Succession Act, 1925: ss. 268, 283, 276 – Probate of Will – Revocation of – Issuance of citation to legal heirs – Requirement of – On facts, testator executed a Will bequeathing immovable property to his eldest daughter – 20 years later probate obtained and no objection certificates of two daughters of the testator and his wife attached – Two years later, suit for partition by younger daughter of testator against the eldest daughter in respect of the immovable property – Written statement by the eldest daughter that the said property was gifted to her by her mother – Dismissal of the partition suit – Subsequently, legal heirs of the eldest daughter sold the property – Thereafter, appellant-daughter of testator’s younger daughter filed application for revocation of probate – Rejection of application by the Single Judge as well as the Division Bench of the High Court – On appeal, held: There was no reference about Will nor of probate proceedings in the suit for partition and in the written statement – Rights were claimed on the basis of registered deed of gift executed by the mother in favour of her elder daughter, which cast a doubt on the alleged consent given by the younger daughter in the probate proceedings – It is the appellant’s case that she came to know about the probate proceedings only through conveyance deed – No finding of the High Court that on any earlier point of time the appellant had knowledge of the probate proceedings as such there was no inordinate delay in filing the application – Furthermore, the Single Judge erred in not issuing any citation to the younger daughter of the testator in the probate proceedings and without any verification of genuineness of no objection certificates mechanically granted probate which was unsustainable – Even though Single Judge had discretion to issue citation or not but in the facts of the instant case a citation ought to have been issued in exercise of discretion conferred u/s. 283 and the probate granted without issuance of such citation in the facts of the instant case is to be revoked – Thus, the application for revocation of probate is allowed and probate is revoked – Rules of the High Court at Calcutta (Original Side), 1914 – Chapter XXXV.
Allowing the appeal, the Court
HELD: 1.1. Without adverting to these facts, the High Court could not have jumped on the conclusion that there is inordinate delay in filing the revocation application. Neither there is anything brought on record by respondent Nos. 1, 2 and 3 to indicate that the appellant or her mother had knowledge of probate proceedings on any prior date nor the High Court has returned any finding that the appellant had knowledge of probate proceedings and she is guilty of filing an application with delay. There being no finding of the High Court that on any earlier point of time the appellant had knowledge of the probate proceedings, the observation that the application having been filed with inordinate delay and deserved to be rejected cannot be approved. [Para 20] [841-B-C]
1.2 In the facts and circumstances of the instant case, no delay can be imputed on the appellant in filing application for revocation of probate when after getting inspection of the PLA records on 19.05.2011 she immediately filed the application for revocation of the probate in July, 2011 itself. The observation of the High Court that there was inordinate delay is unsustainable. [Para 21] [841-D]
1.3 The Will of SS which has been probated is unregistered Will dated 15.06.1961. For the probate of the Will the application was filed by the executor on 27.05.1982 and the Will was probated on 04.06.1982. It is admitted case of the parties that no citation was issued by the Single Judge to any of the legal heirs of deceased. In the instant case counter–affidavit has been filed by respondent Nos.1,2 and 3 where they have taken a specific case that citation was not required to be issued. In the probate proceedings BK consented to grant a probate [Para 25] [842-G-H; 843-A]
1.4 Rule 5A of the High Court Rules provides that in all the applications for probate or for letters of administration with the Will annexed the petition shall state the names of the members of the family or other relatives upon whom the estate would have devolved in case of an intestacy together with their present place of residence. Rule 9 deals with citation to rightful parties which requires issue of citation or an application of letters of administration unless such persons have signified their consent to the application. Rule 9 begins with the words “on an application for letters of administration”. Had Rule making authority wanted to Rule 9 to apply to probate also they ought to have used both the phrases probate or letters of administration. Rule making authority wherever intended to refer both i.e. applications for probate or for letters of administration, the same has been used like in Rule 4, Rule 4A, Rule 4B, Rule 5A, Rule 6 where both the expressions “probate of a Will” and “letters of administration” have been used whereas Rule 7 uses the expression letters of administration. Rule 9 uses only the expression letters for administration. Rule
12 deals with direction in citation to show cause on a certain day. Rule 12 does not refer to either probate or letters of administration and thus, is equally applicable to both the expressions. The applicability of Rule 12 with regard to both letters of administration and probate which is clear from Form V. [Para 27] [844-B-E]
1.5 Respondents submitted that Rule 9 which provides that in case where persons have signified their consent, no citation needs to be issued also applies to the case of probate. The acceptance of the said submission shall be permitting addition of a word “probate” in Rule 9 whereas Rule 9 only uses expression “letters of administration”. The High Court held that Rule 9 of the High Court Rules, is applicable only in case of grant of letters of administration and not applicable to the grant of probate. [Para 28, 29] [844-F-H]
1.6 Reading of s. 283 of the Succession Act, 1925 makes it clear that by the use of word ‘may’ a discretion has been conferred on the District Judge to issue citations calling upon all persons claiming to have any interest in the estate of the deceased. Although, it is true that there is discretion vested to issue citation or not but such discretion has to be exercised with proper care adverting to the facts of each case. [Para 31, 33] [846-B-C; 847-A]
1.7 The application for probating a Will which is claimed to have been executed 20 years before, the Single Judge ought to have been cautious in proceeding further with the matter. Along with the application for probating the Will which has been brought on the record, the propounder of probate has verified the application along with a consent certificate which was annexed by HK, wife of SS, GH, daughter of SS and no objection of BK, another daughter of SS. Both HK and GH were beneficiary of the Will their no objection to the Will had no adverse effect. The no objection given by BK was material since BK being second daughter of deceased was being dis–inherited from the suit property. Photocopy of the no objection filed by BK has been brought on record along with the rejoinder–affidavit, a perusal of which appears that all the three no objections were notarised by the same Notary. It is not even claimed that the Notary who identified BK was engaged as counsel by BK by executing any Vakalatnama. [Para 34] [847-B-E]
1.8 The factum of filing of suit for partition by BK in the year 1984 where there is neither any reference of the Will of SS nor reference of probate proceedings and further in the written statement filed in the said suit by GH, elder sister of BK there is no mention of Will of SS or probate proceedings to base her right and to the contrary rights were claimed only on the basis of registered deed of gift executed by HK in favour of GH, which cast a doubt on the alleged consent given by BK in the probate proceedings. Had BK given consent in probate proceedings in the year 1982, it ought to have been reflected in the suit or in the written statement filed by GH. The conduct of BK in filing suit in 1984 claiming partition and no reference of probate in the said proceedings clearly indicates that BK was not even aware of the probate proceedings when the suit was filed. In the written statement filed by GH, who was the beneficiary of the Will as well as the probate proceedings which there was no mention of probate proceedings which makes this Court wonder as to why the probate proceedings were not mentioned in the written statement. And if BK has signed as alleged why she was not confronted with the probate proceedings in the written statement. No mention of probate proceedings clearly indicates that neither BK was aware of probate proceedings nor she was confronted with such proceedings. In the said proceedings, when a Will is sought to be probated after 20 years of its execution the High Court ought to have more cautiously proceeded with the probate proceedings. [Para 35] [847-E-H; 848-A-C]
1.9 In the facts and circumstances of the instant case, the Single Judge erred in not issuing any citation to BM in the probate proceedings and without any verification of genuineness of no objection certificates mechanically granted probate which was unsustainable. If it is accepted that in probate proceedings persons who have been dis–inherited in the Will on mere no objection certificates by them without either being called by probate court to appear and certify their no objections or to file any pleading will lead to unsatisfactory result and may cause prejudice to persons who were not aware of the proceedings and are yet claimed to have submitted no objections. Even though Single Judge had discretion to issue citation or not but in the facts of the instant case a citation ought to have been issued in exercise of discretion conferred under Section 283 of the Succession Act and the probate granted without issuance of such citation in the facts of the instant case deserves to be revoked and the Single Judge and the Division Bench committed error in rejecting the application for revocation. [Para 36] [848-D-G]
1.10 It was submitted that in view of probate proceedings as well as adverse consequences on the appellant with regard to the dismissal of suit for partition filed by the mother for non– prosecution, this Court may not interfere with the proceedings/order passed by the High Court. The High Court in the impugned judgments has only dealt with the proceedings initiated by the appellant for revocation of probate. The said proceedings need to be considered only insofar as related to application filed by the appellant for revocation of probate. The order passed by the Single Judge as well as Division Bench of the High Court is set aside and the application for revocation of probate is allowed and the probate is revoked. The PLA application is revived before the Single Judge of the High Court which may be considered and decided in accordance with law. [Para 39, 40] [849-E-F]
Jyotsana Rajgarhia v. Dipak Kumar Himatsingka (2002) ILR 2 Cal 402; Kamona Soondury Dassee v. Hurro Lall Shaha (1882) ILR 8 Cal 570; Shyama Charan Baisya v. Prafull Sundari Gupta AIR 1916 Cal 623; Harimati Debi and another v. Anath Nath Roy Choudhury AIR 1939 Cal 535 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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