# Behari Ghosh v. Smt. Latika Bala Dassi and - **Citation:** (2014) 1 ILRA 255 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2014-03-10 - **Bench:** Pankaj Mithal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/behari-ghosh-v-smt-latika-bala-dassi-and-42768 - **Pages:** 2 ## Headnote Indian Succession Act, 1925-Section 263Application for revokation of letters of administration grant-on ground petitioner being illiterate could not know about publication of notice-execution of will not denied-nothing whispher about allegations of forged will-non issue of citation-not fetal-certificate can not be revoked. Held: Para-12 In the present case, the court while granting the Letters of Administration with the Will annexed on the basis of the evidence of one of the marginal witnesses has found the Will to be duly proved. The applicant in the application is not contending that no such Will was ever executed by the deceased or that if such a Will exists it is a forged, fictitious or a fraudulent document rather the contents of the application would reveal that the execution of the Will is admitted. There is not even denial to the attestation of the Will by the marginal witnesses who has proved the same. Case Law discussed: AIR 955 SC 566 (1); AIR 1970 Calcutta 433. ## Text 1 All] Mohammad Bu Ali: In the Matter of Good of Late I. Husain 255 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 10.03.2014 BEFORE THE HON'BLE PANKAJ MITHAL, J. Testamentary Case 17 of 2012 Mohammad Bu Ali: In The Matter of Good of Late I.Husain..... Petitioner Counsel for the Petitioner: Sri J. Nagar, Sri Shubham Agarwal Sri Sharad Malviya Counsel for the Respondents: Indian Succession Act, 1925-Section 263Application for revokation of letters of administration grant-on ground petitioner being illiterate could not know about publication of notice-execution of will not denied-nothing whispher about allegations of forged will-non issue of citation-not fetal-certificate can not be revoked. Held: Para-12 In the present case, the court while granting the Letters of Administration with the Will annexed on the basis of the evidence of one of the marginal witnesses has found the Will to be duly proved. The applicant in the application is not contending that no such Will was ever executed by the deceased or that if such a Will exists it is a forged, fictitious or a fraudulent document rather the contents of the application would reveal that the execution of the Will is admitted. There is not even denial to the attestation of the Will by the marginal witnesses who has proved the same. Case Law discussed: AIR 955 SC 566 (1); AIR 1970 Calcutta 433. (Delivered by Hon'ble Pankaj Mithal, J.) 1. Heard Sri J. Nagar Advocate, assisted by Sri Shubham Agarwal, learned counsel for the applicant Qaisarul Islam. 2. The applicant has applied under Section 263 of the Indian Succession Act, 1925 for the revocation of the Letters of Administration granted by this court on 27.5.2013 in favour of one Mohd. Bu Ali in respect of the estate of the deceased Imamat Husain with the Will annexed. 3. The applicant is claiming rights on the properties of the late Imamat Husain on the basis of an oral gift of 1972 and as his sister's son (Bhanja). 4. The submission of leaned counsel for the applicant is that as the applicant has interest in the property of the deceased, he should have been named in the proceedings and issued a citation before granting the Letters of Administration. Secondly, the applicant is an illiterate person. The citation published in the news papers had escaped the notice of the applicant and as such he could not appear and file caveat so as to contest the grant. 5. In support of his contentions, Sri Nagar has placed reliance upon two decisions one reported in AIR 955 SC 566 (1) Anil Behari Ghosh Vs. Smt. Latika Bala Dassi and others and AIR 1970 Calcutta 433 Smt. Annapurna Kumar Vs. Subodh Chandra. 6. The Calcutta authority is only to the effect that where a person has slightest interest in the property, he is entitle to be issued a citation of the petition but the absence would not necessarily result in revocation of the grant. 7. Thus, in view of above, the applicant claiming himself to be the Bhanja may be having a right of citation but the issue is whether the non issuance of the said citation to him would render the grant as invalid. 256 INDIAN LAW REPORTS ALLAHABAD SERIES 8. The grant was made after the citation was published in the news papers twice. The publication was made in a widely circulated news papers in the area where the applicant resides. The publication of the citation in the news paper of the area is not disputed. Therefore, citation to the public in newspaper would be a citation to the applicant as well. 9. In view of above, in the normal case, once citation is published through news papers in the area, every person would be deemed to have knowledge of the proceedings unless contrary is shown. The applicant has not established by any material that he had not come across such a citation or that he actually had no knowledge even of the publication of the citation. The avernments to this effect are completely missing from the affidavit filed in support of the application. The only submission in this regard is that the applicant is an illiterate person. 10. In this view of the matter, I am of the view that the court had rightly proceeded with the matter after the citation was published in the news papers and the applicant had failed to participate in the proceedings. 11. The Supreme Court in the case of Anil Behari Ghosh (Supra) has ruled that where the proceedings are defective in substance, it would be a case for revocation of the grant of probate. The Supreme Court further explaining the phrase 'defective in substance' held that it means that the defect be of such a character as to substantially affect the correctness of the proceedings. The judicial power vested in the court to revoke the grant is not absolute. The power to revoke is exercised where the court prima facie belives that it is necessary to have the Will proved afresh. On the other hand, the court may refuse to grant annulment in cases where there is no likelihood of proof being offered that the Will admitted to probate or Letters of Administration was either not genuine or had not been validly executed. 12. In the present case, the court while granting the Letters of Administration with the Will annexed on the basis of the evidence of one of the marginal witnesses has found the Will to be duly proved. The applicant in the application is not contending that no such Will was ever executed by the deceased or that if such a Will exists it is a forged, fictitious or a fraudulent document rather the contents of the application would reveal that the execution of the Will is admitted. There is not even denial to the attestation of the Will by the marginal witnesses who has proved the same. 13. In such circumstances, when the execution of the Will has not been doubted by the applicant by making any averment to this effect and the application merely for the reason that he was not named in the proceedings and was not served with a citation individually, I do not consider it to be a fit case where the grant should be revoked. 14. In view of above, the petition is dismissed. -------- APPELLATE JURISDICTION CIVIL SIDE DATED: LUCKNOW 20.02.2014 BEFORE THE HON'BLE DR. DHANANJAYA YESHWANT CHANDRACHUD, C.J.