Calcutta High Court
Swadesh Ghosh And Another vs Mrs. Lagnajita Saha And Others on 10 December, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
APO 335 of 2014
IA No. GA 4 of 2024
IA No. GA 5 of 2024
Swadesh Ghosh and Another
Vs.
Mrs. Lagnajita Saha and Others
For the appellants : Mr. Swarnendu Ghosh, Sr. Adv.
Mr. Surya Maity, Adv.
Ms. Suchismita Ghosh, Adv.
For the respondents : Mr. Suman Dutta, Sr. Adv.
Mr. Debmalya Ghosal, Adv.
Mr. Sourath Nath Dutta, Adv.
Ms. Abhipiya Sarkar, Adv.
Hearing concluded on : 10.11.2025 Judgment on : 10.12.2025 Md. Shabbar Rashidi, J.:-
1. The appeal is in assailment of judgment and order dated August 11, 2014 passed in GA No. 2705 of 2013 arising out of PLA No. 292 of 2012.
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2. By the impugned judgment and order, the learned Single Judge revoked the probate granted on January 7, 2013 in respect of the last will of late Jibendra Nath Biswas by an order passed in PLA 292 of 2012. It was held in the impugned judgment and order that the respondent No. 1 herein had sufficient caveatable interest under Section 283 (1)(c) of the Indian Succession Act and directed issuance of special citation upon respondent No. 1 to enable her to contest the probate proceeding.
3. It was contended by learned Senior Advocate for the appellant that learned Single Judge erred in holding that the probate granted in common form was liable to be revoked and ordered revoking of the probate granted dated January 7, 2013 in PLA 292 of 2012. Learned Single Judge was not justified in directing special citation upon respondent No.1 in order to give her an opportunity to contest the probate proceeding.
4. Learned Senior Advocate for the appellant further submits that the learned Single Judge erred in holding that the appellant practiced fraud and misrepresentation in obtaining probate of the Will of late Jibendra Nath Biswas. The respondent No.1 was in possession of the demised property on the strength of an agreement to assign and construction coupled with a power of attorney in this regard. She constructed a four storied building on the suit property on the basis of such agreements and power of attorney. It is contended that the 3 learned Single Judge committed error in holding that respondent No.1 had sufficient interest in the suit properties to contest the probate proceeding merely on the ground that she had entered into an agreement of assignment and development.
5. Learned Senior Advocate for the appellant also submitted that the conduct of respondent No.1 was not that of a purchaser from heirs of the deceased testator, nevertheless, the learned Single Judge held her position in respect of the demised property as that of a purchaser. Learned Single Judge erred in holding that the connotation any person having slightest of interest in the estate of a testator does not include a tenant or any person holding a property under agreement. It was also contended that the learned Single Judge could not have acted as a court to decide title in a probate proceeding. Respondent No.1 did not purchase the properties at Salt Lake from the heirs of the deceased testator and as such, her interest in such property was wrongly held to be sufficient for assailing a probate. The rights of a tenant or assignee are quite distinguishable with that of a purchaser.
6. Learned Senior Advocate for the appellant also argued that although, a probate court had the jurisdiction to revoke a probate suo motu, but learned Single Judge erred in directing issuance of special citation upon the respondent No.1. Findings of the learned Single Judge as to fraud allegedly practiced by the appellants were unfounded and 4 without any basis. It was urged that the impugned judgment and order is liable to be set aside.
7. During the continuance of the instant proceeding, the sole executor of the Will of late Jibendra Nath Biswas i.e appellant No. 2 expired. It was contended by learned Senior Advocate for the appellant that on the expiry of the sole executor, respondent No.2 is entitled to continue with the probate proceeding and a letter of administration may be issued in terms of the provisions of Section 232 of the Indian Succession Act, 1925. In support of his contention, learned Senior Advocate for the appellant relied upon a decision of Delhi High Court reported in 2024 SCC OnLine Del 2204 (Digvijai Singh and Another Vs. State and Others) and that of Madras High Court reported in All India Reporter 1975 Mad 194 (Soundaraja Peter and Ors. Vs. Florance Chellaih and Ors.).
8. Learned Senior Advocate for the appellant also submitted that on the death of sole executor, the probate proceeding does not abate. It should be converted into one for grant of letter of administration and proceeded with. On such proposition, learned Senior Advocate for the appellant relied upon (2016) 13 Supreme Court Cases 253 (Vatsala Srinivasan Vs. Shyamal Taghunathan).
9. Per contra, learned Senior Advocate for the respondent contended that the legal heirs of late Jibendra Nath Biswas represented before her as well as authorities that their predecessors died intestate. Relying 5 upon such representation, the respondent invested huge amount of money for the development of the demised property by constructing a four storied building thereon. As such, respondent No.1 acquired caveatable rights in such property. She having an interest in the property under dispute, had the right to contest the probate proceeding.
10. Learned Senior Advocate for the respondent further submitted that probate to the Will of late Jibendra Nath Biswas was applied by the appellants after a delay of 10/12 years from the death of Jibendra Nath Biswas. Not only that, the legal heirs of the testator consented to the grant of probate to such will after so many years and that too, after they had made declarations before the authorities, after the death of testator, that their predecessor died intestate and got the demised property mutated in their name on the basis of such declaration, as legal heirs of Jibendra Nath Biswas. According to learned Senior Advocate for the respondent, the legal heirs could not have declared that their predecessor died intestate, had they been aware of a Will executed by their predecessor late Jibendra Nath Biswas. They could not have consented to grant of probate to the will of late Jibendra Nath Biswas after declaring that the deceased testator died without leaving a Will. On such grounds, it was argued on behalf of the respondent that the legal heirs of deceased testator practiced fraud before the learned probate court.
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11. Relying upon the authorities reported in (2000) 9 Supreme Court Cases 714 (Shambhu Prasad Agarwal and Others Vs. Bholaram Agarwal) and 1949 SCC OnLine Cal 368 (Mahatma Missir Vs. Thakur Prasad Chaudhuri), learned Senior Advocate for the respondent submitted that on the death of sole executor, the probate proceeding cannot continue unless necessary amendments are made in the application seeking grant of letter of administration.
12. One Jibendra Nath Biswas was holding lease granted by the government of West Bengal on March 30, 1997 in respect of land comprising 6. 3522 Cottas appertaining to plot No. 7 in block BA, sector 1, for a period of 999 years. The said late Jibendra Nath Biswas died on November 5, 1991 being survived by his widow, Kuhu Biswas and two sons Dipta and Soumya as his legal heirs. The aforesaid legal heirs of late Jibendra Nath Biswas proposed to apply before the Urban Development Department, government of West Bengal for recording their names as joint lessees in respect of the properties under reference. For such reason, the widow of late Jibendra Nath Biswas affirmed an affidavit before the Notary Public Calcutta on May 14, 1996, where she declared that Jibendra Nath Biswas had died intestate and that she and her two sons aged 25 years and 20 years respectively were his only legal heirs. Similarly the two sons of late Jibendra Nath Biswas also affirmed separate affidavits stating interalia that each of the three legal heirs were entitled to one third share in the property. The two sons also 7 declared, in the affidavit, that they were unmarried and residing with their mother.
13. Consequently, on November 18, 1999 Bidhannagar Municipality, made a communication informing the widow and two sons of late Jibendra Nath Biswas that their names were mutated in the records in place of late Jibendra Nath Biswas with effect from October 4, 1996 in respect of the demised properties. In such fashion, the name of the widow and the two sons of late Jibendra Nath Biswas were recorded as joint lessees in respect of the demised property in the records of the municipality.
14. On April 26, 1999, the three legal heirs of late Jibendra Nath Biswas gave possession of the property in question to respondent No. 6, a company incorporated under the provisions of the Companies Act, 1956. Such action was performed by the legal heirs of late Jibendra Nath Biswas as joint lessees of the property. An agreement of tenancy was executed by and between the legal heirs of late Jibendra Nath Biswas on one hand and respondent No. 6 on the other on April 26, 1999 in lieu of sum of ₹30,00,000/-. A general power of attorney was executed by the three legal heirs in favour of the managing director of respondent No. 6. The legal heirs of late Jibendra Nath Biswas also executed affidavit and an agreement to assign the lease in favour of respondent No. 6. In such documents also the legal heirs of late Jibendra Nath Biswas declared and represented that late Jibendra Nath 8 Biswas died intestate. The aforesaid agreement and letter of assignment of lease were however, cancelled by and between the two parties, by dint of a deed of surrender, cancellation and revocation dated June 2, 2003, cancelling the deed of assignment of lease dated April 26, 1999. The three legal heirs of late Jibendra Nath Biswas and the Managing Director of the respondent No. 6 signed on the deed of such surrender, cancellation and revocation.
15. On the selfsame day i.e. June 2, 2003, a fresh agreement was entered into between the three legal heirs of late Jibendra Nath Biswas, on one hand and respondent No.1 on the other, respondent No. 6 being a confirming party to such agreement of tenancy. In such agreement, respondent No. 6 gave out that they were not willing to continue with the tenancy in view of the conditions of lease which prohibited a sub- lease without prior permission from the government. A notification issued by the Government of West Bengal dated September 4, 1985 however, authorizes sub-letting for residential purposes. Under the agreement executed between the parties whereby, respondent No.1 paid a sum of ₹70,00,000/- for such tenancy. Such agreement authorized respondent No. 1 to demolish the existing structure and construct a new building over the demised property. Legal heirs of late Jibendra Nath Biswas also executed two other agreements on June 2, 2003, one for the assignment of their leasehold interest and another permitting the respondent No.1 to raise new construction on the property in 9 question. They also executed a power of attorney on June 2, 2003 itself. Consequently, Respondent No.1 was put in possession of the property in dispute.
16. In terms of the agreement and power of attorney so granted, respondent No.1 took possession of the demised property, raised a four storied structure thereon upon demolition of the existing structure. The said respondent invested huge amount of money for the construction of four storied structure over the property in question. In addition, respondent No.1 also engaged a security agency to provide security to the property on and from February 8, 2012. Accordingly, two security guards namely Kanailal Das and Sukumar Dhara were employed.
17. Subsequently, in 2013, appellant No.1 filed a Civil Suit being Title Suit No. 204 of 2013 with an application under Order 39 of the Code of Civil Procedure against one of the security guards namely Kanailal Das and obtained an order of 'status quo' on July 10, 2013. According to the averments made in such Civil Suit, appellant No.1 claimed himself to be legatee of an alleged will dated November 4, 1991 executed by late Jibendra Nath Biswas whereas he died on the very next day i.e. on November 5, 1991.
18. In 2012, appellant No. 2 filed a proceeding for grant of probate of the Will of late Jibendra Nath Biswas, as executor, being registered as PLA 292 of 2012. In such application for probate, appellant No.1 filed an undertaking before this Court declaring that apart from the natural 10 heirs of the deceased, there was no other person who had any interest in the grant of probate to such Will of late Jibendra Nath Biswas. The legal heirs of late Jibendra Nath Biswas connoted their consent to the grant of probate to such Will. Owing to the consent given by the legal heirs of late Jibendra Nath Biswas, the necessity of issuance of citation was not felt and probate to such will was granted in common form by this Court on January 7, 2013.
19. While passing the impugned judgment and order, the learned Single Judge took into consideration that since the legal heirs of late Jibendra Nath Biswas consented to the grant of probate to the Will and testament of the testator, special citation was not issued in the probate proceeding. Probate was granted on the basis of citation in common form. The learned Single Judge also raised doubts over the genuineness of the will in question on several counts. Will was allegedly executed by the testator just one day prior to his death whereas; probate to such Will was sought long after 21 years of its execution. Not only that, the respondent legal heirs of the testator, after his death, applied for mutation of the leasehold property in their name as such legal heirs. In doing so, they executed several documents and affidavits where they declared that the testator died intestate without leaving a Will. Nevertheless, the aforesaid legal heirs consented to the grant of probate to such Will.
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20. Learned Single Judge, while revoking the probate, also noted the terms of such Will. It was specifically noted that the alleged will executed just a day prior to the death of the testator, was executed in favour of a complete stranger to his family having no provision for the natural legal heirs. Although, it was alleged in the Will that sufficient properties were left for such natural legal heirs but the affidavit of assets affirmed in support of the probate showed that the testator had no property, household article or money at his disposal. Learned Single Judge also doubted the veracity of the will in question on the ground of inordinate delay of over 21 years in approaching the court for grant of probate.
21. Genuineness or otherwise of the alleged Will left by late Jibendra Nath Biswas are the questions to be looked into by the probate court. In the present appeal, the question which has fallen for our consideration is whether, impugned judgment and order, revoking the probate granted to the alleged Will of late Jibendra Nath Biswas on the ground of non-issuance of special citation upon respondent No. 1 is justified or not. We are also obliged to consider if respondent No. 1 had any caveatable interest in the property involved in the will and consequent probate proceeding, entitling her a special citation in the probate proceeding.
22. We have noted hereinabove that late Jibendra Nath Biswas was a lessee for 999 years in respect of the property involved in probate 12 proceeding. On his death, the respondent legal heirs of the deceased late Jibendra Nath Biswas applied for getting the property mutated in their name according to their shares. At the time of such application, all the three natural legal heirs of late Jibendra Nath Biswas sworn affidavits that their predecessor died intestate, leaving no Will or testament. Accordingly, the name of the three legal heirs was mutated in respect of the demised property in the records of municipality.
23. As legal heirs of intestate deceased, the respondent legal heirs of late Jibendra Nath Biswas assigned the leasehold interest in the property in favour of respondent No.6 on April 26, 1999. However such assignment was cancelled on June 2, 2003 on certain grounds. A fresh assignment was made on June 2, 2003 itself by the respondent legal heirs of late Jibendra Nath Biswas in favour of respondent No.1. By such assignment, respondent No.1 was inducted as a tenant in the demised property. The agreement dated June 2, 2003 provided for delivery of exclusive possession of the demised property to respondent No.1 coupled with permission to reconstruct a new structure upon demolition of the existing structure.
24. In such transaction, the legal heirs of late Jibendra Nath Biswas represented themselves to legal heirs of an intestate deceased and induced respondent No.1 to enter into an agreement with legal heirs of late Jibendra Nath Biswas who died intestate. On such representation, respondent No.1 came in exclusive possession of the property and 13 invested huge amount of money to the tune of ₹70,00,000/-, towards the construction of a four storied structure thereon upon demolition of the existing one. To our consideration, respondent No.1 acquired sufficient interest in the property covered under the probate and that too, upon the representation of the respondent legal heirs of late Jibendra Nath Biswas.
25. Section 263 of the Indian Succession Act, 1925 deals with the provisions for revocation of a probate granted to a Will. The Section reads as follows:
"263. Revocation or annulment for just cause.-The grant of probate or letters of administration may be revoked or annulled for just cause.
Explanation.--Just cause shall be deemed to exist where--
(a) the proceedings to obtain the grant were defective in substance; or
(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or
(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently;or
(d) the grant has become useless and inoperative through circumstances; or
(e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.14
Illustrations
(i) The Court by which the grant was made had no jurisdiction.
(ii) The grant was made without citing parties who ought to have been cited.
(iii) The will of which probate was obtained was forged or revoked.
(iv) A obtained letters of administration to the estate of B, as his widow, but it has since transpired that she was never married to him.
(v) A has taken administration to the estate of B as if he had died intestate, but a will has since been discovered.
(vi) Since probate was granted, a later will has been discovered.
(vii) Since probate was granted, a codicil has been discovered which revokes or adds to the appointment of executors under the will.
(viii) The person to whom probate was, or letters of administration were, granted has subsequently become of unsound mind."
26. In Soundaraja Peter (supra), the Madras High Court held to the following:
"6.Section 232 applies to a case where the testator has not appointed an executor. The section states that where an executor has not been appointed under a Will or the executor appointed is incapable of or has refused to act or has died before the testator or before proving the will, an universal or residuary legatee may be admitted to prove the will, and letters of administration with the will annexed may be granted to him of the estate. Section 235 provides that letters of administration with the will annexed shall not be granted to any legatee other than an universal or a residuary legatee, 15 until a citation has been issued and published in the manner prescribed by the provisions of that Act. Mr. Parasaran contends that though letters of administration could be granted under Sec. 232 to an universal or a residuary legatee, the plaintiff not being an universal or a residuary legatee, is not entitled to the letters of administration under the said provision. It is also further pointed out that no citation having been issued or published in the manner prescribed by the Indian Succession Act, no letters of administration could be issued to the plaintiff even if she is treated as an universal or a residuary legatee in view of the prohibition contained in Section 235. It is true that the plaintiff is not an universal or a residuary legatee under the terms of the will Ex. A-1. She is one of the four legatees under the terms of the will Ex. A-1 and all the properties covered by the will have been bequeathed to them and there is no residue to be administered. We do not understand the provisions in Section 232 as enabling only a residuary or an universal legatee to prove the Will and claim letters of administration. Section 234 specifically provides that any legatee having a beneficial interest may also prove the will and seek a letters of administration. The plaintiff being a legatee under the will and there being no universal or residuary legatee, the provisions of Section 234 will come into play. The plaintiff is therefore entitled to prove the will and get letters of administration in relation to that will."
(Emphasis supplied)
23. In the case of Digvijai Singh (supra), the Delhi High Court observed that, 16 "21. It was reiterated in Smt. Vatsala Srinivasan Ig (supra) that in any of these situations as provided under Section 232 of the Act, the universal or the residuary legatee may be admitted to prove the Will and the Letter of Administration with the Will annexed may be granted to him for the whole of estate or such part of the estate as remains to be administered. It was also observed that the right of beneficiary to seek Letter of Administration continues to survive notwithstanding the death of the Testator."
24. Similarly in the case of Vatsal Srinivasan (supra), where prayer for amendment of the plaint of the probate proceeding, on the death of executor, was allowed by learned Single Judge and affirmed in appeal, the Hon'ble Supreme Court laid down that, "6. In view of law laid down in the aforestated judgments, the Division Bench observed that both the proceedings with regard to the probate and the letter of administration are of the same nature and therefore, the proceedings cannot abate. The essence of both the proceedings is the same and they relate to ascertainment of genuineness and authenticity of the will. By considering the aforestated judgments, the Division Bench has rightly confirmed the view expressed by the learned Single Judge."
25. This High Court in Mahatma Missir (supra) had noted to the following, that's to say:
"I am of opinion that the right of suit of the executor does not continue on his death in his son and also that the beneficiaries under the will have no right to intervene in these proceedings as persons on whose behalf the action was brought. I am fortified in this view by the authority of a recent 17 decision of this Court in the case of Hari Pada Shaha v. Gobinda Chandra Shaha [I.L.R. [1948] 1 Cal. 300.]. In this case, the sole executor, who died during the pendency of the probate proceedings, was also the sole legatee, and is heir, instead of making a fresh application for a grant to him of letters of administration in his own right under s. 233 of the Indian Succession Act, was allowed to continue the proceedings without objection till the close of the hearing and, was granted letters of administration. The learned Judges held that this was merely a defect of form and refused to set aside the grant. It was, however, definitely held that the proper course for the heir was to make a fresh application for a grant to him of letters of administration. Two earlier authorities, in which the same view was taken, may be mentioned. There are the decisions Sarat Chandra Banerjee v. Nani Mohan Banerjee [(1909) I.L.R. 36 Cal. 799.] and Haribhusan Uatta v. Manmatha Nath Datta [(1918) I.L.R. 45 Cal. 862.]."
26. In Shambhu Prasad Agarwal (supra) the Hon'ble Supreme Court had laid down that, "5. We find that it is not disputed that Matadin Agarwal was a legatee under the will. It is true that Matadin Agarwal ought to have applied for issue of letters of administration and not for probate. However, this did not debar his heirs to get the probate petition amended. The trial court rejected both the applications of the appellants on the ground that since the probate petition filed by the legatee related to his personal right, therefore no right accrued to the appellants for their substitution in his place. This view, according to us, is not correct. Matadin Agarwal, as stated above, was a legatee and not an executor under the will. It is true that where an 18 executor dies, his heirs cannot be substituted because the executor possessed personal right, but this is not applicable where the heirs of a legatee apply for issue of letters of administration. It is not disputed that today the appellants can file a petition for issue of letter of administration. Since considerable time has elapsed, we feel that the interest of justice demands that the proceedings should come to an end as early as possible and we should not dismiss this appeal merely on highly technical ground.
6. For the aforesaid reason, we set aside the orders under challenge and send the case back to the trial court. We permit the appellants to be substituted in the proceedings and also permit them to amend the petition. It goes without saying that after the remand, it will be open to the parties to take such plea as may be available to them under the law. Since the matter is pending for a considerable time, we direct the lower court to decide the matter expeditiously. The appeal is allowed. There shall be no order as to costs."
27. Considering the law laid down by different High Courts as well as the Hon'ble Supreme Court, we are of the view that the law laid down by Hon'ble Supreme Court in its latest of decisions in Vatsala Srinivasan (supra) and Digvijai Singh (supra) shall govern the field on the point of maintainability of the proceeding.
28. The case at hand apparently seems to be identical to the situation enunciated in illustration (ii) appended to Section 263 of the Act of 1925. The impugned judgment and order held that respondent No.1 had sufficient caveatable interest in the property under reference and as such she was entitled to a special citation in the probate 19 proceeding concerning such property. It directed citation to be issued upon her in order to give her opportunity to contest the probate proceeding. It is on this pretext, the probate granted to the Will dated November 4, 1991 executed by late Jibendra Nath Biswas in PLA No. 292 of 2012 was revoked. We find no infirmity with the findings returned by learned Single Judge in the impugned judgment and order.
29. Therefore, on the basis of discussions made hereinbefore we find no merit in the instant appeal. We affirm the impugned judgment and order.
30. Consequently, the appeal being APO 335 of 2014 along with connected applications are accordingly disposed of without any order as to costs.
31. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties on priority basis upon compliance of all formalities.
[MD. SHABBAR RASHIDI, J.]
32. I agree.
[DEBANGSU BASAK, J.]