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2015 DIGILAW 311 (CAL)

Kalyani Maite v. Shridam Maite

2015-04-02

NISHITA MHATRE, R.K.BAG

body2015
Judgment :- R.K. Bag, J. 1. This appeal is directed against the judgment and order passed by Learned Additional District Judge, 2nd Court, Barasat, North 24-Parganas on 31.08.2010 in Misc. Case No.159 of 1998, by which Learned Judge dismissed the application for revocation of grant of probate. The appellants instituted the proceeding for revocation of grant of probate by challenging the order passed by Learned District Judge, Barasat in Misc. Case No.53 of 1995. 2. The appellants are the wife and daughter of one Rabindra Nath Maite who died on 05.03.1994 in his residence at Village Debalaya, P.S. Deganga, District-North 24-Parganas. Rabindra Nath Maite has three other brothers by full blood, namely Bholanath Maite, Shridam Maite and Ram Maite. The daughter and son-in-law of the deceased Ram Maite have been living in the house of Rabindra Nath Maite. The son-in-law, Ashoke Kumar Biswas is looking after the property of the deceased Rabindra Nath Maite and he constructed two pucca rooms to be used as shop room on the land of the deceased Rabindra Nath Maite. The appellants/petitioners have pleaded that the will dated 08.01.1990 alleged to have been executed by Rabindra Nath Maite is fake and fabricated. It is alleged that Rabindra Nath Maite had no intention to give the property described in the said will in favour of his nephews – Samir Maite and Somnath Maite by appointing the respondent, Shridam Maite as the executor of the said will. The further allegation made by the appellants is that one Abani Sardar whose name appears as attesting witness of the said will is the brother-in-law of the respondent, Shridam Maite and Nemai Mondal whose name appears on the said will as attesting witness is the husband of the sister-in-law of the respondent, Shridam Maite. The appellants have specifically stated that the deceased Rabindra Nath Maite was not in good terms with his brothers including the respondent, Shridam Maite during his life time and that he made a complaint before Shri Madan Mondal, a Panchayat member against his brothers on 14.07.1987. The appellants have also pleaded that citations were not served on the appellants in the probate proceeding, though the appellants have interest in the estate of the deceased Rabindra Nath Maite as his legal heirs. 3. The appellants have also pleaded that citations were not served on the appellants in the probate proceeding, though the appellants have interest in the estate of the deceased Rabindra Nath Maite as his legal heirs. 3. The respondent, Shridam Maite contested proceeding for revocation of grant of probate by filing written objection wherein he has specifically denied that the will executed by Rabindra Nath Maite in favour of his nephews is fake and fabricated. According to the respondent, Rabindra Nath Maite voluntarily executed the will on 08.01.1990 in favour of his nephews, Samir Maite and Somnath Maite with knowledge and consent of the appellants. The respondent has also specifically pleaded that the citations were not only served on the appellants, but also published in the Bengali Newspaper, Aajkal on 24.12.1995. 4. Having considered the evidence adduced by the parties the trial court refused to revoke the grant of probate of the will of Rabindra Nath Maite by holding that the citations were served on the appellant before granting probate in favour of the respondent Shridam Maite. 5. Learned Counsel appearing for the appellants contends that the citations were not served on the appellant before granting probate of the will in favour of the respondent, Shridam Maite. Learned counsel has pointed out from the materials on record that the appellant Mithu Biswas, the daughter of the testator has denied her signature on the notice alleged to have been served on the appellant in connection with the probate proceeding. Learned Counsel has pointed out suspicious circumstances like existence of strained relationship between the testator Rabindra Nath Maite and his brothers including Shridam Maite who happens to be the executor of the will. Learned Counsel has vehemently urged this Court to consider that both the attesting witnesses of the will are not only close relations of the respondent Shridam Maite, but also they belonged to the camp of the respondent Shridam Maite. It is also pointed out that the scribe of the will, Samser Mondal who is a clerk of the advocate, used to look after the litigation of the respondent Shridam Maite. It is also pointed out that the scribe of the will, Samser Mondal who is a clerk of the advocate, used to look after the litigation of the respondent Shridam Maite. According to the Learned Counsel for the appellants, the grant of probate of the will is obtained by the respondent Shridam Maite in a clandestine manner without disclosing the fact of pendency of the probate proceeding in the partition suit instituted by him against his co-sharers, though the property described in the will was the subject matter of the said partition suit No.172 of 1996. Learned Counsel for the appellants has relied on the decisions reported in AIR 2007 Cal 21 and (2008) 4 SCC 300 in support of his contention. 6. Learned Counsel for the respondent submits that the citations were duly served personally on the appellants by the bailiff of the Court and the citations were also published in the Bengali newspaper before grant of probate by the Court. Learned Counsel has also submitted that the appellant Mithu Biswas identified the signature of her father, Rabindra Nath Maite on the will during her cross-examination before the Trail Court and as such the will cannot be branded as fake or fabricated document. 7. Section 263 of the Indian Succession Act, 1925 lays down that the grant of probate or letters of administration may be revoked or annulled for just cause. It is laid down in the Explanation to the said Section 263 that just cause shall be deemed 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 (d) the grant has become useless and inoperative through circumstances; or (e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect. 8. 8. In the instant case the appellants have specifically pleaded in Paragraph 7 of the application before the Trial Court that no notice from the Court was served upon the appellants in respect of the probate proceeding and no notice was received by the appellants. The respondent Shridam Maite has stated in evidence that the notice of probate proceeding was served on the appellants in his presence, though his name does not appear as witness in the report of the process server who alleged to have served the notice of the appellants. The appellant Mithu Biswas has specifically denied her signature on the notice alleged to have been served on the appellants in connection with the probate proceeding. As the appellant Mithu Biswas has denied her signature on oath on the notice of the probate proceeding, the onus is shifted on the respondent to prove that that notice was duly served on the appellants by the Court bailiff. The respondent could have discharged this onus by examining the bailiff as witness who is alleged to have served the notice of the probate proceeding on the appellants. In the absence of the examination of the bailiff as witness by the respondent, we are constrained to hold that the respondent has failed to establish that the citations of the probate proceeding were served on the appellants before grant of probate. The non-service of citations upon the appellants who have interest in the estate of the deceased Rabindra Nath Maite as his legal heirs is the just cause for revocation of grant of probate. 9. It appears from the materials on record that the appellants being the wife and daughter of the deceased Rabindra Nath Maite have been living in the house of Rabindra Nath Maite. It also appears from the evidence on record that the deceased Rabindra Nath Maite submitted an application before the member of Gram Panchayat on 14.07.1987 alleging mental torture on him by his three brothers including the respondent Shridam Maite. There is nothing on record to indicate that the strained relationship between the deceased Rabindra Nath Maite and his brother the respondent Shridam Maite subsided at the time of execution of the will on 08.01.1990. The respondent Shridam Maite has stated in evidence that Rabindra Nate Maite executed the will in presence of his wife and daughter. There is nothing on record to indicate that the strained relationship between the deceased Rabindra Nath Maite and his brother the respondent Shridam Maite subsided at the time of execution of the will on 08.01.1990. The respondent Shridam Maite has stated in evidence that Rabindra Nate Maite executed the will in presence of his wife and daughter. No explanation is forthcoming as to why the signature of the appellants being the wife and daughter of Rabindra Nath Maite were not obtained on the said will as attesting witness when they were present at the time of execution of the will. The scribe and the attesting witnesses of the will belonged to the camp of the respondent Shridam Maite in as much as the scribe is the law clerk who looks after the litigation on behalf of Shridam Maite and one attesting witness is his brother-in-law and the other attesting witness is the husband of his sister-in-law. However, these suspicious circumstances may not come within the ambit of just cause for revocation of grant of probate. 10. The decisions cited by Learned Counsel for the appellants are not found to be relevant for the purpose of determining the issues involved in this case. In “Ashok Kothari V. Dipti Bavishi” reported in AIR 2007 Cal 21 the Division Bench of our High Court affirmed the order of revocation of grant of probate by holding that the citation issued by the Court was not delivered upon the petitioner through postal communication. In “Krishna Kumar Birla V. Rajendra Singh Lodha and Ors.” reported in (2008) 4 SCC 300 the Supreme Court decided what is a “caveatable interest” within the meaning of the Indian Succession Act, 1925. However, since the citations of the probate proceeding was not served upon the appellants who have interest in the estate of the deceased as legal heirs, the grant of probate is liable to be revoked. 11. In view of our above findings the judgment and order passed by Learned Additional District Judge, 2nd Court, Barasat, North 24-Parganas on 31st August, 2010 in Misc. Case No.159 of 1998 is set aside. The appeal is allowed but without any cost. 12. The probate proceeding being Misc. 11. In view of our above findings the judgment and order passed by Learned Additional District Judge, 2nd Court, Barasat, North 24-Parganas on 31st August, 2010 in Misc. Case No.159 of 1998 is set aside. The appeal is allowed but without any cost. 12. The probate proceeding being Misc. Case No.53 of 1995 will revive before the Court of Learned District Judge, Barasat, North 24-Parganas and the respondent Shridam Maite is at liberty to pray for issue of citation upon the appellants to prove the will of the deceased Rabindra Nath Maite in accordance with the law in presence of the appellants without filing fresh application for grant of probate. Let a copy of this judgment and order be sent down to the Learned Court below along with lower court records for favour of information.