Anil Behari Ghosh Vs. Smt. Latika Bala
Dassi & Ors  INSC 28 (15 April 1955)
BOSE, VIVIAN JAGANNADHADAS, B.
CITATION: 1955 AIR 566 1955 SCR (2) 270
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.
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
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 (
 19 C.W.N.
1108), Brindaban v. Sureshwar (  10
C.L.J. 263), Durgavati v. Sourabini (  I.L.R. 33 Cal. 1001) and Ramanandi
Kuer v. Kalawati Kiter (  L.R. 55 I.A. 18), referred to.
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.
272 (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 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
He appointed his wife Haimabati Dasi as the
guardian of the person and property of Charu and of his wife Latikabala Dasi
On the 5th March 1920 the testator is said to
have been murdered by Charu who was placed on his trial, 273 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 sometime in October 1932 and
the 274 fact of his attaining majority sometime 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 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
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
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
(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
(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 277 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 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 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
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 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 281 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 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 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, 285 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
1. That Charu was the murderer of the
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 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
286 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 287
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
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 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 288 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 289 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 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