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2020 DIGILAW 534 (CAL)

Uday Chand Dutta v. Tapas Dutta @ Shriman Tapas Kunar Dutta

2020-06-25

ASHIS KUMAR CHAKRABORTY

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JUDGMENT Ashis Kumar Chakraborty, J. - The matter has been placed by the Testamentary Department before this Court. The point of law which has fallen for consideration before this Court is whether revocation of the grant of probate of a Will to the executor, at the instance of one of the heirs and legal representatives of a deceased testator requires the executor to prove the Will in solemn form after adducing evidence. 2. The facts relevant for deciding the above point of law are that one Tapas Dutta, alias, Shri Tapas Kumar Dutta (hereinafter referred to as "the executor") filed the application, PLA 234 of 2012, before this Court, for grant of probate of the Will and Testament dated February 02, 1996 allegedly executed by his father, Uday Chand Dutta (Deceased). In the probate application it was alleged that the testator, Uday Chand Dutta died on August 31, 2010 leaving behind his wife Menoka Dutta @ Smt. Menoka Rani Dutta and married daughter Soma Rudra (hereinafter referred to as "Menoka" and "Soma", respectively) and the executor himself as his only heirs and legal representatives. In the probate proceeding, two affidavits were filed which were allegedly affirmed by Menoka and Soma, respectively recording their consent to the grant of probate of the said Will of Uday Chand (Deceased) as prayed for by the applicant executor. Accordingly, the probate proceeding was treated as Non-Contentious Cause and on April 30, 2014 a learned Single Judge of this Court granted probate of the said Will of Uday Chand since deceased (hereinafter referred to as "the deceased testator") and the same was issued by the Registry on June 20, 2014. Thereafter, the executor filed the inventory and accounts in the department. However, in July, 2018 Soma, married daughter of the deceased testator filed an application, GA 1960 of 2018 praying for revocation of the said grant of probate of the said Will which was dismissed by a Single Judge of this Court on November 13, 2018. Soma did not challenge the said order before the Division Bench. Even, Menoka filed application, GA 2245 of 2018 seeking revocation of the grant of probate of the said Will of the deceased testator. Soma did not challenge the said order before the Division Bench. Even, Menoka filed application, GA 2245 of 2018 seeking revocation of the grant of probate of the said Will of the deceased testator. By order dated November 13, 2018 a learned Single Judge of this Court held the consent affidavit affirmed by Menoka and filed in the probate proceeding was obtained by fraud and misrepresentation and that Menoka had established not to have consented to the grant of probate of the said Will of her husband. Accordingly, by the said order dated November 13, 2018 the grant of probate of the said Will of the deceased testator was revoked and Menoka was allowed to file the caveat in the department within a week. She was also directed to file the affidavit in support of her caveat. The executor did not challenge the order dated November 13, 2018 before the Division Bench. Menoka filed the caveat as well as the affidavit in support of the caveat, in the department, within the stipulated time. Thus, as per Rule 28 of Chapter XXXV of the Original Side rules of this Court, the probate proceeding PLA 234 of 2012 became a Contentious Cause. However, as per the report of the Testamentary Department, except causing a new advocate to enter appearance on his behalf, the executor has not taken any further step to prove the alleged Will of the deceased testator. In these facts, the Testamentary Department placed the probate proceeding before this Court seeking direction, accordingly, the matter was placed in the cause list of this Court. 3. Mr. Sayantan Basu, learned Advocate appearing for the executor submitted that after filing of the caveat and the affidavit-insupport of the caveat Menoka has died and since the application GA 1968 of 2018 filed by Soma, the married daughter of the deceased testator, was dismissed the probate proceeding cannot be treated as Contentious Cause any further. According to him, with the death of Menoka the order dated November 13, 2018 has lost all its significance. It was further contended that in the present case, with the death of Menoka the executor is entitled to obtain probate of the said Will of the deceased testator as a Non-Contentious Cause. 4. On the other hand, Mrs. According to him, with the death of Menoka the order dated November 13, 2018 has lost all its significance. It was further contended that in the present case, with the death of Menoka the executor is entitled to obtain probate of the said Will of the deceased testator as a Non-Contentious Cause. 4. On the other hand, Mrs. Malabika RoyDey, learned Advocate representing Soma, the married daughter of the deceased testator raised serious objection to the above contentions of the executor. She did not dispute the death Menoka at whose instance the probate granted by this Court of the Will of the deceased testator was revoked on November 13, 2018. She, however, submitted that though the application of revocation of probate filed by Soma stood rejected by the order dated November 13, 2018, but in view of the subsequent order dated November 13, 2018 passed in GA No. 2245 of 2018 revoking the probate granted by this Court of the said Will of the deceased testator and with filing of the caveat as well as the affidavit in support of the caveat by Menoka, the probate proceeding has become a Contentious Cause and, as such, Soma, is entitled to contest the probate proceeding. It was emphasised that once the probate of the Will of the deceased testator has been revoked by this Court and the probate proceeding has become a Contentious Cause; the executor can obtain probate of the said Will of the deceased testator only after proving due execution of the said will. In support of such contention, Mrs. RoyDey relied on the Division Bench decision of the Patna High court in the case of Matukdhari Singh -vs- Mst. Radha Kuer & others, (1964) AIR Patna 567 , as well as the Division Bench decision of this Court in the case of Shri Arun Chandra Dey - Vs- Shri Debasish Ghosh, (2015) 2 CalLJ 506 (cal) and the Single Bench decision of this Court in the case of Arindam Ghosh - Vs- Chittaranjan Ghosh & Others, (2002) AIR Calcutta 140 . 5. 5. In the present case, on November 13, 2018 the probate granted by this Court of the said Will of the deceased testator has been revoked under Section 263 of the Indian Succession Act,1925 (hereinafter referred to as "the Act of 1925"), for a just cause, that is, on the ground that the consent affidavit of Menoka was vitiated by fraud and misrepresentation, resulting in no citation being issued to the latter, one of the heirs and legal representatives of the deceased testator. The executor did not challenge the said order dated November 13, 2018 before the Division Bench and the said order has attained finality. It is settled law that once the probate of a Will is revoked by the Court, under Section 263 of the Act of 1925, on any ground other than the ground that the Will being not genuine or valid, the entire probate proceeding does not stand revoked and the propounder gets an opportunity to prove the Will in solemn form. Thus, in the present case, with revocation of the probate granted of the said Will of the deceased testator, since deceased the executor has to prove the said Will in solemn by adducing evidence before this Court. If any authority is looked for this view, the same can be found in the Division Bench decisions of this Court in the cases of Southern Bank Ltd. -Vs- Kesardeo Ganeriwalla, (1958) AIR Calcutta 377 and Shri Arun Chandra Dey (supra), as well as the Single Bench decision in the case of Arindam Ghosh (supra). 6. It appears that in spite of direction passed by this court on September 6, 2019 the executor has not returned the revoked probate to this court. Accordingly, the executor is directed to forthwith return the revoked probate to the Testamentary Department of this court failing which the department shall place the matter before the appropriate Bench for appropriate direction.