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2011 DIGILAW 525 (GAU)

Biswajit Dhar v. Chinu Rani Dhar

2011-06-15

I.A.ANSARI

body2011
ORDER I.A. Ansari, J. 1. This appeal, made under Section 299 of the Indian Succession Act, 1925, puts to challenge the judgment and order, dated 15.9.2005, passed, in Title Suit (Probate) No. 6 of 2003, whereby the learned Additional (Ad hoc) District Judge, Hojai, Sankardev Nagar, while holding the Respondent herein entitled to receive probate in respect of the Will left by the testator, Manik Lal Dhar, directed issuance of a probate in her favour. 2. I have heard Mr. G.C. Phukan, learned Counsel for the Appellants, and Mr. N.C. Choudhury, learned Counsel for the sole Respondent. FACTUAL BACKGROUND 3. The Respondent herein, namely, Chinu Rani Dhar, filed an application, under Section 276 of the Indian Succession Act, 1925, seeking grant of a probate in respect of the Will claimed to have been executed by Maniklal Dhar in her favour, her case being, in brief, thus: Late Manik Lal Dhar was a Railway employee. He had three major sons, who are the Appellants herein, from his first wife, Late Sandhya Rani Dhar, who pre-de-ceased Manik Lal Dhar. In course of time, Late Manik Lal Dhar married the Respondent Chinu Rani Dhar. At the time of his death on 4.01.2002, Late Manik Lal Dhar left behind not only Chinu Rani Dhar, but also two daughters and a son out of his conjugal relationship with Chinu Rani Dhar. Late Manik Lal Dhar had executed a Will on 28.6.1999, i.e. about 2 years before his death. The said Will was registered, whereby he bequeathed all his properties including his pension, gratuity, GPF, other benefits and the money, lying deposited in his name, in favour of Chinu Rani Dhar. The Will did not mention any immovable property having been left by Late Manik Lal Dhar in favour of the Respondent, Chinu Rani Dhar. After the death of the testator, Manik Lal Dhar, the Respondent herein, i.e. Chinu Rani Dhar, filed an application, as indicated above, under Section 276 of the Indian Succession Act, 1925, which came to be registered as Misc. (Probate) Case No. 189/2002. After issuance of notice, the present Appellants, who are sons of the testator, Manik Lal Dhar, from his wife, Late Sandhya Rani Dhar, appeared in the said proceeding and filed their objection challenging the validity of the Will on the ground that the said Will was a forged one. (Probate) Case No. 189/2002. After issuance of notice, the present Appellants, who are sons of the testator, Manik Lal Dhar, from his wife, Late Sandhya Rani Dhar, appeared in the said proceeding and filed their objection challenging the validity of the Will on the ground that the said Will was a forged one. This contested proceeding of probate came to be, then, registered as Title Suit (Probate) No. 6 of 2003. 4. While resisting the prayer for grant of probate, the case of the Appellants herein, was, briefly stated, as under: The testator, Late Manik Lal Dhar, was addicted to alcohol and in intoxicated state of mind, he had been treating, during the last part of his life, his wife, Sandhya Rani Dhar, (who, eventually, pre-deceased Manik Lal Dhar) and the Appellants herein with cruelty, whereupon Sandhya Rani Dhar left Manik Lal Dhar's house and claimed maintenance from Manik Lal Dhar. Manik Lal Dhar never recognised Chinu Rani Dhar as his wife and this is evident from the fact that in the maintenance proceeding, which Sandhya Rani Dhar had instituted, under Section 125 Code of Criminal Procedure against Manik Lal Dhar giving rise to M.R. Case No. 52/1988, Manik Lal Dhar stated that Chinu Rani was his maid servant. The Will, which Chinu Rani Dhar relies upon, is a forged will. It was also contended, in their written statement, by the present Appellants, that at the time of executing the Will, Manik Lal Dhar was not in good condition of health and mind inasmuch as he had lost his mental balance due to his being alcoholic. The alleged Will was manufactured with the help of the attesting witnesses at the time of Manik Lal Dhar's death. Since neither Sandhya Rani Dhar nor her three sons, namely, the present Appellants, had been living with Manik Lal Dhar in the latter's official quarter belonging to the Railways and it was Chinu Rani Dhar, who had been living, in the said official quarter of Manik Lal Dhar, along with her children claiming to be the wife of Manik Lal Dhar, Chinu Rani Dhar continued to remain in occupation of the said Railway quarter claiming herself to be the widow of Manik Lal Dhar, who had left behind, through her, two daughters and one son. 5. There were three issues framed in the suit. 5. There were three issues framed in the suit. The issues were as under: (i) Whether the WILL executed by Late Maniklal Dhar, is a valid will? (ii) Whether the Plaintiff is entitled to decree as prayed for? (iii) To what relief/reliefs is the party entitled to? 6. The Respondent examined three witnesses, namely, her own self and two more persons as attesting witnesses to the said Will. The Appellants herein examined four witnesses including the Appellant Nos. 1 and 2. 7. On the first issue, namely, whether the Will executed by Manik Lal Dhar is a valid Will, the learned Court below came to the finding that the Plaintiff i.e. the Respondent herein, looked after the testator, Manik Lal. Dhar, and lived with him for about 10/12 years before his death in his house and, hence, the execution of the Will by the testator in favour of the Plaintiff, i.e. Chinu Rani Dhar, cannot be held to be under any undue influence. This categorical finding of the learned Court below could not be shaken in this appeal on behalf of the Appellants. 8. The Plaintiff, namely, the Respondent herein, as indicated above, examined herself as PW 1 and the two attesting witnesses to the Will, namely, Ramananda Singh and Arjun Das as PWs 2 and 3 respectively. In tune with each other, PWs 2 and 3 deposed that the testator had executed the Will in their presence in the office of the Sub-Registrar, Hojai, and, thereafter, in the presence of testator, both of them gave their signatures as attesting witnesses. On the evidence so given, the two witnesses were not cross-examined at all. 9. Thus, the fact that the Will, in question, was executed, at Hojai, as claimed by the said two attesting witnesses, went unrebutted and unchallenged. It has also come to the evidence of the said two attesting witnesses that before they had put their signatures on the Will, they were told by the testator, Manik Lal Dhar, that he was bequeathing all his properties including service benefits to his wife, Chinu Rani Dhar, by the said Will. 10. From Ext-1, it would clearly transpire that this document was prepared keeping the date of execution blank. Consequently, the date of execution of the Will was filled up by hand. 10. From Ext-1, it would clearly transpire that this document was prepared keeping the date of execution blank. Consequently, the date of execution of the Will was filled up by hand. Though the recital of the document shows that it was prepared at Lumding and the place of execution of the Will was also typed as Lumding, but when the two attesting witnesses said that the execution of the Will had taken place at Hojai, their assertions remained unrebutted. The learned Court below was, therefore, wholly correct in holding that the execution of the Will by the testator, at Hojai, stands well proved. 11. In other words, notwithstanding the fact that the Will recites Lumding as the place of preparation and execution of the will, the fact of the matter remains that what has come on record as unrebutted from the evidence of the two attesting witnesses is that the will was signed, executed and registered at Hojai. The fact, therefore, that the will mentions Lumding as the place of preparation and execution of the will pales into insignificance and was rightly not given any importance by the learned Court below in arriving at its ultimate decision as to whether the will was or was not a genuine one. 12. Coupled with the above, it is also worth noticing that the Appellants, who had contested the suit as Defendants, sought to establish that Ramananda Singh (PW2) was on duty between 6 AM to 2 PM, at Lumding, on the date of execution of the Will and he could not have, therefore, been present, at Hojai, at the time of alleged execution of the Will. This contention of the Appellants was sought to be proved by examining one Rupak Dutta as DW1, who brought on record Ext-B, which is Ward Masters Maintenance Diary for the period from 13.6.99 to 7.8.99 and Attendant Register as Ext-C. With the help of the documents so proved, it was sought to be proved, as indicated hereinbefore, that Ramananda Singh was present on duty on that day at Lumding and could not have, consequently, be present at Hojai, whether the Will was claimed to have been executed. 13. However, the learned Court below has correctly pointed out, on perusal of Ext-B, that there was deletion of the name of one G. Deb Roy and someone replaced the said name by the name of Ramanand Singh. 13. However, the learned Court below has correctly pointed out, on perusal of Ext-B, that there was deletion of the name of one G. Deb Roy and someone replaced the said name by the name of Ramanand Singh. This casts, rightly observed the learned Court below, serious doubt as regards the veracity of the document i.e. Ext-B. This apart, Ext-C did not carry any official seal and signature of the concerned officers. Moreover, Rupak Dutta (DW 1) clearly deposed, in his evidence, that Ramananda Singh did not report to him for duty on that day. It was, therefore, crystal clear, as noted by the learned Court below, that DW 1 did not know, as a matter of fact, as to whether Ramananda Singh was or was not on duty, at Lumding, on 28.6.99. In fact, DW 1 conceded, in his cross-examination, that he does not know whether Ramananda Singh was, in fact, present on duty, at Lumding, on 28.6.99 or not. Situated thus, it is clear that the presence of Ramananda Singh, on duty, at Lumding, as claimed by the present Appellants, could not be proved. 14. Moreover, what is of immense importance to note is that Biswajit Dhar (Appellant No. 1), while facing the cross-examination, candidly admitted that he had met Arjun Das, one of the attesting witnesses of the Will, and said that Arjun Das had told him (the Appellant No. 1) that he had signed the Will as an attesting witness at the instruction of his father, Motilal Das. Similarly, DW 2, in his cross-examination, clearly stated that he knew Ramananda Singh since long and also admitted that Ramananda Singh had been serving in the Railways along with his father, Manik Lal Dhar. 15. From the evidence adduced by the Plaintiff and her witnesses it became clear, as noted by the learned Court below, that Manik Lai Dhar went to Sub Registrar's office, at Hojai, along with the said two attesting witnesses and executed the Will in presence of the Sub-Registrar and, in fact, even on the date, when execution of the Will had taken place, the Appellant No. 1 had come to learn from Arjun Das, one of the attesting witnesses, that Manik Lal Dhar had executed a Will. This apart, Manik Lal Dhar died after a considerable period of time, i.e., about two and half years after the date of execution of the Will. This apart, Manik Lal Dhar died after a considerable period of time, i.e., about two and half years after the date of execution of the Will. Though the present Appellants had contended, in the Probate proceeding, that Manik Lal Dhar had been suffering from mental imbalance and cancer, No. evidence was adduced, in this regard to support, this contention. The learned Court below has correctly noted that in support of their case that Manik Lal Dhar had been suffering from cancer and other ailments, the Appellants did not produce any medical certificate nor did they adduce any other evidence to support their contention that Manik Lal Dhar had been suffering from cancer at the time of execution of the Will or that he was of unbalanced mind at that period of time. In fact, PW 2, in his deposition, clarified that after a few days of execution of the Will, Manik Lal Dhar suffered from cancer and he (PW 2) frequently went to hospital, but at the time of execution of the Will, Manik Lal Dhar was healthy and fit. 16. This apart, if Manik Lal Dhar had been suffering from imbalance of mind, he would not have been retained by his employer, i.e. the Railways, till the last date of his employment. The learned Court below, therefore, concluded, and rightly so, that there was No. credible evidence on record to show that Manik Lal Dhar had been suffering from ailments, which impaired his mental faculties. The learned Court below also took into account the fact that there is clear evidence on record that there was strained relationship between the testator, Manik Lal Dhar, and his wife, Sandhya Rani Dhar, and she had been living at her father's house, a maintenance case was filed by her against her husband and she received maintenance. In fact, it has clearly surfaced from the evidence on record that PW1, Chinu Rani Dhar, looked after the testator, Manik Lal Dhar, during the last part of his life. Obviously, No. care of the testator was taken by Sandhya Rani towards the last part of Manik Lal Dhar's life. It was, therefore, not unnatural, on the part of Manik Lal Dhar, as observed by the learned Court below, to deprive his legal heirs i.e. Sandhya Rani Dhar and her three sons of his service benefits. 17. Obviously, No. care of the testator was taken by Sandhya Rani towards the last part of Manik Lal Dhar's life. It was, therefore, not unnatural, on the part of Manik Lal Dhar, as observed by the learned Court below, to deprive his legal heirs i.e. Sandhya Rani Dhar and her three sons of his service benefits. 17. Above all, it has clearly come on record, as already indicated above, that the Appellants knew about the execution of the Will, but at No. stage, had they expressed any suspicion as regards genuineness of the Will or raised any objection thereto. They could have instituted a suit for declaration that the said Will was a forged and manufactured one and also sought cancellation thereof, but they did not do so. 18. In the circumstances, as indicated above, the learned Court below was wholly justified in taking the view that the Will, in question, was executed by the testator, Manik Lal Dhar, in presence of the said two attesting witnesses and the Will is a genuine one. 19. Realising, perhaps, that the findings of the learned Court below were based on record that the Will, in question, was a Will executed by the testator, Manik Lal Dhar, at a time, when he was in sound state of mind and that despite the fact that the Appellant herein had known about the execution of the Will, they chose not take any step to challenge the validity of the Will and, hence, in such circumstances, there can be No. doubt that the Will shall be treated as a Will of the testator, Manik Lal Dhar, executed without any undue influence, Mr. G.C. Phukan, learned Counsel, appearing on behalf of the Appellants, has pointed out two important aspects of a probate proceeding. 20. Referring to the provisions of Clause (d) of Section 276 of the Indian Succession Act, 1925, whereunder an application for probate is made, Mr. Phukan points out that Clause (d) clearly lays down that in an application for probate, the Petitioner must mention, apart from everything else, the amount and/or value of assets, which are likely to come to the Petitioner's hands. 21. In the case at hand, points out Mr. Phukan points out that Clause (d) clearly lays down that in an application for probate, the Petitioner must mention, apart from everything else, the amount and/or value of assets, which are likely to come to the Petitioner's hands. 21. In the case at hand, points out Mr. Phukan, learned Counsel for the Appellants, that contrary to the requirements of Clause (d) of Section 276, the Petitioner-Respondent had not mentioned, in her application for probate, the amount or value of the assets, which were likely to come to her hands. The application was, therefore, according to Mr. Phukan, not maintainable and, consequently, the impugned order, granting probate to the Petitioner-Respondent, may be set aside and the matter may be remanded to the learned Court below to ascertain the value of the assets, which are likely to come to the Petitioner-Respondent's hands. 22. Coupled with the above, referring to the provisions of Section 19H of the Court-Fees Act, 1870, Mr. Phukan has pointed out that the complete scheme of Section 19H shows that whenever any application for probate is made to any Court, other than a High Court, the Court shall cause notice of the application to be given to the Collector and the Collector, within the local limits of whose revenue-jurisdiction the property of the deceased or any part thereof is, may at any time, inspect or cause to be inspected, and take or cause to be taken copies of, the record of any case in which the application for probate or letters of administration has been made; and if, on such inspection or otherwise, he is of the opinion that the Petitioner has underestimated the value of the property of the deceased, the Collector may take evidence of the Petitioner and inquire into the matter and if, after taking of evidence of the Petitioner and making inquiry into the matter, the Collector is still of the opinion that the value of the property has been under-estimated, he may require the Petitioner to amend the valuation of the property, in question. Section 19H further provides, points out Mr. Section 19H further provides, points out Mr. Phukan, that if a Petitioner does not amend the probate petition, as required by the Collector, the Collector may move the Court, before which the application for probate or letters of administration was made, to hold an inquiry into the true value of the property and, the Court, upon being so moved by the Collector concerned, shall hold, or cause to be held, an inquiry into the matter and shall record the findings as to the true value of the property at which the property, in question, should have been estimated. As the Petitioner-Respondent's application for probate did not fulfill the requirements of Section 19H, the probate application, according to Mr. Phukan, ought not to have been considered by the learned Court below as an application for probate. 23. Resisting the above submissions of Mr. Phukan, learned Counsel for the Appellants, Mr. N.C. Choudhury, learned Counsel for the Petitioner-Respondent, points out that a bare reading of the application for probate will show that the Petitioner-Respondent had clearly stated, in paragraph 9 of her application, that in spite of due diligence, she could not collect the value of the property, sought to be probated, and she, therefore, pleaded that the quantum of the probate being nothing but service benefits of the deceased, which could be quantified in money, the same is known to the Railway authorities of Lumding, under whom the testator had worked, and the same could only be collected if ordered by the Court. Mr. Choudhury further submits, and rightly so, that the order, dated 30.10.2004, passed by the learned Court below, shows that the Petitioner-Respondent filed an application before the learned Court below, praying for a direction to be issued to the Divisional Railway Manager, Lumding, to furnish the details of the service benefits, which were likely to be received by the testator and, accordingly, a notice was issued by the learned Court below on 03.11.2004, whereupon the Divisional Railway Manager, Lumding, by his letter, dated 17.11.2004, furnished (in response to the notice of the learned Court below), the details of the service benefits quantified into money. The letter, dated 17.11.2004, shows that the details, given by the Divisional Railway Manager, in response to the learned Court's direction, was as under: Details (A) (1) PF, DLIS Rs. 2,05,901.00 (Approx) (2) GIS Rs. 44,740.00 (Approx) (3) L/Salary Rs. The letter, dated 17.11.2004, shows that the details, given by the Divisional Railway Manager, in response to the learned Court's direction, was as under: Details (A) (1) PF, DLIS Rs. 2,05,901.00 (Approx) (2) GIS Rs. 44,740.00 (Approx) (3) L/Salary Rs. 48,552.00 (Approx) (4) Death and Gratuity Rs. 2,82,645.00 (Approx) (B) F/Pension Rs. 1725/- (Approx) (C) Employment in Rly. Service on compassionate ground is admissible in this case. 24. Mr. Choudhury, learned Counsel, has considerable force, when he points out that valuation of a probate proceeding is required for payment of stamp duty, which is a matter between the Court and the applicant. The full information, as regards the valuation of the property, points out Mr. Choudhury, are, now, on record and the Petitioner-Respondent is agreeable to pay the requisite Court-fee within the appropriate period if the Court directs such payment to be made. 25. Continuing with the arguments, Mr. Choudhury submits that even if there is deficit payment of Court-Fee, the law permits supply of the deficit Court-fee or Stamp duty and, on the ground that an application does not contain valuation of the assets, which are likely to come into the hands of the Petitioner, the Petitioner may not be held disentitled to receive the probate if the Petitioner is, otherwise, entitled to receive the same, particularly, when the difficulty, confronted by the Petitioner, as in the case at hand, in obtaining the valuation of the assets, was clearly brought by the Petitioner on record of the case and, pursuant to the orders, passed by the Court, the valuation of the assets, which are likely to come to the hands of the Petitioner-Respondent, are, now, on record in the form of a letter, dated 17.11.2004, of the Divisional Railway Manager. 26. It is further submitted, on behalf of the Petitioner-Respondent, that the Appellants, being Defendants, have No. locus standi to raise any objection as regards the valuation of the assets and, the Appellants cannot, now, be allowed to raise this plea, in the appeal inasmuch as they did not raise any such objection in the trial, particularly, when they could not show in the learned Court below and they have miserably failed to show even in this appeal that the will, in question, is not a genuine one. In such circumstances, according to Mr. In such circumstances, according to Mr. Choudhury, the matter of determination of value of the assets and the payment of Stamp duty/Court-fee thereof is a matter between the Court and the Petitioner-Respondent and this Court may allow the Petitioner-Respondent to pay requisite Stamp duty/Court-fee so that the probate can be issued to her instead of protracting the probate proceeding though genuineness of the Will stands well proved. Moreover, the valuation of property, submits Mr. Choudhury, is not a pure question of law and, hence, if the valuation of the property is not put to challenge in the probate proceeding, such an objection cannot be allowed to be raised at the appellate stage. Support for this submission is sought to be derived by Mr. Choudhury from the case of Kuppuswami Chettiar v. Arumugam Chettiar, reported in AIR 1967 SC 1395 . 27. It is also contended by Mr. G.C. Phukan, that an application for probate has to be supported by affidavit, but No. such affidavit was filed in the case at hand and, hence, the probate application was not maintainable and ought to have been so held by the learned Court below. As regards Mr. G.C. Phukan's contention that the probate application was not supported by affidavit and was, therefore, not maintainable, Mr. Choudhury, learned Counsel for the Petitioner-Respondent, has pointed out that Section 276 to 282 of the Indian Succession Act, 1925, deal with the presentation of application for probate and the procedure for disposal thereof. There is nothing in these statutory provisions, rightly points out Mr. Choudhury, which require an applicant to file affidavit. In fact, submits Mr. Choudhury, Section 280 requires that an application for probate be signed and verified by the applicant and that the language for this purpose is also prescribed by Section 280. Mr. Choudhury further submits, and rightly so, that Section 281requires that an application for probate shall be verified by, at least, one witness of the Will. In the case at hand, contends Mr. Choudhury, all the requirements of Sections 280 and 281 have been complied with and, hence, the objection, raised by the Appellant, that No. affidavit has been filed by the Petitioner, in respect of the probate application, has No. substance. Having perused the application for probate in the present case, I do not find the submission of Mr. Choudhury, all the requirements of Sections 280 and 281 have been complied with and, hence, the objection, raised by the Appellant, that No. affidavit has been filed by the Petitioner, in respect of the probate application, has No. substance. Having perused the application for probate in the present case, I do not find the submission of Mr. Choudhury to be incorrect inasmuch as the application for probate stands duly verified not only by the Petitioner-Respondent, but also the attesting witnesses. 28. Every probate, points out Mr. Choudhury, is made under a special law, namely, Indian Succession Act, 1925, and, as such, only the procedures, prescribed in the said Act, are to be followed. On the date of the presentation of the application for probate, the application is not a plaint within the meaning of Order VI of the Code of Civil Procedure and, therefore, it is not required to be supported by affidavit. An application for probate assumes the character of suit only after the same is contested by filing application, as contemplated under Section 295 of the Indian Succession Act, 1925. Amendment of the Code of Civil Procedure and implementation thereof w.e.f. 01.07.2002, cannot, according to Mr. Choudhury, affect the position of requirements of the probate application in the absence of any corresponding amendment of Section 280 and 281 of the Indian Succession Act, 1925. This apart, submits Mr. Choudhury, there is No. scope to apply the provisions of Order VI of the Code of Civil Procedure to the present case, because the same is not a plaint, though it may appear as a plaint due to its having become a proceeding of contentious nature. This apart, points out Mr. Choudhury, the irregularity, if any, in the verification/affidavit is curable. Reference, in this regard, has been made by Mr. Choudhury, to the case of Regu Mahesh v. Rajendra Pratap Bhanj Dev, reported in (2004) 1 SCC 46. The relevant portion of the observations, made by the Supreme Court, in Regu Mahesh (supra), read as under: 12. It is, therefore, a settled position in law that defect in verification or an affidavit is curable. But further question is what happens when the defect is not cured. There is a gulf of difference between a curable defect and a defect continuing in the verification affidavit without any effort being made to cure the defect. 29. It is, therefore, a settled position in law that defect in verification or an affidavit is curable. But further question is what happens when the defect is not cured. There is a gulf of difference between a curable defect and a defect continuing in the verification affidavit without any effort being made to cure the defect. 29. Reiterating his submission, that the Petitioner-Respondent's omission to fulfill the requirement of Section 19H of the Indian Succession Act, 1925, does not make the Petitioner's application for probate liable to be dismissed as a whole, or disentitle the Petitioner from getting the probate, Mr. Choudhury has placed reliance on the decision of the Supreme Court, in Uday Shankar Triyar v. Ram Kalewar Prasad Singh, reported in (2006) 1 SCC 75 , wherein the Supreme Court held that the omission to comply with any procedural requirement, relating to a pleading, memorandum of appeal, or application or petition for relief should not entail automatic dismissal or rejection of the application or appeal unless the relevant statute or rule so mandates and that procedural defects or irregularities, which are curable, should not be allowed to defeat substantive rights of the applicant. The relevant observations made, in this regard, in Uday Shankdar Triyar (supra), read as under: 17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities, which are curable, should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are: (i) where the statute prescribing the procedure, also prescribes specifically the consequence of non-compliance; (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; (iii) where the non-compliance or violation is proved to be deliberate or mischievous; (iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court; (v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the Appellant. [Emphasis added] 30. [Emphasis added] 30. While considering the submission made on behalf of the Appellant, that the present application for probate having acquired the status of a suit within the meaning of Section 295 of the Indian Succession Act, 1925, the application for probate ought to be treated as a plaint and, therefore, an affidavit ought to have been filed, it may be noted that this High Court, while dealing with a similar question, in Kamakhya Prasad Gupta and Anr. v. Jibon Lal Gupta, reported in (2011) 1 GLT 435, as to whether a contentious proceeding, within the meaning of Section 295 of the Indian Succession Act, 1925, is a Suit, observed in Para 30 to 46 of its decision as under: 29. Whether a contentious proceeding, within the meaning of Section 295of the Indian Succession Act, 1925, is a 'suit' ? 30. The question, posed above, brings me to Section 295, which reads: S-295. Procedure in contentious cases.-In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908.) in which the Petitioner for probate or letters of administration, as the case may be, shall be the Plaintiff, and the person, who has appeared to oppose the grant, shall be the Defendant. 31. Thus, what Section 295 provides is that when there is any contention, the probate proceeding will take, as nearly as may be, the form of a suit. The key words are " as nearly as may be". 32. This, in turn, brings one to the questions as to what a 'suit' is, what is a 'decree' and how a 'decree' differs from an 'order'. 33. What, now, needs to be noted is that the Code of Civil Procedure does not define what a 'suit' is. Section 26 Code of Civil Procedure merely states that a 'suit' shall be instituted by the presentation of the 'plaint'. 34. Order IV Rule 1(1), while laying down that every 'suit' shall be instituted by presenting a 'plaint', in duplicate, to the Court or such officer as the Court appoints. Order IV Rule 1(2) further lays down that every 'plaint' shall comply with the rules contained in Order VI and VII so far as they are applicable. 34. Order IV Rule 1(1), while laying down that every 'suit' shall be instituted by presenting a 'plaint', in duplicate, to the Court or such officer as the Court appoints. Order IV Rule 1(2) further lays down that every 'plaint' shall comply with the rules contained in Order VI and VII so far as they are applicable. Order VII Rule 1 lays down the particulars required to be contained in a 'plaint'. In effect, thus, a 'suit' is instituted by presentation of a plaint unless the law provides otherwise and what a plaint needs to contain is embodied in Order VII. 35. In Hansraj v. Dehra Dun-Mussoorie Electric Tramways Co Ltd. (AIR 1933 PC 63), it was observed that suit, ordinarily, means, and apart from the context, must be taken to mean, a civil proceeding instituted by the presentation of a plaint. 36. In the case of Pandurang v. Shantibai ( AIR 1989 SC 2240 ), the Supreme Court has observed that in comprehensive sense, the word 'suit' is understood to apply to any proceeding in a court of justice by which an-individual pursues that remedy, which law affords. The modes of the proceedings may be different; but if a right is litigated between the parties in a court of justice, the proceeding, by which the decision of the court is sought, may be a suit. 37. Section 33 of the Code of Civil Procedure, which deals with 'judgment' and 'decree', lays down that the court, after the case has been heard, shall pronounce 'judgment' and, on such 'judgment', a 'decree' shall follow. 38. Section 2(9) of the Code of Civil Procedure defines 'judgment' to mean the statement, given by the judge, on the grounds of a decree or order. 39. Section 2(14) of the Code of Civil Procedure defines 'order' to mean the formal expression of any decision of a civil court, which is not a 'decree'. 40. What is, then, a decree Section 2(2) of the Code of Civil Procedure defines a 'decree' to mean a formal expression of an adjudication, which, so far as regards the court expressing it, conclusively determines the right of the parties with regard to all or any of the matter in controversy in the suit, which may be either preliminary or final. It shall deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include a) any adjudication from which an appeal lies as an appeal from an order, or b) any order of dismissal for default. 41. What is, now, important to note is that the Code of Civil Procedure provides for two kinds of appeal. The orders, which are appealable under Order XLIII Rule 1, and Section 96, which provides for appeal against the original decree. 42. When, in a proceeding of probate or letter of administration, contention is raised and it becomes a contentious proceeding within the meaning of Section 295, the proceeding has to be treated as nearly as possible as a 'suit'. Had the expression, 'as nearly as possible' meant that the proceeding, on being contested, shall become a regular 'suit', No specific provision for appeal was required to be made in respect of an order, which is passed on the conclusion of a contentious proceeding. However, when one turns to Section 299 of the Indian Succession Act, 1925, it would transpire that Section 299 makes every order, passed by District Judge, subject to appeal to the High Court. Section 299 reads: 299. Appeals from orders of District Judge.-Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908.),applicable to appeals. 43. Thus, had the contentious proceeding been a regular 'suit', the culmination of such a contentious proceeding would have been ended in a 'decree' and such a 'decree' would have been appealable under Section 96. However, as a contentious proceeding is not a regular 'suit', though it shall be treated as a 'suit' as nearly as possible, there is No. 'judgment' and, as there is No. 'judgment', No. 'decree' is framed and as there is No. 'decree', there is No. 'appeal' under Section 96. No. wonder, therefore, Section 299 of the Indian Succession Act, 1925, specifically provides for 'appeal' against every orders made by virtue of the powers conferred under the Indian Succession Act, 1925. Such an order would include even such an order, which is passed on culmination of the contentious proceeding. 44. No. wonder, therefore, Section 299 of the Indian Succession Act, 1925, specifically provides for 'appeal' against every orders made by virtue of the powers conferred under the Indian Succession Act, 1925. Such an order would include even such an order, which is passed on culmination of the contentious proceeding. 44. A proceeding for grant of 'probate' or 'letter of administration' commences with the filing of application seeking 'probate' or 'letter of administration', as the case may be, and not by filing of a 'plaint'. Not only Section 26, but also Order IV Rule 1 provides that every 'suit' shall be instituted by presentation of a 'plaint'. Order IV Rule 1 clearly provides that every 'suit' shall be instituted by presenting a plaint, in duplicate, to the Court or such officer as it appoints in this behalf. Hence, presentation of a 'plaint' is the institution of the 'suit'; whereas the proceeding, seeking 'probate' or 'letter of administration', is initiated under the Indian Succession Act, 1925, not by filing a plaint. Section 295 merely states that after the proceedings for grant of probate' or letter of administration' becomes a contentious proceedings, it should be treated as nearly as possible as a 'suit'. Nowhere, Section 295 provides that once the proceeding becomes a contentious proceeding, the proceeding shall be treated as a 'regular suit'. What Section 295 says is that a contentious proceeding shall be treated, or shall be dealt with, as nearly as may be possible, in the form of a 'regular suit'. In short, a contentious proceeding becomes a suit only in its form and not in substance. Faced with the question as to whether a contentious proceeding becomes a suit, and whether a 'decree' is required to be framed therein, the Patna High Court, in Nagendra Rai v. Jai Narayan Bharti ( AIR 1994 Pat 144 ), held that the use of the words 'as nearly as may be', in Section 295 clearly shows that the legislature never intended that the contentious proceeding shall be a 'regular suit'. The contentious proceeding is not a 'suit' under the ordinary law. The contentious proceeding is not a 'suit' under the ordinary law. By virtue of Section 295, a proceeding for probate or letter of administration takes the form of a regular suit for the limited purpose of applying to it the provisions of the Code of Civil Procedure, but the proceeding retains its character as a proceeding and does not, at any point of time, becomes a regular suit. I see No reason at all to take a view different from what has been taken in Nagendra Rai (supra). 45. When a person applies for 'probate' or 'letter of administration' by way of a petition in terms of the mandates of Section 276 and 278 of the Indian Succession Act, 1925, such a petition is not governed by Order VII of the Code of Civil Procedure and does not give rise to regular suit. 46. Moreover, though an 'order' is also a formal expression of a Court giving its decision, it is not a 'decree'. Section 33 of the Code of Civil Procedure provides that when a judgment is pronounced, a 'decree' shall follow. In a 'probate proceeding', the Court does not pass a 'judgment' within the meaning of Section 33. It must be borne in mind that a decree' conclusively determines the rights of the parties with regard to all or any controversy raised in the 'suit'. However, as per Section 273 of the Indian Succession Act, 1925, a 'probate' or 'letter of administration' is the conclusive proof of the representative title. In a probate proceeding, the Court cannot, and does not, decide title and it is open to a person to challenge the title of the testator to the property even after a 'probate' or 'letter of administration' is granted. Thus, an 'order', passed in a probate proceeding, even if becomes a contentious proceeding, would not be a 'decree' within the meaning of Section 2(2). In some statutes, there is provision for 'deemed decree'. For example, Order XXI Rule 58(4) Code of Civil Procedure provides that when any claim or objection is adjudicated under the said Rule, the' order', made therein, shall be treated as if it is a 'decree'. There is No. such equivalent provision of 'deemed decree' in respect of a proceeding for 'probate' or 'letter of administration. 31. For example, Order XXI Rule 58(4) Code of Civil Procedure provides that when any claim or objection is adjudicated under the said Rule, the' order', made therein, shall be treated as if it is a 'decree'. There is No. such equivalent provision of 'deemed decree' in respect of a proceeding for 'probate' or 'letter of administration. 31. For what have been noted above, it becomes clear that the application for probate, in the case at hand, was not required to be supported by affidavit and the fact that the application for probate, in the present case, was not supported by any affidavit, could not have made the application for probate not maintainable in law. 32. Coming to the last argument of Mr. Phukan, that the Will contains a recital on its body that the execution thereof took place at Lumding; whereas PW2 and PW3, being attesting witnesses, deposed that the Will was executed at Hojai, Mr. Choudhury submits that the contradiction, as regards the place of execution of the Will, has occurred due to the fact that the Will was prepared at Lumding, but the same was executed at Hojai. This apart, it needs to be carefully noted that when there was a confusion between what had been recited in the document of Will and the deposition of the attesting witnesses as regards the place of execution of the Will, the attention of the witnesses ought to have been drawn to the inconsistency between their oral statement on the one hand, that the place of the execution of the Will was Hojai, and the previous statement, recorded in the Will itself, that the place of preparation of the Will and its execution was at Lumding. No. such thing was done by the present Appellant and No. opportunity was, as rightly contended by Mr. Choudhury, given to the two attesting witnesses to clarify as to how the execution of the Will took place at Hojai, when the Will mentions the place of execution at Lumding. In such circumstances, the discrepancy, which is sought to be pointed out, on behalf of the Appellant, can be given No. importance at all. 33. Turning to Section 19H of the Court-Fees Act, 1870, there can be No. dispute, as readily pointed out by Mr. In such circumstances, the discrepancy, which is sought to be pointed out, on behalf of the Appellant, can be given No. importance at all. 33. Turning to Section 19H of the Court-Fees Act, 1870, there can be No. dispute, as readily pointed out by Mr. Phukan, that whenever an application is made to any Court, other than a High Court, the Court shall cause notice of the application to be given to the Collector concerned. If the scheme for fixation of valuation, given in Section 19H, is clearly borne in mind, it would become transparent that the object, behind giving of notice to the Collector, is that the valuation of the assets, which are likely to come into the hands of the person, who applies for probate, is assessed and appropriate Court-Fee is paid thereon. In the case at hand, there was, undoubtedly, a serious lapse, on the part of the learned Court below, in its omission to give appropriate notice, under Section 19H of the Indian Court-Fees Act, 1870, to the Collector. 34. Thus, though there was a lapse, on the part of the Court, the fact of the matter remains that the Petitioner-Respondent had made it clear, in the probate proceeding, that despite due diligence, she was unable to obtain the valuation of the service benefits, which were likely to come to her hands if the Will was probated, and it was for this reason that she had to apply to the Court and the Court directed the Divisional Railway Manager, Lumding, to furnish details of the service benefits of the deceased quantifying the same in money. The only mistake, which the Petitioner-Respondent has made, is in not mentioning, in her application for probate, the quantified amount by making necessary amendment. 35. Notwithstanding, however, the above lapse, on the part of the Petitioner-Respondent, the fact of the matter remains that when the service benefits, quantified in money, are already on record, which stand furnished by the Department concerned, the learned Court below could have, on its own, directed the Petitioner-Respondent to mention the amount in the application for probate. This was not done by the learned Court below. The learned Court below also failed to issue notice to the Collector in terms of Section 19H of the Indian Succession Act, 1925. This was not done by the learned Court below. The learned Court below also failed to issue notice to the Collector in terms of Section 19H of the Indian Succession Act, 1925. However, when the service benefits is officially and authentically quantified and when there is No. immovable property involved, it would be highly unjust to restart the entire proceeding, after a long gap of about ten years, by directing the Petitioner-Respondent to mention, in her probate application, the value of the assets likely to come to her hands and also to direct the learned Court below to give notice to the Collector in terms of Section 19H. The remedy, in a case of present nature, in the considered view of this Court, lies in directing the learned Court below to make assessment/calculate the Court-Fees payable on the total assets, which are likely to come to the hands of the Petitioner-Respondent and, upon payment of the requisite Court-Fees, within the period as the learned Court below may specify, the probate shall be granted. 36. In the result and for the reasons discussed above, this appeal partly succeeds. The learned Court below is hereby directed to make an assessment/calculation of the Court-Fees payable on the service benefits, which have been quantified, in money, by the railway authorities, and direct the Petitioner-Respondent to pay, within such period, as may be specified by the learned Court below, the Court-Fees, and if the Petitioner-Respondent pays the requisite Court-Fees within the specified period, or within such period, as may be extended by the learned Court below, the probate shall be granted to the Petitioner-Respondent. 37. With the above observations and directions, this appeal stands disposed of. 38. No. order as to costs. Appeal partly allowed.