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In the Goods of Ganapati Sarkar and Pradip K. Sarkar Vs. Umarani Bose and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 1649 of 1944
Judge
Reported inAIR1959Cal277
ActsCode of Civil Procedure (CPC) , 1908 - Section 11; ;Succession Act, 1925 - Sections 263, 283 and 284; ;Calcutta High Courts Rules - Rules 25 and 27
AppellantIn the Goods of Ganapati Sarkar and Pradip K. Sarkar
RespondentUmarani Bose and ors.
Appellant AdvocateA.N. Bose, Adv.
Respondent AdvocateR. Deb, Adv.
DispositionApplication dismissed
Cases ReferredYenkana v. Letchana
Excerpt:
- orderp.c. mallick, j.1. this is an application for revocation of a grant. this court granted probate of the will of ganapati sarkar deceased, dated 6-10-1954 to the daughters of the deceased, who are also named executors in the will. the grant was made on 25-7-1957. the ground on which this grant is sought to be revoked is that by a subsequent will dated 25-12-1954, the testator revoked the former will. under the subsequent will, the petitioner, a son of bidhu bhusan sarkar, is the sole executor, to whom practically the entire estate has been bequeathed. bidhu bhusan is a cousin of the testator. the testator had no son but 8 daughters. the testator's wife died years ago, in 1936, when the daughters were very young. the testator did not marry again. 2. surendra, bidhu bhusan and ganapati,.....
Judgment:
ORDER

P.C. Mallick, J.

1. This is an application for revocation of a grant. This Court granted probate of the Will of Ganapati Sarkar deceased, dated 6-10-1954 to the daughters of the deceased, who are also named executors in the Will. The grant was made on 25-7-1957. The ground on which this grant is sought to be revoked is that by a subsequent Will dated 25-12-1954, the testator revoked the former Will. Under the subsequent Will, the petitioner, a son of Bidhu Bhusan Sarkar, is the sole executor, to whom practically the entire estate has been bequeathed. Bidhu Bhusan is a cousin of the testator. The testator had no son but 8 daughters. The testator's wife died years ago, in 1936, when the daughters were very young. The testator did not marry again.

2. Surendra, Bidhu Bhusan and Ganapati, the testator, were 3 sons of one Ram Charan. Ram Charan had a brother, Gagan Chandra, who had no son. Gagan adopted Ganapati, and by his will bequeathed half the estate to his adopted son Ganapati, and the remaining half to his two nephews, Surendra and Bidhu Bhusan in equal share. Gagan died in 1905, and probate of the Will was granted by this Court in the same year. In 1940, Surendra, Bidhu and Ganapati entered into a family settlement, whereby Ganapati relinquished a portion of his share in the estate and agreed to divide and partition the estate equally amongst the three of them. On 6-10-1954, Ganapati executed a holograph Will, whereby he left his entire estate to his daughters, who were appointed executors. This Will was registered on 26-11-1954. On 5-1-1955 Ganapati died.

3. The case of the daughters is that Bidhu Bhusan adopted every means to prevent them from getting their patrimony, and processes of this Court have been abused. Bidhu Bhusan, first of all, took out an originating summons for the construction of the Will of Gagan, contending that Ganapati acquired only a life interest in the estate of Gagan under Gagan's Will, and the remainder was left to Bidhu and Surendra. This is O. S. Suit No. 720 of 1955. The daughters of Ganapati were thereupon compelled in their own interest to institute a suit for construction of the Will of Gagan, for partition and for other reliefs. Bidhu Bhusan tried to stay the suit, but failed. He also tried to prevent the appointment of a Receiver in that suit. He failed there as well. He put every obstacle in the way of the daughters getting any money out of the estate. In this also, he failed, and by an order of this Court the daughters were directed to be paid Rs. 4,500/-per month. A point was taken by Bidhu Bhusan to this effect, that before probate of the Will of Ganapati was granted, the daughters cannot get anything under the Will, so that, till the testamentary proceedings were pending the daughters may not get anything out of the estate. As stated before this contention was negatived by the Court.

4. The daughters' case, further, is that Bidhu Bhusan, having failed to stop payment to them, conceived the idea of contesting the Will, and with that object in view, Bidhu caused a forged document to be brought into existence, being a Will alleged to have been executed by Ganarjati subsequently, on 25-12-1954.

5. It is not necessary for me in this application to decide whether the testamentary document, above referred to, is a forged document or not. But I am bound to say that there are materials on the basis of which Mr. Deb, on behalf of the daughters, is entitled to argue that the testamentary document is not a genuine document.

6. On 9-3-1955, the daughters filed a petition for the grant of probate of the Will dated 6-10-1954. The first caveat was filed by one Sailendra Kumar Mitter on 12-8-1955. Sailendra was a sister's son of Ganapati. He had a grudge against Ganapati because his mother was deprived of the property under the Will of Gagan. This caveat was discharged on 5-12-1956. Immediately thereafter, a second caveat was entered by Probir Sarkar, a son of Bidhu Bhusan. This caveat was also discharged on 6-3-1957. It is important to note that in his affidavit in support of the caveat Probir stated that Ganapati told him that Probir was the beneficiary under the Will. Immediately after the discharge of the second caveat, a third caveat was filed by another son of Bidhu Bhusan, namely, Pradip Kumar Sarkar, on the same day. This caveat, also, was discharged on 12-9-1957. Having regard to the harassment to which the pro-pounders were subjected, P. B. Mukherji, ]. directed the Registrar to issue probate forthwith on a signed copy of the minutes, and, I am told, within a couple of hours the probate was actually issued. On 17-9-1957 the present notice was taken out by Pradip for revocation of grant on the ground that by a subsequent Will of 25-12-1954, the testator revoked the former Will dated 6-10-1957.

7. Mr. Deb, in opposing the application, contended that the grounds on which the grant is sought to be revoked were taken by Pradip to oppose the executor's application to discharge the caveat filed by him. This is indeed true. It was contended by Pradip in his affidavit in opposition to the application tor discharge of the caveat that there was a subsequent Will of the testator under which he (Pradip) was the principal beneficiary. The. result of the discharge of the caveat, in Mr. Deb's' submission, is that the petitioner is debarred from re-agitating the question over again either on principles analogous to res judicata or on the ground that the allegation does not amount to a 'just cause'. It is to be noted that P. B. Mukherji, J. discharging the caveat, did not give any reason for his decision.

8. Taking the point of res judicata first: The only question that the Court was called upon to decide in an application for discharge of caveat is whether the caveator would be allowed to contest the probate proceedings. The caveator would be debarred from contesting the probate proceedings if he did not file his affidavit in support of the caveat within 8 days, as provided in Rule 25 Chapter 36 of the Rules of this Court, or if he had no interest in the estate of the deceased. Even if the caveator is out of time in filing his affidavit in support of caveat, the court has, under Rule 27, a discretion in the matter and can allow the caveator to contest the Will. Mr. A. N. Bose, appearing for the present applicant, contended that the Court will exercise its discretion in extending time to file affidavit in support of caveat when and only when there was an acceptable reason given for not filing the affidavit in support of the caveat in time. It no such reason is given by the caveator, the caveat must be discharged. I am unable to agree that the Court's discretion is limited as is suggested by Mr. Bose. In my view, even if the caveator is unable to give anv reason for the delay, the Court can, nevertheless, allow the caveator to contest the Will by filing an affidavit in support of the caveat out of time and condone the delay. In an application for discharge, the first and the most important question that a caveator is required to prove is that he has an interest in the estate of the deceased. (See Section 283 of the Indian Succession Act. In re Bhobosoonduri, ILR 6 Cal 460 at p. 464; In re Nilmoney, ILR 6 Cal 429, at p. 432; Kamona Soon-dury Dassee v. Hurro Lall Shah, TLR 8 Cal 570, at p. 575). If the caveator fails to give prima facie evidence of interest in the estate of the deceased, his caveat must be discharged in law. In the instant case, the caveator alleged that there was a subsequent Will executed by the testator under which he had a substantial interest in the estate. The circumstances in connection with the Will being rather suspicious, P.B. Mukherji, J. wanted to be satisfied that there exists a testamentary instrument, and that such an instrument was ex facie regular, and he called upon the caveator to produce the testamentary instrument relied on. The caveator being unable to produce the same, his Lordship felt that the caveator should not be allowed to contest the proceedings, and he discharged the caveat. I am not called upon in these proceedings to decide whether the order was right or wrong. The only question that I have got to decide is whether P.B. Mukherji, J. decided that the caveator had any interest in the estate or not. This, as I stated before, is the most important point which the caveator has to satisfy in order to be allowed to contest a testamentary proceedings. Indeed, Mr. Deb submitted that in the instant case that was the only point that was before the court. It was pointed out by Mr, Deb that the caveat was filed by Pradip on 6-3-1957, and the application in support of the caveat was tendered on 15-3-1957. March 14, 1957, being a holiday of this court, the caveator was within time in tendering his affidavit in support of the caveat on 15-3-1957. It follows that the only ground on which the caveat could be discharged was the absence of interest in the estate of the deceased on the part of the caveator. That was the only question which needed adjudication in the application for discharge of the caveat. The adjudication has been made by P.B. Mukherji, J., that he had no interest, on the footing that prima facie no subsequent Will was in existence. It seems to me, therefore, that the question of the existence of a subsequent Will was directly and substantially at issue between the parties in the previous proceedings for discharge of the caveat. The application for discharge of caveat having been granted, the question has been decided against Pradip and Pradip in the present petition is hit by the principle analogous to 'res judicata'.

9. The next point to be decided is : Do the allegations made in the petition amount to 'just cause'? Mr. Bose has drawn my attention to Explanations (b) and (c) of the Indian Succession Act, and Illustrations (III), (V) and (VI) which read as follows:

Explanation--Just cause shall be deemed to exist where (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.

Illustrations :

(iii) The will of which probate was obtained was forged or revoked.

(V) A has taken administration to the estate of B as if he had died intestate, but a Will has since been discovered.

(VI) Since probate was granted, a later Will has been discovered.'

Clause (b) refers to a grant obtained fraudulently by making a false suggestion or by concealing from the Court material facts. Clause (c) refers to untrue allegations of fact made in the petition essential to justify the grant, though the untrue allegations were made through ignorance or inadvertently. Mr. Bose contends that the propounders to obtain the grant had concealed from the court the fact that by the subsequent Will executed by the testator in December 1954 the previous Will has been revoked. Even if it does not appear from the petition that the petitioners had knowledge of the existence of the Will, even if it was made through ignorance or inadvertence, the grant is liable to be revoked under Clause (c). Mr. Deb contends that no allegation of fraud is to be found in the petition, and therefore Clause (b) does not apply at all. So also, according to him, Clause (c) does not apply, because the petitioner is not entitled to ask the Court to hold as a fact that there is in existence a subsequent will, having regard to the discharge of his caveat, wherein the identical question was raised. It is contended by Mr. Deb that if a party to a testamentary proceeding, who had full knowledge of the existence of a subsequent will, did not oppose the grant on the ground that there was a subsequent will, then he will not be entitled to ask the Court again to revoke the grant on the ground that there is a subsequent Will. Illustrations (v) and (VI) make it clear that the will which purports to revoke the previous Will must be subsequently discovered. If the subsequent Will was within the knowledge of the caveator who was a party to the probate proceedings and actually took the point that there was a subsequent Will, then the caveator cannot be said to have 'discovered' a subsequent Will.

10. Very particular care is taken before a probate is issued. The Court directs citation to parties having interest in the proceedings. The idea is that a judgment of a Court of Probate, being a judgment in rem, it must be held in the presence of all parties interested in the estate. Interest need not be substantial. Slightest interest in the estate will entitle one to be a party in the probate proceedings. If any one having slightest interest in the estate was not served the probate proceedings become defective in substance. Such a party not cited is entitled to come to Court and have the grant revoked, so that the proceeding may take place in his presence. The Court also revokes grant in other cases in which party comes to court with the case that subsequent to the grant a new Will has been discovered. But a party who deliberately does not produce the subsequent Will and watches the probate proceedings and does not take proper steps to bring the subsequent Will to the notice of the Court is not entitled to ask the Court to revoke the grant. Neither the language of Section 263, Succession Act nor the illustrations above referred to compel me to hold that it is a 'just cause'.

11. Reference has been made by Mr. Deb to 2 cases, one decided by the High Court of Madras, and the other by High Court of Rangoon. In the case of Venkataratnam v. Satyavati, AIR 1942 Mad 578, Odgers J., who delivered the judgment of the Division Bench, observes as follows :

'Omission to put a particular Just Cause precludes reagitating the cause later. Rejection of an application to revoke a grant for a Just Cause on the ground of res judicata does not differ in principle from rejection on the ground that the party failed to put in when the opportunity was given to him.'

12. This decision of the Madras High Court was followed by the Rangoon High Court in the case of Yenkana v. Letchana, AIR 1939 Rang 215. Roberts C. J. who delivered the judgment of the Bench, after citing briefly the Madras decision, observes as follows :

'The real question is whether the party applying for revocation, had an opportunity before the grant was made of urging the very grounds which he now puts forward or whether he urges any new grounds that have arisen, since he had that opportunity, which he refused to utilise Subject to the Rule relating to new grounds, the only other way in which the grant may be attacked by the party who contested the order at the time it was made and when relied on fresh evidence merely, is by bringing the application within the comparatively narrow limits of an 'application for review.'

In the instant case, the application for revocation lodged his caveat in the proceedings for the grant of probate. He did take all the points in the petition by way of objection to the grant of probate, but his caveat was discharged in a contested proceeding. He is not entitled to rely on the same facts as just cause for revocation now. His remedy, if any, lay in appealing against the order discharging his caveat.

13. Apart from the grounds above stated, this petition is bound to be dismissed, in any event. The ground on which the grant is sought to be revoked is that a subsequent Will was executed by the testator, which expressly revoked the previous Will. There Ss nothing, however, in the petition to enable me to hold prima facie that a subsequent Will was executed by the testator. Paragraph 2 is the material paragraph in which a subsequent Will is pleaded. Paragraph 2 reads as follows :

'The said deceased before his death made and published his last Will and Testament dated the 25th ay of December 1954 whereby your petitioner was appointed the sole executor as well as the residuary legatee. A copy of the official English translation of the said Will is annexed hereto and marked 'A' .'.

This paragraph is verified as being based on information received. There is no affidavit affirmed by any attesting witnesses or by anybody stating that the Will was executed and attested according to law. There is, therefore, absolutely no evidence before me on the basis of which I can hold prima facie that the instrument produced is the last Will of Ganapati, which revokes the previous Will. On this short ground, apart from any other, this application is liable to be dismissed.

14. At the conclusion of his argument, when I brought this matter to the notice of Mr. Bose, Mr. Bose asked for leave to file a further affidavit, which, however, I refused.

15. For the reasons given above, this application is dismissed with costs.

16. Certified for two counsel.


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