Calcutta High Court
In The Goods Of Subir Sen vs Sarmistha Mukherjee on 8 December, 2023
Author: Sugato Majumdar
Bench: Sugato Majumdar
OD- 10
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Testamentary & Intestate Jurisdiction
ORIGINAL SIDE
IA NO. GA/1/2019
In PLA/176/1987
IN THE GOODS OF SUBIR SEN
Vs
SARMISTHA MUKHERJEE
BEFORE:
The Hon'ble JUSTICE SUGATO MAJUMDAR
Date: 8t h December, 2023
Appearance:
Mr. Dhruba Ghosh, Sr. Adv.
Mr. Avijit Dey, Adv.
Ms. Mala Sen, Adv.
Mr. Sarosij Dasgupta, Adv.
...for the Petitioner
Mr. Sabyasachi Chowdhury, Adv.
Mr. Sanjib Dawn, Adv.
Mr. Samrat Mukherji, Adv.
Ms. Dakshayani Basu, Adv.
Mr. Rik Mukherji, Adv.
...for the Respondent
The Court: The instant application, namely, GA 1 of 2019 is filed under Section 263 of the Indian Succession Act, 1925 for revocation of grant of probate of the last will and testament of the testator Subir Sen.
P age |2 The case made out in the application is that Subir Sen, father of the present Petitioner died intestate on 07/01/1987 at his residence at Kolkata living behind him, his widow being the Respondent no. 1, his son being the Respondent no. 2 and the present Petitioner. At the time of death, the father of the Petitioner was owner of a portion of his ancestral family residence at 1 14/5/1A, Hazra Road, Kolkata - 700026. Since the applicant was married and living with her husband she did not make any query into the properties of the testator. Disputes and differences arose between the Petitioner on the one hand and the Respondent no. 1 and 2 on the other hand. The present Petitioner filed a declaratory suit in the Court of Civil Judge (Junior Division) at Alipore. In course of the suit, in the month of June, 2018 the Petitioner came to know about grant of probate of the last will and testament of her father.
When the Petitioner came to know about grant of probate she filed the instant application for revocation of grant on the grounds that the will was unregistered and the entire will was type-written but the date was hand-written; the alleged will was a mere draft only without having any indication as to when the draft was made by whom. Secondly, it is averred that one P.K. De, Advocate filed an affidavit as the attesting witness of the alleged will who was Advocate-on-Record of the executor of the probate proceeding. However, there are two other attesting witnesses of the alleged will.
One of the averments made in the application is that affidavit of assets is false and suppressed. Sometime in the month of April/May 1987, on demise of the testator the brother of the Petitioner being Respondent no. 2 obtained the signature of the applicant on some blank papers in the pretext of mutation of properties. She trusted her brother and signed papers without reading those papers. Her consent to the probate proceeding was obtained by her brother by fraud and misrepresentation.
P age |3 It is averred further that the mother of the Petitioner being Respondent no. 1 herein has been suffering from mental disorder and is under psychiatric treatment. In nutshell, the present Petitioner prayed for revocation of grant of probate.
The executor being the mother of the present Petitioner opposed the application by filing affidavit-in-opposition. Contention of the Respondent no. 1 is that probate was not granted to her surprise. The Petitioner was well-aware of the probate proceeding. After grant of probate the Respondent no. 1 gave assent to specific legacies by delivering an amount of Rs.42,500/- and Rs.1,800/- to the Petitioner and she acknowledged the receipt thereof. It is further submitted that the Petitioner with full knowledge and consciousness gave her consent to grant of probate and received benefit out of the said grant. According to the Respondent no. 1 the application for revocation of grant, being devoid of merit should be dismissed.
Mr. Dhruba Ghosh, the Learned Senior Counsel appearing for the Petitioner made multipronged arguments.
The first point of argument placed by Mr. Ghosh is that execution of the will was surrounded by suspicious circumstances; the will is neither an authentic nor a genuine one. Probate was granted as a matter of course in common form without citation and without examination of common attesting witness on the basis of alleged consent of the legal heirs of the deceased. Since probate was granted in common form, there was no enquiry by this Court into existence of suspicious circumstances relating to execution of the will. Explaining what are the suspicious circumstances, Mr. Ghosh argued firstly, that the alleged will was unregistered and the entire will was type-written but the date was hand-written; the document styled as will was only a draft without any indication as to when the draft was made by whom. The will was P age |4 written in a clumsy piece of paper giving impression that it was never meant to be a final draft. Secondly, there are three signatures under the heading witnesses on the left hand margin of the will none of whom were called to adduce evidence. On the contrary, the affidavit was filed by Mr. P.K. De, Advocate as well as the scribe of the will who had signed at the bottom of the page but was not mentioned as a witness on the document itself. Thirdly, no independent attesting witness came away to prove the execution of the alleged will. It is in the submission of Mr. Ghosh that evidence of a lawyer as an attesting witness is not acceptable as is not an independent witness, relying upon the decision of Rani Purnima Devi And Another Vs. Kumar Khagendra Naayan Dev And... [1962 AIR 567, 1962 SCR Supl. (3) 195]. Mr. Ghosh also referred to the decision of the Supreme Court in Ramchandra Rambux Vs. Champabai And Others [1965 AIR 354, 1964 SCR (6) 814], Indu Bala Bose & Ors. Vs. Manindra Chandra Bose & Anr. [1982 AIR 133, 1982 SCR (1) 1188]. The will was not registered. Although registration of will is not compulsory, in the circumstances non-registration of will create suspicion surrounded execution of the will. The point argued by Mr. Ghosh is that the propounder of the will Smt. Chitra Sen acting in collusion with the beneficiary Sandwip Sen deliberately suppressed and misrepresented the amount of bank balance and fixed deposit in bank and other investments left by the testator. Besides defrauding the Court such acts created suspicion surrounding execution of the will.
Next it was argued that the executrix willfully and without reasonable cause omitted to submit the inventory and accounts and as made untrue statements. Hence "just cause", as contemplated in Section 263 of the Indian Succession Act, 1925 exists in this case warranting revocation of the will.
P age |5 Mr. Chowdhury the Learned Senior Counsel appearing for the Executrix argued first that the instant application for revocation of probate is filed after 32 years of grant of probate. The application barred by limitation in accordance with Article 137 of the Limitation Act, 1963. He relied upon the ratio of Ramesh Nivrutti Bhagwat Vs. Dr. Surendra Manohar Parakhe, (AIR 2019 Supreme Court 4948) and Mrs. Lynette Fernandes Vs. Mrs. Gertie Mathias, (AIR 2017 Supreme Court 5453).
The second point argued by Mr. Chowdhury is that inconsistence and contrary pleas are made in the application which are mutually destructive. On the one hand, it is stated that the Petitioner signed blank papers while in the same breath it is stated that she signed papers given to her by her brother without reading the same contradicting the statements that she signed blank papers. . Such contradictory pleas are also taken regarding the nature of the will. According to Mr. Chowdhury the present Petitioner had full knowledge about the execution of the will and involvement of Mr. T.K. De. He further submitted that signature across revenue stamp paper cannot be signature of blank paper. These remain unexplained. In effect, Mr. Chowdhury argued that the present Petitioner was fully aware of the grant of probate, signified her consent to grant of probate, received benefits under the will but suddenly changed her mind long after the grant. Not only the application is time barred but the present Petitioner has no locus standi or cause or justified reason to challenge the will.
It is further argued by Mr. Chowdhury that citation is not required when consent is given. Since the present Petitioner expressed her consent to her probate by sign and requisite document, need for citation did not arise.
P age |6 The next point of argument of Mr. Chowdhury is that failure to file accounts and inventory is not willful as the Court records were absent. In any event deed of assent having also been executed, there is a presumption that all things required to be done in law and had been done properly. Even assuming but not admitting that accounts were not filed. The sum cannot be ground for signature revocation. Mr. Chowdhury referred to Anil Behari Ghosh Vs. Latika Bala Dassi, [(1955) 2 SCR 270].
Mr. Ghosh, in reply submitted that his client, the Petitioner herein came to know about the grant of probate only in June 2018. Date of knowledge of the alleged grant is the date of accrual of cause of action. The instant application was filed on 14t h August, 2019, well within the period of limitation. Therefore, the petition is not barred by the law of limitation.
I have heard rival submissions.
The first point which this Court should consider is the point of limitation which goes to the maintainability of the instant application. The will was executed on 25.06.1986 by the testator. Probate was granted in the year 1987. The Petitioner had knowledge of execution of a will by her father. It appears from the averments made in Para 17 of the application that a will was executed by her father, the testator but the testator instructed Mr. P.K. De not to give effect to the will which was a draft. She signed her consent in the probate in the year 1987. It was not her allegation that her signatures were forged. Signatures are admitted signifying thereby her information and notice of the probate proceeding. It is not a plausible excuse that she signed, she put signature on blank papers or signed something without reading the same. Even such pleas are mutually contradictory.
P age |7 The present application was filed on 14 t h August, 2019. In Ramesh Nivrutti Bhagwat's case (supra) question of limitation was considered by the Three Judges' Bench of the Supreme Court of India. It was observed that no specific period of limitation is prescribed under the Indian Succession Act, 1925 for moving application for revocation/cancellation of probate or letters of administration. Such proceedings are covered by Article 137 of the Limitation Act, 1963 which requires the application to be filed within three years from the date when right to apply accrues. It is argued on behalf of the Petitioner that she came to know all the existence of will and grant of probate only in the year 2018. But this plea is not acceptable for calculating the period of limitation since the Petitioner signed consent papers in the probate proceeding.
In Lynette Fernandes Vs. Gertie Mathias Two Judges' Bench of the Supreme Court of India considered the issue of limitation in respect of an application under Section 363 of the Indian Succession Act, 1925. It was observed:
"If probate is granted the same operates from the date of grant of probate for the purpose of limitation under Article 137 of the Limitation Act, 1963 in proceedings for revocation of probate."
This finding was relied upon by the Three Judges' Bench of the Supreme Court of India in Ramesh Nivrutte Bhagwat Vs. Surendra Manoher Parakhe (AIR 2019 SC 4948). In view of ratio of the above mentioned two cases the limitations starts from the date of grant of probate and not from the date of knowledge about the probate proceedings. It is not a case that the Petitioner was not aware of execution of any will. A mutually contradictory pleading does not offer a plausible excuse for remaining silent for such a long period. It is evident that the instant application is P age |8 belated and barred by law of limitation. This Court, therefore, agree with the argument made by Mr. Chowdhury that the instant application is barred by limitation.
Probate courts have power, in absence of any express or implied prohibition to pass order as may be necessary for ends of justice or to prevent abuse of the process of law. Probate Court is a court of conscience. It is not like a civil court deciding rights of the parties and delivering judgements. Judgement delivered by a probate court is judgement in rem which binds not only the parties but the whole world. The approach of a probate court is different from that of a civil court [ see Jerbanoo Rustomji Jamasji Garda v. Pootlamai Manecksha Mehta, (AIR 1955 Bom
447)]. In appropriate case, a probate court may pass order suo motu for ends of justice.
One clarification is needed. It is argued by Mr. Ghosh that inventory and accounts were not filed by the executor which itself warrants revocation of the probate as being the "just cause". Under Section 317of the Indian Succession Act, 1925 all letters of administration within such further time as the Court may appoint. Revocation of grant or annulment of grant is permissible under 263(e) of the Indian Succession Act, 1925 when the person to whom the grant was made "has willfully and without reasonable cause" omitted to exhibit the inventory or account. Failure simplicitor to file inventory within six months is no sufficient ground for revocation unless it can be proved that there was intentional and unreasonable withholding of the inventory. In Anil Behari Ghosh v. Latika Bala Dassi (AIR 1955 SC 566), three Judges Bench of the Supreme Court of India considered section 263 (e) of the Indian Succession Act. It was observed:
P age |9 "20. It remains to consider the last point viz. whether the case is within clause (e) of the Explanation to Section 263. In this connection ground (f) in para 23 of the petition quoted above is the only allegation. The omission to submit accounts is not always synonymous with "willfully and without reasonable cause"
omitting to exhibit accounts. In certain circumstances omission to submit accounts may bring the case within the purview of clause (e) aforesaid because the circumstances may tend to show that the omission was wilful and without reasonable cause. We have therefore to consider whether in the circumstances of this case the omission to file accounts has the effect of entitling the appellant to an order of revocation."
In the case in hand, as in Anil Behari Ghosh's case (supra), there is nothing in the pleading of the Petitioner that there occurred willful default on the part of the Executor in filing inventory and accounts. On the other hand, plausible explanation is given by the Executor which negates allegations of willful default without reasonable excuse. Therefore, section 263 (e) of the Indian Succession Act is not attracted, there being absent of "just cause" as canvassed.
Another clarification should be made. It is argued by Mr. Ghosh that grant of probate in common form raises question and makes the grant vulnerable. Grant of probate in common form is a settled practice. In England common form of grant of probate is a matter of right in the absence of all he interested parties. Chapter XXXV of the Original Side Rules deals with testamentary and intestate jurisdiction. Under Rule 29, a party opposing will may with his affidavit give notice to the party setting up the will that he merely insist upon the will being proved in solemn form of law P a g e | 10 and only intends to cross-examine the witness produced in support of the will. This is not the case of the Petitioner. In Lynette Fernandes's case (supra) argument was made that since the will in question was granted probate in common form and not in solemn form, grant of probate is liable to be challenged. Refuting the contention, and analyzing the conspectus of facts, the Supreme Court of India in considering the merit of an application under Section 263 of the Indian Succession Act, 1925 observed that distinction between common form and solemn form is only academic.
For reasons stated above this Court concludes the instant application for revocation of probate is not tenable and is liable to be dismissed. No "just cause"
exist to revoke the grant.
Accordingly, the instant application is dismissed. G.A.No.1 of 2019 stands disposed of.
(SUGATO MAJUMDAR, J.)