Calcutta High Court
Smt. Chunibala Barui And Ors. vs Lakshmimani Adhikary And Ors. on 22 July, 2005
Equivalent citations: AIR2005CAL343, (2005) 3 ICC 335, AIR 2005 CALCUTTA 343, 2006 (1) ALL LJ NOC 62, 2006 (1) AJHAR (NOC) 23 (CAL), 2006 (1) AKAR (NOC) 38 (CAL), (2005) 2 HINDULR 235, (2007) 1 MARRILJ 613
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This first appeal is at the instance of a respondent in the proceedings for revocation of grant of Letters of Administration and is directed against order dated 12th April, 1979 passed by the learned District Judge, Hooghly in Revocation Case No. 91 of 1977 thereby allowing the said application and revoking the Letters of Administration earlier granted by the said Court to the present appellant by order dated 21st July, 1977 in Act 39, Case No. 145 of 1975.
The following facts are not in dispute :
2. One Sitaram Das Bairagya, the testator, died on 15th February, 1965 leaving his widow Subhasini who died one month and three days after the death of her husband. The present appellant on 18th January, 1973 started the proceedings for grant of the Letters of Administration being Act 39 Case No. 90 of 1973 in the Court of the District Delegate for the purpose of obtaining the Letters of Administration of the estate of Sitaram Bairagya. His case was that Sitaram and executed an registered Will in the year 1943 under which all his properties would go to the person who would look after him and his wife during their last clays and perform their last rites. According to the appellant, he was brought up by Sitaram and Subhasini as their son from his youth and he looked after them in their last days and he also performed their last rites.
3. One Narendra Mondal and seven others claiming to be the actual occupiers of the disputed property challenged the genuineness of the Will before the learned District Delegate and as such, the learned District Delegate returned the application to the present appellant for presentation before the District Judge.
4. Subsequently, the appellant filed his application before the District Judge on 19th December, 1975 thereby giving rise to Act 39 Case No. 142. of 1975. In the said application nobody was shown as next kin of the deceased and as such, only general citations were issued. Nobody turned up to contest the claim of the present appellant and ultimately, the Court ex parte granted the Letters of Administration in his favour.
5. Subsequently, on 24th August, 1977, the present respondents claiming to be legal representative of Nani Gopal Adhikari prayed for setting aside the grant: of Letters of Administration. According to the respondents, the property in question devolved upon them through the heirs of Subhasini.
6. The aforesaid application was resisted by the present appellant contending that the respondents had no locus standi to file the said application for revocation and that there was no just cause for revocation.
7. By the order impugned herein, the learned District Judge held that the respondents could not be said to be the heirs of the testator, inasmuch as, on the death of the testator, though, the property devolved upon Subhasini, his wife, she being a childless widow, on her death, the property went back to the heirs of Sitaram. According to the learned trial Judge Sitaram had no heir alive and as such, the property should be escheated in terms of the provisions of the Hindu Succession Act and, therefore, notice ought to have been given to the State of West Bengal. The learned District Judge further held that the circumstances surrounding the Will were not happy; the Will, according to the appellant, was executed in the year 1943 whereas the appellant came to this country from East Bengal in 1947. It was further pointed out that though Sitaram died in 1965, the Letters of Administration was sought only in 1973. It further appeared that the appellant purchased a portion of the estate left by Sitaram from Nani Gopal by using the name of his two wives and thereafter, he sold the property to one Krishna Chandra Sadhukhan and thus, it was unnatural for him to apply for letters of administration on the basis of the alleged Will which conferred ownership of the property upon him when the appellant himself in the past purchased a portion of the property from Nani Gopal.
8. On consideration of all the aforesaid materials, according to the learned District Judge, there was just cause of revocation.
9. Being dissatisfied, the appellant has come up with the present appeal.
10. Mr. S. P. Roy Chowdhury, the learned advocate appearing on behalf of the appellants has made twofold submission before this Court.
11. First, he contends that the respondents having no locus standi to oppose the grant of Letters of Administration on the basis of a Will left by Sitaram, could not maintain an application for revocation of grant.
12. Secondly, Mr. Roy Chowdhury con-lends that the learned Court below erred in law in holding that apart from the State of West Bengal, the respondents should also be held to be necessary parties in the proceedings for grant of Letters of Administration.
13. As regards the first point raised by Mr. Roy Chowdhury, after going through the provisions contained in Section 263 of the Indian Succession Act, we find that even in the absence of any application by a person interested in the estate of the testator, the Court of its own motion can revoke a grant if it comes to the knowledge of the Court that any of the circumstances mentioned in the said Section is present. In the case before us, it is rightly pointed out by the learned District Judge that the respondents did not claim to be the natural heirs of the testator direct and at the same time, could not lawfully claim inheritance through his wife because of the provisions contained in Section 15(2) of the Hindu Succession Act according to which property inherited by a childless widow from her husband goes back to the heirs of the husband after her death.
14. The learned District Judge has further found that there is no heir of Sitaram in terms of the provision of the Hindu Succession Act and in such a situation, the property left by Sitaram has devolved upon the State. In our view, it was rightly pointed out by the learned District Judge that without issuing any citation upon the State, the ex parte grant of Letters of Administration in favour of the appellant was illegal. At this stage Mr. Roy Choudhury vehemently contended that his client had disclosed that Sitaram had no heir and thus, there was no fraud on the part of his client. In our view, even if, no fraud was committed by the present appellant but once it is established that even on the basis of the particulars supplied by the applicant for grant of Letters of Administration, it was imperative on the part of the Court to issue citation upon the state as the property of the testator devolved upon the State in case of intestate succession. Such being the position, the ex parte grant of Letters of Administration in favour of the appellants without giving notice to the state was rightly revokved.
15. We cannot lose sight of the fact that a Probate Court is a Court: of conscience and the judgment delivered by Probate Court is a judgment in rem. Even if a person having no locus standi to contest the grant draws attention of the Probate Court that any Probate or Letters of Administration was improperly obtained without citation to the persons entitled to get. such citation under the law for the mistake on the part of the Probate Court, such Court can of its own revoke such grant if it appears to the Court that non-situation was of such a character as to substantially affect the regularity and correctness of the previous proceedings.
16. We, therefore, find that even though the respondents had no locus standi to lodge caveat against grant of Letters of Administration on the basis of the Will executed by Sitaram, the learned District Judge was quite competent to revoke the grant once it is established that Letters of Administration was granted by not following the procedure provided in Indian Succession Act thereby making the grant defective in substance.
17. We, thus, find no reason to interfere with the order revoking grant. We at the same time find substance in the contention of Mr. Roy Choudhury that at the time of disposal of the proceedings of Letters of Administration afresh, the respondents will have no right to contest the claim as they cannot be said to be person interested in the estate of the testator.
18. We, therefore, although do not interfere with the ultimate conclusion revoking the grant, direct that for fresh disposal of the proceedings for grant of Letters of Administration, the respondents will have no right to oppose the grant and it is for the State of West Bengal or other natural heirs of Sitaram, if any, to contest the proceedings.
19. The appeal is, thus, dismissed with the above observation, in the facts and circumstances, there will, however, be no order as to costs.
20. Let proceedings for grant of Letters of Administration be disposed of within the Puja Vacation of 2005.
Rajendra Nath Sinha, J.
21. I agree.