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Effect of the revocation of the grant of letters of administration was not to revoke the entire proceeding but only to revoke the actual order : high court of Calcutta

Effect of the revocation of the grant of letters of administration was not to revoke the entire proceeding but only to revoke the actual order : high court of Calcutta

 

The effect of the revocation of the grant of letters of administration was not to revoke the entire proceeding but only to revoke the actual order granting the letters of administration. The original proceedings in the probate case revived after the order of revocation and it was open to the petitioner after the revocation of the grant to apply for the issue of. Special citations without filing, by the high court of Calcutta, by the learned bench of Honourable Justice Nishita Mhatre and Honourable Justice R.K. Bag, in the case of Shri Arun Chandra Dey V. Shri Debashish ghosh Ors, F.A.110 of 2004.

 

FACTS

One Bimal Pratibha Ghosh, the widow of Late Sashanka Sekhar Ghosh used to reside at premises no.D/1, Baghajatin Station Road, Calcutta. One Niranka Ghosh was the brother of Late Sashanka Sekhar Ghosh by full blood. Niranka Ghosh died in the year 1970 leaving behind his wife, five sons and two daughters. The respondents are the sons and daughters of Niranka Ghosh. Bimal Pratibha Ghosh died on 12th April, 1991. The appellant Arun Chandra Dey filed an application before the Court of Learned District Delegate, Alipore for grant of letters of administration in respect of the will of Bimal Pratibha Ghosh. It is alleged by the respondent no.1 before the trial court that the appellant obtained the grant of letters of administration without issuing citation upon the respondent nos.1 to 7 who are legal heirs of Bimal Pratibha Ghosh. It is also alleged that the appellant obtained the grant of letters of administration by suppressing the material facts and by practising fraud on the court. The specific case made out by the present appellant before the trial court is that Bimal Pratibha Ghosh was suffering from cancer at the last stage of her life and the appellant used to look after her and that Bimal Pratibha Ghosh executed her last will in favour of the appellant out of love and affection and that the appellant had no knowledge that the respondents are the legal heirs of the deceased Bimal Pratibha Ghosh. Learned Judge of the court below revoked the grant of letters of administration issued in favour of the appellant on the ground that the citations were not issued upon the respondents who are interested in the estate of the deceased in their capacity as legal heirs of the deceased Bimal Pratibha Ghosh.

 

JUDGEMENT

Learned Judge of the Court below has observed that on revocation of grant of letters of administration the original probate proceeding will revive. Learned Judge of the court below also sent a copy of judgment along with record of probate case no.238 of 1992 to the court of Learned District Delegate, Alipore for information and necessary action. The proposition of law laid down by the Hon’ble Division Bench of our High Court in the case of “Brindaban Chandra Shaha V. Sureswar Shaha Paramanick” reported in 10 CLJ (1909) 263 is that the effect of revocation of the probate is to revive the original proceeding for the grant of probate, and it would be quite competent to the Court to make an order under Section 34 of the Probate and Administration Act. It is held by another Hon’ble Division Bench of our High Court in paragraph 46 of “Southern Bank Ltd. V. Kesardeo Gianeriwalla” reported in AIR 1958 Cal 377 that grant of probate without citing parties is the just cause for revocation of the grant of probate. It is also held that it is for the parties supporting the will to ask for an opportunity to prove the will again after revocation of the grant of probate and this opportunity must be given provided revocation was not done on the ground that the will was not genuine. It is specifically laid down by the Hon’ble Division Bench in the above decision that where a probate is revoked on the ground of non-citation, the will may be proved again but then the right to prove the will again is in the person wishing to uphold the will. In the case of “Matukdhari Singh V. Mst. Radha Kuer” reported in AIR 1964 Patna 567 the Hon’ble Division Bench of Patna High Court has laid down in paragraph 3 as follows: “The effect of the revocation of the grant of letters of administration was not to revoke the entire proceeding but only to revoke the actual order granting the letters of administration. The original proceedings in the probate case revived after the order of revocation and it was open to the petitioner after the revocation of the grant to apply for the issue of special citations without filing fresh application for grant of letters of administration.” Similarly in the case of “ Arindam Ghosh V. Chittaranjan Ghosh” reported in AIR 2002 Cal 140 the Hon’ble Single Judge has held in paragraph 24 that “since the probate has been revoked the original probate proceeding revives all the heirs and legal representatives in case of the death of intestacy have to be cited.” In view of the above proposition of law, the court the opinion that on revocation of grant of letters of administration the original probate proceeding being case no.238 of 1992 will revive and it is open to the appellant to apply for issue of citation upon the respondents without filing fresh application for grant of letters of administration. However, the appellant will have to prove the last will and the testament of Bimal Pratibha Ghosh in solemn form in presence of the respondents who have claimed their interest in the estate of the deceased in the capacity of legal heirs of the deceased.

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Judgement reviewed by – Rani Banerjee

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