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Issuance of citation to the legal heir need to contemplated according to the provisions of the India

MANJU PURI VS. RAJIV SINGH HANSPAL & ORS, CIVIL APPEAL NO. 8455 OF 2019 Arising out of SPL(C) No.20452 of 2017 – NOVEMBER 14, 2019

The bench comprising of Justice. Ashok Bhusahan and Justice. Navin Sinha pronounced the judgment on the appeal filed against the Division bench judgment dated on 13.04.2017 regarding the rejection of application filed by the appellant for revocation of probate.

The Hon’ble Supreme Court considered the question as to ‘whether sufficient grounds were made out in the application for revocation of probate filed by the appellant and the High Court committed an error in rejecting the application as well as dismissing the appeal?’

The main contention made by the appellant is that the no objection certificate is forged one and also in the copy of the plaint of Suit No. 61 of 1984 which has been brought on record, do not refer any probate or no objection by the deceased. The Division Bench of the High Court of Calcutta and the single Judge dismissed the application for revocation of probate on the ground for the delay in filing the application.

The court found that in the facts and circumstances of the case, no delay can be imputed on the appellant in filing application for revocation of probate and the observation of the High Court that there was an inordinate delay is unsuitable.

The court stated that;

“The submission as to whether issuance of citation to the legal heir is contemplated according to the provisions of the Indian Succession Act, as well as the High Court Rules.”

The facts and circumstances that lead to the judgment are

  1. The will which was probated is unregistered will dated on 15.06.1961.

  2. No citation was issued by the Single Judge to any of the legal heirs of deceased, where the respondent rebelled that citation was not required to be issued it is the discretion of the District Judge to issue or not under section 283.

Rules of the High Court at Calcutta,1914, chapter XXXV of which relates to testamentary and intestate jurisdiction. Rule 5A, 9 and 12 are the rules which are relevant to this case.

The learned counsel for the respondent has submitted that Rule 9 which provides that in case where persons have signified their consent, no citation needs to be issued also applies to the case of probate. The court held that the acceptance of the above argument shall be permitting addition of a word “probate” in Rule 9 whereas Rule 9 only uses expression “letter of administration”. The court relied upon Jyotsana Rajgarhia vs. Dipak Kumar Himatsingka (2002) ILR 2 Cal 402.

In section 283 it is clear that the use of word ‘may’ conferred on the discretion of the District Judge to issue citation to the people interested. Relying upon Kamona Soodury Dassee v, Hurro Lall Shaha(1882) ILR 8 Cal 570 the stated that the discretion vested with the District Judge has to be exercised with proper care..

The Calcutta High court in another judgment in Shyama Charan Baisya vs. Prafull Sundari Gupta, AIR 1961 Cal 623, in a case where the provisions of Probate and Administration Act,1881 came for consideration, held that when a will is propounded which alters the devolution of property, the District Judge should, in the exercise of the discretion, should direct the special citation.

Thus the court in this instant matter allowed the appeal and set aside the orders passed by the learned Single Judge as well as Division Bench of the Calcutta High Court. Further held that the application for revocation of probate is allowed.

View/Download the Judgment: Manju Puri v. Rajiv Singh hanspal

Srutha R Elayidom

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