[Cites 12, Cited by 0]
Calcutta High Court
Swadesh Ghosh And Another vs Mrs. Lagnajita Saha And Others on 10 December, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
APO 335 of 2014
IA No. GA 4 of 2024
IA No. GA 5 of 2024
Swadesh Ghosh and Another
Vs.
Mrs. Lagnajita Saha and Others
For the appellants : Mr. Swarnendu Ghosh, Sr. Adv.
Mr. Surya Maity, Adv.
Ms. Suchismita Ghosh, Adv.
For the respondents : Mr. Suman Dutta, Sr. Adv.
Mr. Debmalya Ghosal, Adv.
Mr. Sourath Nath Dutta, Adv.
Ms. Abhipiya Sarkar, Adv.
Hearing concluded on : 10.11.2025
Judgment on : 10.12.2025
Md. Shabbar Rashidi, J.:-
1. The appeal is in assailment of judgment and order dated August
11, 2014 passed in GA No. 2705 of 2013 arising out of PLA No. 292 of
2012.
2. By the impugned judgment and order, the learned Single Judge
revoked the probate granted on January 7, 2013 in respect of the last
will of late Jibendra Nath Biswas by an order passed in PLA 292 of
2012. It was held in the impugned judgment and order that the
respondent No. 1 herein had sufficient caveatable interest under
Section 283 (1)(c) of the Indian Succession Act and directed issuance of
special citation upon respondent No. 1 to enable her to contest the
probate proceeding.
3. It was contended by learned Senior Advocate for the appellant
that learned Single Judge erred in holding that the probate granted in
common form was liable to be revoked and ordered revoking of the
probate granted dated January 7, 2013 in PLA 292 of 2012. Learned
Single Judge was not justified in directing special citation upon
respondent No.1 in order to give her an opportunity to contest the
probate proceeding.
4. Learned Senior Advocate for the appellant further submits that
the learned Single Judge erred in holding that the appellant practiced
fraud and misrepresentation in obtaining probate of the Will of late
Jibendra Nath Biswas. The respondent No.1 was in possession of the
demised property on the strength of an agreement to assign and
construction coupled with a power of attorney in this regard. She
constructed a four storied building on the suit property on the basis of
such agreements and power of attorney. It is contended that the
learned Single Judge committed error in holding that respondent No.1
had sufficient interest in the suit properties to contest the probate
proceeding merely on the ground that she had entered into an
agreement of assignment and development.
5. Learned Senior Advocate for the appellant also submitted that the
conduct of respondent No.1 was not that of a purchaser from heirs of
the deceased testator, nevertheless, the learned Single Judge held her
position in respect of the demised property as that of a purchaser.
Learned Single Judge erred in holding that the connotation any person
having slightest of interest in the estate of a testator does not include a
tenant or any person holding a property under agreement. It was also
contended that the learned Single Judge could not have acted as a
court to decide title in a probate proceeding. Respondent No.1 did not
purchase the properties at Salt Lake from the heirs of the deceased
testator and as such, her interest in such property was wrongly held to
be sufficient for assailing a probate. The rights of a tenant or assignee
are quite distinguishable with that of a purchaser.
6. Learned Senior Advocate for the appellant also argued that
although, a probate court had the jurisdiction to revoke a probate suo
motu, but learned Single Judge erred in directing issuance of special
citation upon the respondent No.1. Findings of the learned Single Judge
as to fraud allegedly practiced by the appellants were unfounded and
without any basis. It was urged that the impugned judgment and order
is liable to be set aside.
7. During the continuance of the instant proceeding, the sole
executor of the Will of late Jibendra Nath Biswas i.e appellant No. 2
expired. It was contended by learned Senior Advocate for the appellant
that on the expiry of the sole executor, respondent No.2 is entitled to
continue with the probate proceeding and a letter of administration may
be issued in terms of the provisions of Section 232 of the Indian
Succession Act, 1925. In support of his contention, learned Senior
Advocate for the appellant relied upon a decision of Delhi High Court
reported in 2024 SCC OnLine Del 2204 (Digvijai Singh and Another
Vs. State and Others) and that of Madras High Court reported in All
India Reporter 1975 Mad 194 (Soundaraja Peter and Ors. Vs.
Florance Chellaih and Ors.).
8. Learned Senior Advocate for the appellant also submitted that on
the death of sole executor, the probate proceeding does not abate. It
should be converted into one for grant of letter of administration and
proceeded with. On such proposition, learned Senior Advocate for the
appellant relied upon (2016) 13 Supreme Court Cases 253 (Vatsala
Srinivasan Vs. Shyamal Taghunathan).
9. Per contra, learned Senior Advocate for the respondent contended
that the legal heirs of late Jibendra Nath Biswas represented before her
as well as authorities that their predecessors died intestate. Relying
upon such representation, the respondent invested huge amount of
money for the development of the demised property by constructing a
four storied building thereon. As such, respondent No.1 acquired
caveatable rights in such property. She having an interest in the
property under dispute, had the right to contest the probate proceeding.
10. Learned Senior Advocate for the respondent further submitted
that probate to the Will of late Jibendra Nath Biswas was applied by the
appellants after a delay of 10/12 years from the death of Jibendra Nath
Biswas. Not only that, the legal heirs of the testator consented to the
grant of probate to such will after so many years and that too, after they
had made declarations before the authorities, after the death of
testator, that their predecessor died intestate and got the demised
property mutated in their name on the basis of such declaration, as
legal heirs of Jibendra Nath Biswas. According to learned Senior
Advocate for the respondent, the legal heirs could not have declared
that their predecessor died intestate, had they been aware of a Will
executed by their predecessor late Jibendra Nath Biswas. They could
not have consented to grant of probate to the will of late Jibendra Nath
Biswas after declaring that the deceased testator died without leaving a
Will. On such grounds, it was argued on behalf of the respondent that
the legal heirs of deceased testator practiced fraud before the learned
probate court.
11. Relying upon the authorities reported in (2000) 9 Supreme Court
Cases 714 (Shambhu Prasad Agarwal and Others Vs. Bholaram
Agarwal) and 1949 SCC OnLine Cal 368 (Mahatma Missir Vs.
Thakur Prasad Chaudhuri), learned Senior Advocate for the
respondent submitted that on the death of sole executor, the probate
proceeding cannot continue unless necessary amendments are made in
the application seeking grant of letter of administration.
12. One Jibendra Nath Biswas was holding lease granted by the
government of West Bengal on March 30, 1997 in respect of land
comprising 6. 3522 Cottas appertaining to plot No. 7 in block BA, sector
1, for a period of 999 years. The said late Jibendra Nath Biswas died on
November 5, 1991 being survived by his widow, Kuhu Biswas and two
sons Dipta and Soumya as his legal heirs. The aforesaid legal heirs of
late Jibendra Nath Biswas proposed to apply before the Urban
Development Department, government of West Bengal for recording
their names as joint lessees in respect of the properties under reference.
For such reason, the widow of late Jibendra Nath Biswas affirmed an
affidavit before the Notary Public Calcutta on May 14, 1996, where she
declared that Jibendra Nath Biswas had died intestate and that she
and her two sons aged 25 years and 20 years respectively were his only
legal heirs. Similarly the two sons of late Jibendra Nath Biswas also
affirmed separate affidavits stating interalia that each of the three legal
heirs were entitled to one third share in the property. The two sons also
declared, in the affidavit, that they were unmarried and residing with
their mother.
13. Consequently, on November 18, 1999 Bidhannagar Municipality,
made a communication informing the widow and two sons of late
Jibendra Nath Biswas that their names were mutated in the records in
place of late Jibendra Nath Biswas with effect from October 4, 1996 in
respect of the demised properties. In such fashion, the name of the
widow and the two sons of late Jibendra Nath Biswas were recorded as
joint lessees in respect of the demised property in the records of the
municipality.
14. On April 26, 1999, the three legal heirs of late Jibendra Nath
Biswas gave possession of the property in question to respondent No. 6,
a company incorporated under the provisions of the Companies Act,
1956. Such action was performed by the legal heirs of late Jibendra
Nath Biswas as joint lessees of the property. An agreement of tenancy
was executed by and between the legal heirs of late Jibendra Nath
Biswas on one hand and respondent No. 6 on the other on April 26,
1999 in lieu of sum of ₹30,00,000/-. A general power of attorney was
executed by the three legal heirs in favour of the managing director of
respondent No. 6. The legal heirs of late Jibendra Nath Biswas also
executed affidavit and an agreement to assign the lease in favour of
respondent No. 6. In such documents also the legal heirs of late
Jibendra Nath Biswas declared and represented that late Jibendra Nath
Biswas died intestate. The aforesaid agreement and letter of assignment
of lease were however, cancelled by and between the two parties, by
dint of a deed of surrender, cancellation and revocation dated June 2,
2003, cancelling the deed of assignment of lease dated April 26, 1999.
The three legal heirs of late Jibendra Nath Biswas and the Managing
Director of the respondent No. 6 signed on the deed of such surrender,
cancellation and revocation.
15. On the selfsame day i.e. June 2, 2003, a fresh agreement was
entered into between the three legal heirs of late Jibendra Nath Biswas,
on one hand and respondent No.1 on the other, respondent No. 6 being
a confirming party to such agreement of tenancy. In such agreement,
respondent No. 6 gave out that they were not willing to continue with
the tenancy in view of the conditions of lease which prohibited a sub-
lease without prior permission from the government. A notification
issued by the Government of West Bengal dated September 4, 1985
however, authorizes sub-letting for residential purposes. Under the
agreement executed between the parties whereby, respondent No.1 paid
a sum of ₹70,00,000/- for such tenancy. Such agreement authorized
respondent No. 1 to demolish the existing structure and construct a
new building over the demised property. Legal heirs of late Jibendra
Nath Biswas also executed two other agreements on June 2, 2003, one
for the assignment of their leasehold interest and another permitting
the respondent No.1 to raise new construction on the property in
question. They also executed a power of attorney on June 2, 2003 itself.
Consequently, Respondent No.1 was put in possession of the property
in dispute.
16. In terms of the agreement and power of attorney so granted,
respondent No.1 took possession of the demised property, raised a four
storied structure thereon upon demolition of the existing structure. The
said respondent invested huge amount of money for the construction of
four storied structure over the property in question. In addition,
respondent No.1 also engaged a security agency to provide security to
the property on and from February 8, 2012. Accordingly, two security
guards namely Kanailal Das and Sukumar Dhara were employed.
17. Subsequently, in 2013, appellant No.1 filed a Civil Suit being Title
Suit No. 204 of 2013 with an application under Order 39 of the Code of
Civil Procedure against one of the security guards namely Kanailal Das
and obtained an order of 'status quo' on July 10, 2013. According to the
averments made in such Civil Suit, appellant No.1 claimed himself to be
legatee of an alleged will dated November 4, 1991 executed by late
Jibendra Nath Biswas whereas he died on the very next day i.e. on
November 5, 1991.
18. In 2012, appellant No. 2 filed a proceeding for grant of probate of
the Will of late Jibendra Nath Biswas, as executor, being registered as
PLA 292 of 2012. In such application for probate, appellant No.1 filed
an undertaking before this Court declaring that apart from the natural
heirs of the deceased, there was no other person who had any interest
in the grant of probate to such Will of late Jibendra Nath Biswas. The
legal heirs of late Jibendra Nath Biswas connoted their consent to the
grant of probate to such Will. Owing to the consent given by the legal
heirs of late Jibendra Nath Biswas, the necessity of issuance of citation
was not felt and probate to such will was granted in common form by
this Court on January 7, 2013.
19. While passing the impugned judgment and order, the learned
Single Judge took into consideration that since the legal heirs of late
Jibendra Nath Biswas consented to the grant of probate to the Will and
testament of the testator, special citation was not issued in the probate
proceeding. Probate was granted on the basis of citation in common
form. The learned Single Judge also raised doubts over the genuineness
of the will in question on several counts. Will was allegedly executed by
the testator just one day prior to his death whereas; probate to such
Will was sought long after 21 years of its execution. Not only that, the
respondent legal heirs of the testator, after his death, applied for
mutation of the leasehold property in their name as such legal heirs. In
doing so, they executed several documents and affidavits where they
declared that the testator died intestate without leaving a Will.
Nevertheless, the aforesaid legal heirs consented to the grant of probate
to such Will.
20. Learned Single Judge, while revoking the probate, also noted the
terms of such Will. It was specifically noted that the alleged will
executed just a day prior to the death of the testator, was executed in
favour of a complete stranger to his family having no provision for the
natural legal heirs. Although, it was alleged in the Will that sufficient
properties were left for such natural legal heirs but the affidavit of
assets affirmed in support of the probate showed that the testator had
no property, household article or money at his disposal. Learned Single
Judge also doubted the veracity of the will in question on the ground of
inordinate delay of over 21 years in approaching the court for grant of
probate.
21. Genuineness or otherwise of the alleged Will left by late Jibendra
Nath Biswas are the questions to be looked into by the probate court. In
the present appeal, the question which has fallen for our consideration
is whether, impugned judgment and order, revoking the probate
granted to the alleged Will of late Jibendra Nath Biswas on the ground
of non-issuance of special citation upon respondent No. 1 is justified or
not. We are also obliged to consider if respondent No. 1 had any
caveatable interest in the property involved in the will and consequent
probate proceeding, entitling her a special citation in the probate
proceeding.
22. We have noted hereinabove that late Jibendra Nath Biswas was a
lessee for 999 years in respect of the property involved in probate
proceeding. On his death, the respondent legal heirs of the deceased
late Jibendra Nath Biswas applied for getting the property mutated in
their name according to their shares. At the time of such application, all
the three natural legal heirs of late Jibendra Nath Biswas sworn
affidavits that their predecessor died intestate, leaving no Will or
testament. Accordingly, the name of the three legal heirs was mutated
in respect of the demised property in the records of municipality.
23. As legal heirs of intestate deceased, the respondent legal heirs of
late Jibendra Nath Biswas assigned the leasehold interest in the
property in favour of respondent No.6 on April 26, 1999. However such
assignment was cancelled on June 2, 2003 on certain grounds. A fresh
assignment was made on June 2, 2003 itself by the respondent legal
heirs of late Jibendra Nath Biswas in favour of respondent No.1. By
such assignment, respondent No.1 was inducted as a tenant in the
demised property. The agreement dated June 2, 2003 provided for
delivery of exclusive possession of the demised property to respondent
No.1 coupled with permission to reconstruct a new structure upon
demolition of the existing structure.
24. In such transaction, the legal heirs of late Jibendra Nath Biswas
represented themselves to legal heirs of an intestate deceased and
induced respondent No.1 to enter into an agreement with legal heirs of
late Jibendra Nath Biswas who died intestate. On such representation,
respondent No.1 came in exclusive possession of the property and
invested huge amount of money to the tune of ₹70,00,000/-, towards
the construction of a four storied structure thereon upon demolition of
the existing one. To our consideration, respondent No.1 acquired
sufficient interest in the property covered under the probate and that
too, upon the representation of the respondent legal heirs of late
Jibendra Nath Biswas.
25. Section 263 of the Indian Succession Act, 1925 deals with the
provisions for revocation of a probate granted to a Will. The Section
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.
Illustrations
(i) The Court by which the grant was made had no jurisdiction.
(ii) The grant was made without citing parties who ought to
have been cited.
(iii) The will of which probate was obtained was forged or
revoked.
(iv) A obtained letters of administration to the estate of B, as
his widow, but it has since transpired that she was never
married to him.
(v) A has taken administration to the estate of B as if he had
died intestate, but a will has since been discovered.
(vi) Since probate was granted, a later will has been
discovered.
(vii) Since probate was granted, a codicil has been discovered
which revokes or adds to the appointment of executors under
the will.
(viii) The person to whom probate was, or letters of
administration were, granted has subsequently become of
unsound mind."
26. In Soundaraja Peter (supra), the Madras High Court held to the
following:
"6.Section 232 applies to a case where the testator has not
appointed an executor. The section states that where an
executor has not been appointed under a Will or the executor
appointed is incapable of or has refused to act or has died
before the testator or before proving the will, an universal or
residuary legatee may be admitted to prove the will, and
letters of administration with the will annexed may be granted
to him of the estate. Section 235 provides that letters of
administration with the will annexed shall not be granted to
any legatee other than an universal or a residuary legatee,
until a citation has been issued and published in the manner
prescribed by the provisions of that Act. Mr. Parasaran
contends that though letters of administration could be
granted under Sec. 232 to an universal or a residuary legatee,
the plaintiff not being an universal or a residuary legatee, is
not entitled to the letters of administration under the said
provision. It is also further pointed out that no citation having
been issued or published in the manner prescribed by the
Indian Succession Act, no letters of administration could be
issued to the plaintiff even if she is treated as an universal or
a residuary legatee in view of the prohibition contained in
Section 235. It is true that the plaintiff is not an universal or a
residuary legatee under the terms of the will Ex. A-1. She is
one of the four legatees under the terms of the will Ex. A-1 and
all the properties covered by the will have been bequeathed to
them and there is no residue to be administered. We do not
understand the provisions in Section 232 as enabling
only a residuary or an universal legatee to prove the
Will and claim letters of administration. Section 234
specifically provides that any legatee having a
beneficial interest may also prove the will and seek a
letters of administration. The plaintiff being a legatee
under the will and there being no universal or residuary
legatee, the provisions of Section 234 will come into
play. The plaintiff is therefore entitled to prove the will
and get letters of administration in relation to that
will."
(Emphasis supplied)
23. In the case of Digvijai Singh (supra), the Delhi High Court
observed that,
"21. It was reiterated in Smt. Vatsala Srinivasan Ig (supra)
that in any of these situations as provided under Section 232
of the Act, the universal or the residuary legatee may be
admitted to prove the Will and the Letter of Administration
with the Will annexed may be granted to him for the whole of
estate or such part of the estate as remains to be
administered. It was also observed that the right of
beneficiary to seek Letter of Administration continues to
survive notwithstanding the death of the Testator."
24. Similarly in the case of Vatsal Srinivasan (supra), where prayer
for amendment of the plaint of the probate proceeding, on the death of
executor, was allowed by learned Single Judge and affirmed in appeal,
the Hon'ble Supreme Court laid down that,
"6. In view of law laid down in the aforestated judgments, the
Division Bench observed that both the proceedings with
regard to the probate and the letter of administration are of
the same nature and therefore, the proceedings cannot abate.
The essence of both the proceedings is the same and they
relate to ascertainment of genuineness and authenticity of the
will. By considering the aforestated judgments, the Division
Bench has rightly confirmed the view expressed by the
learned Single Judge."
25. This High Court in Mahatma Missir (supra) had noted to the
following, that's to say:
"I am of opinion that the right of suit of the executor does not
continue on his death in his son and also that the
beneficiaries under the will have no right to intervene in these
proceedings as persons on whose behalf the action was
brought. I am fortified in this view by the authority of a recent
decision of this Court in the case of Hari Pada Shaha v.
Gobinda Chandra Shaha [I.L.R. [1948] 1 Cal. 300.]. In this
case, the sole executor, who died during the pendency of the
probate proceedings, was also the sole legatee, and is heir,
instead of making a fresh application for a grant to him of
letters of administration in his own right under s. 233 of the
Indian Succession Act, was allowed to continue the
proceedings without objection till the close of the hearing and,
was granted letters of administration. The learned Judges
held that this was merely a defect of form and refused to set
aside the grant. It was, however, definitely held that the
proper course for the heir was to make a fresh application for
a grant to him of letters of administration. Two earlier
authorities, in which the same view was taken, may be
mentioned. There are the decisions Sarat Chandra Banerjee v.
Nani Mohan Banerjee [(1909) I.L.R. 36 Cal. 799.] and
Haribhusan Uatta v. Manmatha Nath Datta [(1918) I.L.R. 45
Cal. 862.]."
26. In Shambhu Prasad Agarwal (supra) the Hon'ble Supreme
Court had laid down that,
"5. We find that it is not disputed that Matadin Agarwal was
a legatee under the will. It is true that Matadin Agarwal ought
to have applied for issue of letters of administration and not
for probate. However, this did not debar his heirs to get the
probate petition amended. The trial court rejected both the
applications of the appellants on the ground that since the
probate petition filed by the legatee related to his personal
right, therefore no right accrued to the appellants for their
substitution in his place. This view, according to us, is not
correct. Matadin Agarwal, as stated above, was a legatee and
not an executor under the will. It is true that where an
executor dies, his heirs cannot be substituted because the
executor possessed personal right, but this is not applicable
where the heirs of a legatee apply for issue of letters of
administration. It is not disputed that today the appellants
can file a petition for issue of letter of administration. Since
considerable time has elapsed, we feel that the interest of
justice demands that the proceedings should come to an end
as early as possible and we should not dismiss this appeal
merely on highly technical ground.
6. For the aforesaid reason, we set aside the orders under
challenge and send the case back to the trial court. We permit
the appellants to be substituted in the proceedings and also
permit them to amend the petition. It goes without saying that
after the remand, it will be open to the parties to take such
plea as may be available to them under the law. Since the
matter is pending for a considerable time, we direct the lower
court to decide the matter expeditiously. The appeal is
allowed. There shall be no order as to costs."
27. Considering the law laid down by different High Courts as well
as the Hon'ble Supreme Court, we are of the view that the law laid
down by Hon'ble Supreme Court in its latest of decisions in Vatsala
Srinivasan (supra) and Digvijai Singh (supra) shall govern the field
on the point of maintainability of the proceeding.
28. The case at hand apparently seems to be identical to the
situation enunciated in illustration (ii) appended to Section 263 of the
Act of 1925. The impugned judgment and order held that respondent
No.1 had sufficient caveatable interest in the property under reference
and as such she was entitled to a special citation in the probate
proceeding concerning such property. It directed citation to be issued
upon her in order to give her opportunity to contest the probate
proceeding. It is on this pretext, the probate granted to the Will dated
November 4, 1991 executed by late Jibendra Nath Biswas in PLA No.
292 of 2012 was revoked. We find no infirmity with the findings
returned by learned Single Judge in the impugned judgment and
order.
29. Therefore, on the basis of discussions made hereinbefore we find
no merit in the instant appeal. We affirm the impugned judgment and
order.
30. Consequently, the appeal being APO 335 of 2014 along with
connected applications are accordingly disposed of without any order
as to costs.
31. Urgent photostat certified copy of this judgment, if applied
for, be supplied to the parties on priority basis upon compliance of all
formalities.
[MD. SHABBAR RASHIDI, J.]
32. I agree.
[DEBANGSU BASAK, J.]
