PARIMAL KR DAS Vs. PRASUN KR DAS

JUDGEMENT

(1.) THE opposite party herein has filed an application for grant of probate of the alleged will executed by the testator Nripendra Nath Das dated 19th February, 1998. The said case has been registered as Act XXXIX Case No. 119 of 2000. In the said proceeding no citation has been made in respect of the present petitioners who are the sons of the brother of the said testator. He said testator was unmarried. The petitioners accordingly made an application for being added as parties to the above probate proceeding to contest the grant under the provisions of Order 1, Rule 10(2) read with Section 151 of the Code. The trial Court by the order dated 18th May, 2001 has rejected the said application. The said order is under challenge in this petition under Article 227 of the Constitution of India.

(2.) THE facts giving rise to the above impugned order may be summarised as under: -

(3.) NOW for the purpose of deciding the above application it will be necessary to decide the scope of Section 283(1)(c) of the Indian Succession Act, 1925. Section 283(1)(c) of the said Act makes it obligatory upon the District Judge or the District Delegate to issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration, whom he thinks proper. The expression 'claiming to have any interest in the estate of the deceased' occurring in Clause (c) of Section 283(1) of the said Act came up for consideration in a case reported in : AIR1959Pat570 (Mutakdhari Singh v. Smt. Prem Devi and Ors.). In the said decision it has been held that the true meaning of the expression 'Interested in the estate of the deceased', occurring in Section 283(1)(c) of the Act is, that an interest or even an interest dependent upon remote contingencies is sufficient to entitle a person to oppose a will and to intervene in the matter of the application for probate or letters of Administration and to call upon the propounder of the Will to prove it in solemn form in his presence, and such a person has a proper locus standi to come to Court and ask that the probate or the grant of letters of Administration be revoked. The said decision has been arrived at upon consideration of the provisions of Section 263 of the said Act. Section 263 of the said Act vests a judicial discretion in the Court to revoke or annul a grant for just cause. If the proceeding to obtain the grant was, in a particular case, 'defective in substance' as occurring in Clause (a) to the Explanation to Section 263 then it would substantially affect the regularity and correctness of the proceedings. It has been held in the said decision that the defect in substance of the proceeding to obtain grant would depend on the individual cases and on the particular circumstances existing in each case. Whether the omission to issue citation to a person on the facts of a particular case, would be a just cause, will depend on the facts and circumstances of each case.