In The Goods Of : Bikramjit Roy Deceased v. In The Matter Of : Debi Ann Pemerentz

The Court

1. This application has been filed for revocation of probate granted of by virtue of the order dated 16th February, 1998 Passed In P.L.A. No. 85 of 1998, petitioner has claimed herself to be the daughter of Late Bikramjit Roy. The respondent Nos. 2 and 3 are her sister and brother. The petitioner as also the respondent Nos. 2 and 3 are the children of the deceased Bikramjit Roy through his first wife, Ruth Ray.

2. The deceased died on 20th April, 1987. At the time of his death It is claimed that he left behind a testamentary disposition in favour of the respondent No. 1, Seema Roy. The petitioner is said to have received a telecommunication from Mrs. Gopa Roy on 10th December, 1999 that M/s. R.C. Kar. Solicitors & Advocates firm had, by a letter dated 6th December, 1999, informed her that their client respondent No. 1 had obtained extension of the probate in respect of indian assets, namely, premises No. 192B, 192C and 192D N.S.C. Bose Road, Calcutta. Accordingly, the petitioner therefore, on being learnt that such an extension order of probate had been taken by the respondent No. 1, filed and present case for revocation of the same.

3. Mr. Mltra, the learned senior Advocate, appearing for the petitioner has submitted that in this case serious irregularities and illegalities had been committed by the respondent No. 1 who by suppression of material particulars had taken out a probate from this Court on 16.2.1999. It has been further contended that in the application for letter of administration no authenticated copy of the will was produced. A further formidable point has been raised that since the respondent No. 1 failed in her application to cite in all her near relations, therefore, such application ought to have been dismissed.

4. It has been further argued that there had been utter violation of natural Justice. Therefore, the order under which the probate was granted to the respondent No. 1 on 16.2.1999 has therefore, to be recalled.

5. The learned Advocate further relied upon a Division Bench Judgment reported in AIR 1943, Calcutta page 235 in the case of Bamapada Ghosh v. Satis Chandra Sur and contended that the facts mentioned in the above case are parl-materia applicable to the present case. In the case cited supra an application was filed for grant of letter of administration under section 228 in which since the caveator was not present at the time of hearing and accordingly the letter of administration was granted ex parte, and subsequently his application was rejected. Therefore, it was taken the Division Bench of this Court who has decided that:

The applicant filed an application on 6th February, 1942, for setting aside this ex parte order. That application was refused by the learned Judge on the same date. Hence this appeal by the objector. The learned Judge apparently thought that the statement of the pleader for respondent that the will was proved in French india according to the law in force there, was sufficient to satisfy all the conditions laid down in section 228, Succession Act. In the reported case on which the learned Judge has relied there was evidence to show that the will was proved in a Court of competent Jurisdiction in French India. Tliere is no evidence in this case that the will was proved in a Court of competent jurisdiction in French india. Even though the case was heard ex parte, the learned Judge before granting letters of administration under section 228, Succession Act, should have satisfied himself that all the conditions laid down in that section have been compiled with. We accordingly set aside the orders complained of and send the case back to the learned Judge. The learned Judge is directed to dispose of the case according to law. Costs in this appeal will abide the result, hearing fee being assessed at three gold mohurs. Let the record be sent down as early as possible."

6. Before appreciating the sale contention it is necessary to quote the provisions of section 228 of the Indian Succession Act which reads as follows:

228.

"When a will has been proved and deposited in a Court of competent Jurisdiction situated beyond the limits of the State, whether within or beyond the limits of India, and a properly authenticated copy of the will is produced; letters of administration may be granted with a copy of such copy annexed."

7. Mr. Kar, the learned Advocate appearing for the respondent No. 1 Seema Roy has submitted that the testator has left the last will on 11th April, 1985 by appointing the respondent No. 1 as the sole executrix. Accordingly, the testator had given his right in respect of the properties situated in OHIO and also his undivided one forth share in the premises No. 192D, 192B and half share in the premises No. 192C N.S. Road. The Will was probated by the Judge, probate Court at OHIO on 14th June, 1988. The respondent No. 1 has, therefore, by virtue of the said probate entitled to inherit all the properties left by her deceased husband. Once the probate was granted, the filed she subsequent application for extentlon of probate in so far as the indian properties are concerned.

8. After having heard the learned Advocate appearing for the executrix, the Court had, therefore, passed an order to issue letter of administration on 23.12.1998. Subsequently when it came to the notice of the Court on being pointed by the department that since the probate ought to have been granted instead of letter of administration, the previous order was recalled and the Court has, therefore, directed to grant probate to the respondent No. 1.

9. It has been further submitted that till date neither the petitioner nor the other respondents having taken any steps for revocation of the original probate granted by the Court at OHIO, they cannot claim in this application for revocation of the extention of probate passed by this Court.

10. In support of his contention Mr. Kar relied upon in a Judgment reported in CWN 52, page 284 in the case of and in the Goods of : A.S. Allan. On a careful reading of the judgment i found that the observation made by the special bench supports the contention of Mr. Kar in so far as the requirements of not filing the original will as required under section 276 of the Indian Succession Act.

11. An inexplorable plea has been advanced by the respondent No. 1 that in an application under section 228 of the Indian Succession Act, there has been no necessity to state the names of the members of the family and other relatives upon whom the estate would have devolved In case of intestacy together with a present place of residence. The Rule 5A of chapter 25 of the Original Side Rules of Calcutta High Court is only applicable in case of initial grant. In support of his contention he relied upon a Judgment reported in 1986 CLJ page 322 in the case of, & In the Goods of: James Muri Crawford.

12. Since the original application for grant of probate filed before the probate Court at OHIO is not enclosed either by the petitioner or by the respondent No. 1 in this case. It is, therefore, very difficult to express any view whether the petitioner or other respondents other than the respondent No. 1 were parties to the probate proceeding at OHIO.

13. The will was said to have been executed on 11th April, 1980. The probate proceeding was concluded on June, 14, 1988, the Judge, probate Court at OHIO. From reading of the provisions of section 228 it appears that it is incumbent upon applicant for grant or probate to prove that the will was proved in a Court of competent Jurisdiction situated beyond the limits of the State. In this case only an authenticated copy of the will of the testator has been submitted but there has been no evidence that it was proved in the probate Court at OHIO. Since the said requirement had not been fulfilled by the executrix in her application under section 228 and it was disposed of ex parte, therefore, the judgment cited supra in the case of Bampado Ghosh v. Satish Chandra is squarely applicable in the instant case. Accordingly, I allow the application and the petitiioner is called upon to file her affidavit-in-opposition to the application filed by the respondent No. 1 for extension of probate within two weeks. Within one week from that date the reply be filed and the matter shall appear before the Court four weeks hence for orders.

14. Application allowed