Calcutta High Court
Parimal Kr. Das And Ors. vs Prasun Kr. Das on 13 February, 2004
Equivalent citations: (2004)1CALLT621(HC), 2004(2)CHN465, AIR 2004 (NOC) 474 (CAL), 2004 A I H C 2990, (2004) 2 CAL LJ 488, (2005) 1 HINDULR 314, (2004) 1 CALLT 621, (2004) 19 ALLINDCAS 291 (CAL), (2004) 2 CAL HN 465
JUDGMENT Prabir Kumar Samanta, J.
1. The opposite party herein has filed an application for grant of probate of the alleged will executed by the testator Nripendra Nath Das dated 19th February, 1998. The said case has been registered as Act XXXIX Case No. 119 of 2000. In the said proceeding no citation has been made in respect of the present petitioners who are the sons of the brother of the said testator. He said testator was unmarried. The petitioners accordingly made an application for being added as parties to the above probate proceeding to contest the grant under the provisions of Order 1, Rule 10(2) read with Section 151 of the Code. The trial Court by the order dated 18th May, 2001 has rejected the said application. The said order is under challenge in this petition under Article 227 of the Constitution of India.
2. The facts giving rise to the above impugned order may be summarised as under:-
One Narayan Chandra Das died leaving behind him one married daughter and four sons i.e. Monorama Dasi, Rajendra Nath Das, Dhirendra Nath Das, Sailendra Das and Nripendra Nath Das. Nripendra Nath Das who was unmarried died leaving behind him the alleged Will. The petitioners are the sons of deceased Dhirendra Nath Das. Both Monorama Dasi and Rajendra Nath Das are dead. The opposite party is one of the sons of deceased Rajendra Nath Das. It is the case of the petitioners that the said testator executed a will dated 16th August, 1980 which was registered in the office of the Additional District Sub-Registrar, Sadar-Chinsurah wherein the petitioners were made as legatees. Said testator died on March 12, 1998. The opposite party No. 1 as being one of nephews of the testator Nripendra Nath Das has filed the above application for grant of probate in respect of the alleged Will executed by the said testator on 19th February, 1998 without citing the present petitioners as parties to the said proceeding. In the said application all the brothers of the opposite party No. 1 and his only surviving uncle i.e. Sailendra Nath Das have been cited as near relations of the testator. The present petitioners being the sons of the other brother i.e. deceased Dhirendra Nath Das have not been cited as parties interested in the above proceeding nor as the near relations of the testator. The petitioners accordingly filed the above application which has been rejected by the above impugned order only on the ground that they are not the legal heirs of the deceased testator.
3. This revisional application under Article 227 of the Constitution of India has been filed along with an application under Section 5 of the Limitation Act for condonation of delay in making the above application. The said application has not been seriously contested by the opposite party at the hearing nor any counter was filed against the same by the opposite party. Regard being head to the statements made in the above application and upon consideration of the provisions of Article 227 of the Constitution of India for which there is no prescribed period of limitation this Court is of the view that the lapse of time in filing the above application in the Hon'ble Court has been satisfactorily explained. In such consideration the delay in filing the above application, if there be any is condoned.
4. Now for the purpose of deciding the above application it will be necessary to decide the scope of Section 283(1)(c) of the Indian Succession Act, 1925. Section 283(1)(c) of the said Act makes it obligatory upon the District Judge or the District Delegate to issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration, whom he thinks proper. The expression "claiming to have any interest in the estate of the deceased" occurring in Clause (c) of Section 283(1) of the said Act came up for consideration in a case (Mutakdhari Singh v. Smt. Prem Devi and Ors.). In the said decision it has been held that the true meaning of the expression "Interested in the estate of the deceased", occurring in Section 283(1)(c) of the Act is, that an interest or even an interest dependent upon remote contingencies is sufficient to entitle a person to oppose a will and to intervene in the matter of the application for probate or letters of Administration and to call upon the propounder of the Will to prove it in solemn form in his presence, and such a person has a proper locus standi to come to Court and ask that the probate or the grant of letters of Administration be revoked. The said decision has been arrived at upon consideration of the provisions of Section 263 of the said Act. Section 263 of the said Act vests a judicial discretion in the Court to revoke or annul a grant for just cause. If the proceeding to obtain the grant was, in a particular case, "defective in substance" as occurring in Clause (a) to the Explanation to Section 263 then it would substantially affect the regularity and correctness of the proceedings. It has been held in the said decision that the defect in substance of the proceeding to obtain grant would depend on the individual cases and on the particular circumstances existing in each case. Whether the omission to issue citation to a person on the facts of a particular case, would be a just cause, will depend on the facts and circumstances of each case.
5. The Division Bench of this Court long before the introduction of the said Act in a revocation proceeding arising out of Probate and Administration Act, 1881 laid down the principle in the decision reported in 19 CWN 882 (Shyama Charan Baisya v. Prajulla Sundari Gupta) by holding the although a reversioner under the Hindu Law has no present alienable interest in the properly left by the deceased, he is substantially interested in the protection or devolution of the estate and as such is entitled to appear and be heard in a probate proceeding. Another Division Bench of this Court in a case (Sm. Annapurna Kumar v. Subodh Ch. Kumar) held on principle that any interest however, slight, and even the bare possibility of an interest is sufficient to entitle a party to oppose a testamentary paper. It has been held in the said case that even in a case where the person is not entitled to get a compulsory citation, since the citation is discretionary, the absence of citation to such a person, also would invalidate the grant in certain circumstances. Such pronouncement has been made in a case where the applicant for grant of letters of Administration had prior notice through his solicitor that one lady claimed to be the widow of the deceased testator, but the applicant did not implead her as a party in the application for the grant of letters of Administration. Another Division Bench of this Court in a decision (Sm. Sima Rani Mohanti v. Puspa Rani Pal) has reiterated the same, principle. In the case before the said Division Bench appellant Sima Rani Mohanti alleged that the testatrix by a Will dated 19th September, 1966 bequeathed her property which is half share in premises No. 98A/H/ 10 Suren Sarkar Road, Beleaghata, Calcutta, to the appellant. She filed an application for grant of probate of the said Will but she could not proceed with the same as she came to know that the respondent No. 1 Basanta Kr Sen who was the owner of the other had share of the premises had propounded a Will alleged to have been executed by the said testatrix on September 18, 1966 and had obtained probate of the same. Thereupon the appellant filed an application for revocation of the grant of probate to the said Will was propounded by Basanta Kr. Sen. The appellant in her application for revocation of the grant inter alia complained that a citation should have been issued to her by said B.K. Sen. The learned Additional District Judge came to the finding that the appellant had no locus standi to file an application for probate inasmuch as she had no interest in the said premises and in that view of the matter the application for revocation was dismissed. The Division Bench upset the decision of the learned Additional District Judge by holding that the appellant had locus standi to maintain an application for revocation. It was held that the question whether revocation will be granted or not is a different matter, for it would depend upon the appellants proving the Will which had been probated to be not genuine. Since the appellant also filed an application for the grant of probate of the Will dated 19th September, 1966 and that was still pending before the District Delegate, so the matter became contentious and accordingly directed that both the application for grant of probate and the application for revocation should be heard together.
6. In view of the aforesaid discussion it is abundantly clear that the expression "claiming to have any interest in the estate of the deceased" appearing in Section 283(1)(c) of the Indian Succession Act is wide enough also to include persons having possibility of an Interest which is such as is or is likely to have prejudicially or adversely affected by the grant. Such person would accordingly be entitled to receive citation. In the case in hand the petitioners have alleged that the deceased testator had executed and registered a Will dated 16th August, 1980 wherein the petitioners were made legatees. The application for grant of probate of the alleged Will of the said testator dated 19th February, 1998 was filed soon after March 12, 1998 when the said testator had died. The brothers of the opposite party being the nephews of the deceased testator are also not the legal heirs of the deceased testator. Even then they were cited in the said application for grant of probate of the alleged Will dated 19th February, 1998. The present petitioners have alleged that the deceased testator had executed and registered a Will dated 16th August, 1980 wherein the present petitioners were made legatees. It is therefore open for the present petitioners to apply for revocation of grant in the event grant is made on the application of the opposite party. Alternatively, the present petitioners may institute a fresh proceeding for grant of probate in respect of the alleged Will dated 16th August, 1980 executed and registered by the deceased testator. Without going into the question whether the petitioners would succeed in their application for grant of probate, if filed or in a proceeding for revocation of the grant in the event probate is granted to the opposite party, it cannot be said in the facts and circumstances of this case that the present petitioners have no focus standi either to make an application for grant of probate in respect of the Will dated 16th August, 1980 or to make an application for revocation in the event probate is granted to the Will dated 19th February, 1998.
7. Upon consideration of the decisions discussed above laying down the principle that the expression "claiming to have any interest in the estate of the deceased is wide enough to include the persons having slight and bare possibility of an interest to oppose a testamentary proceeding this Court is also of the view that the present petitioners are entitled to get special citation in exercise of proper discretion of the Court. They are so entitled as they have sufficient interest to oppose. Because they are likely to suffer by the grant in respect of the Will propounded by the opposite party. They also have interest to oppose in the sense that a Will or codicil may operate as a revocation of a prior testamentary instrument in terms of Section 70 of the Act.
In such view of the matter the impugned order is set aside. The application as filed by the present petitioners under Order 1, Rule 10(2) read with Section 151 of the Code is thus allowed. The revisional application accordingly succeeds. However, there will be no order as to costs.
If urgent xerox certified copy of this order is applied for by the parties, the same should be given expeditiously.