# Mokshadayini Dasi v. Karnadhar Mandal ((19141 19 C.W.N

- **Citation:** [1955] 2 S.C.R. 270
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Civil Appeal No. 106 of 1953
- **Bench:** Vivian Bose, Jagannadhadas, Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mokshadayini-dasi-v-karnadhar-mandal-19141-19-c-w-n-1493
- **Pages:** 20

## Headnote

Indian Succession Act, 1925 (Act XXXIX of 1925), s. 263--
Explanation cl. (a)-Expression "defectivt in substance"-Meaning
of-Probate proceedings--Omission to issue citation to persons who
should hll'De been apprised-Legal
effect thereof-Revocation of
grant-Whether qn absolute right irrespective of other · considerations arising in the case~'Judicial discretion vested in Courts.
The expression "defective in substance" jn Explanation cl. (a)
to s. 263 of the Indian Succession Act,-1925 means that the defect
was of such a character ·as to substantial! y affect the regularity and
correctness of the previous proceedings.
The omission to issue c.itations 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 yested 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 circumstances 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 mal!er of substance
and not of mqe 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 gem,llneness of
the will bas not )>ecn 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 tfie circumstances of the present case the omission of
citation bas had no effect on the regularity of.the proceedings resulting in the grant of 1921.
Mokshadayini Dasi v. Karnadhar Mandal ((19141 19 C.W.N.
1108), Brindaban v. Sureshwar ((1909) 10 C.L.J. 263), Durgavati v.
Sourabini ([1906] l.L.R. 33' Cal. 1001) and .Ramanandi Kuer v.
Krdowati Kuer ([19271 L.R. 55 I.A. 18), referred to.
·i
2 S.C.R.
SUPREME COURT REPORTS
271
1955
C1v1L APPELLATE JuRJSDJCTJON: Civil Appeal No.
106 of 1953.
Anil Befluri Gf1osh
v.
Appeal from the Judgment and Order dated the Smr. Latika Bala
4th September 1951 of the High Court of Judicature Dussiaudothers
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. Chose with him)
for the appellant.
M. C. Setall"ad, A 11orney-Ge11eral 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 i~ an appeal against the judgment
and order dated the 4th September 1951 of the Calcutta High Court in its appellate jurisdictii.)n 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
Bi nod Lal
Gho~h. deceased, whom we shall call the testator in
the cours.e 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 executtir~ or executrices:-
< O Anil Nath Basu, Attorney-at-Law
(2) Brindaban Chandra Mitter
(These two also figure as attesting
witnesses to the will).
<.31 His adopted son Charu Chandra Ghose (whon'l
\Ve shall call Charu for the sake of
brevity) a minor on his attaining
majority.
. 272
SU

## Text

_Characters 0–39,884 of 43,951. This is a partial read: ask again with offset=39884 for what follows._

1955
April 15
270
SUPREME COURT REPORTS
ANTL BEHARI GHOSH
v.
[ 1955]
SMT. LATIKA BALA DASSI AND OTHERS.
[VIVIAN BOSE, JAGANNADHADAS and SINHA, JJ.]
Indian Succession Act, 1925 (Act XXXIX of 1925), s. 263--
Explanation cl. (a)-Expression "defectivt in substance"-Meaning
of-Probate proceedings--Omission to issue citation to persons who
should hll'De been apprised-Legal
effect thereof-Revocation of
grant-Whether qn absolute right irrespective of other · considerations arising in the case~'Judicial discretion vested in Courts.
The expression "defective in substance" jn Explanation cl. (a)
to s. 263 of the Indian Succession Act,-1925 means that the defect
was of such a character ·as to substantial! y affect the regularity and
correctness of the previous proceedings.
The omission to issue c.itations 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 yested 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 circumstances 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 mal!er of substance
and not of mqe 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 gem,llneness of
the will bas not )>ecn 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 tfie circumstances of the present case the omission of
citation bas had no effect on the regularity of.the proceedings resulting in the grant of 1921.
Mokshadayini Dasi v. Karnadhar Mandal ((19141 19 C.W.N.
1108), Brindaban v. Sureshwar ((1909) 10 C.L.J. 263), Durgavati v.
Sourabini ([1906] l.L.R. 33' Cal. 1001) and .Ramanandi Kuer v.
Krdowati Kuer ([19271 L.R. 55 I.A. 18), referred to.
·i
2 S.C.R.
SUPREME COURT REPORTS
271
1955
C1v1L APPELLATE JuRJSDJCTJON: Civil Appeal No.
106 of 1953.
Anil Befluri Gf1osh
v.
Appeal from the Judgment and Order dated the Smr. Latika Bala
4th September 1951 of the High Court of Judicature Dussiaudothers
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. Chose with him)
for the appellant.
M. C. Setall"ad, A 11orney-Ge11eral 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 i~ an appeal against the judgment
and order dated the 4th September 1951 of the Calcutta High Court in its appellate jurisdictii.)n 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
Bi nod Lal
Gho~h. deceased, whom we shall call the testator in
the cours.e 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 executtir~ or executrices:-
< O Anil Nath Basu, Attorney-at-Law
(2) Brindaban Chandra Mitter
(These two also figure as attesting
witnesses to the will).
<.31 His adopted son Charu Chandra Ghose (whon'l
\Ve shall call Charu for the sake of
brevity) a minor on his attaining
majority.
. 272
SUPREME COURT REPORTS
l 1955]
}955
(4) His wife Haimabati Dasi, and
ii Beliari Ghosh
(5) His brother's widow Muktakesi Dasi.
v.
Smt. Latika Bala
Da.<si and others He also directed that on the death of the said .Anil
Sinha J.
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
pasi, will take her place respectively as executrix. It
1s 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 arinual
payments in respect of the expenses of certain deities
and festivals, as also for the funeral expenses of himsdf and the annuitants
aforesaid.
He directed his
er.r.icutors to accumulate Rs. 12,000 a year out of the
balance left after meeting the annuities and the other
annua I 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 bis hands immediately on his attaining · ma.iority.
·He trusted Charu's wife and the other ladies i.n 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,
•
2 S.C.R.
SUPREME COURT REPORTS
273
convicted for murder and sentenced to
transporta1955
tion for life. Charu served his term of imprinsonment A11il Behari Ghosh
and wa& released from jail some time in 1933.
· v.
Smt. Latika Bala
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 beh::tlf of Anil
Nath, Muktakesi Dasi and Latikabala Dasi aforesaid.
The application stated that the testator died on the
5th March 1920 at Baranagar, leaving hirn surviving
his adopted son Charu and his widow Haimabati
D:tsi. 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.
lt 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 ri1ade 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
wiil 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 a_!!d
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
grnnt, 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.
Tn that application. the previous grant of proh~1tc <litcd the 30th September. 1921.
the death of
Muktakesi Dasi some time in October 1932 and the
Dassi and others
Si11haJ.
274
SUPREME COURT REPORTS
[ 1955]
1955
facr of his attaining majority some time in January
Allil 0;:,,~-;; Gliosli 1924 are recited.
On the 16th September. 1933 Debi
v.
Pwsf!d Milter's application was granted.
Snu. Latika Bala
Dussi m•1 others
It appears that Latikabala Da5i and Sushamabala
s;"'"' J.
Dasi applied to the Calcutta High Court on the 4th
December 1933 for an order for discharging the
e~ecutors appointed previously and for a direction to
hand over the entire estate of the testator t0 the applicants. In answer to the summons Debi Prasad
Mitter made an atlida vit on the 7th Deccm ber 1933
in which he recited the previous grants of the probate
made in J 921 and 1933: and stated that the testator
Binod Lal Ghosh was inurdered on the 5th March
1920 by Cham 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 he set out the
genealogic11l 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
wrviving grantees of the probate. Anil Nath Basu
and Lalikabala Dasi, after the death of Haimabati
had not filed any account of the tcst:ltor's estate in
their capacity as executor and executrix respectively
and that on his obtaining probate of the will those
person' 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 test of the
letter sent by his solicitor to Anil Nath Basu and
Lalikabala Dasi. The letter is elated 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 Prasad
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,
J 1)34 th~ High Court dismissed the appiication for discharging the persons who had been granted the probate.
Girish
Chandra
Ghosh aforesaid
died
in
Dcccmhcr.
19.40 without having ,taken any steps in
court clahning his rights, whatever they were, in the
2 S.C.R.
SUPREME COURT REPORTS
275
testator's estate.
Anil Nath Basu also died in July,
1955
1948.
He does not appear from the record to have Anil Behari Ghnsh
rendered any accounts in respect of his dealings as the s
L v:k B .
.
f h
·11
f h d
d
mt. ati a ma
managing executor 0 t e WI
0 t e ecease .
Dn.ui and others
It was not until the 17th September, I 949 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
Ju!y, 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
absoiutely clear that the said testator revoked his will
of 2C)th ·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 ha" been
revoked bv 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
he was the nearest male relative alive at the time
when the said Binod Lal r.hosh was murdered;
Sinha.!.
1955
Anil Beltari G!10sh
v.
Snit. latika Bala
Da.<;.r;f and others
Sinha J.
276
SUPREME COURT REPORTS
[1955]
(b) That the grants were obtained fraudulently;
le) 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/-;
le) That the grants in any event. are useless and
inoperative;
(f) That there was no filing of accounts;
lg) That the grants were issued hy concealing
the fact~ 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 was 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 inale relative of the testator
or thflt Charu had murdered his adoptive father. It
was also denied that the testator
had revoked hts
will and that he died intestate as a result of which the
petitioner and his three brothers became entitled to
succeed to his estate. Achintva 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 m1in 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 revokin~
2 S.C.R.
SUPREME COURT REPORTS
277
and annulling the grants aforesaid and directing "that
1955
the will be proved in solemn form on notice to the AnilBehari Ghosh
applicant 11,nd the other sons of Girish and also after s
L v:
· l
I ·
·
II
·
d .
h
mt.
at1ka Ba a
a genera c1tat10n to er
persons mtereste
m t e Dassi and others
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 Cham had
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(') that
the question whether the will had 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 0f the testator~
est::itc. 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 S(IV, he did not find it established that the estate
was ~vorth over Rs. 40,00,000 and that the declaration of the value of the testator's estate at Rs. 4,75,780
war; false or fraudulent or that the grant had 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 Bench
.
.
m 19 rw. N. t 10&.
36-8 SCI/ND/82
Sinha J.
278
SUPREME COURT REPORTS
[1955]
1955
consisting of Sir Trevor Harries, C.J. and Banerjee, J .,
A11il Belwri Ghosh allowed the appeal and dismissed the application for
Smt. La~ika Bala revocation of the probate with costs of both the
Dassi and others courts.
They held that the
will in question
was
Sinha J.
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 t0 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 t0 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.
Jn this appeal it has been argued on behalf of the
appellant on the authority of the decision in Mokshadayini v. Karnadhar(') 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 Jaw 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 Giri~h. On
behalf of the 1st respondent the conclusion of the
Appeal Bench has been supported on all the grouT)ds.
On behalf of the respondent Debi Prasad Mitter.
it
(I) 19 C. W. N.1108.
' I
,J
2S.C.R.
SUPREME COURT REPORTS
279
was contended that he had been unnecessarily
im1955
pleaded at all the stages and that he should have been Anil Behari Ghosh
2ranted his costs out of the estate of the deceased.
s
L v:k B l
~
mt. all a a a
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 subject1 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
Nill hereinafter be referred to as the Act).
Section
263 of t-he Act is substantiallv in the same terms as
section 50 of Act V of 188 (
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--
(a1 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 o( law to .iustify
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
exhihit 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:-
Dassi and others
Sinha J.
180
SUPREME COURT REPORTS
[ 1955]
1955
"(i) The court by which the grant was made had
Anil .Behari Ghosh no jurisdictfon.
sm1. 1:-arika Bala
(ii) The grant was made without citing parties
Dam and others who ought to have been cited.
Sinha J.
(iii) fhe 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 OnginaJ 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 oi 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
iri 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
per~on 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
Cham 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 vaJid and genuine will, there is intestacy in respect
of the interest created in favour of Charu, 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 hy the Hfoh
Conrt in the sessions trial that Cham was the
2 S.C.R.
SUPREME COURT REPORTS
281
murderer. Though that judgment is relevant only to
1955
show that there was such a trial resulting in the con- A11il Behari Ghosh
viction and .sentence of Charu to transportation for smi. La7ika Bala
life, it is not evidence of the fact that Cham was the Dassi and others
murderer.
That question has to be decided on eviSin/ta J.
dence. 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 t\yo
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
Gidsh 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 om opinion, there is ample evidence 1!1 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 Prasad 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 execu-
:tion 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 .. ot
think it worth his while to take any steps in court to
282
SUPREME COURT REPORTS
[1955]
1955
challenge the will or the grant. The estate was worth
411il Beliari Glws·li anything between five to forty lakhs, perhaps nearer
smi La~ika Bala ~ve lakhs than forty lakhs.
Girish was a mere penDassi and others s10ner belonging to a middle class family. Either he
Sinha J.
did not think it worth his while to embark on a liti_gation 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 'Nas placed in
this connection on the judgment of a Division Bench
of the Calcutta High Court in Mokshadayini Dasi v.
Karnadhar Manda[(') 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
pr0bate 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: Brindahan v. Suresh-
(1) 19 C.W.N. 1108.
2 S.C.R.
SUPREME COURT REPORTS
283
war(').
The question of genuineness cannot be con1955
sidered till a case for revocation is made out: Durga- A11il Behari Ghosh
vati v.
Sourabini!')".
v.
Smt. Latika Bala
The observations relied upon by the appellant were Dassi and Olhers
made with reference to the facts of that case and
Sinha .1.
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.
Jn 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 squght 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
.,;ubstance''. 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
h:1ve been entitled to a revocation of the grant if he
(1) 10 C.L.1. 263 at p. 273.
(2) I.L.R. 33-C.I. 1001.
284
SUPREME COURT REPORTS
[1955]
1955
had moved shortly after the grant of the probate on
Anil Behari Ghosh the simple ground that no citation had been issued
v.
to him. The omission to issue citations to persons
Snu. Latika Bala
Dassi and others who should have been apprised of the probate proSinha!.
ceedings 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.
\Ve cannot
ignore the facts that about 27 years had elapsed after
the grant of probate in 1921, that Girish in spite of
the ki;iowl~dge 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
ye1rs 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 appeilant made pointed
reference to the deeision of their Lordships of the
Judicial Committee of the Privy Council in
Ramanandi Kuer v. Kalawati Kuer('). But that case is ;1n
!authority for the proposition that where two grounds
:are taken for revocation of a grant, viz., (I)
that
persons who ought to have been cited were not cited.
and (2\ that the will was a forgery, if the first ground
is esta hlished. 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
(I) L.R. SS I.A. 18.
2S.C.R.
SUPREME COURT REPORTS
285
!may refuse to grant annulment in cases where there
1955
is no likelihod of proof being offered that the will Anil Behari Gho!h
!admitted to probate was either not genuine or had s
L v:k 8 1
b
I "di
d
. h 1
. t d
mt. at1 a a a
not
een v~ I y execute . But, as ng t y pom e
Dassi and others
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 faots:
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
~. That a false declaration as regards the value
of the property constituting the estate of the deceased
kstator had been made, that is to say, the applicants
for probate had concealed
from the court the true
valne 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 iail. 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 su£!gestion bv observing that it was a mere formal reservation. It has no such sinister significance as is attrihuted to it.
Tt is also true that there is no statement
in the aoolication that Charu had murdered the
testr.tor.
While agreeing with the Judge' in the first
ronrt thnt this was rather disingenuous: we must· also
17-R fI!Nf 182
Sinha J.
1955
Anil Behar/ Ghosh
v.
Stnt. Larika Bala
Da.'isi and others
SJ11!ta J.
286
SUPREME COURT REPORTS
[1955]
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
th;: 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
encugh 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
ibeen 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 c0uld 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 Jays down, by l:iurning,
tearing or otherwise destroying the will by the testator
him~elf ot by some other person in his presence and
by his direction, thus clearly indicating his intention
2 S.C.R.
SUPREME COURT REPORTS
287
of revoking the will. No such proof has been offered
1955
in this case.
But it was argued that the
appellant A11il Betuiri Gliosli
would have offered such proof after the order of revo51111. La~ika Bala
cation was made by the court. That would be to put D11.,,; and 01/im
the cart before the horse. If an applicant for revocaSinlza J.
tion 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 had 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 lime 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
~mly allegation.
The omission to submit accounts
is not always synonymous with "wilfully and without rea~orn~ble cause" omitting to exhihit
accounts.
Tn certain circumstances omission to submit accounts
1955
Anil Behari Ghosh
v.
Smt. Latika Bala
Dassi and others
Sinha J.
288
SUPREME COURT REPORTS
[1955)
may bring the case within the purview of clause (e)
afores~id because the circumstances may tend to' show
that the omission was wilful and without -reasonable
cause.