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1998 DIGILAW 416 (CAL)

SABITA DEY v. NEERAJ ESTATE PVT

1998-09-15

BHASKAR BHATTACHARYA

body1998
BHASKAR BHATTACHARYA, J. ( 1 ) THIS revisional application under Section 115 of the code of Civil Procedure is at the instance of the legatee and the executrix of a Will and is directed against Order No. 21 dated August 19, 1998 passed by the Special Judge, and additional District Judge, Alipore in Revocation Suit No. 83 of 1997 arising out of porbate case No. 72 of 1994. By the aforesaid order the learned court below held that the revocation case under Section 263 of Indian Succession Act, 1925 at the instance of the opposite party was maintainable. ( 2 ) ONE Niharendra Nath Ghatak, executed the disputed Will thereby bequeathing all his movable and immovable property in favour of the petitioner No. 1. Petitioner No. 2 was made executrix of the said Will. ( 3 ) AT the instance of the petitioner No. 2, the probate of the said Will was granted by the District Judge. Thereafter the opposite party applied for revocation of the probate and in paragraphs 6 and 7 of the said application, opposite party made out its locus standi by making the following everments :-"by a registered indenture of conveyance dated 6th May, 1991 made between the said Niharendu Nath Ghatak therein referred to as the vendor of the one part and your petitioner therein referred to as the purchaser of the other part, the said Niharendra Nath Ghatak for the consideration therein mentioned granted, transferred, conveyed, assigned and assured upto and in favour of your petitioner. All that the said property absolutely and forever and without any reservation whatsoever. A copy of the said conveyance is annexed hereto and marked with the letter "c". By virtue of the aforesaid conveyance your petitioner became entitled to the said property absolute and without any right of any person whatsoever save and except the said company who had entered into an agreement for development with the said Niharendra Nath ghatak. By virtue of the said conveyance, the said bequest made in favour of the respondent No. 2 also stood extinguished and/or revoked and/or of no effect. Therefore, the respondent No 2 could not have nor has any right, title, interest over and in respect of the said property or any part or portion there of in any manner whatsoever. By virtue of the said conveyance, the said bequest made in favour of the respondent No. 2 also stood extinguished and/or revoked and/or of no effect. Therefore, the respondent No 2 could not have nor has any right, title, interest over and in respect of the said property or any part or portion there of in any manner whatsoever. " ( 4 ) IN view of the aforesaid statement of the opposite party, the petitioners filed an application disputing the right of the opposite party to maintain an application under Section 263 of the Indian Succession Act and prayed for determination of the said question ( 5 ) BY the order impugned, the learned trial Judge has held that such application is maintainable at the instance of the opposite party. ( 6 ) BEING dissatisfied, the petitioners have filed the instant revisional application ( 7 ) MR. Dasgupta, the learned Senior advocate appearing on behalf of the petition ers has contended that the opposite party having claimed title to the property covered by will by virtue of an alleged sale deed executed by the testator was not entitled to pray of revo cation of the probate. Mr. Dasgupta submits that the opposite party having alleged that the testator had no right over the property covered by the Will at the time of his death, it cannot be said to have any interest in the estate of the testator and as such the opposite party had no locus standi to pray for revoca tion of the probate. In support of such contention, Mr. Dasgupta has relied upon the following decisions of this court :- (a) Sri Gobmd Pershad v. Ms. Laljhari, (b) Southern Bank v. Kesardeo goneriwalla (by the Trial Court); (c) Kartick Chandra Shaw v. Smt. Ranjita Pal and Ors. ( 8 ) MR. Roychowdhury, the learned senior advocate appearing on behalf of the opposite party has on the other land supported the order impugned and has contended that the opposite party having acquired interest in the disputed property was entitled to be heard before the grant of probate. Mr. ( 8 ) MR. Roychowdhury, the learned senior advocate appearing on behalf of the opposite party has on the other land supported the order impugned and has contended that the opposite party having acquired interest in the disputed property was entitled to be heard before the grant of probate. Mr. Roy Chowdhury in support of such contention relied upon the followiing decisions:- (a) Smt. Sima Rani Mohanta v. Puspa Rani Pal; (b) Haripada Saha v. Ghanshyam saha ; (c) Smt. Annapurna Kumar v. Subodh Chandra Kumar; (d) Southern Bank Ltd. v. Keshardeo ganeriwala; (e) Dinabandhu Roy Brajaraj Saha firm v. Sarala Sundari Dassya. Mr. Roychowdhury further contends that unless an issue is framed as regards maintainability of the revocation proceeding and unless such issue is decided, the finding of the learned trial Judge cannot be said to be final. Thus, Mr. Roychowdhury contends, the order impugned is not a final order and this court should not interfere with the order impugned. ( 9 ) THE law relating to locus standi of a person to oppose a grant of probate or maintain an application for revocation of probate as enunciated in the decisions cited by the learned advocates for the parties can be summrised thus : a Probate Court is required to decide whether the Will in question was the last Will duly executed by the testator, whether the same was duly attested by at least two witnesses and whether the testator had mental capacity to execute the Will. The Probate Court is also entitled to consider whether the execution of the said Will was vitiated by practising fraud, undue influence, coercion etc. upon the testator or whether through mistake or false representation, the Will was obtained. Apart from the aforesaid facts, a Probate Court is not entitled to go into question as to whether the testator had title or possession in the property covered by Will. Therefore, when a Will has been probated by a competent court that implies that the Will was the last Will of the testator and that the same was duly executed by the testator having full mental capacity to understand the contents of the Will and the same was duly attested by at least two witnesses. The probate granted by a testamentary court does not indicate that the testator had title to the property covered by the Will. The probate granted by a testamentary court does not indicate that the testator had title to the property covered by the Will. The Probate merely denotes that the estate of the testator will not devolve upon the natural heirs according to the ordinary law of the land by which the testator was governed but it will devolve upon the person according to the wish of the testator reflected in the body of the Will. ( 10 ) IN view of the aforesaid position of law, a person who will be affected by the grant of probate is entitled to oppose a probate application or to maintain an application for revocation of a probate. It has been held by the decisions referred to by the learned advocates for the parties that ail persons claiming to have any interest in the estate of the deceased are entitled to apply for revocation. The aforesaid words of Section 283 of the Indian Succession Act, in my opinion, should be interpreted as implying a real interest which is or is likely to be prejudicial or adversely affected by the will. Thus if a person claims that the testator during his life time had conveyed his interest in the property covered by the Will to him he cannot be said to be a person claiming to have any interest in the estate of the deceased inasmuch as it is his specific claim that the property was not the estate of the deceased at the time of death. Such person therefore will not be affected by the grant of probate of a Will by testamentary court, because the grant of probate does not declare title of the testator in the said property. ( 11 ) THEREFORE, applying the aforesaid principles laid down by the authorities mentioned above to the fact of the present case 1 am of the clear opinion that the opposite party having claimed title to the property from the testator and having asserted that at the time of death of the testator, he had no title to the property covered under the Will, is not entitled to file an application for revocation of probate. ( 12 ) THE learned court below appears to have held that since the opposite party claimed to have acquired interest by way'of a deed from the testator he had acquired interest in the estate of the deceased. ( 12 ) THE learned court below appears to have held that since the opposite party claimed to have acquired interest by way'of a deed from the testator he had acquired interest in the estate of the deceased. In view of the foregoing discussion the aforesaid view is not sustainable. Therefore, the learned trial Judge acted illegally and with material irregularity in holding that the opposite party had right to file an application for revocation of the probate. ( 13 ) AS regards the second contention of mr. Roychowdhury, in my opinion, in view of the direction by Tewari, J. in the previous revisional application filed by the petitioner herein, the trial court was bound to carry out the said order and as such he was bound to dispose of the preliminary point as regards locus standi of opposite party to maintain an application for revocation. In view of the fact that on the basis of averment made in the application for revocation of the probate the opposite party is not affected by the grant of probate, such application is liable to be rejected under the provision of Order 7 Rule 11 of the code of Civil Procedure. ( 14 ) THUS, the revisional application is allowed, the order impugned is set aside, the application for revocation of the probate being Revocation case No. 83 of 1997 filed by the opposite party is dismissed as not maintainable. Revision allowed.