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Sm. Sima Rani Mohanti Vs. Puspa Rani Pal - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 218 of 1974
Judge
Reported inAIR1978Cal140
ActsSuccession Act, 1925 - Section 263
AppellantSm. Sima Rani Mohanti
RespondentPuspa Rani Pal
Appellant AdvocateSatyendra Prosad Sen, Adv.
Respondent AdvocateRadhakanta Bhattacharya and ;Madan Mohan Ghosh, Advs.
Excerpt:
- .....maintainable as the appellant had no locus standi to pray for the revocation of the will.5. the learned additional district judge took up the point of maintainability of the application as a preliminary issue and came to the finding that the appellant had no locus standi to file the application for probate inasmuch as she had no interest in the said premises. in that view of the matter, he dismissed the application for revocation. hence this appeal.6. it is now well-settled that any interest, however slight and even the bare possibility of an interest, is sufficient to entitle a person to make an application for revocation. the learned additional district judge has referred to the said principle in his order under appeal. buthe took the view that the possibility of filing a character.....
Judgment:

M.M. Dutt, J.

1. This appeal is directed against Order No. 8 dated Nov. 3, 1973 of the learned Additional District Judge, Second Court, Alipore dismissing the appellant's application for revocation of the probate of the Will, alleged to have been executed by one Binapani Ghose.

2. It is the case of the appellant Sima Rani Mohanti that the said Binapani Ghose by a Will dated Sept. 19, 1966 bequeathed her property, which is a half share in premises No. 98A/H/10, Suren Sarkar Road, Beliaghata, Calcutta to the appellant. She filed an application for the grant of probate of the said Will but she could not proceed with the same as she came to know that the respondent No. 1 Basanta Kumar Sen, who was the owner of the other half share of the said premises, had propounded a Will, alleged to have been executed by the said Binapani Ghose on Sept. 18, 1966 and had obtained probate of the same. Thereupon the appellant filed the application for revocation of the grant of probate to the said Will which was propounded by the respondent No. 1.

3. In her application, the appellant challenged the genuineness of the said Will in respect of which the probate was granted. Indeed, it is her case that the probate Will is a forged one. She further complains that a citation should have been Issued to her by the said Basanti Kumar Sen.

4. The present respondent No. 2, who is the purchaser of the said premises from Basanta Kumar Sen, opposed the application for revocation. It was contended on her behalf that the application was not maintainable as the appellant had no locus standi to pray for the revocation of the Will.

5. The learned Additional District Judge took up the point of maintainability of the application as a preliminary issue and came to the finding that the appellant had no locus standi to file the application for probate inasmuch as she had no interest in the said premises. In that view of the matter, he dismissed the application for revocation. Hence this appeal.

6. It is now well-settled that any interest, however slight and even the bare possibility of an interest, is sufficient to entitle a person to make an application for revocation. The learned Additional District Judge has referred to the said principle in his order under appeal. Buthe took the view that the possibility of filing a character (citation ?) which would give the party concerned an interest was not sufficient. We are unable to appreciate the argument of the learned Additional District Judge. In case the application for revocation is granted and the Will which has been set up by the appellant is admitted to probate, the appellant would get the said premises absolutely, it is difficult for us to hold that the appellant has no locus standi to make an application for revocation. If the contention of the respondent is accepted, in that case, after a forged Will is probated, the executors or the legatees of a genuine Will by the same testator and in respect of the same property, who do not derive any interest in the property save and except a future interest in case the Will is probate, will be quite helpless and they would have to accept the probate of a forged Will. In our view, Section 263 of the Succession Act does not lay down the law, as contended on behalf of the respondent and as held by the learned Judge. We hold that the appellant has locus standi to maintain an application for revocation. The question whether revocation will be granted or not is a different matter, for it would depend on the appellant's proving the Will, which has been probated, to be not genuine. We understand that the appellant also filed an application for the grant of probate of the Will dated September 19, 1966 and that is still pending before the District Delegate. As the matter is contentious, the District Delegate has to return the same to the person who filed the application for presentation before the learned District Judge. We are of the opinion that both the application for the grant of probate and the application for revocation should be heard together after giving the respondent an opportunity to contest the same. The appellant will take back the application for the grant of probate from the District Delegate and present the same to the learned Additional District Judge within six weeks from date after putting in the requisite court-fees. Thereafter the learned Additional District Judge will dispose of both the applications for revocation and the application for grant of probate in accordance with law. It may be made clear that if the appellant does not take steps for taking back the application for probate from the learned District Delegate and file the same within the period mentioned above, this appeal will stand

7. The appeal is disposed of as above.

8. There will be no order as to costs.

Sharma, J.

9. I agree.


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