Calcutta High Court

Priyaranjan Jana vs Unknown on 5 April, 2023

                                       1


                     IN THE HIGH COURT AT CALCUTTA

                 (Testamentary & Intestate Jurisdiction)

                             ORIGINAL SIDE

Present:

The Hon'ble Justice Krishna Rao



                           IA No. GA 7 of 2023
                           In PLA 325 of 2014



                            In The Goods Of :
                        Priyaranjan Jana, Deceased




            Mr. Sanjib Dawn, Adv
            Mr. Atanu Mukherjee, Adv
                                           .....For the petitioner
            Mr. Utpal Bose, Sr. Adv
            Mr. Supratim Laha, Adv.
                                           .....For the respondent

Heard on                : 31.03.2023

Judgment on             : 05.04.2023

Krishna Rao, J.: -

The petitioner has filed the instant application for amendment in the

revocation application being GA No. 4 of 2021.

The petitioner has filed an application being GA 4 of 2021 praying for

revocation of the probate granted by this Court dated 4th April, 2017 as per

the Will dated 28th November, 2003. In the application being GA 4 of 2021,

the petitioner has described the grounds in paragraph 14 of the said

application.

Mr. Sanjib Dawn, learned Advocate representing the petitioner

submits that on receipt of the copy of the application of G.A. 4 of 2021, the

respondent herein had filed affidavit-in-opposition and in the affidavit-in-

opposition, the respondent has disclosed so many facts which were

unknown to the petitioner and accordingly the petitioner intended to bring

some further facts in the said application by way of an amendment.

Mr. Dawn submits that the amendment as sought for by the petitioner

is very much necessary for adjudication of the application filed by the

petitioner for revocation of probate granted by this Court in favour of the

respondent. The petitioner submits that the petitioner intends to amend the

application being GA 4 of 2021 by elaborating the grounds for revocation of

the probate granted by this Court in favour of the respondent.

Mr. Dawn submits that the amendment as sought for by the petitioner

is formal in nature and will not change the nature and character of the

application being GA 4 of 2021. He further submits that if, the amendment

as sought for is not allowed, the petitioner will be badly prejudiced.

Mr. Utpal Bose, learned Senior Advocate, representing the respondent

submits that prior to filing of an application being GA 4 of 2021, the

petitioner had filed prior application being GA No. 1842 of 2019 for

revocation of the grant of probate but subsequently on 19th February, 2020,

the said application was withdrawn. Mr Bose further submits that prior to

filing of the instant application, the petitioner had filed prior application

being GA No. 6 of 2022 for amendment in GA No. 4 of 2021 but

subsequently the petitioner has withdrawn the said application and had

filed the present application.

Mr. Bose submits that from the petition, it is crystal-clear that the

petitioner is filing one or the other application only to harass the respondent

who has already obtained probate in accordance with law. He submits that

the petitioner is well aware that there is no irregularity in the grant of

probate of the Will dated 28th November, 2003 but only to entangle the

respondent in the litigations, the petitioner has filed the instant application.

Mr. Bose submits that there is no cogent ground for challenging the

grant of probate to the last Will and Testament dated 28th November, 2003.

He submits that this Court has granted probate after being satisfied about

the execution of the concern Will and the said Will has been duly proved by

the attesting witness.

Mr. Bose submits that the petitioner while filing an application being

GA No. 4 of 2021 in paragraph 14 has described all the grounds including

the ground of fraud. Mr. Bose submits that as per the case made out by the

petitioner, the petitioner came to know about so many facts from the

affidavit-in-opposition filed by the respondent for which the petitioner has

filed the instant application but instead of filing the said application, the

petitioner ought to have dealt with the said fact by way of reply but instead

of doing so, the petitioner has filed the present application.

Mr. Bose submits that the amendment as sought for by the petitioner

if allowed, the same will change the nature and character of the application

filed by the petitioner for revocation of grant of probate. He further submits

that if the application filed by the petitioner is allowed, the respondent will

suffer irreparable loss and injury.

Heard the learned counsel for the respective parties and perused the

materials on record. The petitioner has described the grounds for revocation

in the application being GA No. 4 of 2021 at paragraph 14 of the said

application which reads as follows :

"14. Your petitioners state that after looking and examining the photocopy of the said purported will it appears that the father's name of the late Priyaranjan Jana has been wrongly described as "Prasanta Kumar Jana" which is totally incorrect. The actual name of the father of the deceased Priyaranjan Jana is "Prasanna Kumar Jana" and not "Prasanta Kumar Jana". Secondly, the property which has been bequeathed, is a Government leasehold property which the deceased obtained by virtue of a registered lease deed. In the said lease deed it is specially stated in clause no. (e) shall not be transferrable without previous permission of the Government in writing, thirdly, no citation and/or notice has been served upon the petitioners. Fourthly, the two attesting witnesses who had purportedly signed on the said purported will are not known to the family members of the deceased abovenamed. Accordingly, the witnesses are fictitious, the alleged will dated 28th November, 2003 should not have been proved by them, Fifthly, the signature of the deceased as it appears in the copy of the said purported will, is not the actual signature of the deceased. The deceased used to put his signature in a different manner which will be evident from a document which is annexed hereto and marked with letter "I" collectively. In the purported will there is no whisper why the wife, son and daughter of the eth deceased are disinherited from the property which marks the will a great suspicion."

The proposed amendment sought for by the petitioner are described

at paragraph 21A to 21H. On perusal of the proposed amendment, this

Court finds that the petitioner has taken the ground of non-service of

citation and concealment of facts that during the lifetime the deceased had

transferred the plot of land at a consideration in favour of the propounder,

fraud, forgery and nonfiling of inventory and accounts.

As per the provision of Section 263 of the Succession Act, 1925, the

grant of probate or Letters of Administration may be revoked or annulled for

just cause, which reads as follows :

"263. Revocation or annulment for just cause. --The grant of probate or letters of administration may be revoked or annulled for just cause.

Explanation. --Just cause shall be deemed to exist where--

(a) the proceedings to obtain the grant were defective in substance; or

(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or

(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or

(d) the grant has become useless and inoperative through circumstances; or

(e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect."

The object of legislature empowering the Court to allow amendment of

the pleading is for the purpose of determining the real question in

controversy between the parties which are to be felt necessary by the Court.

This will appear from the language of Order VI, Rule 17 of the Civil

Procedure Code.

Order 6 rule 17of CPC reads as follows :

"VI. 17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

Such question obviously must have nexus and/or relation with the

controversy arose at the time of the application. Therefore, in order to decide

this question, to my mind, the duty of the Court is to examine what is

controversy between the parties highlighted in the original pleading.

Question in relation to different controversy between the same parties

cannot be brought into one litigation that will result in jumbling of the

controversies which may lead to confusion in the Court.

The petitioner while filing an application being GA 4 of 2021 has

described the grounds in paragraph 14 of the said application but now the

petitioner intends to elaborate the grounds by way of an amendment. On

perusal of proposed amendment, this Court finds that the same will not

change the nature and character of the application and is connected with