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2023 DIGILAW 976 (CAL)

In The Goods Of : Ganesh Prasad Bose (Dec. ) v. .

2023-06-21

KRISHNA RAO

body2023
JUDGMENT : K rishna Rao, J. 1. The applicant, Ranadhir Bose had preferred the present application praying for revocation of probate granted in terms of the Will dated 6th February, 2013 of the deceased Ganesh Prasad Bose. 2. Mr. Jishnu Chowdhury, Learned Senior Advocate with Mr. Aritra Basu, learned Advocate representing the applicant submits that Prabodh Chandra Bose and Bivabati Bose had three sons namely Sushil Kumar Bose, Ganesh Prasad Bose and Jagannath Bose, now all are deceased. The applicant is the son of Sushil Kumar Bose. The deceased Ganesh Prasad Bose had a distant cousin, namely Sefalika Dey, who had three sons and three daughters out of which the respondents are the two sons. 3. In the month of April, 2016, the applicant received a telephone call from the State Bank of India and accordingly the applicant visited the bank wherein it was informed to the applicant that the deceased had shown the applicant as heir of the deceased. From the documents of the bank, the applicant also came to know that the deceased had executed a Will bequeathing his property to the State Bank of India subject to the mortgage being the landlord. In the said Will, it was also made clear that if mortgage would be cleared, State Bank of India would not receive the property. The applicant had informed the bank that the applicant would pay back the loan and redeem the mortgage within a reasonable time and State Bank of India had agreed for the same. The applicant had received a notice under Section 13(2) of the SARFAESI Act, and accordingly the applicant had sent the reply to the said notice and subsequently when the applicant approached the bank for settlement, the applicant came to know that the dues has already been paid. 4. Mr. Chowdhury with Mr. Basu submit that on enquiry, the applicant came to know that this Court has granted probate to the respondents. Mr. Basu submits that the respondents have obtained probate by fraud as the respondents have not disclosed the name of the applicant as heir of the deceased in the probate application and no citations were also issued. 5. Mr. Chowdhury with Mr. Mr. Basu submits that the respondents have obtained probate by fraud as the respondents have not disclosed the name of the applicant as heir of the deceased in the probate application and no citations were also issued. 5. Mr. Chowdhury with Mr. Basu submit that the applicant is the Class II legal heir of the deceased and the respondents had the knowledge about the relationship of the applicant with the deceased but the respondents by suppressing the material fact have obtained probate as the applicant could not get an opportunity to lodge caveat. 6. Mr. Chowdhury with Mr. Basu in support of his case has relied upon the following decisions: a. (2008)10 SCC 489 (G. Gopal –vs- C. Baskar and Others). b. (2008)1 SCC 267 (Basanti Devi -vs- Ravi Prakash Ram Prasad Jaiswal). c. 2015 SCC Online Cal 590 (Smt. Kalyani Maite and Anr. –vs- Shri Shridam Maite). 7. Mr. Anirban Ray, Learned Senior Advocate representing the respondents submits that the applicant does not have any caveatable interest and as such the applicant cannot claim for revocation of the probate granted by this Court in terms of the Will dated 6th February, 2013. 8. Mr. Ray submits that the respondents are the sons of the sister of the deceased and during the lifetime, the deceased had executed a Will by appointing the respondents as executors of his last Will and Testament dated 6th February, 2013. 9. Mr. Ray submits that the applicant relied upon the documents of the bank and from the said documents, it is evident that both the respondents were described as nephew of the deceased. 10. Mr. Ray submits that the respondents have proved the Will before this Court wherein the attesting witness of the Will namely Biswarup Samanta had filed his affidavit stating that the deceased had executed the Will in his presence as well as in the presence of another attesting witness namely Arup Kumar Mukherjee while possessing sound mind, good memory and full testamentary capacity. 11. Mr. Ray submits that the applicant was aware of the Will and the grant of probate and has waited till the payment is made by the respondents to the State Bank of India to the extent of Rs.13,50,000/-which was due in the name of the deceased. 12. Mr. 11. Mr. Ray submits that the applicant was aware of the Will and the grant of probate and has waited till the payment is made by the respondents to the State Bank of India to the extent of Rs.13,50,000/-which was due in the name of the deceased. 12. Mr. Ray submits that in the genealogical table, the applicant has suppressed the fact about the details of the mother of the respondents as the mother of the respondent was the sister of the deceased and the respondents are the sons of the sister of the deceased. 13. Mr. Ray submits that the respondents have duly published the citation of the proceeding before grant of probate by this Court. Mr. Ray submits that the application filed by the applicant is misconceived and is liable to be rejected. 14. Mr. Ray relied upon the following decisions: a. 1990 SCC OnLine Bom 117 (Asber Reuben Samson and Others -vs- Eillah Solomon and Others). b. AIR 1955 SC 566 (Anil Behari Ghosh -vs- Smt. Latika Bala Dassi and Others. 15. Heard the learned Counsel for the respective parties, perused the materials on record and the judgments relied by the parties. 16. Section 263 of the Indian Succession Act, 1925 reads as follows: “263. Revocation or annulment for just cause:- the grant of probate or letters of admission 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 if all suggestion, or by concealing from the court something material to the case; or (c) the grant was obtained by means of 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 and inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under the Chapter and inventory or account which is untrue in material respect.” 17. The respondents have filed an application for grant of probate of the last Will and testament of the deceased Ganesh Chandra Bose, dated 6th February, 2013. The respondents have filed an application for grant of probate of the last Will and testament of the deceased Ganesh Chandra Bose, dated 6th February, 2013. In the said application, the respondents have made the following averments with regard to the relatives of the deceased: “5. The deceased has no issues and his wife and mother predeceased him and at the time of his death the deceased left the following persons and relatives who have inherited to the estate of the deceased and he died intestate under the provisions of Hindu Succession Act, 1956 namely: (a) Amarnath Dey, son of late Sachindra Nath Dey, residing at 193/1, Kasba Road, Police Staion Kasba, Kolkata-700042 (son of the deceased’s predeceased sister Sefalika Dey). (b) Abhinaba Dey, son of late Sachindra Nath Dey, residing at 193/1, Kasba Road, Police Staion Kasba, Kolkata-700042 (son of the deceased’s predeceased sister Sefalika Dey). Apart from the above mentioned persons, the deceased left no other heirs, heiresses and legal representative under the provision of Hindu Succession Act, 1956 and they have no objection as to grant of probate of the said last Will and Testament of the deceased above named in favour of your petitioner as Executor named therein and they put their respective consent separately by affirming affidavits and the same are annexed hereto and collectively marked with letter “C”.” 18. The letter “C” as mentioned in paragraph 5 of the application (supra), it is found that Amarnath Dey and Abhinaba Dey have filed their affidavits stating that they have no objection and put their consent as to grant of probate in respect of the last Will and Testament of deceased dated 6th February, 2013 in favour of the executor Abhinava Dey. 19. In prayer (a) of the application being PLA No. 233 of 2016, the petitioner has prayed for issuance of General Citation by affixing a copy thereof on the Notice Board of the Collectorate at Calcutta and gist of the General Citation be published in the newspapers in English edition of The Statesman and Bengali edition of Bartaman. 20. The respondent had filed supplementary affidavit by enclosing the copy of English newspaper “The Statesman” and Bangla News Paper “Bartaman” dated 3rd February, 2017 wherein General Citation of the case was published. 20. The respondent had filed supplementary affidavit by enclosing the copy of English newspaper “The Statesman” and Bangla News Paper “Bartaman” dated 3rd February, 2017 wherein General Citation of the case was published. The Counsel for the petitioner has not filed any reply to the supplementary affidavit and has accepted the publication of General Citation and thus the submissions made by the Counsel for the petitioner that no citation was published is not acceptable, but the applicant has specifically pleaded that no Citation was issued upon the applicant in respect of the probate proceeding and no notice was received by the applicant. The respondent has not produce any evidence to prove that any General Citation was issued except the publication. The respondent has neither examined the bailiff as witness to establish that the general citation was issued nor any certificate is produced to prove about issuance of General Citation. 21. In the case of Smt. Kalyani Maite and Anr. (supra), the Division Bench of this Court held that since the Citation of the probate proceeding was not served upon the applicants who has interest in the estate of the deceased as legal heirs, the grant of probate is liable to be revoked. 22. As regard the submission made by the Counsel for the respondent that the applicant is not having any caveatable interest in the estate of the deceased, this Court finds that the applicant is also the son of Sushil Kumar Bose who is the brother of the deceased Ganesh Prasad Bose. The respondent is the son of the deceased’s predeceased sister and the applicant is the son of the brother of the deceased and thus the submissions made for the respondent that the applicant is not having caveatable interest is not acceptable. 23. The Hon’ble Supreme Court in the case of G. Gopal (supra), held that it is settled that if a person who has even a slight interest in the estate of the deceased testator is entitled to file caveat and contest the grant of probate of the Will of the testator. 24. 23. The Hon’ble Supreme Court in the case of G. Gopal (supra), held that it is settled that if a person who has even a slight interest in the estate of the deceased testator is entitled to file caveat and contest the grant of probate of the Will of the testator. 24. In the illustrations of Section 263 of the Indian Succession Act, 1925, Clause (ii) reads as follows: “The grant was made without citing parties who ought to have been cited.” In the present case, the applicant being the son of one of the brother of the deceased and the applicant is having caveatable interest but the respondent by filing the application for grant of probate have made a false averments and had not cited the applicant as party to the said application. 25. The judgments referred by Mr. Ray are distinguishable from the facts and circumstances of the present case. 26. In the present case, the respondent has not cited the applicant as party and no General Citation was served upon the applicant with regard to the probate proceeding and thus the probate granted by this court with respect of the Will dated 6th February, 2013 is hereby revoked. 27. G.A. No. 1 of 2018 (Old No. G.A. No. 2038 of 2018) is thus allowed. Later : Counsel for the respondent prays for stay of the judgment. Counsel for the petitioner raises objection. Considering the submissions made by the Counsel for the respondent, prayer is refused.