1S/l. Bpg. 29.06. 2018 In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side C.O. No.1725 of 2018 Smt. Mrinmoyee Dutta and another Versus Krishna Chandra and another. Mr. Abhijit Roy, Mr. Abhradip Maity, Mr. Prithwish Guria. for the petitioners. All legatees in respect of a Will have preferred the instant revisional application. By virtue of the impugned order, an application filed by the opposite party no.1 for withdrawal of a Letters of Administration case and filing of a fresh probate application, was allowed and the petitioners application claiming that the opposite party no.1 was mentally incapable was rejected. Initially, the probate proceeding was filed by one Gopal Chandra, who was the named executor in the Will in question. It was provided in the said Will that in case of death of the said first executor, Gopal Chandra, 2one Shrimati Mrinmoyee Dutta, (petitioner no.1) would be the legatee and Shrimati Krishna Chandra (the present opposite party no.1), the mother of petitioner no.1, would be the only executor. In the present case, after death of Gopal Chandra, the opposite party no.1 took out an application for conversion of the probate proceeding to one for grant of Letters of Administration. Such conversion was allowed, which was patently erroneous in view of the opposite party no.1 also being an executor under the Will. Realizing such mistake, the opposite party no.1 took out an application for recalling of the previous order of conversion of the proceeding to a Letters of Administration case and sought leave to withdraw the proceeding and to file a probate application afresh. By virtue of the impugned order dated June 8, 2018, such application of the opposite party no.1 was allowed. Simultaneously, the application of the petitioners, alleging mental incapability of the opposite party no.1, was rejected on the ground that no document as to such alleged mental incapacity was produced by the petitioners. In the circumstances, it appears that the 3course taken by the opposite party no.1, as accepted in the impugned order, was the only option left to rectify the previous erroneous order of conversion. Although learned counsel for the petitioners relies on Sections
222 and 232 of the Indian Succession Act, 1925, such Sections would be irrelevant for the present consideration. Here, the appointment of the opposite party no.1 as executor was not by implication, necessary or otherwise, but was specifically expressed in the Will. The question of invocation of Section 232 also could not arise since the opposite party no.1, also a named executor in the Will, survived the previous executor and there was no scope for the legatee to interject with a prayer for Letters of Administration. In the present case, the opposite party no.1 has expressed her specific intention to obtain probate, which has only been sanctioned by the impugned order. As such, the trappings of Section 232 of the said Act could not be attracted to the present lis. Accordingly, C.O. No.1725 of 2018 is dismissed, without, however, any order as to costs. However, it is made clear that the observations made herein are confined to the present lis 4and would not affect any rights of the petitioners to take out appropriate proceedings, in the event the opposite party no.1 refuses to act or any of the stipulations of Section 232(b) of the Indian Succession Act, 1925 become applicable. (Sabyasachi Bhattacharyya, J. )