ARUN CHANDRA ROY (DECEASED) Vs. BINA ROY

JUDGEMENT

(1.) Both these appeals arise out of a probate proceeding in respect of the Will of one Arun Chandra Roy, who passed away in the year 1988. He had executed a registered Will bequeathing his business comprised in two concerns, Grand Tower Hotel and Restaurant (GTHR in short) and Tower Hotel to his wife and daughter. His wife, Bina Roy was appointed as the executrix of the said Will. On 17th May 2000, the executrix applied for grant of probate of the said Will before this Court. The probate was granted on 29th September 2000.

(2.) Thereafter, two applications were taken out, one for revocation of the grant and the other one for a direction for handing over the management control and day to day business of Tower Hotel to one of the brothers of the testator, being Ashitendu Roy, being the appellant in A.P.O. 162 of 2004. The applicant before the Hon'ble First Court in the former proceeding, being G.A. No. 801 of 2001 was the third brother of the testator, Atalendu Roy. The application of Ashitendu, being the fifth and youngest brother of the testator was under Section 302 of the Indian Succession Act, 1925, being G.A. No. 4208 of 2001. Both these applications were contested by the respondents. These two applications were dismissed by the Hon'ble First Court by two separate judgments delivered on 20th May 2002 and 14th August 2003. In G.A. No. 801 of 2001, though the prayer was for revocation of grant of probate, the applicant's concern and claim was in respect of GTHR, whereas the claim of the applicant in G.A. No. 4208 of 2001 was confined to Tower Hotel.

(3.) In A.P.O. No. 73 of 2003, the appellant is Atalendu Roy whereas in A.P.O. No. 162 of 2004, the appellant is Asitendu Roy. At the time of death of the testator on 29th July 1988, he was survived by his widow and their married daughter, Smt. Chitrita Chanda. The testator had five brothers, all living at that point of time. The will in question was registered on 6th July 1984. The subject of disposition was, as we have already indicated, the business in connection with "Grand Tower Hotel and Restaurant" situated at 24, Acharya Prafulla Chandra Road, Calcutta-700009 and the "Tower Hotel" situated at 27, Acharya Prafulla Chandra Road. The management of the latter is the main dispute in A.P.O. No. 162 of 2004. In the Will, the ownership of the business in respect of these hotels and restaurant have been recorded to be that of the testator. The appellant in APO No. 73 of 2003 had applied for revocation of the grant mainly on the ground of non-issuance of citation before grant of probate. Revocation of the grant was applied for on certain other grounds as well, which we shall discuss in the later part of this judgment. The case of the appellant (i.e. Ashitendu) in the application of Section 302 of the Act has been founded on his claim that it was he who was the proprietor of the Tower Hotel.