of the names of Aswini and Shankar was made in the record of rights so far as the properties of Gouri Prova Sen were concerned.
It is further stated in the Petition that the present Executor Bhiraj Dutta exercised his rights, title and interests in respect of the disputed properties which compelled Shankar Prasad Sen to institute the Title Suit No. 60 of 2019 in the Court of Civil Judge Junior Division at Ghatal, Paschim Medinipore in respect of 12 acre 24 decimals of land in Kalmijorah Mouza, whining Daspur Police Station, which is still pending.
Aswini died on 03.07.2000 leaving behind him his son Anirban Sen, his daughter Nilanjana Sen and his wife Manasi Sen.
The Petitioners came to know through his advocate about the original probate proceeding and that letter of administration of the will of the testatrix was granted on 28th September, 1995. The said probate is sought to be revoked in this application on the grounds that the will was manufactured; citation was not sent to the applicants or their predecessors who were legal heirs and successors of the testatrix in respect of the properties located at Mouza Chandpur, Plot No. 1092, 1093, 1110, 1113, 1114, 1119, 1120 and 1132 which are debutter properties. In fact, according to the Petitioners, probate was obtained by suppressing the names of the legal heirs and successors of the testatrix. It is also pleaded that grant of probate is barred by law of limitation as the application for grant of probate, namely the original proceeding was drawn up six years after death of the testatrix. According to the Petitioners, this Court had no jurisdiction to grant probate since the probate proceeding was barred by limitation. It is specific averment in the Petition that the Executor practiced fraud upon this Court and abused judicial process by suppressing the names of Aswini and Shankar as legal heir and successor of Gouri Prova Sen, the testatrix. According to the Petitioners, there is further suppression of fact that the entire properties located at Chandpur Mouza are debutter property belonging to Sri Sri Damodar Jew Thakur.
In nutshell, according to the Petitioners, probate granted. The Executor of the will filed affidavit-in-opposition against the instant petition denying allegations made in the application. The positive cases of the Executor are that the Petitioners, being relatives of the husband of Gouri Prova Sen, did not take her care. The testatrix transferred by way of gift various properties which belonged to the Executor. The Executor is the grandson of the own sister of the testatrix. Rather the testatrix was in his care in his house. Cremation of the testatrix was done and steps for shraddh ceremony were taken by the Executor. The Executor denied and disputed that the present Petitioners are the legal heirs and successors of the testatrix. It is further averred that grant of probate in question came to the knowledge of the Petitioners much earlier in the years 2010 - 2011 when the Executor applied for mutation on the basis of the grant of probate. According to him, the instant application which is filed after twenty seven years of the grant is not tenable time barred and should be rejected.
In affidavit-in-reply the contentions made in the affidavit-in-opposition was denied on strength of various factual details.
Mr. Pal Chowdhury, the Learned Counsel appearing for the Executor challenged the maintainability of the application on the ground that probate was granted on 22nd September, 1995. The instant application, praying for revocation of grant, was filed in the year 2022, after long lapse of twenty seven years. Therefore, the application is clearly barred by limitation under Article 137 of the Limitation Act, 1963.
Per contra, Mr. Sanyal, appearing for the Petitioners argued that probate was obtained by practicing fraud upon the Court in as much as suppressing the names of the heirs of the testatrix. Aswini and Shankar were legal heirs and successors of the testatrix. Their names were suppressed and citations were not issued to them which ought to be. Since practice of fraud upon the Court was made in obtaining the instant probate law of limitation is not applicable and it is open to the Court to take up such practice of fraud on coming to knowledge of the same. Since the question of limitation goes to the root of the application affecting its maintainability, it should be addressed first.
I have heard rival submissions on the point of limitation. The application set out genealogy of the family of the testatrix's husband. It is manifest and specifically averred that Bidhu Bhushan Sen and Sashi Bhushan Sen formed two branches of family. Aswini Sen and Shankar Sen are grandsons of Sashi Bhushan Sen. The testatrix, on the other hand, was daughter-in-law of Bidhu Bhushan. Therefore, line of predecessor of the testatrix originated from Bidhu Bhushan Sen. The line of predecessor of Aswini Sen and Shankar Sen originated from Sashi Bhushan Sen, a different line of succession. In other words, the said Aswini Sen and Shankar Sen, appears to be, from the averments, grandsons of the brother of the father-in-law of the testatrix. It is no one's case that the testatrix left any Class I heir. Under Hindu Succession Act, 1956, the said Aswini Sen and Shankar Sen having such relationship with the testatrix cannot be said to be legal heirs and successors of the testatrix Gouri Prova Sen. If their names were not mentioned as legal heirs of the testatrix in the original probate proceeding the same is not tantamount to practice fraud upon this Court inviting revocation of the grant so made, at least on that ground only. I disagree with the submission of the Learned Counsel for the Petitioners.
Article 137 of the Limitation Act, 1963 prescribes period of limitation three years from the point of time when right to apply accrues, in respect of "any other application for which no period of limitation is provided elsewhere in this Division." Indian Succession Act, 1925 does not prescribe a specific period of limitation for grant of probate or letters of administration or for moving an application for cancellation of probate or letter of administration. In Kunvarjeet Singh Khandpur vs. Kirandeep Kaur (2008) 8 SCC 463, the Supreme Court of India negatived the plea that although the Indian Succession Act, 1925 does not prescribe any period of limitation, there is altogether an ouster of the Limitation Act, 1963, from the ambit of the Indian Succession Act, 1925. Following the ratio laid down in Kerula State Electricity Board vs. T.P. Kunhaliumma (1976) 4 SCC 634, the Supreme Court of India took note that Article 137 of the Limitation Act, 1963 is not only applicable to the applications filed under the Code of Civil Procedure, 1908 but also to the Indian Succession Act, 1925. In Ramesh Nivrutti Bhagwat vs. Dr. Surendra Manohar Parakhe [(2020) 17 SCC 284], three Judges' Bench of the Supreme Court of India considered applicability of Article 137 of the Limitation Act, 1963 to applications for revocation of probate and held that a petition for revocation of letter of administration filed after three years of the grant is barred by Article 137 of the Limitation Act. The Court relied upon another decision of the Supreme Court of India in Lynette Fernandes vs. Gertie Mathias [(2018) 1 SCC 271]. It was held in that case.
"If the probate is granted the same operates from the date of the grant of probate for the purpose of limitation under Article 137 of the Limitation Act in proceedings for revocation of probate."
Settled law, as discussed above, clearly postulates that period of limitation starts from the date of grant of probate under Article 137 of the Limitation Act, 1963 in a proceeding for revocation of grant. In the case in hand there is no explanation why delay of twenty se+ven years is there. The argument of the Learned Counsel for the Petitioner that law of limitation is not applicable where fraud had been practiced upon the Court is not tenable. It is discussed above that the allegation of fraud is not sustainable since the present Petitioners descended from a separate branch and are not legal heirs and successors of the testatrix. Therefore, inevitable conclusion is that the instant application filed for revocation of grant is barred by limitation.
In nutshell, the instant application stands dismissed as barred by law of limitation with cost of Rs. 10,000/- to be payable to the High Court Legal Services Committee within seven days.
Since the application is dismissed on maintainability issue, merit of the same is not touched upon.
GA No. 3 of 2023 is filed by the Executor praying for extension of time to file inventory as contemplated in Section 317 of the Indian Succession Act, 1925. It is contended that the erstwhile advocate informed the Executor to file inventory within six months of the grant of probate. On being so advised, the Executor furnished all the accounts and details of the inventory to the erstwhile advocate and signed all papers in this regard. He exhibited inventory containing full and true accounts of all the properties of the testatrix under his possession as Executor. Although, the Executor duly executed and handed over true accounts and inventory to the Learned Counsel, the same must not have been filed, as these are not in the record. It is further averred that there was no willful default on the part of the Executor in filling the inventory. According to him, a litigant should not suffer for the fault of the Counsel. Accordingly he prayed for extension of time to file inventory under Section 317 of the Indian Succession Act, 1925.
It is evident from the pleading that although the Executor submitted inventory and accounts to the erstwhile lawyer, the later defaulted in filling the same in this Court. There is no willful default on the part of the Executor to attract the rigours of Section 263 (e) of the Indian Succession Act. Therefore, the instant application being GA No. 4 of 2023 is allowed. Inventory is to be filed within 30 days from the date of passing of this order. Department is to report to this Court on the same.
GA No. 2 of 2022 and GA no. 3 of 2023, both stands disposed of.
(SUGATO MAJUMDAR, J.)