Calcutta High Court
For The vs Debashis Ghosh) on 14 June, 2024
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY AND INTESTATE JURISDICTION
ORIGINAL SIDE
I.A. No. G.A. 1 of 2023
In
PLA No. 80 of 2023
IN THE GOODS OF:
SATYA BRATA GHOSH ALIAS SATYABRATA
GHOSH
Before: The Hon'ble Justice Apurba Sinha Ray
For the Petitioner : Ms. Malabika Roy Dey, Adv.
For the Executors : Mr. Reetobroto Mitra, Adv.
/Respondents Mr. Arindam Guha, Adv.
Ms. Arpita Dey, Adv.
CAV On : 09.05.2024
Judgment On : 14.06.2024
Apurba Sinha Ray, J. :-
1. The applicant, Michael Soumen Ghosh filed the instant petition
praying for revocation of the Probate of the Will granted in favour of
the respondents on 12.10.2023 on the grounds that inspite of being a
biological son of the testator, Satyabrata Ghosh, he was never cited in
the proceedings and the propounder/executor was able to obtain the
Probate of the relevant Will as a "non-contentious" matter.
2. Admittedly, the applicant was born in the year 1956 when his
mother was a legally wedded wife of one Sudhindra Narayan Roy, but
according to his mother, Phyllis Irene Roy, he was fathered by the
testator, Satyabrata Ghosh who was a good friend of Mr. Roy as
aforesaid. Subsequently, the mother of the applicant married the
testator Satyabrata Ghosh in or about 1964. However, during his birth
as his mother was the wife of Mr. Roy, the birth certificate of the
applicant contained the name of Mr. Sudhindra Narayan Roy, as his
father but which was actually not true and correct.
3. The applicant being the biological son of the testator has
caveatable interest in the estate of the deceased and as such he is
entitled to be cited in the proceeding of Probate of Will as per law of the
land, but as the same was not done, he prays for revocation of the
grant of probate in favour of the respondents.
4. In support of her contention, Mrs. Malabika Roy Dey, appearing
for the applicant, has placed on record a letter written by the mother of
the petitioner contending that the petitioner was fathered by the
testator during legal wedlock of the mother of the petitioner with Mr.
Sudhindra Narayan Roy. The learned counsel has also drawn the
attention of this court to the relevant paragraphs of the affidavit-in-
opposition filed by the respondent wherein the respondent admitted
that during probate proceedings, attempt was made to obtain consent
affidavit from the petitioner but he refused to give his consent. This
goes to show that the facts that applicant was the biological son of the
testator and he had caveatable interest in the estate were known to the
executor/propounder, otherwise there would not have been an attempt
to obtain a consent affidavit from the applicant.
5. The learned counsel of the applicant further argues that her
client is ready to undergo any sort of DNA Test/DNA Lineage Test for
the purpose of proving his contention. According to her, in several
documents the testator admitted the applicant as his biological child,
and, therefore, he has been wrongly described as 'step son' in the Will
for the purpose of obtaining the probate without issuing any notice to
the biological son of the testator.
6. In support of her contention that when citation upon the legal
heirs is insufficient, the probate granted in favour of the concerned
person should be revoked and the original probate proceeding should
be revived, Mrs. Roy Dey cited judicial decisions reported at 2015 (2)
CLJ 506 (Shri Arun Chandra Dey Vs. Debashis Ghosh), AIR 2002
Calcutta 140 (Arindam Ghosh V. Chittaranjan Ghosh & Ors.).
7. By citing reported decision of Basanti Devi Vs. Rabiprakash
Ramprosad Jaiswal (AIR 2008 Supreme Court 295), Mrs. Roy Dey
has vehemently argued that the probate application is a proceeding in
rem and it binds all the parties before the court as well as other
persons in all proceedings arising out of Will or any claim thereunder,
and any person who has been aggrieved for non-citation, is entitled to
file an application for revocation.
8. Further, Mrs. Roy Dey has relied upon the case of Mutukdhari
Singh Vs. Smt. Prem Debi & Ors. (AIR 1959 Patna 570) to buttress
her contention that the interest of any aggrieved person under Section
283(1) of Indian Succession Act, 1925 may be slight or there is a bare
possibility of such an interest or the interest dependent upon remote
contingencies etc. is sufficient to entitle the person concerned to
oppose a Will.
9. In opposing the prayer for revocation, learned counsel Mr. Mitra,
appearing for the respondents, has argued that there are sufficient
documentary evidences which show that the applicant was born
during the wedlock of one Mr. Sudhindra Narayan Roy and Phyllis
Irene Roy in the year 1956, and there were sufficient materials from
which it is transpired that Mr. Roy had access to his wife, i.e. mother
of the applicant during relevant period. The birth certificate and
passport/visa of the child contained the name of Mr. Roy as the
biological father of the applicant. Therefore, presumption of Section
112 of Indian Evidence Act, 1872 in acknowledging Mr. Roy as father
of the applicant is so conclusive that a mere production of a letter
purportedly written by the mother of the applicant does not rebut or
displace the presumption under the above referred section. Moreover,
Mr. Mitra has challenged the authenticity and custody of the said
letter.
10. Mr. Mitra, has also submitted that the main contention of the
applicant that as he has been described as 'step son' in the Will, he
thought it fit to present the application for revocation, is baseless since
the testator himself described the applicant in the Will as his step son.
11. The learned counsel has further submitted that the prayer for
DNA Test/DNA Lineage Test cannot be allowed as a routine manner,
particularly when there are sufficient materials on record to show that
Mr. Roy had access to his wife i.e. mother of the applicant, during the
relevant period. Moreover, in the facts and circumstances of the case,
DNA Report may not be beneficial for adjudication of this case. In
support of his contention, the learned counsel has placed reliance
upon Smt. Dukhtar Jahan Vs. Mohammed Farooq (1987) 1 SCC
624 (paras 12, 13 & 14), Goutam Kundu Vs. State of West Bengal
and Another (1993) 3 SCC 418 (paras 21, 22, 24, 26 & 27), Kamti
Debi Vs. Poshi Ram (2001) 5 SCC 311 (paras 7, 8, 9, 10, 11, 13
and 14), Banarasi Dass Vs. Teeku Dutta (Mrs.) and Another (2005)
4 SCC 449 (paras 8 to 15), Aparna Ajinkya Firodia Vs. Ajinkya
Arun Firodia 2023 SCC Online SC 161 (paras 36 to 43, 52 & 60).
12. It is also argued that the applicant was well aware of the fact
that the respondent was going to obtain probate of the Will dated
05.08.2014 but inspite of knowing the said fact, he chose not to
contest the said proceedings. Mere discussion and conversations
between the parties will not confer the applicant with any right which
he otherwise does not have. The case of Narendra Nath & Another Vs.
Smt. Fakirmani Dassi & Others (AIR 1952 Cal 20) has been relied
upon.
13. The learned counsel of the respondent has also distinguished
the case laws cited by the applicant's learned counsel. The case of Shri
Arun Chandra Dey (supra) has been distinguished by the respondents
by contending that:-
"The judgement deals with Class II heirs not
being cited which falls well within the realm of
Section 263 of the Indian Succession Act,
1925. In the present application, the applicant
is not a son or an intestate heir as per The
Schedule [Section 8] Heirs in Class I and Class
II of Hindu Succession Act, 1956 and hence he
does not have any right to be cited."
13.1. The case law of Arindam Ghosh (supra) has been distinguished
by pointing out that:-
"The judgement deals with Class I heirs not
being cited and upon satisfying the court,
without any challenge to their title as intestate
heirs, and on the ground of forgery the grant
of probate was revoked, and upon revocation,
the question of revival of probate proceedings
arises. In the present application, the
applicant has failed to prove his title as per
The Schedule [Section 8] Heirs in Class I and
Class II of Hindu Succession Act, 1956 and
therefore he fails to satisfy the ingredients of
Section 263 of the Hindu Succession Act
following which his contention for revocation
of the grant of probate fails."
13.2. Mutukdhari Singh (supra) has been distinguished on the plea
that:-
"The judgement deals with Class II heirs not
being cited upon and also clearly states that
an application for revocation of probate is a
matter of substance and not mere right,
thereby clearly conditioning the revocation to
be granted only when the applicant has prima
facie satisfied that they are intestate heirs who
ought to be cited. In the present application,
the applicant is not an intestate heir as per
Class I and II of the Schedule, Hindu
Succession Act, neither has he furnished any
cogent document to satiate his application,
therefore the question of revocation of grant
does not arise."
13.3. The judicial decision of Basanti Devi (supra) has also been
distinguished by contending that:-
"The judgement deals with a Class II heir
being to a party to the Will, who was not cited
and was unaware of the probate proceedings.
In the present application, not only does the
applicant fails to qualify as an heir as per S.
283 who ought to be cited, but also fails to
conceal his knowledge about the probate
proceeding which was due to be instituted."
14. In fine, according to learned counsel of the respondent, the
applicant is a persona non grata in the proceeding and cannot call for
revocation of the grant which has been allowed by this court after
necessary scrutiny.
Court's view
15. Admittedly, the applicant was born in the year 1956 when there
was a valid legal wedlock between Mr. Sudhindra Narayan Roy and
Phyllis Irene Roy. It is also admitted case of the parties that the birth
certificate and passport/visa of the appellant contained the name of
Mr. Roy as his biological father. There are materials on record to show
that Mr. Roy had sufficient access to his wife Phyllis at the relevant
time. The respondents have taken shelter under Section 112 of the
Indian Evidence Act, 1872 to fortify their stand.
16. However, brushing aside all unnecessary details, I would like to
say that a testamentary court's function is very limited. It has been
enjoined under the law only to see whether a testamentary disposition
has been made by the testator according to his/her own will and
desire or not, or whether there was fraud, collusion in obtaining the
testamentary document in violation of law or not. Needless to mention,
the testamentary court has also another important function, and that
is, if, subsequent to grant of probate, any interested person shows that
the grant was obtained by misrepresentation, suppression of material
facts etc, the testamentary court can revoke such grant. These are the
two broad functions of a testamentary court.
17. In the present revocation case, the issue is not confined only to
non-citation of the applicant but on the other hand, the status of the
applicant as alleged biological son of Mr. Satya Brata Ghosh is also
involved. Without adjudicating the question of status of the applicant
or, in other words, without deciding the question whether the
applicant is the biological son of Satyabrata Ghosh or not, the prayer
for revocation of the grant cannot be adjudicated upon.
18. The record contains the birth certificate of the applicant showing
the name of his father as Mr. Sudhindra Narayan Roy and mother as
Phyllis Irene Roy. Moreover, the said birth certificate further shows
that it was Mrs. Phyllis Irene Roy at whose application dated
15.06.1956 such particulars of the applicant were recorded by the
concerned officer of the United Kingdom Registration office at Calcutta.
It is further found that the name of the present applicant was shown
in the said birth certificate as Soumendra Narayan Roy which
resembled the name of Mr. Sudhindra Narayan Roy who was shown to
be the biological father of the child therein.
19. Now, the present revocation application being I.A. GA No. 1 of
2023 contains the name of the applicant as Michael Ghosh @ Michael
Soumen Ghosh s/o Satya Brata Ghosh @ Satyabrata Ghosh. From the
submission of both the parties' counsels it appears that there is no
dispute regarding the identity of Michael Ghosh and Soumendra
Narayan Roy as one and same person, and accordingly, relying on
such submission of the learned counsels of the parties there is no
impediment for this court to treat Michael Ghosh and Soumendra
Narayan Roy as one and the same person. But the question which
troubles this court is that when and how the name of the applicant's
father has been changed. Needless to mention, any person can change
his own name by certain legal process, but to substitute one's father's
name it requires a detailed and long legal process, since it involves the
status of such person. Can anybody on his own substitute his father's
name without adopting such legal process? In this case, the question
whether the applicant had taken any legal process to substitute his
father's name as Mr. Satya Brata Ghosh @ Satyabrata Ghosh in place
of Mr. Sudhindra Narayan Roy, remains unanswered. No document is
produced before this court to show that any order is obtained from
Civil Court declaring that Michael Ghosh @ Soumendra Narayan Roy
is the son of Satya Brata Ghosh @ Satyabrata Ghosh. Even the alleged
admission of the testator acknowledging the applicant as his child or
step child would not be of much help since the birth certificate
containing the name of Mr. Sudhindra Narayan Roy as biological
father of the applicant is staring at him. Only the declaration of a Civil
Court could have changed the status of Michael Ghosh @ Soumendra
Narayan Roy S/o Sudhindra Narayan Roy to Michael Ghosh @ Michael
Soumen Ghosh S/o Satya Brata Ghosh @ Satyabrata Ghosh. But
nothing that sort of declaratory decree is produced before this
testamentary court.
20. The testamentary court, as I have already indicated, has limited
roles to play in respect of testamentary disposition of the concerned
person, and it has no power to pass any declaratory decree or any
order declaring the status of any person. Therefore, the contention of
Mrs. Malabika Roy Dey, learned counsel, for taking up evidence with
regard to the status of the applicant as the biological son of Mr. Ghosh
or for ordering DNA Test/DNA Lineage Test cannot be considered by
this testamentary court. The law has given enough power to the
applicant for seeking appropriate relief in the competent civil forum in
declaring his status as biological son of the testator in contradiction of
the relevant birth certificate dated 21.06.1956 by producing evidence
including the letter dated 25.10.1955, DNA Test report etc. subject to
the order of the Civil Court.
21. I have gone through the case laws cited by both the parties, and
the instant case is unique and different from the factual matrix of the
cited decisions. Furthermore, not a single case law shows that the
testamentary court has any power to direct production of DNA Test
report to ascertain the status of a party to the proceedings. Without
making a detailed discussion on the said case laws, this court gives
liberty to the parties to place the same before the relevant civil forum,
if such occasion arises, since any observation on such case laws may
adversely affect the civil proceedings, if any, in future.
22. In fine, in view of the materials on record, I do not find it
appropriate to allow the prayer of the applicant at this stage. Hence,
the instant petition for revocation of the probate granted on
12.10.2023 stands dismissed on contest, but no order as to costs.
23. Urgent Photostat certified copies of this Judgment, if applied for,
be supplied to the parties on compliance of all necessary formalities.
(APURBA SINHA RAY, J.)
