Gauhati High Court
Md. Sahar Ali vs Abdul Khaleque And Ors on 9 June, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/11
GAHC010224642018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Test.Cas./5/2018
MD. SAHAR ALI
S/O LATE HUSSIAN ALI, R/O VILL. NO. 1 BARGHULI, MOUZA PUB THORIA,
P.O. BARGHULI, SILGHAT-782142, DIST. NAGAON, ASSAM.
VERSUS
ABDUL KHALEQUE AND ORS
S/O LATE HUSSIAN ALI, R/O VILL. NO. 1 BARGHULI, MOUZA PUB THORIA,
P.O. BARGHULI, SILGHAT-782142, DIST. NAGAON, ASSAM.
2:MD. ABDUL MALLEK
S/O LATE HUSSIAN ALI
R/O VILL. NO. 1 BARGHULI
MOUZA PUB THORIA
P.O. BARGHULI
SILGHAT-782142
DIST. NAGAON
ASSAM.
3:MD. JOYNAL ABEDIN
S/O LATE HUSSIAN ALI
R/O VILL. NO. 1 BARGHULI
MOUZA PUB THORIA
P.O. BARGHULI
SILGHAT-782142
DIST. NAGAON
ASSAM.
4:MD. MORGAM ALI
S/O LATE HUSSIAN ALI
R/O VILL. NO. 1 BARGHULI
MOUZA PUB THORIA
Page No.# 2/11
P.O. BARGHULI
SILGHAT-782142
DIST. NAGAON
ASSAM.
5:MD. RAFIKUL ISLAM
S/O LATE ABDUL SALAM
R/O VILL. NO. 1 BARGHULI
MOUZA PUB THORIA
P.O. BARGHULI
SILGHAT-782142
DIST. NAGAON
ASSAM.
6:MD. SAHIDULLAH
S/O LATE ABDUL SALAM
R/O VILL. NO. 1 BARGHULI
MOUZA PUB THORIA
P.O. BARGHULI
SILGHAT-782142
DIST. NAGAON
ASSAM.
7:MD.HABIBUR RAHMAN
S/O LATE ABDUL SALAM
R/O VILL. NO. 1 BARGHULI
MOUZA PUB THORIA
P.O. BARGHULI
SILGHAT-782142
DIST. NAGAON
ASSAM.
8:MD. DILDAR HUSSAIN
S/O LATE ABDUL SALAM
R/O VILL. NO. 1 BARGHULI
MOUZA PUB THORIA
P.O. BARGHULI
SILGHAT-782142
DIST. NAGAON
ASSAM.
9:MUSTT. SAKINA KHATUN @ SAHINA KHATUN
W/O LATE AHED ALI
R/O VILL. NO. 1 BARGHULI
MOUZA PUB THORIA
P.O. BARGHULI
SILGHAT-782142
DIST. NAGAON
Page No.# 3/11
ASSAM.
10:MUSTT. JARINA KHATUN
D/O LATE ABDUL SALAM
R/O VILL. NO. 1 BARGHULI
MOUZA PUB THORIA
P.O. BARGHULI
SILGHAT-782142
DIST. NAGAON
ASSAM.
11:MUSTT. AFIA BEGUM
D/O LATE ABDUL SALAM
R/O VILL. NO. 1 BARGHULI
MOUZA PUB THORIA
P.O. BARGHULI
SILGHAT-782142
DIST. NAGAON
ASSAM.
12:MUSTT. SAFIA BEGUM
D/O LATE ABDUL SALAM
R/O VILL. NO. 1 BARGHULI
MOUZA PUB THORIA
P.O. BARGHULI
SILGHAT-782142
DIST. NAGAON
ASSAM.
13:MUSTT. RAHLIA KHATUN
D/O LATE ABDUL SALAM
R/O VILL. NO. 1 BARGHULI
MOUZA PUB THORIA
P.O. BARGHULI
SILGHAT-782142
DIST. NAGAON
ASSAM.
14:MUSTT. SABINA KHATUN
D/O LATE ABDUL SALAM
R/O VILL. NO. 1 BARGHULI
MOUZA PUB THORIA
P.O. BARGHULI
SILGHAT-782142
DIST. NAGAON
ASSAM.
15:MUSTT. HAZERA KHATUN
Page No.# 4/11
D/O LATE ABDUL SALAM
R/O VILL. NO. 1 BARGHULI
MOUZA PUB THORIA
P.O. BARGHULI
SILGHAT-782142
DIST. NAGAON
ASSAM.
16:MUSTT. SARIFA KHATUN
D/O LATE ABDUL SALAM
R/O VILL. NO. 1 BARGHULI
MOUZA PUB THORIA
P.O. BARGHULI
SILGHAT-782142
DIST. NAGAON
ASSAM.
17:MD. MAHAR ALI
S/O LATE HUSSAIN ALI
R/O VILL. NO. 1 BARGHULI
MOUZA PUB THORIA
P.O. BARGHULI
SILGHAT-782142
DIST. NAGAON
ASSAM.
18:MD. ABDUL KALAM
S/O LATE HUSSAIN ALI
R/O VILL. NO. 1 BARGHULI
MOUZA PUB THORIA
P.O. BARGHULI
SILGHAT-782142
DIST. NAGAON
ASSAM.
19:MD. SAIFUL ISLAM
S/O LATE HUSSAIN ALI
R/O VILL. NO. 1 BARGHULI
MOUZA PUB THORIA
P.O. BARGHULI
SILGHAT-782142
DIST. NAGAON
ASSAM.
20:MD. NURUL ISLAM
S/O LATE HUSSAIN ALI
R/O VILL. NO. 1 BARGHULI
MOUZA PUB THORIA
Page No.# 5/11
P.O. BARGHULI
SILGHAT-782142
DIST. NAGAON
ASSAM.
21:MUSTT. RAHIMAN NESSA
W/O LATE HUSSAIN ALI
R/O VILL. NO. 1 BARGHULI
MOUZA PUB THORIA
P.O. BARGHULI
SILGHAT-782142
DIST. NAGAON
ASSAM
Advocate for the Petitioner : MR D C NATH
Advocate for the Respondent : MR. T C KHETRI
BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH JUDGMENT & ORDER Date : 09-06-2022 Heard Mr. S.K. Saharia, learned counsel for the Appellant and Mr. S.C. Biswas, learned counsel for the Respondent.
2. This is an appeal under Section 299 of the Indian Succession Act, 1925 for short, (Act of 1925) challenging the order dated 27.06.2011 passed in Misc L.A (R) Case No.22/2010 by the Court of the District Judge, Nagaon whereby, the letter of administration granted in Misc (P) Case No.14/1997 dated 27.08.1997 was revoked.
3. The brief facts of the instant case are that one late Hussain Ali was the predecessor in interest of the appellant, respondents and the proforma respondents herein. During his lifetime, late Hussain Ali had executed a registered will bearing deed No.33 dated 18.03.1991 in Page No.# 6/11 favour of the appellant and the proforma respondents in respect of a plot of land measuring 15 bighas, 3 kathas 3 lessas covered under patta No.192, Dag No.507/508 and 668 situated in village Borghuli under Mouza Pubthoria in the district of Nagaon, Assam without appointing any executor/executors.
4. The appellant herein, being the eldest son of the testator late Hussain Ali, filed an application for grant of letter of administration before the Court of the District Judge, Nagaon vide Misc (P) Case No.14/1997, in respect to the aforementioned bequeathed properties.
5. The Court of the District Judge, Nagaon transferred the said proceedings to the Court of the Additional District Judge, Nagaon for disposal. The learned Additional District Judge, Nagaon vide an order dated 27.08.1997 granted a letter of administration to the appellant herein as prayed for and accordingly, the letter of administration was issued to him. The respondents herein on coming to learn about the grant of letter of administration preferred an application under section 263 of the Act of 1925 praying for revoking the letter of administration dated 27.08.1997 granted in Misc (P) Case No.14/1997, contending inter alia that no citation was made to them in connection with Misc (P) Case No.14/1997 and as such, there was suppression of material facts in the proceedings i.e., Misc (P) Case No.14/1997. The said application was filed in the year 2010 and was registered as Misc L.A. (R) Case No.22/2010.
6. The Court of the learned District Judge, Nagaon after hearing the parties vide an order dated 27.06.2011 revoked the letter of administration granted on 27.08.1997 in Misc (P) Case No.14/1997 on Page No.# 7/11 the ground that the appellant had concealed that the respondent herein were legal heirs of the deceased Hussain Ali and by concealment managed to obtain the letter of administration in favour of the appellant.
7. It is against the said order dated 27.06.2011 that the instant appeal have been initiated under section 299 of the Act of 1925.
8. I have heard the learned counsel for the parties and also perused the materials on record.
9. Mr. S.P. Saharia, learned counsel for the appellant submits that as per the registered will No.33 dated 18.03.1991, the properties in question mentioned in the Will were bequeathed only in favour of the appellant and the proforma respondents, the names of the respondents herein were not mentioned in the said proceedings and as such, no such citation was issued in so far as the respondents were concerned and under such circumstances, the findings of the Court below that the grant of letter of administration was obtained fraudulently and by making false suggestions or by concealing from the Court something material to the case does not arise in the facts and circumstances of the case. He, therefore, submits that the impugned order by which the letter of administration granted in Misc (P) case No.17/1997 dated 27.08.1997 is bad in law and liable to be interfered with. He, however, submits that in view of the impugned order, the letter of administration granted in Misc (P) Case No.14/1997 dated 27.08.1997 has been revoked and on the basis of such revocation the proceedings i.e., Misc (P) Case No.14/1997 revives and the Court below therefore ought to have proceeded with the said Page No.# 8/11 proceeding instead of just passing the order of revocation of the letter of administration.
10. On the other hand, Mr. S.C. Biswas, the learned counsel appearing on behalf for the respondent submits that he has no objection if the Misc (P) CaseNo.14/1997 is revived as the respondent would get a chance to contest the said Misc (P) Case No.14/1997.
11. From the perusal of the materials on record, the impugned order as well as the contentions raised by the respective parties, it would be seen that in terms with Section 235 of the Act of 1925, the letter of administration with the will annexed shall not be granted to a legatee other than a universal or a residuary legate, until a citation has been issued and published in the manner calling upon the next of the kin to accept or refuse the letter of administration. There is no quarrel that it being a admitted fact that the respondents were also the legal representatives of late Hussain Ali and as such, citations ought to have been issued to them. Consequently, this court therefore does not find any fault in the order dated 27.06.2011 by which the letter of administration dated 27.08.1997 granted in Misc (P) Case No.14/1997 was revoked on the ground of concealment that the respondents herein were also the legal heirs of the deceased Hussain Ali.
12. Now coming to the question as what should be the next course of action i.e, as to whether upon revocation of the grant of letter of administration, the original proceedings revives. The Division Bench of the Calcutta High Court in the case of Brindaban Chandra Shaha Vs. Sureswar Shaha Paramanick reported in 10 CLJ (1909) 263, had Page No.# 9/11 observed that the effect of revocation of probate is to revive the original proceedings for the grant of probate and it would be quite competent to the Court to make an order under Section 34 of the Probate and Administration Act. In another Division Bench judgment of the Calcutta High court in the case of Southern Bank Ltd Vs. Kesardeo Gianeriwalla reported in AIR 1958 Cal 377, the said High Court observed that the grant of probate without citing parties is the just cause for revocation of the grant of probate. It was also held that, it is for the parties supporting the Will to ask for an opportunity to prove the Will again after revocation of the grant of probate and this opportunity must be given, provided revocation was not done on the ground that the Will was not genuine. It was specifically laid down by the Division Bench in the said decision that when a probate is revoked on the ground of non citation, the Will may be proved again but then the right to prove the Will again is in the person wishing to uphold the will. In another case of the Patna High Court, the Division Bench decided by the Patna High court in Matukdhari Singh Vs. Mst. Radha Kuer reported in AIR 1964 Patna 567, it was observed therein that the effect of revocation of the grant of the letters of administration was not to revoke the entire proceedings but only to revoke the actual order granting the letter of administration. The original proceedings in the probate case revived after the order of revocation and it was open to the petitioner after the revocation of the grant to apply for the issue of special citations without filing a fresh application for grant of letters of administration. The Calcutta High Court in the case of Arindam Ghosh Vs. Chittaranjano Ghosh Page No.# 10/11 reported in AIR 2002 Cal 140 and also in the case of Shri Arun Chandra Dey Vs. Shri Debashis Ghosh & Ors, reported in AIR 2015 Cal 148, observed that on revocation of the grant of letter of administration the original probate proceedings would revive and it is open to the appellant to apply for issue of citation upon the respondents without filing fresh application for grant of letters of administration. It was further observed that the appellant will have to prove the last will and the testament of the testator in solemn form in presence of the respondents who have claimed their interest in the estate of the deceased in the capacity of legal heirs of the deceased.
13. In view of the above judicial precedents it would be clear that in a case where the revocation of grant of probate/letter of administration was not done on the ground that the Will was not genuine but was done on the ground of non citation; the Will may be proved again but then the right to prove the Will again is in the person wishing to uphold the Will. The person wishing to uphold the will have to prove the last Will and Testament of the testator in solemn form in presence of the respondent(s) who have claimed his/her/their interest in the estate of the deceased in the capacity of the legal heir(s) of the deceased. Therefore, this Court is of the opinion that as in the instant case, the letter of administration dated 27.08.1997 was granted in Misc (P) Case No.14/1997 was revoked vide the impugned order, the proceedings in Misc (P) Case No.14/1997 revives. Consequently, the appellant, if he still wishes to uphold the Will, would have to prove the last Will and Testament i.e., the Registered Will bearing deed No.33 dated 18.03.1991 of late Hussain Ali in the solemn form in presence of the respondents as well as the profoma Page No.# 11/11 respondents herein who have claimed their interest in the estate of the deceased in the capacity of the legal heirs of the deceased.
14. Accordingly, the instant appeal is dismissed. The judgment passed by the District judge, Nagaon on 27.06.2011 in Misc.L.A (Revo) No.22/2010 case affirmed. The original probate case being Misc (P) Case No.14/1997 is revived and the appellant is at liberty to apply for issue of citation upon the respondents to prove the Will in accordance with law in presence of the respondents without filing a fresh application for grant of letter of administration. There shall be no order as to cost.
15. The appellant is directed to appear before the District Judge on 25.07.2022.
16. Let a copy of the judgment and order be send down to the lower court below along with the LCR for the favour of information.
JUDGE Comparing Assistant