Research › Search › Judgment

Calcutta High Court · body

2023 DIGILAW 476 (CAL)

In The Goods Of : Priyaranjan Jana, Deceased v. .

2023-04-05

KRISHNA RAO

body2023
JUDGMENT : Krishna Rao, J. 1. The petitioner has filed the instant application for amendment in the revocation application being GA No. 4 of 2021. 2. The petitioner has filed an application being GA 4 of 2021 praying for revocation of the probate granted by this Court dated 4th April, 2017 as per the Will dated 28th November, 2003. In the application being GA 4 of 2021, the petitioner has described the grounds in paragraph 14 of the said application. 3. Mr. Sanjib Dawn, learned Advocate representing the petitioner submits that on receipt of the copy of the application of G.A. 4 of 2021, the respondent herein had filed affidavit-in-opposition and in the affidavit-in-opposition, the respondent has disclosed so many facts which were unknown to the petitioner and accordingly the petitioner intended to bring some further facts in the said application by way of an amendment. 4. Mr. Dawn submits that the amendment as sought for by the petitioner is very much necessary for adjudication of the application filed by the petitioner for revocation of probate granted by this Court in favour of the respondent. The petitioner submits that the petitioner intends to amend the application being GA 4 of 2021 by elaborating the grounds for revocation of the probate granted by this Court in favour of the respondent. 5. Mr. Dawn submits that the amendment as sought for by the petitioner is formal in nature and will not change the nature and character of the application being GA 4 of 2021. He further submits that if, the amendment as sought for is not allowed, the petitioner will be badly prejudiced. 6. Mr. Utpal Bose, learned Senior Advocate, representing the respondent submits that prior to filing of an application being GA 4 of 2021, the petitioner had filed prior application being GA No. 1842 of 2019 for revocation of the grant of probate but subsequently on 19th February, 2020, the said application was withdrawn. Mr Bose further submits that prior to filing of the instant application, the petitioner had filed prior application being GA No. 6 of 2022 for amendment in GA No. 4 of 2021 but subsequently the petitioner has withdrawn the said application and had filed the present application. 7. Mr. Mr Bose further submits that prior to filing of the instant application, the petitioner had filed prior application being GA No. 6 of 2022 for amendment in GA No. 4 of 2021 but subsequently the petitioner has withdrawn the said application and had filed the present application. 7. Mr. Bose submits that from the petition, it is crystal-clear that the petitioner is filing one or the other application only to harass the respondent who has already obtained probate in accordance with law. He submits that the petitioner is well aware that there is no irregularity in the grant of probate of the Will dated 28th November, 2003 but only to entangle the respondent in the litigations, the petitioner has filed the instant application. 8. Mr. Bose submits that there is no cogent ground for challenging the grant of probate to the last Will and Testament dated 28th November, 2003. He submits that this Court has granted probate after being satisfied about the execution of the concern Will and the said Will has been duly proved by the attesting witness. 9. Mr. Bose submits that the petitioner while filing an application being GA No. 4 of 2021 in paragraph 14 has described all the grounds including the ground of fraud. Mr. Bose submits that as per the case made out by the petitioner, the petitioner came to know about so many facts from the affidavit-in-opposition filed by the respondent for which the petitioner has filed the instant application but instead of filing the said application, the petitioner ought to have dealt with the said fact by way of reply but instead of doing so, the petitioner has filed the present application. 10. Mr. Bose submits that the amendment as sought for by the petitioner if allowed, the same will change the nature and character of the application filed by the petitioner for revocation of grant of probate. He further submits that if the application filed by the petitioner is allowed, the respondent will suffer irreparable loss and injury. 11. Heard the learned counsel for the respective parties and perused the materials on record. The petitioner has described the grounds for revocation in the application being GA No. 4 of 2021 at paragraph 14 of the said application which reads as follows : “14. 11. Heard the learned counsel for the respective parties and perused the materials on record. The petitioner has described the grounds for revocation in the application being GA No. 4 of 2021 at paragraph 14 of the said application which reads as follows : “14. Your petitioners state that after looking and examining the photocopy of the said purported will it appears that the father’s name of the late Priyaranjan Jana has been wrongly described as “Prasanta Kumar Jana” which is totally incorrect. The actual name of the father of the deceased Priyaranjan Jana is “Prasanna Kumar Jana” and not “Prasanta Kumar Jana”. Secondly, the property which has been bequeathed, is a Government leasehold property which the deceased obtained by virtue of a registered lease deed. In the said lease deed it is specially stated in clause no. (e) shall not be transferrable without previous permission of the Government in writing, thirdly, no citation and/or notice has been served upon the petitioners. Fourthly, the two attesting witnesses who had purportedly signed on the said purported will are not known to the family members of the deceased abovenamed. Accordingly, the witnesses are fictitious, the alleged will dated 28th November, 2003 should not have been proved by them, Fifthly, the signature of the deceased as it appears in the copy of the said purported will, is not the actual signature of the deceased. The deceased used to put his signature in a different manner which will be evident from a document which is annexed hereto and marked with letter “I” collectively. In the purported will there is no whisper why the wife, son and daughter of the eth deceased are disinherited from the property which marks the will a great suspicion.” 12. The proposed amendment sought for by the petitioner are described at paragraph 21A to 21H. On perusal of the proposed amendment, this Court finds that the petitioner has taken the ground of non-service of citation and concealment of facts that during the lifetime the deceased had transferred the plot of land at a consideration in favour of the propounder, fraud, forgery and nonfiling of inventory and accounts. 13. As per the provision of Section 263 of the Succession Act, 1925, the grant of probate or Letters of Administration may be revoked or annulled for just cause, which reads as follows : “263. Revocation or annulment for just cause. 13. As per the provision of Section 263 of the Succession Act, 1925, the grant of probate or Letters of Administration may be revoked or annulled for just cause, which reads as follows : “263. Revocation or annulment for just cause. —The grant of probate or letters of administration may be revoked or annulled for just cause. Explanation. —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.” 14. The object of legislature empowering the Court to allow amendment of the pleading is for the purpose of determining the real question in controversy between the parties which are to be felt necessary by the Court. This will appear from the language of Order VI, Rule 17 of the Civil Procedure Code. 15. Order 6 rule 17of CPC reads as follows : “VI. 17. Amendment of pleadings.-The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” 16. Such question obviously must have nexus and/or relation with the controversy arose at the time of the application. Such question obviously must have nexus and/or relation with the controversy arose at the time of the application. Therefore, in order to decide this question, to my mind, the duty of the Court is to examine what is controversy between the parties highlighted in the original pleading. Question in relation to different controversy between the same parties cannot be brought into one litigation that will result in jumbling of the controversies which may lead to confusion in the Court. 17. The petitioner while filing an application being GA 4 of 2021 has described the grounds in paragraph 14 of the said application but now the petitioner intends to elaborate the grounds by way of an amendment. On perusal of proposed amendment, this Court finds that the same will not change the nature and character of the application and is connected with application being GA 4 of 2021. This Court is also of the view that if the said amendment is allowed, no prejudice will be caused to the respondent. 18. In view of the above, prayers (a) and (b) of the Masters Summons are allowed. 19. G.A. No. 7 of 2023 is thus disposed of.