Full Judgment Text
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PETITIONER:
ANIL BEHARI GHOSH
Vs.
RESPONDENT:
SMT. LATIKA BALA DASSI AND OTHERS.
DATE OF JUDGMENT:
15/04/1955
BENCH:
SINHA, BHUVNESHWAR P.
BENCH:
SINHA, BHUVNESHWAR P.
BOSE, VIVIAN
JAGANNADHADAS, B.
CITATION:
1955 AIR 566 1955 SCR (2) 270
ACT:
Indian Succession Act, 1925 (Act XXXIX of 1925), s. 263-
Explanation cl. (a)-Expression "defective in substance "-
Meaning of-Probate proceedings-Omission to issue citation to
persons who should have been apprised-Legal effect thereof-
Revocation of grant -Whether, an absolute right irrespective
of other considerations arising in the case-Judicial
discretion vested in Courts.
HEADNOTE:
The expression "defective in substance" in Explanation el.
(a) to s. 263 of the Indian Succession Act, 1925 means that
the defect was of such a character as to substantially
affect the regularity and correctness of the previous
proceedings.
The omission to issue citations to persons who should have
been apprised of the probate proceedings may well be in a
normal case a ground by itself for revocation of the grant.
But this is not an absolute right irrespective of other
considerations arising from the proved facts of a case. The
law has vested a judicial discretion in the court to revoke
a grant where the court may have prima facie reasons to
believe that it was necessary to have the will proved afresh
in the presence of interested parties.
The Supreme Court was not satisfied that in all the circum-
stances of the present case just cause for the annulment of
the grant of probate within the meaning of s. 263 of the Act
had been made out.
The annulment of the grant of probate is a matter of
substance and not of mere form. The court may refuse to
grant annulment in cases where there is no likelihood of
proof being offered that the will admitted to probate was
either not genuine or had not been validly executed.
Where, as in the present case, the validity or genuineness
of the will has not been challenged it would serve no useful
purpose to revoke the grant and to make the parties go
through the mere formality of proving the will again.
Under the circumstances of the present case the omission of
citation has had no effect on the regularity of the
proceedings resulting in the grant of 1921.
Mokshadayini Dasi v. Karnadhar Mandal ( [1914] 19 C.W.N.
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1108), Brindaban v. Sureshwar ( [1909] 10 C.L.J. 263),
Durgavati v. Sourabini ( [1906] I.L.R. 33 Cal. 1001) and
Ramanandi Kuer v. Kalawati Kiter ( [1927] L.R. 55 I.A. 18),
referred to.
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 106 of 1953.
Appeal from the Judgment and Order dated the 4th September
1951 of the High Court of Judicature at Calcutta in Appeal
from Original Order No. 131 of 1950 arising out of the Order
dated the 29th day of August 1950 of the High Court of
Calcutta in its Testamentary Intestate Jurisdiction made in
Application under Section 263 of the Indian Succession
Act.
P. N. Sen, (A. K. Dutt and S. Ghose, with him) for the
appellant.
M. C. Setalvad, Attorney-General for India (A. N. Sinha,
with him) for respondent No. 1.
D. N. Mukherji, for respondent No. 2.
1955. April 15. The Judgment of the Court was delivered by
SINHA J.-This is an appeal against the judgment and order
dated the 4th September 1951 of the Calcutta High Court in
its appellate jurisdiction reversing those dated the 29th
August 1950 of a Judge of that Court sitting on the Original
Side granting the appellant’s prayer for revoking and
annulling the probate granted in respect of the last will
and testament dated the 29th July 1912 of one Binod Lal
Ghosh, deceased, whom we shall call the testator in the
course of this judgment.
The testator is said to have executed a will on the 29th
July 1912 which was registered on the same date at the
Calcutta registry office. By the said will the testator
appointed the following five persons as executors or
executrices:-
(1) Anil Nath Basu, Attorney-at-Law
(2) Brindaban Chandra Mitter
(These two also figure as attesting
witnesses to the will)
(3) His adopted son Charu Chandra Ghose (whom
we shall call Charu for the sake of
brevity) a minor on his attaining majority.
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(4) His wife Haimabati Dasi, and
(5) His brother’s widow Muktakesi Dasi.
He also directed that on the death of the said Anil Nath
Basu, his son Achintya Nath Basu, and on the death of
Brindaban Chandra Mitter, his son Debi Prosad Mitter will
take their places respectively as executors; and on the
death of his wife Haimabati Dasi, Charu’s wife, Latikabala
Dasi, and on the death of Muktakesi Dasi, his nephew’s wife
Sushamabala Dasi, will take her place respectively as
executrix. It is not necessary to set out in detail the
legacies created by the will except to state that he created
annuities in favour of a number of persons including his
wife, his brother’s widow . Muktakesi Dasi, his daughter-in-
law, his niece-in-law aforesaid and Charu. He also made
provision in his will for annual payments in respect of the
expenses of certain deities and festivals, as also for the
funeral expenses of himself and the annuitants aforesaid.
He directed his executors to accumulate Rs. 12,000 a year
out of the balance left after meeting the annuities and the
other annual expenses aforesaid to be paid over to Charu
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upon the death of the said Latikabala Dasi and Sushama Bala
Dasi who were to share the residue, if any, after paying the
annuities and other outgoings referred to above. It would
thus appear that though the testator intended Charu to be
the owner of his entire estate including the accumulations
after meeting the annuities and the other annual expenses,
he did not trust him to the extent of putting that estate
into his hands immediately on his attaining majority. He
trusted Charu’s wife and the other ladies in his family more
than Charu himself, though he specifically stated in the
will-
"Provided always that the said adopted son shall be deemed
to have a vested interest in the said estate immediately on
my death".
He appointed his wife Haimabati Dasi as the guardian of the
person and property of Charu and of his wife Latikabala Dasi
aforesaid.
On the 5th March 1920 the testator is said to have been
murdered by Charu who was placed on his trial,
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convicted for murder and sentenced to transportation for
life. Charu served his term of imprisonment and was
released from jail some time in 1933.
On the 30th September 1921 an application for probate of the
will aforesaid was made on the Original Side of the Calcutta
High Court on behalf of Anil Nath, Muktakesi Dasi and
Latikabala Dasi aforesaid. The application stated that the
testator died on the 5th March 1920 at Baranagar, leaving
him surviving his adopted son Charu and his widow Haimabati
Dasi. The will dated the 29th July 1912 was recited and the
five persons named above were said to have been appointed
executors and executrices of the will. It also stated that
Brindaban Chandra Mitter, one of the executors named in the
will, had died in July 1913 and his son Debi Prosad Mitter
was a minor. It also recited the death of Haimabati Dasi on
the 22nd May 1921, thus explaining why out of the five
executors and executrices named in the will the application
had been made only on behalf of the surviving three persons.
The assets of the testator’s estate were stated not to
exceed a sum of Rs. 4,75,780/-. The prayer was "that
probate of the said will may be granted to your petitioners
limited within the Province of Bengal reserving power of
making the like grant to the said Charu Chandra Ghose and
the said Debi Prosad Mitter (when he comes of age) when they
will come and pray for the same". The grant was made the
same day (i.e., 30th September 1921) which fell during the
long vacation and the Judge in charge passed the order-
"Order as prayed" no citations being issued. This is
material in view of what has been alleged subsequently about
this grant, as will presently appear.
Nothing was heard about these proceedings until the 24th
July 1933 when an application was made by Debi Prosad Mitter
aforesaid for the grant of probate to him along with Anil
Nath Basu and Latikabala Dasi. In that application, the
previous grant of probate dated the 30th September, 1921,
the death of Muktakesi Dasi some time in October 1932 and
the
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fact of his attaining majority some time in January 1924 are
recited. On the 16th September 1933 Debi Prosad Mitter’s
application was granted.
It appears that Latikabala Dasi and Sushamabala Dasi applied
to the Calcutta High Court on the 4th December 1933 for an
order for discharging the executors appointed previously and
for a direction to hand over the entire estate of the
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testator to the applicants. In answer to the summons Debi
Prosad Mitter made an affidavit on the 7th December 1933 in
which he recited the previous grants of the probate made in
1921 and 1933; and stated that the testator Binod Lal Ghosh
was murdered on the 5th March 1920 by Charu and that on the
death of Haimabati in May 1921, the testator’s first cousin
Girish Chandra Ghosh became entitled to the residue of the
estate of the testator. In that affidavit be set out the
genealogical table of the family of the testator showing how
Girish Chandra Ghosh was related to the deceased. He also
made pointed reference to the fact that the surviving
grantees of the probate, Anil Nath Basu and Latikabala Dasi,
after the death of Haimabati bad not filed any account of
the testator’s estate in their capacity as executor and
executrix respectively and that on his obtaining probate of
the will those persons had not complied with his request of
furnishing a statement of accounts about their dealings with
the testator’s estate. He also set out the text of the
letter sent by his solicitor to Anil Nath Basu and
Latikabala Dasi. The letter is dated the 4th December 1933.
It does not appear from the record as to what attitude had
been taken by the executor and the executrix aforesaid in
answer to the call made by Debi Prosad Mitter for submission
of accounts of their dealings with the testator’s estate
after the grant of probate in 1921 as aforesaid.
Ultimately, on the 16th May, 1934 the High Court dismissed
the application for discharging the persons who had been
granted the probate. Girish Chandra Ghosh aforesaid died in
December, 1940 without having taken any steps in court
claiming his rights, whatever they were, in the
275
testator’s estate. Anil Nath Basu also died in July, 1948.
He does not appear from the record to have rendered any
accounts in respect of his dealings as the managing executor
of the will of the deceased.
It was not until the 17th September, 1949 that the
appellant, who is one of the four sons of the said Girish
Chandra Ghosh, made an application to the Calcutta High
Court on the Original Side praying that the probates dated
the 30th September, 1921, and the 16th September, 1933 in
respect of the will dated the 29th July, 1912 be revoked,
annulled and/or set aside and that an administrator pendente
lite be appointed. The petition runs into about twenty
printed pages setting out the petitioner’s relationship with
the testator, the will and the grant of the probates as
aforesaid, the murder of the testator by Charu, his trial,
conviction and sentence for that murder. It was also
averred that the testator had "intended to revoke his said
will of 29th July, 1912". Then follows a long recital of
facts tending to that conclusion. Then follows para 19
which is in these terms:-
"From the said correspondence and papers it is absolutely
clear that the said testator revoked his will of 29th July,
1912. Your petitioner submits that arrangements were being
made for handing over the estate of the said Binod Lal
Ghosh, deceased, in the hands of the Administrator-General
of Bengal for the purpose of charity but the said purpose
did not mature and under the circumstances your petitioner
submits that the said will of 29th July, 1912 has been
revoked by the said testator and no further will was
executed in its place or stead".
Para. 23 is a statement of the grounds on which the case for
revocation of the grants is founded. That paragraph is in
these terms:-
"Your petitioner submits that the probates herein should be
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revoked as a just cause for doing so exists inter alia, on
the following grounds:-
(a) That no notice of either application for probate was
served on your petitioner’s father, although be was the
nearest male relative alive at the time when the said Binod
Lal Ghosh was murdered;
276
(b) That the grants were obtained fraudulently;
(c) That the grants were obtained by means of an untrue
allegation of a fact essential to justify the grant;
(d)That the grants were obtained by making a false
declaration that the property was valued only at Rs.
4,75,780/-, although the High Court in its Criminal
Jurisdiction had stated in 1920 that the estate of the said
Binod Lal Ghosh was over Rs. 40,00,000/-; (e) That the
grants in any event, are useless and inoperative;
(f) That there was no filing of accounts;
(g) That the grants were issued by concealing the facts of
the intention of the said testator to revoke the will;
(h) That the deceased never lived within the Ordinary
Original Civil Jurisdiction of this Hon’ble Court".
The application was opposed by Latikabala Dasi chiefly on
the ground that no citation to Girish Chandra Ghosh wag
necessary, that in any event, he was cognisant of the
probate proceedings and of the estate being administered by
the executors and that he stood by. It was denied by her
that the said Girish Chandra Ghosh was the nearest male
relative of the testator or that Charu had murdered his
adoptive father. It was also denied that the testator had
revoked his will and that he died intestate as a result of
which the petitioner and his three brothers became entitled
to succeed to his estate. Achintya Nath Basu took similar
grounds in opposition to the application for revocation.
Debi Prosad Mitter by an affidavit -of his own denied that
there had been any just cause for revoking the probate but
added that he had been discharged on his own application
from further acting as one of the executors of the
testator’s will.
Though no issues were framed, the main grounds for
revocation or annulment of the probates were as stated in
para. 23 set out above. Mr. Justice P. B. Mukherjee who
dealt with the case on the Original Side, after an elaborate
consideration of the facts and circumstances of the case,
passed orders revoking
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and annulling the grants aforesaid and directing "that the
will be proved in solemn form on notice to the applicant and
the other sons of Girish and also after a general citation
to all persons interested in the estate". He also appointed
the applicant, the appellant before us, as an administrator
pendente lite with usual powers to take charge of the
estate, with costs to the applicant to be paid out of the
estate. He directed the other opponents-respondents to bear
their own costs. On the points in controversy he came to
the conclusion that Girish was related to the testator as a
cousin, that there was no acquiescence on the part of Girish
barring the appellant from pursuing his remedy, that the
non-citation of Girish was by itself not sufficient to
invalidate the grant, but that circumstance in conjunction
with other facts, viz., of material concealment of the fact
that Charu bad murdered the testator and that the testator
had entertained an intention to revoke the will, though it
had not actually been revoked, was sufficient ground for
revoking the grant. He held further, on the authority of
the decision in Mokshadayini v. Karnadhar(1) that the
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question whether the will bad as a matter of fact been
revoked would form the subject matter for final
determination after the revocation of the grants when fresh
proceedings will be taken after due citation. He also held
that in the circumstances of this case, though there was no
averment of wilful default in exhibiting an inventory and
accounts of the testator’s estate the executors were
actually guilty of such a default and there was thus just
cause for revoking the grant. He did not hold the other
grounds of attack against the grant made out by the
applicant; that is to say, he did not find it established
that the estate was worth over Rs. 40,00,000 and that the
declaration of the value of the testator’s estate at Rs.
4,75,780 was false or fraudulent or that the grant bad
become useless or inoperative otherwise, or that the case
could not be heard by the Calcutta High Court, on the
Original Side.
On appeal by Latikabala Dasi, the Appellate Beach
(1) 19 C.W.N. 1108,
278
consisting of Sir Trevor Harries, C. J. and Banerjee, J.,
allowed the appeal and dismissed the application for
revocation of the probate with costs of both the courts.
They held that the will in question was genuine and valid in
view of the evidence and of the fact that its genuineness or
validity had not been questioned specifically in the
pleadings. They also held that there was no revocation of
the will or even an intention on the part of the testator to
revoke the will. They also held that Girish was entitled to
citation but that the non-citation did not materially affect
the grant of the probate and that at any rate, Girish being
fully aware of the grant stood by, and therefore acquiesced
in the grant, and did not take any steps at the right time
to question the grant. They therefore did not think it just
and expedient to reopen the proceedings when they were
satisfied that there was no real and substantial attack
against the genuineness and validity of the will itself.
In this appeal it has been argued on behalf of the appellant
on the authority of the decision in Mokshadayini v.
Karnadhar(1) that the Appeal Court should have agreed with
the Judge on the Original Side in holding that there was
material concealment of facts which considered along with
the admitted position that no citation had been taken
against Girish Chandra Ghosh had vitiated the proceedings
for the grant of probate and that the question of the
genuineness or validity of the will should have been left
over for determination at a later stage of the proceedings.
It was also argued that the omission to exhibit the accounts
was in the circumstances of this case wilful default without
reasonable cause within the meaning of the law and was
sufficient by itself to entitle the applicant to a
revocation. It was also argued that no grounds had been
made out in fact to support the legal conclusion drawn by
the Appeal Court that there had been an acquiescence on the
part of Girish. On behalf of the 1st respondent the
conclusion of the Appeal Bench has been supported on all the
grounds. On behalf of the respondent Debi Prosad Mitter, it
(1) 19 C.W N. 1108.
279
was contended that he had been unnecessarily impleaded at
all the stages and that he should have been granted his
costs out of the estate of the deceased.
The grant of probate was made under the provisions of the
Probate and Administration Act (V of 1881); but the Indian
Succession Act (XXXIX of 1925) consolidated the law relating
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to intestate and testamentary succession and thus
incorporated the other Acts relating to the same subject,
including Act V of 1881. In order to be entitled to a
revocation or annulment of the grant aforesaid the appellant
has to bring his case within the purview of section 263 of
the Indian Succession Act (XXXIX of 1925), which will
hereinafter be referred to as the Act). Section 263 of the
Act is substantially in the same terms as section 50 of Act
V of 1881. Section 263 provides that "The grant of probate
or letters of administration may be revoked or annulled for
just cause". Under the 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 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, 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 an inventory or
account in accordance with the provisions of Chapter VII of
this Part, or has exhibited under that Chapter an inventory
or account which is untrue in a material respect".
After the explanation, there are eight illustrations of the
grounds on which a grant of probate may be revoked, of which
the first three are material. They are as follows:-
280
" (i) The court by which the grant was made had no
jurisdiction.
(ii) The grant was made without citing parties who ought to
have been cited.
(iii) The will of which probate was obtained was forged
or revoked".
In this case the appellant tried to take advantage of the
first illustration also, by suggesting in one of the grounds
set out in para. 23 of his petition quoted above that the
testator never lived within the Ordinary Original Civil
Jurisdiction of the Calcutta High Court in exercise of which
the grant in question had been made. But that ground was
negatived by the trial Judge and as it was not pressed
before us, no more need be said about it.
It was vehemently argued at all stages of the case including
the appeal before us that admittedly no citation was issued
against Girish Chandra Ghosh aforesaid and as he was the
person most interested in the testator’s estate besides the
legatees named in the will, the case came directly within
the purview of clause (a) of the Explanation and
Illustration (ii) quoted above. Girish Chandra Ghosh has
been found by the Judge in the first instance to have been
the person most vitally interested in the estate of the
testator, whether he died intestate or leaving a will, in
the events which had happened. The learned counsel for the
contesting respondent suggested that it had not been found
by the lower Appellate Court as a fact upon the evidence
adduced in this case, that Girish was the nearest agnate of
the testator or that Charu had murdered his adoptive father,
though these matters had been assumed as facts. The courts
below have referred to good and reliable evidence in support
of the finding that Girish was the nearest reversioner to
the estate of the testator. If the will is a valid and
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genuine will, there is intestacy in respect of the interest
created in favour of Char;, if he was the murderer of the
testator. On this question the courts below have assumed on
the basis of the judgment of conviction and sentence passed
by the High Court in the sessions trial that Charu was the
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murderer. Though that judgment is relevant only to show
that there was such a trial resulting in the conviction and
sentence of Charu to transportation for life, it is not
evidence of the fact that Charu was the murderer. That
question has to be decided on evidence. However, for
purposes of this case we shall assume in favour of the
appellant that Charu was the murderer. The result of such
an assumption is that Girish being the nearest reversioner
to the estate of the testator, in case of intestacy after
the death of the testator’s widow in 1921; or in case of
testamentary succession after the death of the two legatees,
the testator’s daughter-in-law and the nephew’s wife
aforesaid, and the failure of the legacy in favour of Charu
on account of the murder would, in either event, have
sufficient interest in the estate of the testator to entitle
him to challenge the grant and to obtain revocation. But it
is noteworthy that Girish who died in 1940, lived for about
19 years after the grant and took no steps in that
direction. There may be some doubt as to Girish’s knowledge
of the probate proceedings and of the grant until 1933; but,
in our opinion, there is ample evidence in support of the
finding arrived at by the Court of Appeal below that Girish
was aware of the grant at the latest in 1933 when Debi
Prosad Mitter took -proceedings to obtain a grant in his own
favour also. In his application, as indicated above, he
clearly stated that Charu was the murderer of his adoptive
father and that Girish would succeed to his estate, which
otherwise would have gone to Charu. If Girish had initiated
proceedings for revocation of the grant and had insisted on
the will being proved in his presence, the courts would have
had no difficulty in having all the necessary evidence
before it because the chief person who had played the most
leading part in the execution of the will, in its
registration and in its being admitted to probate, viz.,
Anil Nath Basu, was then alive and could have been examined.
But for reasons not made clear in these proceedings Girish
did not think it worth his while to take any steps in court
to
36
282
challenge the will or the grant. The estate was worth
anything between five to forty lakhs, perhaps nearer five
lakhs than forty lakhs. Girish was a mere pensioner
belonging to a middle class family. Either he did not think
it worth his while to embark on a litigation with all its
uncertainties or he had not the wherewithal to do so. The
record as it stands does not satisfactorily explain the
reasons why Girish refrained from making any attempts to get
this large estate. If the will was not genuine or valid,
Girish would take the reversionary estate at once because
the testator’s widow died in 1921 and there was no other
impediment in his way, except to get rid of the will. If,
on the other hand, the will was genuine- and valid, even
then he would stand to gain all the interest which had been
bequeathed in favour of Charu. The fact that Girish did not
take advantage of his position as the nearest reversioner as
on partial intestacy goes a long way to support the great
probability of the will being valid and genuine, especially
as it had been probated and because the appellant in his
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long petition for revoking the grant has not made the least
suggestion casting any doubt on the genuineness and validity
of the will. But it was argued on behalf of the appellant
that that stage had not yet arrived and that it would be
open to the appellant after obtaining an order of revocation
of the grant to show that the will was either not genuine or
had not been validly executed. Great reliance was placed in
this connection on the judgment of a Division Bench of the
Calcutta High Court in Mokshadayini Dasi v. Karnadhar Mandal
(1) where the following observations have been made:-
"No question of the genuineness of the will arises for
consideration till the court has decided that the probate
must be revoked on one or more of the grounds specified in
section 50 of the Probate and Administration Act. The only
matter for consideration at this stage is, whether the
appellants have made out a just cause for revocation of the
probate which was granted without notice to them: Brindaban
v. Suresh-
(1) 19 C.W.N 1108.
283
war(1). The question of genuineness cannot be considered
till a case for revocation is made out: Durgavati v.
Sourabini(2)".
The observations relied upon by the appellant were made with
reference to the facts of that case and were not intended to
be of universal application. As pointed out above, section
263 of the Act also contemplates a case for revocation based
on the single ground that the will in respect of which the
grant- in question was obtained was a forged one. In such a
case, whether or not the will was a forged one would be the
only question to be canvassed before the court before the
order of revocation could be made.
It was further argued on behalf of the appellant that the
appeal should be allowed and the grant revoked on the simple
ground, apart from any other considerations, that there had
been no citation issued to Girish. In our opinion, this
proposition also is ,much too widely stated. Section 263 of
the Act vests a judicial discretion in the court to revoke
or annul a grant for just cause. The explanation has
indicated the circumstances in which the court can come to
the conclusion that "just cause" had been made out. In this
connection the appellant relied upon clause (a) quoted above
which requires that the proceedings resulting in the grant
sought to be revoked should have been "defective in
substance". We are not inclined to hold that they were
"defective in substance". "Defective in substance" must
mean that the defect was of such a character as to
substantially affect the regularity and correctness of the
previous proceedings. If there were any suggestions in the
present proceedings or any circumstances were pointed out to
show that if Girish had been cited he would have been able
to enter a caveat, the absence of citation would have
rendered those proceedings "defective in substance". It may
be that Girish having been found to have been the next
reversioner to the testator’s estate in case of intestacy
and on the assumption that Charu had murdered the testator,
Girish might have been entitled to a revocation of the grant
if he
(1) 10 C.L.J. 263 at p. 273. (2) I.L.R. 33 Cal. 1001,
284
had moved shortly after the grant of the probate on the
simple ground that no citation had been issued to him. The
omission to issue citations to persons who should have been
apprised of the probate proceedings may well be in a normal
case a ground by itself for revocation of the grant. But
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this is not an absolute right irrespective of other
considerations arising from the proved facts of a case. The
law has vested a judicial discretion in the Court to revoke
a grant where the court may have prima facie reasons to
believe that it was necessary to have the will proved afresh
in the presence of interested parties. But in the present
case we are not satisfied in all the circumstances of the
case that just cause within the meaning of section 263 had
been made out. We cannot ignore the facts that about 27
years had elapsed after the grant of probate in 1921, that
Girish in spite of the knowledge of the grant at the latest
in 1933 did not take any steps in his lifetime to have the
grant revoked, that there was no suggestion that the will
was a forgery or was otherwise invalid and that the will was
a registered one and had been executed eight years before
the testator’s unnatural death. Hence the omission of
citations to Girish which ordinarily may have been
sufficient for a revocation of the grant was not in the
special circumstances of this case sufficient to justify the
court to revoke the grant.
Learned Counsel for the appellant made pointed reference to
the decision of their Lordships of the Judicial Committee of
the Privy Council in Ramanandi Kuer v. Kalawati Kuer(1).
But that case is an authority for the proposition that where
two grounds are taken for revocation of a grant, viz., (1)
that persons who ought to have been cited were not cited,
and (2) that the will was a forgery, if the first ground is
established, the onus is upon the opponents to prove that
the will is genuine. That case is no authority for the
proposition that in every case where there is a defect in
citation, the court must order a revocation or annulment of
the grant. The annulment is a matter of substance and not
of mere form. The court
(1) L.R. 55 I.A. 18,
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may refuse to grant annulment in cases where there is no
likelihood of proof being offered that the will admitted to
probate was either not genuine or had not been validly
executed. But, as rightly pointed out by the lower
Appellate Court, in the present case where the validity or
genuineness of the will has not been challenged, it would
serve no useful purpose to revoke the grant and to make the
parties go through the mere formality of proving the will
over again. In our opinion, therefore, the omission of
citation has had no effect on the regularity of the
proceedings resulting in the grant of 1921.
It was next contended that there had been fraudulent
concealment of material facts from the court in the
proceedings of 1921, and that therefore the case came within
the purview of clause (b) of the Explanation quoted above.
It was said in this connection that the petition for the
grant of probate made in 1921 did not disclose the following
material facts:
1. That Charu was the murderer of the testator;
2. That the testator had revoked the will or had
at least intended to revoke the will; and
3. That a false declaration as regards the value of the
property constituting the estate of the deceased testator
had been made, that is to say, the applicants for probate
had concealed from the court the true value of the property
which was forty lakhs of rupees and not only Rs. 4,75,780/-
as stated by them.
It is true that in para. 4 of the petition for probate it
was only stated that Charu had been found guilty of murder
by the High Court and was sentenced to transportation for
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life and had not till then been released from jail. Our
attention was also called to the prayer portion of the
petition in which the right of Charu to make an application
for probate had been reserved. We can easily dispose of the
last suggestion by observing that it was a mere formal
reservation. It has no such sinister significance as is
attributed to it. It is also true that there is no
statement in the application that Charu had murdered the
testator. While agreeing with the Judge in the first court
that this was rather disingenuous, we must also
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hold that that concealment, if it was deliberate, was not
material to the case. Even if that statement had been made
in the petition, that would have had no effect on the grant
of probate to the petitioners who were before the court.
The fact of the murder is relevant only to this extent, that
it would affect the legacies in favour of Charu, but the
other legacies would stand and the will would still be open
to probate.
The last allegation relating to concealment is on the
question of the value of the property left by the testator
by his will. It is not necessary to consider whether if
such a concealment had been made out it would have been
sufficient to revoke the grant. It is enough to point out
that neither of the courts below has found that the property
was really worth anything like forty lakhs of rupees. This
ground has not been pressed before us either. It must
therefore be held that the appellant has failed to bring his
case within the rule of material concealment.
The most serious allegation which could have a determining
effect on the grant, if made out, is that the testator had
revoked the will. Such an allegation would directly come
within the third illustration quoted above. But
unfortunately for the appellant he made no attempt to prove
his allegation that there was any such revocation. Apart
from showing that in or about the year 1917 the testator had
entertained the intention either of materially altering his
will or of altogether revoking it, there is absolutely no
evidence in support of the allegation that the testator
actually revoked the registered will in question. For
proving that the will had been revoked, it had to be shown
that the testator had made another will or codicil or by
some writing declared his intention to revoke the will.
Such a document is required by section 70 of the Act to be
executed in the same manner as a will. Such a revocation
could also have been proved, as the section lays down, by
burning, tearing or otherwise destroying the will by the
testator himself or by some other person in his presence and
by his direction, thus clearly indicating his intention
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of revoking the will. No such proof has been offered in
this case. But it was argued that the appellant would have
offered such proof after the order of revocation was made by
the court. That would be to put the cart before the horse.
If an applicant for revocation of a grant alleges as a
ground for such revocation that the testator had revoked the
will, he has got to prove that alleged fact at least prima
facie before he can be entitled to an order of revocation.
There may be cases where such a proof may be offered at a
later stage where the revocation is founded upon other
grounds, for example, where the court is satisfied that
there was substantial defect in the previous proceedings
resulting in the grant, or that the grantee had wilfully and
without reasonable cause omitted to exhibit an inventory or
account; or some such other ground recognized by section 263
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as just cause for annulling the grant has been established.
It was also argued on behalf of the appellant that even
though he may not have proved that the testator had as a
matter of fact revoked the will, he is still entitled to an
order of revocation on the ground that he bad entertained
the intention of revoking the will. No authority had been
cited before us in support of this contention. It is open
to a person who has made a will at any time to alter or to
revoke it; but if he has died leaving a registered will and
has not taken any tangible steps to revoke such a will, it
is not enough to allege that the testator had at one time
entertained the intention of doing so, because such an
intention without being translated into action has no effect
on the will actually left by him which must be treated as
the last will and testament.
It remains to consider the last point, viz., whether the
case is within clause (e) of the explanation to section 263.
In this connection ground (f) in paragraph 23 of the
petition quoted above is the only allegation. The omission
to submit accounts is not always synonymous with "wilfully
and without reasonable cause" omitting to exhibit accounts.
In certain circumstances omission to submit accounts
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may bring the case within the purview of clause (e)
aforesaid because the circumstances may tend to show that
the omission was wilful and without reasonable cause. We
have therefore to consider whether in the circumstances of
this case the omission to file accounts has the effect of
entitling the appellant to an order of revocation. Under
the will the testator intended that Anil Nath Basu should
function as the managing executor during his lifetime, as
will appear from the relevant portion of paragraph 17 of the
will which is as follows:
"I direct that my executor Babu Anil Nath Basu shall act
alone without interference of my other executors in drawing
money from or depositing money to any bank, courts or any
other place or places and also in drawing interest of
Government Promissory Note, debentures, etc. and in
collecting rents of the houses and also in defending and
instituting all suits relating to my estate and for the
purpose above to sign cheques, rent bills and all papers
relating to any suit in connection with my estate".
It would thus appear that Anil Nath Basu was not only the
most competent man being a trained lawyer to administer the
estate but had also been in terms vested with the power to
handle the cash and the accounts by himself without
interference by the other executors. He must therefore have
handled the incomings and the outgoings and been responsible
for keeping true and proper accounts. Whether or not he did
so we do not know, because Girish, as already indicated,
never made any attempt to question the will or the grant or
to call him to account. We have already made reference to
Debi Prosad Mitter’s correspondence with Anil Nath Basu, the
managing executor, bearing on the question of accounts.
There is nothing on the record to show what happened on that
demand for accounts by Debi Prosad Mitter. The managing
executor was alive up till July 1948 and unfortunately for
the appellant, he initiated the revocation proceedings more
than a year after his death. If these proceedings had been
started in Anil Nath Basu’s lifetime, he would have been the
best person
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to inform the court as to how matters stood with reference
to the accounts. The fact remains that no accounts appear
from the record of this case to have been submitted by the
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executors. An application was made before us to take notice
of the fact that accounts had been submitted up to date by
the 1st respondent who is in charge of the testator’s
estate. But whether or not the respondent has filed
accounts during the pendency of this appeal is wholly
irrelevant. We have to determine whether the omission to
submit accounts in the circumstances of this case entitles
the appellant to have an order of revocation. In the first
place, no proper pleading had been made on this part of the
case. It has not been alleged that there has been a wilful
default without any reason, able cause. Hence no proper
foundation was laid in the pleadings for reception of
evidence either way. On that ground alone, in our opinion,
the appellant must fail on this part of the case. It may
also be pointed out that in all the circumstances of this
case referred to above, particularly in view of the fact
that it was never suggested that the will in question was
not genuine or had not been validly executed, it must be
held that the proceedings leading up to this appeal have
been misconceived. If the appellant has any locus standi,
his remedy lay not against the will or against the grant of
probate, but under the will. But it is not for this court
to advise what the appellant should have done.
As, in our opinion, all the grounds raised on behalf of the
appellant for revoking the grant have failed, it is not
necessary to go into the question whether Girish had
acquiesced in the grant in question and had therefore barred
the door against the appellant from raising any further
questions about it.
For the reasons aforesaid we uphold the decision of the
court below and dismiss the appeal with costs to the
contesting respondent No. 1. There will be no order as to
costs in respect of the other respondent.
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