Patna High Court
Satrughan Mishra vs Smt. Sulochana Devi on 18 October, 1982
Equivalent citations: AIR1983PAT74, AIR 1983 PATNA 74, (1983) PAT LJR 165, 1983 BBCJ 18, (1983) BLJ 269
JUDGMENT S.K. Choudhuri, J.
1. This appeal by the defendant is directed against the judgment dated 30-1-1981 passed by the District Judge, Darbhanga in Revocation Case No. 22/2 of 1978-79. By the said judgment and under the Learned District Judge revoked order dated 30-10-1975 by which he had granted probate with the copy of the Will annexed.
2. It appears that an application was filed for revocation of the grant of probate by the plaintiff-respondent under Section 263 of the Succession Act on the ground that the Will of which probate has been granted was unregistered and an ex parte order has been obtained practising fraud upon the plaintiff-respondent by the defendant-appellant. The further allegation was that the petitioner was resident of village Dohi and notice was sent by the defendant in the probate proceeding in village Narainpur, and, as such, no citation was issued to the plaintiff in her proper address. According to the plaintiff she had no knowledge of the probate proceeding and the Court ought to have issued citation to the plaintiff as she was the daughter of the testator and was an interested person to oppose the grant of probate. The further allegation was that the Will was forged and fabricated document. According to the plaintiff, after the death of the testator, the plaintiff was coming in possession of the properties covered by the Will.
2-A. The defendant-appellant contested the said revocation proceeding. It was alleged therein that the Will was genuine and as the defendant was all along obedient and loyal to the testator the Will was executed in his favour by the said testator Sharda Mishra. It was also stated that the Will was executed out of free-will and without any pressure or coercion. The further allegation of the defendant was that the notices were sent to the plaintiff and was also served upon her, but she did not choose to contest the proceeding. The allegation of fraud and collusion was denied. It was also alleged that the plaintiff had knowledge of the probate proceeding and was not a resident of village Dohi, rather she was resident of village Narainpur.
3. The trial Court framed the following issues :
1. Whether the suit filed by the plaintiff under Section 263 of the Succession Act it maintainable?
2. Whether the plaintiff has a right to sue?
3. Whether the proceedings of probate case No. 22 of 1971 were defective in substance ?
4. Whether the grant of probate was obtained fraudulently by making a false suggestion or by concealing something material to the case?
5. Whether the plaintiff is entitled to revocation of the grant of probate or letters of administration ?
Both parlies adduced evidence, oral as well as documentary. The trial Court held that it has jurisdiction to entertain the suit, that the plaintiff was wrongly and wrongfully described as a resident of village Narainpur, though she was a permanent resident of village Dohi. It also found that summons or notice in relation to the probate proceeding were not served upon the plaintiff Sulochana Devi and she had no knowledge or notice of the probate proceeding until her husband inspected the records of the probate case. It also held that the plaintiff is the youngest daughter of Sharda Mishra whereas the defendant is distant relation. On the question of genuineness of the Will the trial Court did not give any concluded opinion. In the conclusion the trial Court said that "all processes of probate case had been hurried" through because the defendant was conscious of the fact that all was not well about the Will". With the aforesaid findings the trial Court revoked the grant of probate, as already stated above. Hence the present appeal by the defendant.
4. Mr. Bipin Bihari Sinha No. 2 learned counsel appearing in support of this appeal contended that the findings of the trial Court to the effect that citation was not issued in Sulochana Devi. the plaintiff, is erroneous. We were taken through the discussions in the judgment on that point where the trial Court has discussed both the documentary evidence as also oral evidence and has given its considered opinion that citation was not issued in the address of Sulochana Devi at village Dohi which was her permanent residence. Learned counsel did not refer to us to any of the evidence which have been discussed in the judgment in coming to the aforesaid conclusion. He only pointed out that P. W. 2, the plaintiff, has stated in para 40 that she did not remember as to whether she had knowledge of the litigation. Learned counsel also drew our attention to paras 19 and 27 of the written statement wherein it has been stated that the plaintiff had full knowledge of the probate case when it was pending and so she could have entered appearance and contested the case. It was further pleaded that there was a fight between the plaintiff and the defendant in the revisional survey. Our attention was also drawn to Ext. 1. dated 15-8-1972 which is a petition filed by the defendant-appellant before the Settlement Officer wherein a prayer was made by the defendant to mutate his name on the ground that a probate case was going on in the Court of the District Judge being No. 22 of 1971. No other evidence was referred to nor the evidence discussed by the Court below for deciding different issues was challenged by the learned counsel for the appellant. Exhibit I contains the defendant's own statement and therefore it cannot impart knowledge of the probate case to the plaintiff. It has not been proved that a copy of the petition was served upon him. The argument of the learned counsel for the appellant that from these materials the Court should hold that the finding of the Court below that no notice was issued to the plaintiff in the probate case, cannot be accepted. The Court below has while coming to a finding that the plaintiff was resident of village Dohi has relied upon the evidence of P. W. 2, admission of O. W. 4, O. W. 7 (the defendant) and the documentary evidence, namely, Exhibits 1 series which are chaukidari receipts. Exhibit 4 which is the certified copy of the application stated 6-12-1969 filed by one Shashidhar Mishra in which Harinandan Mishra (husband of the plaintiff) was described as a resident of village Dohi as also Ext. 7, a certified copy of the complaint petition which shows that the husband of the plaintiff was a resident of village Dohi and lastly Ext. 5, the certified copy of the enquiry report which also describes that the plaintiff was a resident of village Dohi. In the trial Court it appears that Exhibit F, the voters' list of the year 1975 of village Narainpur, was relied upon by the appellant to show that the plaintiff was a resident of village Narainpur. Good reasons have been given to discard that document. It was suggested that the defendant himself got the name of the plaintiff inserted in the voters' list of that village. In support of the allegation that the plaintiff was a resident of village Narainpur, the defendant did not even produce the previous voters' list. He admitted that he had seen the voters' list of village Dohi and admitted that the names of the sons of Sulochana Devi was noted in the voters' list of village Dohi. In view of all this evidence the trial Court concluded that Sulochana Devi was a permanent resident of village Dohi. It is, therefore, difficult to upset this finding.
5. Similarly, while holding that the summons of the probate proceeding was not served upon Sulochana Devi, the Court has discussed all the materials on record. It has discussed the evidence of O. Ws. 3, 5, 7 and 8 and also the service report. For reasons given in para 9 of the trial Court judgment it concluded that Sulochana Devi had no notice of the probate proceeding and for the first time she came to know about it when her husband inspected the records of the probate case. It is, therefore, difficult to accept the argument of the learned counsel for the appellant that merely because P. W. 2 in her evidence has stated that she does not remember as to whether she had knowledge of the litigation the finding of the trial Court is erroneous.
6. Mr. Janardan Sinha, learned counsel for the plaintiff-respondent, on the other hand, supported the judgment of the trial Court and contended that when the finding that no notice of probate proceeding was issued and served upon Sulochana Devi in her permanent address cannot be challenged and when the Court below has not given any concluded opinion as to the genuineness or otherwise of the will but has left the matter open to be decided then the procedure laid down in the case of Mt. Ramanandi Kuer v. Mt. Kalawati Kuer, (AIR 1928 PC 2) must be followed. That is a case where an application for revocation of the probate granted to the testator's brother Gyan Prakash was made by the widow and infant on the allegation that they bad not been cited and the Will was not genuine. The learned Judge referred to the relevant provisions of the Probate and Administration Act, 1881, namely, Section 50 which is equivalent to Section 263 of the Succession Act, 1925 and held :
"It is apparent that the plaintiff in this case set up both these grounds for revocation. The first issue as framed comes under III. (b) and the second issue under III. (c). If these issues were tried separately and the plaintiff succeeded on the first issue, that in itself would be sufficient for revoking the probate; but it would still be open to the defendant to prove the will and, if she succeeded, the probate would stand. If, on the other band, the plaintiff failed on the first issue, that would not preclude her from proceeding to prove her second ground, viz., that the will was forged, and the probate would stand or fall, according to the result"
This case was noticed in the case of Anil Behari Ghosh v. Smt. Latika Bala Dassi (AIR 1955 SC 566). In that case it has been stated that Ramanandi Kuer's case (AIR 1928 PC 2) is an authority for revocation of a grant where two grounds are taken, namely, (1) that persons who ought to have been cited were not cited, and (2) that the will was a forgery, if the first ground is established, the onus is upon the opponents to prove that the will is genuine. A Division Bench of the Calcutta High Court is Southern Bank Ltd. v. Kesardeo Ganeriwalla (AIR 1958 SC 377) has also followed the aforesaid Privy Council decision and has stated that the same has laid down the correct procedure. While discussing the said case it has been stated in para 52 as follows :--
"As was said in Ramanandi's case (K), a person who fails to prove that he ought to have been cited and therefore cannot rely on the omission to cite him as a ground for revocation of probate may yet ask for revocation on the ground that the will is not genuine, provided of course he is affected by the probate as happened in 71 Ind App 1 : (AIR 1944 PC 11) (D), but in such a case the onus of proving that the will is not genuine is on him. If this is the result of our statute, the appellant cannot be allowed to evade it by a resort to an English rule. It appears to me also that it is not thereby put to any real hardship. It was free to lead any evidence it had, to show that the will is not genuine and unless the evidence led was wholly worthless, in which case there would be no reason for the law to favour the appellant, the respondents would be compelled to call witnesses to prove the will unless they abandoned the will, and then the appellant might have cross-examined such witnesses in the same manner it would have done if an order had been made on the respondents to prove the will in solemn form."
7. In view of the aforesaid discussions it is manifest that after the revocation of the grant of probate has been made under Section 263 by the trial Court oh the ground that no citation was issued to Sulochana Devi who was a person interested to oppose the will and having left the question of genuineness of the will to be decided in future, the question of genuineness of the will is still to be decided by the Court below in such a situation. It has already been held above that the findings of the Court below that citation was not issued to the plaintiff cannot be disturbed and, therefore, there is no merit in this appeal and it is, accordingly, dismissed. However, the defendant, if he would still be interested to prove the will, would move the Court below to decide the genuineness or otherwise of the will, which should be decided in presence of the substituted heirs of the plaintiff. Learned counsel for the defendant-appellant as also the learned counsel for the substituted plaintiff-respondents state that the parties would appear in the Court below through their counsel on 1-12-1982 on which date the Court below will fix a date for early bearing. If the defendant fails to appear in the Court below on that date then it should be taken that he is no longer interested to prove the will. In the circumstances of the case, there will be no order as to costs.
U.C. Sharma, J.
8. I agree.