BINA DEBI Vs. TAPATI SENGUPTA

JUDGEMENT

(1.) oth these appeals are by the defendant No. 1 in two separate proceedings for revocation of probate of a Will dated 20th of June, 1964, and which have been disposed of by a common order by the learned District Judge of Cuttack on 21st of June, 1975. The relationship of the parties is available from the genealogy below : Bani, one of the daughters of Surama, was dead during the lifetime of Surama. On 20th of June, 1964, Surama executed a registered Will in favour of Bina. Nine days thereafter on the 29th Surama died of paralysis. Bina applied for probate of the Will on 3rd of September, 1966 to the District Judge of Cuttack impleading therein the six children of Bani as opposite parties. Mrutyunjoy, the eldest son of Bani who was opposite party No. 1, did not enter contest but the others filed an objection. They, however, ultimately did not contest in the proceeding. On 25-11-1970, probate was granted by the learned District Judge. Two applications were filed for revocation of the grant of probate - one by Mrutyunjoy which was numbered as O.S. No. 14 of 1973 and the other by Tapati, Shyamali and Suvra being daughters of Bani, which was numbered as O.S. No. 2 of 1974. Both these were heard analogously and on the basis of the evidence led by the parties, the learned District Judge by a common judgment on 21st June, 1975, decreed both the suits and revoked the order of grant of probate on 25-11-1970 and directed that the said application for grant of probate registered as O.S. No. 9 of 1967 would be proceeded with from the stage it was on 24-11-1970. First Appeal No. 103 of 1975 arises out of O. S. No. 2 of 1974 while First Appeal No. 104 of 1975 arises out of O. S. No. 14 of 1973.

(2.) The short facts relevant for the disposal of these appeals are the following : One Shasimohan Sengupta of Cuttack was married to Surama Devi and pre-deceased his wife. They had two daughters Bina and Bani. As already indicated, Surama left behind a registered Will dated 20th of June, 1964, and by order dated 25-11-1970, the said Will was directed to be probated. Mrutyunjoy in his application for revocation pleaded that at the relevant time, he was not in India and notice of the probate proceeding was never served on him. The minor sisters Tapati, Shyamali and Suvra were represented by their father C.P. Sengupta who by then was an old man and lost interest in worldly affairs. He did not take appropriate steps to defend the proceeding and even did not instruct the counsel who was appearing for the minor daughter. The Court did not appoint a guardian for the minors when Shri C.P. Sengupta neglected to take steps. The disposal of the earlier proceeding ex parte without affording a reasonable opportunity to contest to Mrutyunjoy as also to the minor sisters is thus vitiated and cannot take away their interest in the property according to the ordinary law of succession on account of the alleged Will. It was further pleaded that the testatrix had special affection for Mrutyunjoy and it becomes difficult to accept the position that in ordinary course of events, the testatrix should have omitted to benefit Mrutyunjoy under the Will if she at all intended to execute a Will. The three sisters of Mrutyunjoy who filed the other application made allegations about the default of the Court in the matter of appointment of a guardian when their father Shri C. P. Sengupta did not adequately represent their interest.

(3.) Bina, the legatee under the Will, contended that notice had been served on Mrutyunjoy under Order 5, Rule 20, Code Of Civil Procedure, by publication of the notice in the Statesman and the Court had held such notice to be sufficient. It, therefore, was no more open to Mrutyunjoy to plead non-service of notice. On 24-11-1970 to which date the probate proceeding stood posted, Bina had brought her witnesses. An application was made for adjournment on behalf of the defendants. The Court was inclined to grant an adjournment subject to payment of costs, but when defendants' advocate declined, they were set ex parte and the suit was directed to be disposed of ex parte. C.P. Sengupta, father of the parties, had taken steps to protect the interest of the children in an appropriate way, but as he believed that the Will was genuine, perhaps the application for probate was allowed to go ex parte.