Even if any compromise is recorded after actual grant of Probate on proof of the Will for keeping it on record, the same is never made part of the Probate and separate suit is to be filed for specific performance of such agreement if the same is not respected by the parties. (See:Saraswati Mondal vs. Sachidulal Saha reported in AIR 2005 Cal 257 ;) In the case before us, it appears from the certified copy of the relevant order-sheet that Probate was granted solely on compromise and the same was made part of the decree which is not permissible.
Calcutta High Court (Appellete Side)
Paresh Chandra Majhi & Ors vs Sri Biswanath Majhi & Ors on 10 July, 2009
Present:
Mr. Justice Bhaskar Bhattacharya
And
Mr. Justice Prasenjit Mandal
This first appeal is at the instance of the applicants in a proceeding for revocation of grant of a Probate and is directed against order dated 23rd December, 2004 passed by the Additional District Judge, Fast Track Court-III, Alipore in O.S. No.2 of 2004 thereby rejecting the proceeding by holding that the petition for revocation was not maintainable.
Being dissatisfied, the applicants have come up with the present appeal. The appellants, the heirs and legal representatives of one Atul Krishna Majhi, since deceased, filed an application for revocation of the Probate granted in Original Suit No.96 of 1956 thereby giving rise to Revocation Case no. 49 of 1982 on the allegation that before the grant of Probate, no citation was issued to the predecessor-in-interest of the appellants and that the alleged compromise was outcome of fraud, inasmuch as, their predecessor, namely, Atul Krishna Majhi, never put his signature on the alleged compromise petition. It was further contended that the testator had no testamentary capacity to execute the Will in question at the relevant point of time when he was more than 106 years old. According to the appellants, they filed a suit for partition being Title Suit No.177 of 1981 in the Second Court of Assistant District Judge, Alipore and in that partition suit, the respondents on 30th April, 1982 filed written statement mentioning about the grant of Probate of the Will of Nibaran Chandra Majhi through whom the parties claimed title and from that written statement, the appellants, for the first time, came to know about the alleged Will left by Nibaran Chandra Majhi and the Probate in question.
The proceeding was contested by Nut Behari Majhi, the predecessor-in- interest of the present respondents, by filing written objection thereby denying the material allegations made in the application for Revocation and it was contended that Nibaran Chandra Majhi executed the Will on 2nd December, 1946 which was his last testament and he executed the said Will with full testamentary capacity and the appellants had full knowledge of the probate proceeding during the lifetime of Atul Krishna Majhi, their predecessor-in- interest, who died in 1978.
During the pendency of the proceeding, Nut Behari Majhi, the original applicant for grant of Probate, having died, his heirs were substituted in the proceeding.
After the framing of issues, the said proceeding for Revocation was fixed for peremptory hearing on 11th June, 1986 when a petition was filed for calling for the record of Original Suit No.96 of 1956 and the same was allowed and consequently, records were called for. The peremptory hearing could not commence because of non-receipt of the records of the original proceeding. On 13th February, 1987 vide Order No.29, the plaintiffs were directed to file certified copy of the relevant Probate granted in O.S. No.96 of 1956 and to swear an affidavit supporting the contention of their petition for calling for the record. As no such certified copy was filed nor was any affidavit given, the defendants of the proceeding were directed to produce Probate of the Will of Nibaran Chandra Majhi. On 28th August, 1988, the defendants filed the xerox copy of the Probate and from Order No.86 dated 30th January, 1996 it revealed that the record of O.S. No.96 of 1956 was not traceable. Subsequently, Nut Behari Majhi, the original defendant, having died his heirs were substituted.
Ultimately, the proceeding was fixed for peremptory hearing on 9th August, 1999. On that day, the appellants filed an application praying for calling for the records and the plaintiffs were directed to file the judgment and decree of the relevant suit the records of which were proposed to be called for. It further appears from record that the Copying Department was unable to send the certified copy of the records as those were not traceable and it transpired from the index register of the District Record Room that O.S. No.96 of 1956 was disposed of on 18th December, 1957 by the Third Court of Subordinate Judge and that the records were destroyed on 6th January, 1990.
The District Record Room further submitted a report on 24th November, 2003 intimating that O.S. No.96 of 1956 was disposed of on 18th December, 1957 and records were destroyed on 6th January, 1990 as per Rule. Ultimately, the appellants filed an application for sending the case record along with the application to the higher authority for proper investigation by Vigilance Group or CBI Agency.
The learned Trial Judge by the order impugned herein held that the records of O.S. No.96 of 1956 had fallen within the Category II and this type of record is to be preserved for 25 years as per Rules 458 and 459 of the Civil Rules Orders and according to the learned Trial Judge, since the case was disposed of on 18th December, 1957 the case records were to required to be preserved till 1983 whereas the records were for the first time called for in the 1986. According to the learned Trial Judge, when the records were called for, the records officially stood destructed though actual destruction was done in 1990. The learned Trial Judge further recorded that without consulting the original Solenama, it could not be possible to say whether the signature of the predecessor-in-interest of the appellants was forged or not and ultimately, the learned Trial Judge dismissed the proceeding for Revocation on the ground that no further enquiry was needed and that the application was liable to be dismissed as not maintainable.
Being dissatisfied, the applicants have come up with the present appeal. After hearing the learned counsel for the parties and after going through the materials on record, we find that admittedly although the Probate application was disposed of on 18th December, 1957 by virtue of the alleged compromise decree which was made part of the Probate, the Probate was actually granted on 30th April, 1981, even after the death of the predecessor-in-interest of the present appellants. No explanation has been given by the respondents as to why the executor, namely, Nut Behari Majhi, obtained Probate of the Will long after 24 years after the compromise and even after the death of his younger brother who allegedly signed in the alleged Solenama.
It appears that the probate proceeding was really pending till 30th April, 1981 when Probate was granted to the executor on his application on payment of the stamp duty and the records should be preserved till 25 years after that date.
Therefore, the finding of the learned Trial Judge that the record should have been destructed in the year 1981 is not tenable. Moreover, when the Revocation proceedings were initiated in the year 1982 there was no justification of actual destruction of records in the year 1990 when by that time, in the year 1986 the records were already called for.
The learned Trial Judge, as it appears from record, did not go into the merit whether the Probate was really obtained in accordance with law without arriving at any finding as to whether any citation was at all issued or whether the signature of the predecessor-in-interest of the appellants was a genuine one which would appear from the xerox certified copy of the alleged petition of compromise on the basis of which the Probate was granted.
What is more surprising is that the Probate application, although became contentious, was disposed of in terms of compromise which is not permissible under the law of the land. As pointed out by a Division Bench of this Court in the case of A.E.G. Carapiet vs. A.Y. Darderianreported in AIR 1961 Calcutta 559, the Probate Court being a Court of conscience, the Probate cannot be granted on the basis of compromise. In a proceeding for grant of Probate it is the duty of the Probate Court to see whether the Will was the last Will of the testator, whether he had full mental capacity to execute the Will, whether the same was executed and attested after compliance of the requirements of the Indian Succession Act and whether the same was executed without being vitiated by force, fraud, undue influence etc. Apart from those questions, a Probate Court cannot go into the question of title of the testator in the subject-matter of bequest nor can a Court grant a Probate which is at variance with the terms of the Will. (See: Uma Addhya vs. Biren Mondal and others reported in 2006(2) CHN 680).
Even if any compromise is recorded after actual grant of Probate on proof of the Will for keeping it on record, the same is never made part of the Probate and separate suit is to be filed for specific performance of such agreement if the same is not respected by the parties. (See:Saraswati Mondal vs. Sachidulal Saha reported in AIR 2005 Cal 257 ;) In the case before us, it appears from the certified copy of the relevant order-sheet that Probate was granted solely on compromise and the same was made part of the decree which is not permissible.
We, thus, find that the learned Trial Judge erred in law in dismissing the application for Revocation without arriving at any finding as to whether there was citation and whether the predecessor-in-interest of the appellants had any knowledge of the proceeding. We have already pointed out that the Probate was actually taken long twenty-four years after the alleged compromise and after the death of the predecessor-in-interest of the appellants and the fact that a Probate was obtained was disclosed for the first time in the suit for partition filed in the year 1982 and immediately thereafter, the application for Revocation was filed.
Although the records have already been destroyed from the fact that such Probate was granted solely on compromise without recording any satisfaction about due execution and attestation as it appears from the certified copy of the order granting Probate, we are satisfied that this is a fit case for revocation of the Probate as just cause has been made for revocation.
We, therefore, revoke the Probate granted in favour of Nut Behari Majhi in the year 1981 on the basis of the alleged compromise effected in the year 1957.
The appeal is, thus, allowed and the order impugned is set aside. The application for revocation of the Probate filed by the appellant is consequently allowed.
In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) I agree.
(Prasenjit Mandal, J.)
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