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1989 DIGILAW 271 (CAL)

ANIL KUMAR KUNDU v. NETAI CHANDRA BORAL

1989-05-30

MONORANJAN MALLICK

body1989
M. R. MALLICK, J. ( 1 ) THIS is an application far revocation of the probate under section 263 of the Indian Succession Act. ( 2 ) THE facts are briefly as follows: a probate has been granted by this Court in Matter No. 38 of 1987 on the basis of the application filed by one Netai Chandra Boral alias Netai Chandra Das praying for a probate on the last Will and testament of Subodh Chandra Boral. ( 3 ) THE said Netai Chandra Boral, who is the respondent in this application, applied for probate on the basis of the Will left by Subodh Chandra Boral alleging that he is the adopted son of Late Subodh Chandra Boral and that Late Subodh Chandra Boral by his last Will and testament dated 13th January, 1980 bequeathed all his right as trustee and Shebait of the debuttar estate mentioned in the Will in his favour and has also appointed him the executor under the Will and on the basis thereof he was applying for probate. In the said application, Netai Chandra Boral alleged that he being the adopted son, the properties of the deceased would have devolved upon him even on intestacy and consequently, there was no other heir in intestacy on which a special citation was to be issued. ( 4 ) ON the basis of the said averment made by the said Netai Chandra Boral, this Court granted him probate treating the said application for probate as a non-contentious one on 17th February, 1987. ( 5 ) THEREAFTER, the present application has been filed by one Anil Kumar Kundu and Smt. Binapani Gayan alleging that the grant of probate in Matter No. 38 of 1987 may be revoked. It is alleged as follosws: subodh Chandra Boral, who was an unmarried person and governed by Hindu Succession Act, at the time of death, left the following and no other persons as heirs and legal representatives:1. Sudhir Chandra Rural - Brother2. Smt. Binapani Gayen - Widow of Binode Behari Gayen - sister (petitioner No. 2)3. Rabindra Nath Biswas - Son of predeceased sister, Usharani Biswas. 4. Smt. Mahamaya Pramanick - Daughter of predeceased sister, Usharani Biswas. Sudhir Chandra Rural - Brother2. Smt. Binapani Gayen - Widow of Binode Behari Gayen - sister (petitioner No. 2)3. Rabindra Nath Biswas - Son of predeceased sister, Usharani Biswas. 4. Smt. Mahamaya Pramanick - Daughter of predeceased sister, Usharani Biswas. ( 6 ) LONG before the death of Subodh Chandra Boral, the petitioner No. 1 filed Suit No. 512 of 1980 as a next friend of the deities mentioned in the Will against the said Subodh Chandra Boral praying for administration of the Debuttar Estate, for construction of the Deed of Debuttar Settlement dated 1st November, 1935, for a declaration that the plaintiff No. 6 being the petitioner No. 1 is entitled to become a Shebait and trustee and for appointing him trustee of the Debuttar Trust Properties and alternatively, for framing of scheme for worship and the seva puja of the said deities and a scheme for administration of the debuttar estate. ( 7 ) LATE Subodh Chandra Boral filed a written statement in that suit and also submitted a geneological table in which he did not disclose that he had adopted the said Netai Chandra Boral alias Das as adopted son. The petitioners very much challenge the alleged adoption and also the genuineness of the Will of Late Subodh Chandra Boral. The petitioner No. 1 who has been ordered by the Court to act as next friend of the deities in the above Administration Suit is a person interested and the petitioner No. 2 being the sister of Late Subodh Chandra Boral would have inherited the interest of Late Subodh Chandra Boral in intestacy, and Sudhir Chandra Boral, being the brother, is also an heir in intestacy, but the respondent without serving any special citation upon any one of them obtained the probate surreptitiously and on coming to know about such grant of probate, the petitioners have applied for revocation of the grant of probate. ( 8 ) AN affidavit-in-opposition has been filed by the respondent Netai Chandra Boral alias Das, disputing all the allegations. ( 8 ) AN affidavit-in-opposition has been filed by the respondent Netai Chandra Boral alias Das, disputing all the allegations. It is contended that he being the adopted son is the only heir in intestacy and none of the petitioners has any locus standi to move this application and none of them is entitled to get any special citation not being a person interested in the grant of probate and that he also applied for being added as a party in the Administration Suit in question on the death of Late Subodh Chandra Boral and his application for being added as defendant has been granted by Monjula Bose, J. and the present petitioners have got nothing to challenge the genuine Will created by Late Subodh Chandra Boral and appointing him sole trustee and shebait in his place by virtue of the said Will. s ( 9 ) AGAINST such affidavit-in-opposition, the petitioner No. 2, Smt. Binapani Gayen, has filed an affidavit-in-reply. ( 10 ) IT is the admitted position that in this case no special citation has been served upon the petitioner No. 2, who is the sister of the deceased nor has any special citation been issued on Sudhir Chandra Boral, brother of the deceased. The shebaitship being a property devolves upon the natural heirs of a Hindu if such a Hindu dies intestate. If Subodh Chandra Boral died bachelor and if he did not have any adopted son as claimed by ande respondent, the interest on Subodh Chandra Boral could have developed upon both the petitioner No. 2, Smt. Binapani Gayen, and Sudhir Chandra Boral. ( 11 ) IT is true that if the respondent was validly adopted as adopted son of Late Subodh Chandra Boral, then he alone would be an heir in intestacy and in that case, the petitioner No. 2 could not be an heir in intestacy. However, the alleged adoption of the respondent is under challenge. In the Administration Suit which is pending in this Court Late Subodh Chandra Boral who was the main defendant did not at any time disclose before the Court that he had adopted the present respondent as an heir. It is true that after his death, the present respondent applied before the said Administration Suit for being added as a party claiming to be an adopted son of Late Subodh Chandra Boral. It is true that after his death, the present respondent applied before the said Administration Suit for being added as a party claiming to be an adopted son of Late Subodh Chandra Boral. That application was very much resisted by the petitioner No. 1 and Mrs. Monjula Bose, J. allowed the present respondent to be added as a party but gave liberty to the plaintiffs of that suit to challenge the adoption of the present respondent in that Administration Suit itself. Therefore, the adoption is very much under challenge in the administration Suit which was filed, during the life time of Subodh Chandra Boral and which is still pending. It is also true that that Administration Suit was a suit for removal of Late Subodh Chandra Boral from the office of the trustee and shebait of the debuttar estate. For the self same debuttar estate, the present Will has been created appointing the respondent as the trustee and shebait in place of the deceased on the death of that Subodh Chandra Boral. When the Administration Suit is pending, it was well-known to the respondent that the petitioner No. 1 challenged the right of the testator to continue as trustee and shebait. Therefore, D the interest of the debuttar estate also, the natural heirs, who would have otherwise devolved on the shebait right of the deceased, would be the persons interested in the debuttar property alleged to have been disposed of by the Will. Section 283 of the' Indian Succession Act vests Court with the discretion regarding issuance of the citation and so far as probate of Hindu Will is concerned, special citations must be served upon those whose interests are directly affected by the Will. It is also well-settled that the expression "person interested" who is entitled to get the special citation is wide enough to include persons having possibility of an interest and in case his interest is such as is, or is likely to have been prejudicially or adversely affected by the grant, he would be qualified to receive citation. It is also well-settled that the expression "person interested" who is entitled to get the special citation is wide enough to include persons having possibility of an interest and in case his interest is such as is, or is likely to have been prejudicially or adversely affected by the grant, he would be qualified to receive citation. ( 12 ) MOREOVER, the respondent was fully aware that the Administration Suit is very much pending for removal of Late Subodh Chandra Boral from the office of the trustee and shebait of the debuttar estate and the petitioner No. 1 has also been ordered by the Court to act as a next on behalf of the deities for the purpose of prosecuting such Administration Suit. Even then without issuing any special citation upon the petitioner No. 1 as well as upon the brother and sister of the deceased who really had the possibility of an interest, if the adoptions were not valid, probate gas been obtained. This Court did not issue any special citation upon anyone of them as all relevant facts were not disclosed by the respondent who was the petitioner of the probate case. If this Court were aware about the pendency of the Administration Suit and about the existence of the brother and sister of the deceased and that adoption is under challenge in administration suit it would have issued special citations upon them. The Supreme Court has held in the case of Anil Behari vs. Latikabala reported in A. I. R. 1955 S. C. 566 that the omission to issue citations who ought to have been apprised of the probate proceedings, may well be in a normal case a ground by itself for revocation of the grant of probate. The Supreme Court has observed in that decision that this is not an absolute right irrespective of other considerations arising out of the proved facts of a case. The Supreme Court has observed in that decision that this is not an absolute right irrespective of other considerations arising out of the proved facts of a case. ( 13 ) IN this particular case, I have called for the record of the Administration Suit and from the same, it is gathered that long before the death of the deceased, an Administration Suit had been filed being Suit No. 512 of 1980 before this Court for removal of Late Subodh Chandra Boral and for appointment of the petitioner No. 1 as the trustee and shebait and, in the alternative, for framing a scheme in the administration of the debuttar estate. Therefore, the petitioner No. 1 is a person interested to be served with a Special Citation. Moreover, Sudhir Chandra Boral and the petitioner No. 2 being the brother and sister of the deceased had also a chance to inherit the interest of Subodh Chandra Boral, if the will were not genuine and this adoption invalid. So, they also had a chance of succession. They are, therefore, also the persons interested. But, as no Citation was issued on any one of them, none of them had the opportunity to contest the Will. ( 14 ) I would, therefore, hold that it is a fit case in which the Probate granted by this Court should be revoked as there is just cause for revoking such a Probate. ( 15 ) IN the result, the application is allowed. The Probate granted by this Court in Matter No. 38 of 1987 is hereby revoked. However, the parties shall bear the respective costs of this proceeding themselves. Application allowed.