ARUN CHANDRA DEY Vs. DEBASISH GHOSH AND ORS.

JUDGEMENT

(1.) The appellant obtained the grant of letters of administration with copy of the last Will and testament of Bimal Pratibha Ghosh on 28.09.1994 from the Court of Learned District Delegate, Alipore in case No.238 of 1992. The said grant of letters of administration was revoked by Learned Additional District Judge, 2nd Court, Alipore on 03.09.2003 in revocation case No.84 of 1998 at the instance of the respondent No.1, which is under challenge in this appeal.

(2.) One Bimal Pratibha Ghosh, the widow of Late Sashanka Sekhar Ghosh used to reside at premises No.D/1, Baghajatin Station Road, Calcutta. One Niranka Ghosh was the brother of Late Sashanka Sekhar Ghosh by full blood. Niranka Ghosh died in the year 1970 leaving behind his wife, five sons and two daughters. The respondents are the sons and daughters of Niranka Ghosh. Bimal Pratibha Ghosh died on 12th April, 1991. The appellant Arun Chandra Dey filed an application before the Court of Learned District Delegate, Alipore for grant of letters of administration in respect of the Will of Bimal Pratibha Ghosh. It is alleged by the respondent No.1 before the trial court that the appellant obtained the grant of letters of administration without issuing citation upon the respondent Nos.1 to 7 who are legal heirs of Bimal Pratibha Ghosh. It is also alleged that the appellant obtained the grant of letters of administration by suppressing the material facts and by practising fraud on the court. The specific case made out by the present appellant before the trial court is that Bimal Pratibha Ghosh was suffering from cancer at the last stage of her life and the appellant used to look after her and that Bimal Pratibha Ghosh executed her last Will in favour of the appellant out of love and affection and that the appellant had no knowledge that the respondents are the legal heirs of the deceased Bimal Pratibha Ghosh. Learned Judge of the court below revoked the grant of letters of administration issued in favour of the appellant on the ground that the citations were not issued upon the respondents who are interested in the estate of the deceased in their capacity as legal heirs of the deceased Bimal Pratibha Ghosh.

(3.) Mr. Tarak Nath Sarkar, Learned Counsel appearing for the appellant contends that the citations were not issued upon the respondents and as such he is not challenging the revocation of the grant of letters of administration issued in favour of the appellant. However, Mr. Sarkar submits that on revocation of the grant of letters of administration the original probate proceeding i.e. case No.238 of 1992 will revive and the appellant must be given an opportunity to prove the Will in solemn form in presence of the respondents after issuing of citation upon the respondents who claim to have interest in the estate of the deceased Bimal Pratibha Ghosh in the capacity of legal heirs of the deceased. Learned Counsel has referred to the decisions reported in 1958 AIR(Cal) 377 1964 AIR(Patna) 567 2002 AIR(Cal) 140 and (1909) 10 CLJ 263 in support of his above contention. On the other hand, Mr. Prabal Mukherjee, Learned Senior Counsel submits that the appellant can always file a fresh application for grant of letters of administration of the last Will and testament without any leave from this court. According to Mr. Mukherjee, the appellant obtained the grant of letters of administration by suppressing the material facts and without citations of the respondents who are the legal heirs of the deceased Bimal Pratibha Ghosh and as such the revocation of grant of probate is justified under the law.