R.N. Misra, C.J.
1. Both these appeals are by the defendant No. 1 in two separate proceedings for revocation of probate of a Will dated 20th of June, 1964, and which have been disposed of by a common order by the learned District Judge of Cuttack on 21st of June, 1975. The relationship of the parties is available from the genealogy below :
-Married to C. P. Sengupta.
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Murtyunjoy Sanjay Bharat Tapati Shyamali Suvra
(Son) (Son) (Son) (Daughter) (Daughter) (Daughter)
Bani one of the daughters of Surama, was dead during the lifetime of Surama. On 20th of June, 1964, Surama executed a registered Will in favour of Bina. Nine days thereafter on the 29th Surama died of paralysis. Bina applied for probate of the Will on 3rd of September, 1966 to the District Judge of Cuttack impleading therein, the six children of Bani as opposite parties. Mrutyunjoy, the eldest son of Bani who was opposite party No. 1, did not enter contest but the others Sled an objection. They, however, ultimately did not contest in the proceeding. On 25-11-1970, probate was granted by the learned District Judge. Two applications were filed for revocation of the grant of probate -- one by Mrutyunjoy which was numbered as O. S. No. 14 of 1973 and the other by Tapati, Shyamali and Suvra being daughters of Bani, which was numbered ag O. S. No. 2 of 1974. Both these were heard analogously and on the basis of the evidence led by the parties, the learned District Judge by a common judgment on 21st June, 1975, decreed both the suits and revoked the order of grant of probate on 25-11-1970 and directed that the said application for grant of probate registered as O. S. No, 9 of 1967 would be proceeded with from the stage it was on 24-11-1970. First Appeal No. 103 of 1975 arises out of O. S. No. 2 of 1974 while First Appeal No. 104 of 1975 arises out of O. S No. 14 of 1973.
2. The short facts relevant for the disposal of these appeals are the following: One Shasimohan Sengupta of Cuttack was married to Surama Devi and pre-deceased his wife. They bad two daughters Bina and Baai. As already indicated, Surama left behind a registered Will dated 20th of June, 1964, and by order dated 25-11-1970, fee said Will was directed to be probated.
Mrutyunjoy in his application for revocation pleaded that at the relevant time, ha was not in India and notice of the probate proceeding was never served oa Mm. The minor sisters Tapati, Shyamali and Suvra were represented by their father C.P. Sengupta who by then was an old man and tost interest in worldly affairs. He did not take appropriate steps to defend the proceeding and even did not instruct the counsel who was appearing for the minor daughters. The Court did not appoint a guardian for the minors when Shri C. P. Sengupta neglected to lake steps. The disposal of the earlier proceeding ex patte without affording a reasonable opportunity to contest to Mrutyun joy as also to the minor sisters is thus vitiated and cannot take away their interest in the property according to the ordinary law of succession on account of the alleged Will, It was further pleaded that the testatrix had special affection for Mrutyunjoy and it becomes difficult to accept the position that in ordinary course of events, the testatrix should have omitted to benefit Mrutyunjoy under the Will if she at all intended to execute a Will. The three sisters of Mrutyunjoy who filed the other application made allegations about the default of the Court in the matter of appointment of a guardian when their father Shri C. P. Sengupta did not adequately represent their interest.
3. Bina, the legatee under the Will, contended that notice had been served on Mrutyunjoy under Order 5, Rule 20, Code of Civil Procedure, by publication of the notice in the Statesman and the Court had held such notice to be sufficient. It, therefore, was no more open to Mrutyunjoy to plead non-service of notice. On 24-11-1970 to which date the probate proceeding stood posted, Bina had brought her witnesses. An application was made for adjournment on behalf of the defendants. The Court was inclined to grant an adjournment subject to payment of costs, but when defendants' advocate declined, they were set ex parte and the suit was directed to be disposed of ex parte. C. P. Sengupta, father of the parties, had taken steps to protect the interest of the children in an appropriate way, but as he believed that the Will was genuine, perhaps the application for probate was allowed to go ex parte.
4. At the trial, only one witness was examined in support of the applications for revocation. Three documents were produced in support of the two applications while Bina remained content by producing two documents in support of her defence without leading oral evidence.
It is a fact that Mrutyunjoy had not been personally served with notice in the probate proceeding. Ext. 3 is the passport entries wherein show that from September, 1966, Mrutyunjoy was keeping out of India. This fact is also not seriously disputed. The learned District Judge has now taken the view that Mrutyunjoy's whereabouts were not known to Bina as Mrutyunjoy was her sister's son. Special citation could have been taken to him by post. If the address was not known, C. P. Sengupta could have been called upon to provide the address so that the citation could issue. Mrutyunjoy was not attempting to avoid service. Strictly speaking, provisions of Order 5, Rule 20, Code of Civil Procedure, were not applicable. Undoubtedly, Mrutyunjoy would be a person vitally interested in the probate proceeding. In the circumstances, I do not find any reason to take a different view from that of the learned District Judge in the matter. From the order granting probate, I also find that the learned District Judge who had granted the probate ex parte was not cognisant of the position that an application for probate was not like any other civil litigation and when the Court was asked to grant probate of a Will containing the wishes of a dead person, it had special obligations to consider all possible aspects for finding out whether the Will did represent the genuine and legitimate wishes of the testator. In these circumstances, I am inclined to agree with the learned District Judge that the grant of probate without affording reasonable opportunity to Mrutyunjoy is required to be set aside. First Appeal No. 104 of 1975, therefore, must be dismissed.
Admittedly, the three respondents in the other appeal were minor at the relevant time. Their father C. P. Sengupta was representing them. Mr. Das for the appellant has relied upon several authorities for the contention that once the minors were represented by their father-guardian and steps had been taken in the suit, merely because there was a default on the date of trial, it cannot be said that the minor daughters had not been properly represented. It is unnecessary to examine such a position in view of the fact that once Mrutyunjoy is objection is accepted and the application for probate is restored for disposal, no prejudice would be caused to Bina -- the applicant for probate -- if these respoadents are given an opportunity of being heard. As I have already pointed out, the Court has a special burden to discharge while disposing of an application for probate and it is proper that persons who have been cited as near relations and but for the Will would be entitled to a share in the property are given an opportunity of placing their case unless by their conduct they have forfeited such right. In the circumstances, I do not propose to interfere with the decision of the learned District Judge in the connected First Appeal No. 103 of 1975.
5. Both these appeals are accordingly dismissed. There would, however, be no order for costs.