Calcutta High Court
Anirban Sen And Ors vs Dhiraj Dutta on 6 November, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
OD-2
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
AN APPEAL FROM ORDER PASSED IN ITS
TESTAMENTARY AND INTESTATE JURISDICTION
ORIGINAL SIDE
APO/125/2023
With PLA/238/1995
IN THE GOODS OF :
SMT. GOURIPROVA SEN, DECEASED
-AND-
ANIRBAN SEN AND ORS.
-VS-
DHIRAJ DUTTA
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
The Hon'ble JUSTICE MD. SHABBAR RASHIDI
For the Appellants : Mr. Sudeep Sanyal, Sr. Adv.
Mr. Sukanta Das, Adv.
Mr. Chandrachur Lahiri, Adv.
For the Respondent : Mr. P. C. Paul Chowdhury, Adv.
Mr. D. N. Mukherjee, Adv.
HEARD ON : 06.11.2025
DELIVERED ON : 06.11.2025
DEBANGSU BASAK, J.:-
1. The appeal is filed at the behest of the persons claiming to be the
heirs and legal representatives of the deceased Gouriprova Sen.
Gouriprova Sen expired on October 8, 1989.
2. The respondent herein applied for grant of probate of the Will of
Gouriprova Sen, since deceased dated July 9, 1989.
3. Probate of the Will was granted on September 28, 1995.
Application for revocation of the grant of probate of the Will was
filed sometime in the month of July, 2022.
4. By the impugned judgment and order, learned single Judge
dismissed the application for revocation of the grant of probate
after returning primarily two findings. One finding is that, the
appellants before us are not the heirs and legal representatives of
deceased Gouriprova Sen and other finding is that, the
application for revocation of grant of probate is barred by
limitation.
5. Learned senior advocate appearing for the appellants draws the
attention of the Court to the genealogical table. He submits that,
Gouriprova Sen since deceased was married to Amulya Charan
Sen since deceased. Gouriprova Sen and Amulya Charan Sen
expired, without leaving behind any surviving children.
6. Learned senior advocate appearing for the appellants submits
that Amulya Charan Sen, husband of Gouriprova Sen, was the
son of Bidhu Bhusan Sen. Bidhu Bhusan Sen was the son of
Ramkamal Sen. There were two sons of Ramkamal Sen, namely,
Bidhu Bhusan Sen and Sashi Bhusan Sen. There were two sons
of Sashi Bhusan Sen, namely, Jatindra Nath Sen and Sachindra
Nath Sen. Jatindra Nath Sen expired unmarried. There were two
sons of Sachindra Nath Sen, namely, Sanka Prasad Sen and
Aswini Sen. There was a son and a daughter of Aswini Sen,
namely, Nilanjana and Abirban.
7. Learned senior advocate appearing for the appellants points out
that, the appellants are the daughter and the son of Aswini Sen
and Sanka Prasad Sen is the son of Sachindra Nath Sen. He
contends that, since Amulya Charan Sen died without any issue
on intestacy, the estate of Gouriprova Sen will devolve upon the
heirs and legal representatives of Sashi Bhusan Sen, since
deceased. The appellants stressed upon their title through Sashi
Bhusan Sen, since deceased.
8. Learned senior advocate appearing for the appellants submits
that since, admittedly, notice of the probate proceeding was not
served upon any of the appellants, the issue of limitation does not
arise. He contends that, the grant of probate, therefore, should be
set aside with liberty be granted to the appellants to contest the
probate in accordance with law.
9. Learned advocate appearing for the respondent submits that, the
appellants were well aware of the probate proceeding. He draws
the attention of the Court to the averments made in the
application for revocation of the grant of probate. He submits
that, in a collateral proceeding, the appellants were made aware
of the grant of probate. Thus, despite the appellants being aware
of the grant of probate, they did not take any steps within the
period of three years from the date of knowledge of the grant of
probate. He points out that in respect of one of the immovable
properties of the estate of the deceased Gouriprova Sen, mutation
proceeding occurred in which, the factum of grant of probate was
discussed.
10. Learned advocate appearing for the respondent relies upon
(2008) 8 Supreme Court Cases 463 (Kunvarjeet Singh Khandpur -
Vs- Kirandeep Kaur and Others), AIR 2017 Supreme Court 5453
(Mrs. Lynette Fernandes -Vs- Mrs. Gertie Mathias Since Deceased
by LRS) and AIR 2019 Supreme Court 4948 (Ramesh Nivrutti
Bhagwat -Vs- Dr. Surendra Manohar Parakhe) in support of the
contention that the application for revocation of grant of probate
is barred by laws of limitation.
11. As noted above, the grant of probate of the Will claimed to be of
Gouriprova Sen, since deceased, is under consideration.
12. Gouriprova Sen died on October 8, 1989. It is alleged that she
left behind a Will dated July 9, 1989. In respect of such Will, the
respondent, claiming to be the executor therein, applied for grant
of probate being PLA/238/1995. Probate of such Will of
Gouriprova Sen was granted on September 28, 1995. The
application for revocation of grant of probate was made in the
month of July, 2022.
13. It is admitted at the Bar that no notice of the probate
proceeding was issued upon any of the appellants.
14. Genealogical table annexed to the application for revocation of
the grant of probate, is not disputed by the parties. The family
tree, commences from Ramkamal Sen. There were two sons of
Ramkamal Sen, namely, Bidhu Bhusan Sen and Sashi Bhusan
Sen. There was one son of Bidhu Bhusan Sen, namely, Amulya
Charan Sen, Gouriprova Sen, since deceased was the wife of
Amulya Charan Sen. Amulya Charan Sen and Gouriprova Sen
died without any children. Therefore, on the death of Gouriprova
Sen and with her husband predeceasing her, the estate of
Gouriprova Sen will revert to the branch of Sashi Bhusan Sen.
There were two sons of Sashi Bhusan Sen. In accordance with the
undisputed family tree, Jatindra Nath Sen was one of the sons of
Sashi Bhusan Sen who expired unmarried and other son of Sashi
Bhusan Sen was Sachindra Nath Sen. There were two sons of
Sachindra Nath Sen, namely, Sanka Prasad Sen and Aswini Sen.
The appellant nos. 1 and 2 are the son and daughter of Aswini
Sen while, Sanka Prasad Sen, the appellant no.3, is the son of
Sachindra Nath Sen.
15. Nothing is placed before us to suggest, let alone establish that,
on the death of Gouriprova Sen, her estate will not devolve upon
the appellants. Appellants before us are the heirs and legal
representatives of Gouriprova Sen, who would otherwise succeed
to the estate of Gouriprova Sen, if Gouriprova Sen expired
without leaving behind a Will.
16. Admittedly, notice of the probate proceeding was not served
upon any of the appellants before us. Knowledge of the probate
proceeding by the appellants was derived through collateral
proceeding.
17. We are unable to accept the contention that the appellants
knew of the probate proceedings when, it was the obligation of
the respondent before us and as an executor applying for grant of
probate of a Will of a deceased to cause service of notice upon the
heirs and legal representatives of the deceased in respect of
whose estate, grant of probate was sought.
18. The respondent before us by not performing and discharging
obligations in accordance with law cannot contend that he
discharged such obligations by relying upon a collateral
proceeding. Secondly, the respondent before us was well aware of
the contested claim in respect of the immovable properties of the
deceased. The appellants mutated their names in respect of the
immovable properties belonging to the deceased. In such
mutation proceeding, the grant of probate was taken as a point
by the respondent before us. It is only thereafter that, the
appellants approached to the High Court from where the probate
was granted for its revocation.
19. Kunvarjeet Singh (Supra) held that, Article 137 of the Limitation
Act applies to an application for revocation of grant of probate
and letters of administration. In the facts of such case, the
application for grant of probate was withdrawn. Application for
grant of letters of administration was filed within 3 years from the
date of withdrawal of the proceeding which was held to be not
barred by limitation. Facts and circumstances of the present case
are different.
20. In Mrs. Lynette Fernandes (Supra) application for revocation of
the grant of probate was filed 36 years after grant thereof. In the
facts of that case, a daughter claiming to be minor at the time of
grant of probate, sought revocation of the probate granted in
favour of a mother that too after 36 years of the grant.
21. In Ramesh Nivrutti (Supra) Supreme Court held that, as no
specific period of limitation was prescribed under the Succession
Act 1925, for cancellation of probate or letters of administration,
such proceedings are covered under article 137 of the Limitation
Act, 1963. It also held that an application for revocation was
required to be filed within 3 years from the date when the right to
apply accrues.
22. In the facts and circumstances of the present case, as noted
above, no notice of the application for grant of probate was served
upon any of the appellants. Appellants derived knowledge of the
probate being granted from the mutation proceeding. The
appellants, therefore, applied to the High Court for revocation of
the grant of probate. Nothing is placed before us to establish that
the application for revocation was filed in excess of 3 years from
the date of obtaining knowledge of the grant of probate by the
appellants.
23. Since the probate was obtained by the respondent without citing
the heirs and legal representatives of the deceased Gouriprova
Sen, we set aside the probate granted. We set aside the judgment
and order also.
24. In the facts of the present case, it would be in the interest of
justice, if we permit the respondent, if so advised, to continue
with the application for grant of probate and to prove it in solemn
form. The appellants may file caveat, and affidavit in support of
caveat, if not already filed within four weeks from date. On the
filing of the caveat, the probate proceedings are to be treated as
contentious cause.
25. APO/125/2023 is, therefore, disposed of without any order as
to costs.
(DEBANGSU BASAK, J.)
26. I agree
(MD. SHABBAR RASHIDI, J.)
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