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2006 DIGILAW 95 (CAL)

PRAVIN KUMAR KOTHARI v. ASHOKE KOTHARI

2006-02-20

KALYAN JYOTI SENGUPTA

body2006
KALYAN JYOTI SENGUPTA, J. ( 1 ) THIS was an application for revocation of grant of probate of the testamentary instrument of one Pravin Kumar kothari (hereinafter referred as the said deceased) who was a resident of Texas, U. S. A. The deceased left him surviving the petitioner, Dipti, daughter, and Ashoke, son who was appointed executor in the said instrument. The probate was granted on 23rd September, 2004 while this application was made on 21st February, 2005. The fight between the parties is queer event which has unusually happened unlike in case of ordinary testamentary fight. It appears to me that the petitioner executor, Ashoke started taking steps to obtain probate in respect of the testamentary instrument in India, in calcutta High Court on the one hand and on the other hand, the daughter, Dipti being the applicant herein, started taking steps for obtaining letters of administration of the estates and properties left behind by the said deceased in Texas Court, thinking that the said deceased had died intestate. Both the parties took steps in the manner as follows : ( 2 ) AFTER death of the said Pravin on 10th february, 2004 Ashoke on or about 8th april, 2004 applied for grant of probate. On 23rd April, 2004 the citation from this Court was issued and it was sought to be served in terms of the order of the Court by registered post and it was dispatched on 28th april, 2004. The service returned on 18th june, 2004 with an endorsement of refusal. On the other hand, on 22nd June, 2004, dipti filed appropriate proceedings for grant of letters of administration in the appropriate Court of Texas, U. S. A. and also prayed for appointment of temporary Administrator in respect of the property of the deceased. On 22nd July, 2004 one Mr. Robert brownrigg was appointed temporary Administrator of the estate of said deceased and also made an application for temporary restraint order and/or injunction against ashoke from directly or indirectly dealing with the estate of properties of said deceased. On 26th July, 2004 the said temporary Administrator started making inventory of assets left behind by the said deceased. In course of such inventory the respondent ashoke informed Brownrigg that there are no assets in U. S. A. , no bank account. On 26th July, 2004 the said temporary Administrator started making inventory of assets left behind by the said deceased. In course of such inventory the respondent ashoke informed Brownrigg that there are no assets in U. S. A. , no bank account. On 28th July, 2004 there was a conference between the respondent, and the Attorney of the petitioner, Handcock and Brownrigg, the temporary Administrator, and in course of such interaction the respondent handed over the documents viz. amongst other the application for grant of probate. In terms of the order of appropriate probate Court at texas the Administrator went on functioning without any difficulty till 24th of September, 2004. After having obtained the probate documents and necessary documents the petitioner made this application for revocation of grant of probate. ( 3 ) OBVIOUSLY the probate was granted without any contest. I ask the Department for production of the original records. From the records I find that citation was issued in terms of the Court's order by registered post and the envelop shows endorsement of the refusal. It further appears from the records that before grant of the probate, the petitioner, Ashoke himself, filed a caveat in connection with the estate of the said deceased and thereafter an application was made for discharge of caveat with reference to the aforesaid testamentary suit. It appears that on 9th September, 2004 one Mr. Sanjoy banerjee, learned Advocate appearing in support of the application, submitted that under wrong impression his client filed the caveat and he submitted that he had instructions not to press his client's caveat. Thus, the caveat was discharged. ( 4 ) WHAT impression was given by the learned Counsel to the Court is only known to the Learned Counsel. In the body of the petition for discharge of caveat it was of course stated that the caveat was filed ordinarily and it was further stated that an application for grant of probate was made. Immediately thereafter his Lordship, the hon'ble Justice Subhro Kamal Mukherjee was pleased to pass order in terms of Prayer (a) to the application meaning thereby grant of probate of the Will. Mr. Pradip Kumar ghosh, 1d. Senior Advocate with Mr. Pratap chatterjee, 1d. Senior Advocate and Mr. Immediately thereafter his Lordship, the hon'ble Justice Subhro Kamal Mukherjee was pleased to pass order in terms of Prayer (a) to the application meaning thereby grant of probate of the Will. Mr. Pradip Kumar ghosh, 1d. Senior Advocate with Mr. Pratap chatterjee, 1d. Senior Advocate and Mr. Dhruba Ghosh, Advocate appearing in support of the application submits that same granted by the Court must be revoked as the same was obtained fraudulently and without serving any citation. The postal endorsement of refusal is absolutely incorrect and it would appear from the letter written by the appropriate officials of the postal department of U. S. A. So the special citation was not served. Moreover, there was calculated concealment in obtaining probate of the Will as when the application for grant of letters of administration was made in the texas Court no whisper was made nor anything was spoken to the Court about the existence of the Will. In fact, his client wrote a letter for service of Court process or notice if there be any. Probate obtained on misrepresentation of the fact stating that the petitioner has given consent to grant of such probate and indeed there has been no consent at any point of time. ( 5 ) AFTER appointment of Administrator by the appropriate Court at Texas and while the inventory being conducted in course of interaction and conversation between the attorney of Ashoke and the temporary Administrator it revealed that the application for grant of probate was filed in the Court. All the copies of the probate proceedings including an application of probate was handed over to the temporary Administrator who handed over it to the Attorney of the petitioner, Dipti. Upon search being carried out it was found that the application for grant of probate was made in relation to a Will only, whereas copy of the application was served for grant of probate not only of will but the codicil as well. Therefore, it is an admitted position that there is existence of a codicil. According to Mr. Ghosh this grant is defective in the form, moreover, passed on suppression of the relevant and material facts viz. amongst other existence of codicil. Therefore, it is an admitted position that there is existence of a codicil. According to Mr. Ghosh this grant is defective in the form, moreover, passed on suppression of the relevant and material facts viz. amongst other existence of codicil. He has shown me the provision of section 263 together with illustration of the indian Succession Act, 1925, and contends that just cause for revocation of grant exists as no special citation was served and issued. In support of his submission he has relied on the decisions of the Supreme Court reported in AIR 2002 SC 3557 , AIR 1955 sc 566 and AIR 1985 Cal 275 . ( 6 ) MR. S. N. Mukherjee, Senior Advocate, appearing to oppose this application submits on behalf of the propounder that in terms of the Court's order special citation was sought to be served and it was not received as it has been endorsed as being refused. He further contends that refusal is a good service under Civil Procedure Code which has been adopted under Chapter xxxv, Rules 9 and 10 read with Chapter viii Rule 26. He further contends that no further evidence is required to substantiate that actual service indeed has been done when there has been a refusal. In support of his contention he has relied on the decisions of Supreme Court reported in 2000 (5) SCC 65 : ( AIR 2000 SC 2198 ), AIR 1989 sc630, 1999 (7) SCC 510 at page 519: AIR 1999 SC 3762 , and a decision of this Court reported in AIR 1991 Cal 103 (sic ). His further contention is that letter procured from the postal department of the USA is of no value since it has been procured for the purpose of making a ground of non-service. Moreover, if the contents of the letter is read carefully it will appear that though the letter had given information basing on somebody's version and so to say the information was given based on hearsay. The writer of the letter has no personal knowledge. As such, correctness of the contents of the letter should not be accepted by the court. Moreover, if the contents of the letter is read carefully it will appear that though the letter had given information basing on somebody's version and so to say the information was given based on hearsay. The writer of the letter has no personal knowledge. As such, correctness of the contents of the letter should not be accepted by the court. He contends further that the applicant at all material times was aware of the filing of the probate proceedings as there has been conversation between the Attorney of his client and Attorney of the petitioner and it would appear from the written bill of costs. So despite knowledge the petitioner has not come forward, moreover, actually the petitioner had no objection in essence as regard disposition of the property by the Will and it will appear from her own letter. According to him, when there is no objection in real sense to grant of probate of the Will, subsequent application for revocation on the ground of non-service of citation is not to be entertained because in various cases the court did not exercise discretion as it has a discretionary power vested upon the Court. The act and conduct and the facts and circumstances of the case disclosed by the respondent executor amply suggest that there has been no just cause. In support of his contention he has relied on one of the oldest decisions of this Court reported in IV cwn 757 and also another decision of this court reported in AIR 1953 Cal 103 . Therefore, this application should be dismissed. ( 7 ) I have heard the Learned Counsel and i have gone through the records and the material placed before me carefully. The court while entertaining application for revocation of grant of probate or the letters of administration finds that there exists "just cause". Then again existence of "just cause" will not suffice, still the Court has discretion. What is the "just cause" and under what circumstances the Court may exercise discretion is not exhaustively provided in section 263 of the Indian Succession Act. Existence of "just cause" is exemplified and/ or illustrated inexhaustively in the said Section. I find the revocation of grant can be made when it is found that it was done without citing the parties who ought to have been cited. Existence of "just cause" is exemplified and/ or illustrated inexhaustively in the said Section. I find the revocation of grant can be made when it is found that it was done without citing the parties who ought to have been cited. It is now well-settled by the civil judicial pronouncement that non-service of citation upon the persons who ought to have been cited is also one of the grounds for revocation of grant. But this pronouncement is not uniformly the same. Mr Mukherjee has drawn my attention to judicial pronouncement of this Court which has settled that non-service of citation is not always a ground for revocation. A very old decision of this Court reported in IV CWN 757 (In the goods of Bhuggobutty Dassee, deceased, Sm. Prosunnomoyee Dassee v. Adhore Chandra dutt and Ors.) through the Hon'ble Justice ameer Ali has revealed that if a party is cognizant of proceedings for probate or letters of administration and chooses to stand by and allow the proceedings to be concluded in his absence, he will not be allowed to come in afterwards and have the grant revoked or the proceedings reopened. This statement of law has been settled in an English decision in case of Newell v. Weeks reported in 2 phillimore 224 (1816 ). ( 8 ) ANOTHER old decision of this court reported in AIR 1953 Cal 103 , (Sm. Latikabala dasi v. Anil Behari Ghose) the Division bench of this Court in Paragraphs 30 and 31 in substance has laid down that if a party, having a right, stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards complain. That is the proper sense of the word "acquiescence". ( 9 ) THE first mentioned decision was rendered not under the provisions of the Indian Succession Act, 1925 and the concerned judicial pronouncement does not rule out service rather makes explicit that citation has to be issued unless the party or parties who has (have) acquiesced and/or waived by necessary act and conduct and stood by to see that the probate is being granted. ( 10 ) THAT is why the revocation of grant is founded upon not only one ground viz. non-service of citation and theory of "just cause" has been mentioned therein. ( 10 ) THAT is why the revocation of grant is founded upon not only one ground viz. non-service of citation and theory of "just cause" has been mentioned therein. ( 11 ) IN a Full Bench decision of the Supreme Court reported in AIR 1955 SC 566 in Paragraph 16 it has been observed that section 263 of the Act vests a judicial discretion in the Court to revoke or annul grant for just cause. The explanation has indicated circumstances under which the Court can come to the conclusion that the "just cause" had been made out. In this connection the appellant relied upon Clause (a) quoted above which requires that the proceedings resulting in the grant sought to be revoked should have been "defective in substance". ( 12 ) THE omission to issue citations to persons who should have been apprised of the probate proceedings may well be in a normal case a ground by itself for revocation of the grant. But this is not an absolute right irrespective of other consideration arising from the proved facts of a case. The law has vested judicial discretion in the Court to revoke grant where the Court may have 'prima facie' reasons to believe that it was necessary to have the Will proved afresh in the presence of interested parties. But in the present case we are not satisfied in all the circumstances of the case that just cause within the meaning of Section 263 had been made out. ( 13 ) GIVEN the aforesaid position of the law this case has to be examined how far the petitioner has been able to substantiate that there exists just cause. ( 14 ) FIRST I shall examine the question of service of citation. The citation was issued and sought to be served in terms of the order of this Court dated 23rd April, 2004 by air mail with acknowledgment due and also by affixation of the copy of the citation of the notice of the Hon'ble Court at Calcutta, another copy to the office of the Collector of calcutta. The postal service has come back with the endorsement of "refusal". Ordinarily as rightly submitted by Mr. The postal service has come back with the endorsement of "refusal". Ordinarily as rightly submitted by Mr. S. N. Mukherjee the endorsement of refusal by the postal authority where the postal service is sought to be made with prepaid charges and correctly addressed or even in a case with an endorsement of 'not claimed' is a good service. But in my view this fact raises a rebut-table presumption. In the decision rendered in case of K. Bhaskaran v. Sankaran vaidhyan Balan and Ann reported in 1999 (7) SC 510 : AIR 1999 SC 3762 it is held in paragraph 23 while dealing with the service of notice under Section 138 of Negotiable instruments Act where the notice is returned as unclaimed not as refused was presumed to have been a good service. It is specifically observed in Paragraph 25 that when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in Clause (c) to the proviso of Section 138 of the Act. Of course, such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the present case the accused did not even attempt to discharge the burden to rebut the aforesaid presumption. ( 15 ) AGAIN in case of Syndicate Bank v. General Secretary, Syndicate Bank Staff association and Anr reported in (2000) 5 SCC 65 : AIR 2000 SC 2198 it is observed that service with refusal endorsement is ordinarily good service but such presumption is rebuttable and this will be appearing by necessary implication in Paragraph 16 of the said judgment relevant portion of which is quoted hereunder (Para 15) : ". . . . . . . . . . . . When evidence was led before the tribunal, the Bank produced the registered covers, which had been received back with the endorsement "refused" and the addressee "not found during delivery time". Dayananda said that he never refused to receive the notice. In these circumstances the Tribunal thought it necessary to hold the notice was not served on Dayananda as the Bank did not examine the postman. The notice was sent on the correct address of dayananda and it was received with the postal endorsement "refused". Dayananda said that he never refused to receive the notice. In these circumstances the Tribunal thought it necessary to hold the notice was not served on Dayananda as the Bank did not examine the postman. The notice was sent on the correct address of dayananda and it was received with the postal endorsement "refused". A clear presumption arose in favour of the Bank and against Dayananda. . . . . . . . . . . . . . " ( 16 ) IN my view when such presumption arises it is the person who asserts that notice was not served or endorsement of refusal was incorrect has to prove by adducing cogent evidence to rebut presumption. ( 17 ) IN this case, the petitioner has not only asserted that said postal authority has not served the notice upon him and further refusal noted therein, is incorrect, but has also produced evidence by annexing a letter of the postal authority that refusal of endorsement is incorrectly made. The contention of Mr. Mukherjee is that the contents of aforesaid letters are not to be accepted by the Court, is not very convincing plea for the reasons that merely making a submission or making a statement that the aforesaid letter is procured will not suffice. In my view once the aforesaid document by way of evidence has been brought from the postal authority the petitioner has discharged the burden of rebutting presumption. It was open for Mr. Mukherjee's client to bring cogent evidence that the letter issued by the u. S. A. postal authority, filed by the petitioner is a procured one and further contents are incorrect. Therefore, I hold that the citation issued by this Court in terms of the Court's order was not delivered upon the petitioner through the postal communication. ( 18 ) IT appears further from the records that the petitioner duly asked the applicant by letter to serve all the letters at her address otherwise than by postal communication. In spite of such notice the same was not done. ( 19 ) MR. S. N. Mukherjee then has taken a plea that the petitioner had knowledge of making application of grant of probate thereof through the interaction of the solicitors of the executor. In spite of such notice the same was not done. ( 19 ) MR. S. N. Mukherjee then has taken a plea that the petitioner had knowledge of making application of grant of probate thereof through the interaction of the solicitors of the executor. In my view, particulars of the bill of costs suggest the knowledge of the petitioner but in my view it cannot be said that the petitioner stood by as the petitioner at the first available opportunity has come to contest the grant. One cannot contest the grant unless he receives the citation and copy of the probate petition. It was only when the petitioner received the copy of the probate application through the temporary Administrator appointed by Texas court. It is significant to mention that the supply copy of the probate petition mentions existence of the codicil and also prayer for grant of probate not only of the Will but also the codicil. On obtaining such copies of the application the petitioner made searches and then made the instant application as early as possible. ( 20 ) SO under no circumstances it can be termed to be a case of acquiescence or waiver in order to get the assistance of the decisions cited by Mr. Mukherjee. ( 21 ) IT is significant to mention that to the notice and knowledge of the propounder, executor the application for letters of administration before the Texas Court was made and necessary interim order of appointment of Administrator as well as injunction was passed. Even then the executor did not make any serious attempt to contest the same. ( 22 ) I have examined the original probate application and it appears that there has been no mention of existence of codicil nor prayer was made for grant of probate in respect of the codicil though in the supply copy of the petition such fact was disclosed. Another significant point is that the propounder lodged a caveat in respect of the estate of the said deceased in this Court and after making the application for probate an application was made to discharge the caveat lodged by himself in order to obtain the grant. Another significant point is that the propounder lodged a caveat in respect of the estate of the said deceased in this Court and after making the application for probate an application was made to discharge the caveat lodged by himself in order to obtain the grant. What statements and submissions were made is not recorded in details at the time of obtaining the order of discharge but from the language of the order of the Hon'ble justice Mukherjee while granting probate of the Will it is very clear that an impression was given to the Court that as if the caveat was lodged to contest the grant and on discharge of that caveat the probate was granted immediately on that date itself. I think it is appropriate to set out the text of the order dated 9th September, 2004 granting probate : "sri Sanjoy Banerjee, Learned Advocate appearing in support of the application, submits that under wrong impression his client filed the caveat and he submits that he has instructions not to press his client's caveat. Accordingly the caveat is discharged. Let there be an order in terms of Prayer "a" to this application. . . . . . . . . . . . . " ( 23 ) IT is true that in the application for discharge of the caveat something was mentioned different from what was submitted before the Court. In the petition for probate proceedings as rightly pointed out by Mr. Ghosh in Paragraph 7 it has been impressed upon the Court that the petitioner has no objection nor can have any objection to the grant of probate in favour of the executor in view of the letter dated 14th January, 2001. In my view writing of a letter before death of any testator is one thing and not objecting after death of testator to grant of probate is another thing. ( 24 ) TAKING all the aforesaid facts and circumstances together I feel there exists "just cause" as the petitioner was not given a chance to see application of probate and to contest or to give consent to the same. Moreover, admittedly there exists codicil and such codicil was not brought to the knowledge of the court which is one of the examples of "just cause" as mentioned in the illustration of that said Section 263 of the said Act. Moreover, admittedly there exists codicil and such codicil was not brought to the knowledge of the court which is one of the examples of "just cause" as mentioned in the illustration of that said Section 263 of the said Act. Accordingly, the grant of probate to the said Will is revoked and special citations shall be served by the Id. Registrar insolvency once again upon the Learned advocate on record of the petitioner to take step in accordance with law. It is made clear in the event no lawful step is taken by the petitioner within the time stipulated by law intending to contest the application for grant of Probate, this order will stand recalled and probate granted by this Court will revive. I direct the propounder for the time being to surrender the original Probate to the Registrar in Insolvency. Order accordingly.