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2002 DIGILAW 435 (CAL)

Dinanath Shah v. Surati Devi

2002-07-05

Dilip Kumar Seth, Joytosh Banerjee

body2002
THE CASE D. K. Seth, J.: This appeal is directed against the order dated 30th July, 1997 passed by the learned Chief Judge, City Civil Court, Calcutta in Revocation Case No. 43 of 1988 revoking the probate granted in Probate Case No. 100 of 1986. Submission on behalf of the appellant : 2. Learned Counsel for the appellant points out that there was no material to show that the respondent/applicant No.1 was the legally married wife of the testator. According to him, the Probate Court, while deciding the application for revocation under section 263 of the Indian Succession Act, 1925, cannot go into the question as to whether she is the legally married wife of the testator or not. In any event, the learned Trial Court had not conclusively found that she was the legally married wife. On the other hand, it was recorded that the possibility of her being the legally married wife cannot be ruled out. Therefore, there is no conclusive finding on the basis whereof the probate can be revoked. Unless it is found that she was the legally married wife, the respondents/ applicants No.2, 3 and 4 cannot claim any locus standi. As such, absence of citation in this case would not attract the mischief provided under section 263 of the Indian Succession Act. He further contends that there was no material on the basis whereof it came to the conclusion that there was absence of citation and that there were interested parties on whom citation ought to have been issued and that the respondents/applicants were such parties. Therefore, the order appealed against cannot be sustained and should be set aside. Submission on behalf of the respondents : 3. Learned Counsel for the respondents, on the other hand, contends that the scope of the proceeding under section 263 of the Indian Succession Act is limited to the examination of the relevant points on which the probate could be revoked. In the present case, it appears from the Will itself that her existence is admitted, though as concubine, however, not admitted by the respondents. On the other hand, the issues are shown to be those of the testator in the birth certificates granted by the Calcutta Municipal Corporation and in the ration cards. In the present case, it appears from the Will itself that her existence is admitted, though as concubine, however, not admitted by the respondents. On the other hand, the issues are shown to be those of the testator in the birth certificates granted by the Calcutta Municipal Corporation and in the ration cards. Therefore, it cannot be denied that those respondents No.2, 3 and 4 are children of the testator, which, however, is not admitted by the appellant. It appears that these respondents as widow and children of the testator are entitled to inherit or succeed to the estate of the testator and as such are entitled to citation. Therefore, the Court has rightly found absence of citation. At the same time, though the Court did not deal with the question of suppression of fact, namely, the existence of the respondents No.1, 2, 3 and 4, yet these are sufficient factors on which probate has been rightly revoked. Therefore, the appeal should be dismissed. 4. We have heard the learned Counsel for the respective parties at length. Scope of section 263 Succession Act: 5. The matter arises out of an application for revocation of grant of probate under section 263 of the Indian Succession Act, 1925. Section 263 provides for revocation or annulment of the grant of probate or letters of administration for just cause. Just cause has been explained to deem 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 .............". It also provides for the following 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...........". 5.1. In order to succeed in an application for revocation of the grant of probate, as in the present case, the tests laid down in section 263 as quoted above, one or the other is to be satisfied. Satisfaction of anyone of the tests would be a just cause. 5.1. In order to succeed in an application for revocation of the grant of probate, as in the present case, the tests laid down in section 263 as quoted above, one or the other is to be satisfied. Satisfaction of anyone of the tests would be a just cause. It is not necessary that more or all the tests are to be satisfied. In the facts and circumstances of this case, we are required to examine as to whether this case satisfied anyone or more of the tests laid down above. Whether the applicants can apply for revocation: 6. Before we proceed to find out the same, we may now refer to entitlement of persons who can claim revocation or annulment. In order to apply for revocation or annulment of grant of probate, the applicants must have locus standi to apply for revocation. An interest, however, little and even a bare possibility of an interest entitles one to seek revocation of a grant. A person, who claims to have acquired interest in the estate, after testator's death in case of intestacy, is entitled to apply for revocation. To support the above contention, we may refer to Sima Rani Mohanti vs. Puspa Rani Pal, AIR 1978 Cal. 140 ; Ganpati Sarkar, In the goods of, AIR 1959 Cal. 277 at page 279; George Anthony Harris vs. Millicent Spencer, AIR 1933 Bom. 370 at page 372, as well as Promode Kumar Roy vs. Sephalika Dutta, AIR 1957 Cal. 631 at page 634; Sheopati Kuer Mt. vs. Ramekant Dikshit, AIR 1947 Pat. 434 at page 437. 6.1. All persons who have an interest are entitled to apply for revocation of the grant [In re: Hurro Lall, ILR 8 Cal 570 at page 575; In re: Bhobo Soonduri, ILR 6 Cal 460 at page 464; Umanath vs. Nilmoney, ILR 6 Cal. 429 at page 433; Gany vs. Omer, 61 IC 563 (Rangoon); Nabin Chandra vs. Nibaran, AIR 1932 Cal. 734 at page 735: ILR 59 Cal. 1308]. It is well established that any interest, however, slight and even the bare possibility of interest is sufficient to entitle a party to oppose a testamentary document (Komallochun Dutt vs. Nilruttum Mundle, ILR 4 Cal 360; Muddun Mohun Sircar vs. Kali Churn Dey, ILR 20 Ca1 37; Lalit Mohan vs. Navadip Chandra, ILR 28 Cal. 587; Mokashadayini Dassi vs. Karnadhar Mandal, AIR 1915 Cal. 587; Mokashadayini Dassi vs. Karnadhar Mandal, AIR 1915 Cal. 631; Banwarilal Shriniwas vs. Kumari Kusum Bai, AIR 1973 M.P. 69 at pages 70-71. 6.2. In the present case, it appears that the applicants have been claiming that they are natural heirs of the deceased entitled to inherit the property in case of intestacy. That the probate was obtained fraudulently and that the Will was forged one and that the applicants were not cited as other relations of the deceased due to which no citation was ever issued to any of the applicants. The applicants came to learn about the alleged grant only when it was disclosed in course of S.C.C Suit No. 3515 of 1983 in between the applicants and the appellant. Even in the written statement filed in the said S.C.C. Suit, the appellant had admitted that the deceased died intestate but denied the rights of the applicants. On the other hand, from the application for probate, it appears that the appellant did not disclose the names of the applicants as relations of the deceased. Admittedly, no citation was issued to the applicants. Defects in the proceedings : 7. In this background let us examine as to whether anyone or the substantive defect in the proceedings exists. We find that clauses (a), (b) and (c) of the explanation to section 263 of the 1925 Act have sought to be alleged as ground for revocation of the grant in the present case. Non-disclosure of the names of the applicants as relations of the deceased attracts clauses (b) and (c). It may attract the mischief that there was a false suggestion or that there was no other relative or that there are other relatives. These are something material to the case, which has since been concealed from the Court. It can also be contended that without disclosing the names of the applicants as other relations, the appellant had obtained the grant by means of untrue allegation of fact essential in point of law to justify the grant. A false suggestion made or something material to the case concealed from the Court would vitiate the grant as fraudulently obtained. If the grant is obtained by means of an untrue allegation, the grant is liable to be annulled provided the allegation was of fact essential in point of law to justify the grant. 8. A false suggestion made or something material to the case concealed from the Court would vitiate the grant as fraudulently obtained. If the grant is obtained by means of an untrue allegation, the grant is liable to be annulled provided the allegation was of fact essential in point of law to justify the grant. 8. In the present case, it is alleged that the applicant No.1 is the widow of the testator and the other applicants are the children of the testator. This is, however, denied by the appellant. He contended that the respondent/applicant No.1 was a concubine of the deceased. In the alleged Will also the name of the respondent/applicant No.1 has been mentioned as concubine and provided for her maintenance out of the income of the property as well as right of residence in one room of the said premises. The learned Trial Court had found that the said applicant No.1 was the wife of the deceased till death cannot be ruled out. Under the Hindu Succession Act in view of section 3(j), a concubine or illegitimate children related to the deceased are no more entitled to succeed to the estate of the deceased. Any custom or other law that prevailed prior to the Hindu Succession Act, 1956 would be of no effect if it is inconsistent with any of the provisions of the Hindu Succession Act. 8.1. Clause (j) of section 3 of the Hindu Succession Act explains 'related to mean by legitimate kinship'. It restricts in the manner of relation to legitimate kinship. Therefore, illegitimate sons or daughters are not reckoned as sons and daughters. Similarly, a concubine also cannot be treated to be a wife. The property of a deceased male Hindu dying intestate devolves according to the general Rules of Succession provided in section 8 of the 1956 Act. But, until it is established that the applicant No.1, respondent, was not the wife, neither she nor any of the other applicants could be dislodged from their claim of interest in the deceased's estate. This is a question of legal character of the parties. Without determining the legal character, the Court in exercise of its jurisdiction, cannot decide the issue raised. The supposition as pleaded by the applicants/ respondents raises a suspicious circumstance. Supposition of suspicious circumstances are also to be considered under this provision for a possible revocation of the grant. This is a question of legal character of the parties. Without determining the legal character, the Court in exercise of its jurisdiction, cannot decide the issue raised. The supposition as pleaded by the applicants/ respondents raises a suspicious circumstance. Supposition of suspicious circumstances are also to be considered under this provision for a possible revocation of the grant. In order to find support, we may refer to Southern Bank Limited vs. Kesardeo Ganeriwalla & Ors., AIR 1958 Cal. 377 at p 381: 62 CWN 444 (DB). The propounder/executor has to dispel the suspicious circumstances that might be alleged to surround the Will. 8.2. The object of section 263 is to protect the interest of persons, who might have interest in the estate of the deceased, to contest the grant of probate or the administration of the estate under a Will. In the nature of things, Court can act only on the information furnished by the Will and the facts disclosed by the propounder. The propounder may, in order to secure a grant in his favour, attempt to avoid contest. In order to do so, he may not disclose the facts truly and fully; he may not cite all the proper persons. This section, therefore, protects the interest of such person affected adversely by the grant when such person comes to know about it subsequent to the grant when the grantee asserts or attempts to assert on the strength of it. 8.3. The applicants/respondents have claimed themselves as widow and children of the testator. The appellant, on the other hand, asserted the widow as a concubine. Thus, the appellant had denied the legitimacy of the children. If it can be proved that the applicant/respondent No.1 was not a concubine and was the wife of the testator, then as such widow, she is entitled to claim interest in the testator's property in case of intestacy along with her children. Having regard to the facts and circumstances of this case, the applicant/respondent No.1 has an advantage of claiming presumption of marriage. 8.4. As soon she is permitted to claim an interest or is assumed to claim interest in the deceased's estate, she and her children have the locus standi. Presumption of marriage : 9. Having regard to the facts and circumstances of this case, the applicant/respondent No.1 has an advantage of claiming presumption of marriage. 8.4. As soon she is permitted to claim an interest or is assumed to claim interest in the deceased's estate, she and her children have the locus standi. Presumption of marriage : 9. If there are certain facts that there was a marriage, then in the absence of evidence to the contrary, it is to be presumed that the forms and ceremonies necessary to constitute a valid marriage have been gone through. If there was a marriage, in fact, there would be a presumption in favour of their being a marriage in law. Where a man and a woman have been proved to have lived together as husband and wife, the law will presume, until the contrary is clearly proved, that they were living together in consequence of a valid marriage and not in the state of concubinage. Even if at the beginning, the relation might have been illicit but still a continuous living together in the society would lead to a presumption of a marriage, unless the man is already married or there was any unsurmountable obstacle to the marriage. Even in cases of adulterous relation at the commencement, if later ceases to be adulterous, a marriage is presumed. A long association between a man and a woman and where the children acknowledge by the man and if they lived as such, the presumption is that the children are legitimate. Inasmuch as, immorality is not usually attributed to such association. The above proposition is the cumulative outcome of the ratio decided respectively in Veerappa vs. Michael, AIR 1963 SC 933 : 1963 (Suppl.) II SCR 244; Mouji Lal vs. Chandrabati Kumari, 38 (1911) IA 122: 38 Cal 700; Bhadur Singh vs. Kartar Singh, AIR 1950 MB 1 and Bikash Kumar vs. Nanda Rani, AIR 1979 Cal 358 . 9.1. Applying the above tests, the Court has every right to come to a definite conclusion drawing inferences from the materials produced before it to presume a marriage between the parties having regard to the facts peculiar to each individual case. Until a contrary is proved, such presumption cannot be rebutted. One who seeks to assail the presumption carries the burden of proof, which he has to discharge. Until a contrary is proved, such presumption cannot be rebutted. One who seeks to assail the presumption carries the burden of proof, which he has to discharge. Once a party is successful in bringing on record such materials enabling the Court to draw inference for presuming marriage, the onus is discharged and the burden lies heavily upon him who seeks to rebut such presumption. We may now examine having regard to the facts of this case how far the presumption is established and how far the appellant could succeed in rebutting such presumption. 9.2. In the present case, admittedly, the applicant No.1 and the other applicants were living with the deceased in the same premises. At the same time, it appears that the children begotten through the applicant No.1 were/are children of the deceased. The marriage has not been challenged by the parties to the marriage. There is no allegation of adulterous relation. There is no allegation of unchastity or unfaithfulness as against the applicant/respondent No. 1. Admittedly, the applicant No.1 was brought in the house at a point of time when the deceased had no spouse living. There was no unsurmountable obstruction in between the couple for contracting a valid marriage. The deceased is not available now either to admit or deny the marriage. The couple resided under the same roof as husband and wife. The children were recognized and admitted as children of the testator. The parties interested in propounding the Will and deriving benefit under it, are only coming to depose against the marriage. No one else in the society or any other relation has been cited as witnesses. Whether the couple was accepted as married by the relatives or not is not on record. It could have been proved by the appellant by producing such witness. No attempt was made towards that end. This enables the Court to draw a presumption adverse to the appellant respecting rebuttal of the presumption of marriage. Inasmuch as he, who asserts that they were/are not husband and wife, he has to prove to the contrary. The materials that are available on record are admittedly in favour of such presumption. Unless there are sufficient materials produced on behalf of the person opposing the presumption, a presumption cannot be rebutted. Inasmuch as he, who asserts that they were/are not husband and wife, he has to prove to the contrary. The materials that are available on record are admittedly in favour of such presumption. Unless there are sufficient materials produced on behalf of the person opposing the presumption, a presumption cannot be rebutted. In the present case, admittedly, in the Ration Card, the applicant/respondent No.1 and her children were shown as wife and children of the testator. In the Birth Certificate the deceased has been shown as father of the children through the applicant No.1. Therefore, the presumption having not been rebutted the applicant No.1, though attempted to be described as concubine, cannot be presumed to have any other status other than wife of the deceased. As widow and children, the applicants/respondents are entitled to citation. Citation : 10. Citation is a summon calling upon a party to do something or to see something. There are-two kinds of citations: (1) compulsory or special citation and (2) discretionary or general citation. In the present case, it is a discretionary or general citation. The provisions for which may be found in section 283 of the Indian Succession Act. Under sub-section (1)(c) of section 283, if the learned Judge thinks fit, he may 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. Sub-section (2) provides for mode of service of citation. A discretionary citation is usually inserted in local papers, inviting all persons interested in the estate to come and see the proceedings, otherwise citations must be served personally. 10.1. Thus, it appears that there was no citation issued to the applicants/ respondents, who claim interest. As such the case is hit by explanation (a) to section 263. Effect of the finding: Section 41 Evidence Act : 11. Such findings are absolutely necessary for the purpose of deciding the question under section 263 of the Indian Succession Act. Such finding is conclusive and binding upon the parties since in, such proceeding such questions are to be gone into as issues material to the case. For the purpose of ascertaining as to whether there are parties to whom citation is to be issued, this question is to be gone into as incidental to the proceedings before the Probate Court. Such finding is conclusive and binding upon the parties since in, such proceeding such questions are to be gone into as issues material to the case. For the purpose of ascertaining as to whether there are parties to whom citation is to be issued, this question is to be gone into as incidental to the proceedings before the Probate Court. While granting probate, it is necessary to decide such question conclusively, in order to certify the genuineness of the probate and its jurisdiction. 11.1. When such a question is finally decided in a probate proceeding, it is not only binding between the parties but is also binding upon all other persons being a judgment in rem. A finding, that the testator and the respondent/applicant No.1 were husband and wife, when the proof in a probate proceeding becomes final, is operative against the whole world. It is a legal character declared in course of such proceeding. This gives such finding the complexion of a judgment in rem binding on all and everyone. Admittedly, the Probate Court exercises a very limited jurisdiction. Its jurisdiction is confined only to the certification of the genuineness of the Will. Therefore, it may be contended that the Probate Court cannot assume jurisdiction to decide these questions finally within the limit of its scope of jurisdiction. But for section 41 of the Evidence Act, the position in law assumes a different dimension if the order or decree is passed by a competent court in a probate proceeding declaring a legal character which is a conclusive proof. Under section 41, a judgment, order or decree of a competent court exercising probate jurisdiction declaring a legal character is relevant and conclusive proof with regard to such legal character. When a question of relationship of the parties has been decided in a probate proceeding, the same question is barred in a subsequent proceeding [Dwijapada Das vs. Kalipada De, AIR 1927 Cal. 421: 31 CWN 898, affirmed in Kalipada De vs. Dwijapada Das, 57 Indian Appeal 24: 34 CWN 201: AIR 1930 (PC) 22]. But such question will become binding only when the question is finally determined in the probate proceedings. A proceeding for letters of administration with a copy of the Will annexed may be equivalent to probate, if the genuineness of the Will when contested is finally determined or decided. Principles how applied: 12. But such question will become binding only when the question is finally determined in the probate proceedings. A proceeding for letters of administration with a copy of the Will annexed may be equivalent to probate, if the genuineness of the Will when contested is finally determined or decided. Principles how applied: 12. It appears from the Will itself that the petitioner No.1 was referred to by name and that she was alleged to have been living as concubine of the testator and for whom maintenance of a sum of Rs. 300/- only per month during her natural life out of rent income from the above premises was reserved together with her right of residence in one room therein. From the materials produced before the Court, it appears that she is residing in one of the floors of the suit property. It also appears that in another floor in the same suit premises the appellant is also residing. Thus, the existence of the respondent/applicant No.1 in the premises itself, since 1957 till the death of the testator, is an admitted position. Even after the death of the testator, the respondent/applicant No.1 is residing in the same premises, which is not in dispute. Be that as it may, there are certain materials to show that there are substance in the contention of the respondents, as rightly discussed by the learned Trial Judge, namely, the Exhibit-1 series, Exhibit-2 series and the Exhibit-A series. Exhibit-2 series are the xerox copies of Ration Cards in which the name of the testator was shown as the husband of the respondent/applicant No.1 and the father of the respondents/applicants No.2, 3 and 4. The address of all these respondents/applicants were shown to be as 100A, Maharshi Debendra Road, which is one of the properties left by the testator. The appellant in his evidence has admitted that he and the respondent/applicant No.1 are residing in the same premises, being 100A, Maharshi Debendra Road, but in different floors. Exhibit-1 series are the certified copies of the birth certificates issued by the Calcutta Municipal Corporation. It is found by the learned Trial Court that in these copies of birth certificates, the testator has been shown as the father of the respondents/applicants No.2, 3 and 4. Exhibit-1 series are the certified copies of the birth certificates issued by the Calcutta Municipal Corporation. It is found by the learned Trial Court that in these copies of birth certificates, the testator has been shown as the father of the respondents/applicants No.2, 3 and 4. Exhibit-A is the consolidated tax receipt in respect of the premises No. 100A, Maharshi Debendra Road, in which the name of the respondent/applicant No.1 appears and the interest of the respondent/applicant has been shown as life interest. 12.1. Thus, on these materials the Court had come to the conclusion that the respondent/applicant No.1 is a legally married wife and such proposition cannot be ruled out. This finding is necessary for the purpose of determining the question as to whether there is any imperative need over her entitlement to citation or not. Therefore, it appears that the applicants/respondents are persons entitled to citation. Admittedly, no citation was ever issued. 12.2. At the same time, though the learned Trial Court did not consider the case of suppression of facts, but yet from the records, it appears that the alleged concubine had issues, which was not unknown to the appellant who happened to be residing in the same premises in different floor and with whom he had been residing from 1957. In the SCC Suit, the respondents/applicants had claimed themselves to be the heirs of the deceased entitled to succeed. The appellant had denied the legal character of the applicants but did not refer to any Will and had contended that the testator died intestate. Therefore, there are materials to show that there was suppression of fact and suspicious circumstances, which are grounds on which probate can be revoked under section 263 of the Indian Succession Act. Conclusion: 13. In the circumstances, when admittedly it appears that there was no citation and that there are every likelihood of presumption of marriage between the testator and the said respondent/applicant No.1, who had been residing in the same premises, which fact is not denied, and having regard to the materials placed before us, we are of the view that there was absence of citation and suppression of material facts on account whereof the probate was rightly revoked by the learned Trial Court. We, therefore, do not propose to interfere with the order appealed against. Order: 14. The appeal, therefore, fails and is accordingly dismissed. We, therefore, do not propose to interfere with the order appealed against. Order: 14. The appeal, therefore, fails and is accordingly dismissed. The order appealed against is hereby affirmed. 14.1. There will be no order as to costs. 14.2. Let the Lower Court Records, if any, be sent down to the Court below forthwith. 14.3. Xerox certified copy of this order, if applied for, be given. Joytosh Banerjee, J.: I agree. Appeal dismissed.