15 April 1955
Supreme Court







DATE OF JUDGMENT: 15/04/1955


CITATION:  1955 AIR  566            1955 SCR  (2) 270

ACT:        Indian  Succession  Act, 1925 (Act XXXIX of 1925),  s.  263-        Explanation  cl. (a)-Expression "defective in  substance  "-        Meaning of-Probate proceedings-Omission to issue citation to        persons who should have been apprised-Legal effect  thereof-        Revocation of grant -Whether, an absolute right irrespective        of   other  considerations  arising  in  the   case-Judicial        discretion vested in Courts.

HEADNOTE:        The  expression "defective in substance" in Explanation  el.        (a) to s. 263 of the Indian Succession Act, 1925 means  that        the  defect  was  of such a character  as  to  substantially        affect  the  regularity  and  correctness  of  the  previous        proceedings.        The  omission to issue citations to persons who should  have        been  apprised of the probate proceedings may well be  in  a        normal case a ground by itself for revocation of the  grant.        But  this  is not an absolute right  irrespective  of  other        considerations arising from the proved facts of a case.  The        law has vested a judicial discretion in the court to  revoke        a  grant  where the court may have prima  facie  reasons  to        believe that it was necessary to have the will proved afresh        in the presence of interested parties.        The Supreme Court was not satisfied that in all the  circum-        stances of the present case just cause for the annulment  of        the grant of probate within the meaning of s. 263 of the Act        had been made out.        The  annulment  of  the  grant of probate  is  a  matter  of        substance  and  not of mere form.  The court may  refuse  to        grant  annulment  in cases where there is no  likelihood  of        proof  being offered that the will admitted to  probate  was        either not genuine or had not been validly executed.        Where,  as in the present case, the validity or  genuineness        of the will has not been challenged it would serve no useful        purpose  to  revoke  the grant and to make  the  parties  go        through the mere formality of proving the will again.        Under the circumstances of the present case the omission  of        citation  has  had  no  effect  on  the  regularity  of  the        proceedings resulting in the grant of 1921.        Mokshadayini  Dasi  v. Karnadhar Mandal ( [1914]  19  C.W.N.



      1108),  Brindaban  v.  Sureshwar ( [1909]  10  C.L.J.  263),        Durgavati  v.  Sourabini ( [1906] I.L.R. 33 Cal.  1001)  and        Ramanandi Kuer v. Kalawati Kiter ( [1927] L.R. 55 I.A.  18),        referred to.                                    271

JUDGMENT:        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 106 of 1953.        Appeal  from the Judgment and Order dated the 4th  September        1951  of the High Court of Judicature at Calcutta in  Appeal        from Original Order No. 131 of 1950 arising out of the Order        dated  the  29th  day of August 1950 of the  High  Court  of        Calcutta in its Testamentary Intestate Jurisdiction made  in        Application    under  Section 263 of the  Indian  Succession        Act.        P.   N.  Sen,  (A. K. Dutt and S. Ghose, with him)  for  the        appellant.        M.   C.  Setalvad, Attorney-General for India (A. N.  Sinha,        with him) for respondent No. 1.        D.   N. Mukherji, for respondent No. 2.        1955.  April 15.  The Judgment of the Court was delivered by        SINHA  J.-This is an appeal against the judgment  and  order        dated  the 4th September 1951 of the Calcutta High Court  in        its  appellate jurisdiction reversing those dated  the  29th        August 1950 of a Judge of that Court sitting on the Original        Side  granting  the  appellant’s  prayer  for  revoking  and        annulling  the probate granted in respect of the  last  will        and  testament  dated the 29th July 1912 of  one  Binod  Lal        Ghosh,  deceased,  whom we shall call the  testator  in  the        course of this judgment.        The  testator  is said to have executed a will on  the  29th        July  1912  which  was registered on the same  date  at  the        Calcutta  registry  office.  By the said will  the  testator        appointed  the  following  five  persons  as  executors   or        executrices:-        (1)  Anil Nath Basu, Attorney-at-Law        (2)  Brindaban Chandra Mitter                           (These two also figure as attesting                            witnesses to the will)        (3)  His adopted son Charu Chandra Ghose (whom               we    shall    call   Charu   for   the    sake    of        brevity) a minor on his attaining majority.        272        (4)  His wife Haimabati Dasi, and        (5)  His brother’s widow Muktakesi Dasi.        He  also  directed that on the death of the said  Anil  Nath        Basu,  his  son  Achintya Nath Basu, and  on  the  death  of        Brindaban  Chandra Mitter, his son Debi Prosad  Mitter  will        take  their  places respectively as executors;  and  on  the        death  of his wife Haimabati Dasi, Charu’s wife,  Latikabala        Dasi, and on the death of Muktakesi Dasi, his nephew’s  wife        Sushamabala  Dasi,  will  take  her  place  respectively  as        executrix.   It  is not necessary to set out in  detail  the        legacies created by the will except to state that he created        annuities  in  favour of a number of persons  including  his        wife, his brother’s widow . Muktakesi Dasi, his daughter-in-        law,  his  niece-in-law aforesaid and Charu.  He  also  made        provision in his will for annual payments in respect of  the        expenses  of certain deities and festivals, as also for  the        funeral  expenses of himself and the  annuitants  aforesaid.        He  directed his executors to accumulate Rs. 12,000  a  year        out of the balance left after meeting the annuities and  the        other  annual  expenses aforesaid to be paid over  to  Charu



      upon the death of the said Latikabala Dasi and Sushama  Bala        Dasi who were to share the residue, if any, after paying the        annuities  and other outgoings referred to above.  It  would        thus  appear that though the testator intended Charu  to  be        the  owner of his entire estate including the  accumulations        after  meeting the annuities and the other annual  expenses,        he  did not trust him to the extent of putting  that  estate        into  his hands immediately on his attaining  majority.   He        trusted Charu’s wife and the other ladies in his family more        than  Charu  himself, though he specifically stated  in  the        will-          "Provided always that the said adopted son shall be deemed        to have a vested interest in the said estate immediately  on        my death".        He appointed his wife Haimabati Dasi as the guardian of  the        person and property of Charu and of his wife Latikabala Dasi        aforesaid.        On  the  5th March 1920 the testator is said  to  have  been        murdered by Charu who was placed on his trial,                                    273        convicted  for  murder and sentenced to  transportation  for        life.   Charu  served  his  term  of  imprisonment  and  was        released from jail some time in 1933.        On the 30th September 1921 an application for probate of the        will aforesaid was made on the Original Side of the Calcutta        High  Court  on  behalf of Anil  Nath,  Muktakesi  Dasi  and        Latikabala Dasi aforesaid.  The application stated that  the        testator  died on the 5th March 1920 at  Baranagar,  leaving        him surviving his adopted son Charu and his widow  Haimabati        Dasi.  The will dated the 29th July 1912 was recited and the        five  persons named above were said to have  been  appointed        executors and executrices of the will.  It also stated  that        Brindaban Chandra Mitter, one of the executors named in  the        will,  had died in July 1913 and his son Debi Prosad  Mitter        was a minor.  It also recited the death of Haimabati Dasi on        the  22nd  May  1921, thus explaining why out  of  the  five        executors and executrices named in the will the  application        had been made only on behalf of the surviving three persons.        The  assets  of  the testator’s estate were  stated  not  to        exceed  a  sum  of Rs. 4,75,780/-.   The  prayer  was  "that        probate of the said will may be granted to your  petitioners        limited  within  the Province of Bengal reserving  power  of        making  the like grant to the said Charu Chandra  Ghose  and        the said Debi Prosad Mitter (when he comes of age) when they        will  come and pray for the same".  The grant was  made  the        same  day (i.e., 30th September 1921) which fell during  the        long  vacation  and the Judge in charge  passed  the  order-        "Order  as  prayed"  no citations  being  issued.   This  is        material in view of what has been alleged subsequently about        this grant, as will presently appear.        Nothing  was  heard about these proceedings until  the  24th        July 1933 when an application was made by Debi Prosad Mitter        aforesaid  for the grant of probate to him along  with  Anil        Nath  Basu  and Latikabala Dasi.  In that  application,  the        previous  grant of probate dated the 30th  September,  1921,        the  death of Muktakesi Dasi some time in October  1932  and        the        274        fact of his attaining majority some time in January 1924 are        recited.   On the 16th September 1933 Debi  Prosad  Mitter’s        application was granted.        It appears that Latikabala Dasi and Sushamabala Dasi applied        to  the Calcutta High Court on the 4th December 1933 for  an        order for discharging the executors appointed previously and        for  a  direction  to hand over the  entire  estate  of  the



      testator  to the applicants.  In answer to the summons  Debi        Prosad Mitter made an affidavit on the 7th December 1933  in        which he recited the previous grants of the probate made  in        1921 and 1933; and stated that the testator Binod Lal  Ghosh        was murdered on the 5th March 1920 by Charu and that on  the        death of Haimabati in May 1921, the testator’s first  cousin        Girish  Chandra Ghosh became entitled to the residue of  the        estate  of the testator.  In that affidavit be set  out  the        genealogical table of the family of the testator showing how        Girish  Chandra Ghosh was related to the deceased.  He  also        made  pointed  reference  to the  fact  that  the  surviving        grantees of the probate, Anil Nath Basu and Latikabala Dasi,        after  the death of Haimabati bad not filed any  account  of        the  testator’s  estate in their capacity  as  executor  and        executrix respectively and that on his obtaining probate  of        the will those persons had not complied with his request  of        furnishing a statement of accounts about their dealings with        the  testator’s  estate.  He also set out the  text  of  the        letter  sent  by  his  solicitor  to  Anil  Nath  Basu   and        Latikabala Dasi.  The letter is dated the 4th December 1933.        It  does not appear from the record as to what attitude  had        been  taken by the executor and the executrix  aforesaid  in        answer to the call made by Debi Prosad Mitter for submission        of  accounts  of their dealings with the  testator’s  estate        after   the   grant  of  probate  in  1921   as   aforesaid.        Ultimately,  on the 16th May, 1934 the High Court  dismissed        the  application  for discharging the persons who  had  been        granted the probate.  Girish Chandra Ghosh aforesaid died in        December,  1940  without  having taken any  steps  in  court        claiming his rights, whatever they were, in the                                    275        testator’s estate.  Anil Nath Basu also died in July,  1948.        He  does  not appear from the record to  have  rendered  any        accounts in respect of his dealings as the managing executor        of the will of the deceased.        It  was  not  until  the  17th  September,  1949  that   the        appellant,  who is one of the four sons of the  said  Girish        Chandra  Ghosh,  made an application to  the  Calcutta  High        Court  on the Original Side praying that the probates  dated        the  30th September, 1921, and the 16th September,  1933  in        respect  of the will dated the 29th July, 1912  be  revoked,        annulled and/or set aside and that an administrator pendente        lite  be  appointed.  The petition runs  into  about  twenty        printed pages setting out the petitioner’s relationship with        the  testator,  the will and the grant of  the  probates  as        aforesaid,  the murder of the testator by Charu, his  trial,        conviction  and  sentence  for that  murder.   It  was  also        averred  that the testator had "intended to revoke his  said        will  of 29th July, 1912".  Then follows a long  recital  of        facts  tending  to that conclusion.  Then  follows  para  19        which is in these terms:-        "From  the said correspondence and papers it  is  absolutely        clear that the said testator revoked his will of 29th  July,        1912.  Your petitioner submits that arrangements were  being        made  for  handing  over the estate of the  said  Binod  Lal        Ghosh,  deceased, in the hands of the  Administrator-General        of  Bengal for the purpose of charity but the  said  purpose        did  not mature and under the circumstances your  petitioner        submits  that  the  said will of 29th July,  1912  has  been        revoked  by  the  said  testator and  no  further  will  was        executed in its place or stead".        Para. 23 is a statement of the grounds on which the case for        revocation  of the grants is founded.  That paragraph is  in        these terms:-        "Your petitioner submits that the probates herein should  be



      revoked  as a just cause for doing so exists inter alia,  on        the following grounds:-        (a)  That  no notice of either application for  probate  was        served  on  your petitioner’s father, although  be  was  the        nearest male relative alive at the time when the said  Binod        Lal Ghosh was murdered;        276        (b)  That the grants were obtained fraudulently;        (c)  That  the  grants were obtained by means of  an  untrue        allegation of a fact essential to justify the grant;        (d)That   the  grants  were  obtained  by  making  a   false        declaration  that  the  property  was  valued  only  at  Rs.        4,75,780/-,   although  the  High  Court  in  its   Criminal        Jurisdiction had stated in 1920 that the estate of the  said        Binod  Lal  Ghosh  was over Rs. 40,00,000/-;  (e)  That  the        grants in any event, are useless and inoperative;        (f)  That there was no filing of accounts;        (g)  That the grants were issued by concealing the facts  of        the intention of the said testator to revoke the will;        (h)  That  the  deceased  never lived  within  the  Ordinary        Original Civil Jurisdiction of this Hon’ble Court".        The  application was opposed by Latikabala Dasi  chiefly  on        the  ground  that no citation to Girish  Chandra  Ghosh  wag        necessary,  that  in  any event, he  was  cognisant  of  the        probate proceedings and of the estate being administered  by        the  executors  and that he stood by. It was denied  by  her        that  the  said Girish Chandra Ghosh was  the  nearest  male        relative  of  the testator or that Charu  had  murdered  his        adoptive  father.  It was also denied that the testator  had        revoked  his will and that he died intestate as a result  of        which the petitioner and his three brothers became  entitled        to  succeed to his estate.  Achintya Nath Basu took  similar        grounds  in  opposition to the application  for  revocation.        Debi  Prosad Mitter by an affidavit -of his own denied  that        there  had been any just cause for revoking the probate  but        added  that  he had been discharged on his  own  application        from  further  acting  as  one  of  the  executors  of   the        testator’s will.        Though   no  issues  were  framed,  the  main  grounds   for        revocation  or annulment of the probates were as  stated  in        para.  23  set out above.  Mr. Justice P. B.  Mukherjee  who        dealt with the case on the Original Side, after an elaborate        consideration  of the facts and circumstances of  the  case,        passed orders revoking                                    277        and  annulling the grants aforesaid and directing "that  the        will be proved in solemn form on notice to the applicant and        the  other sons of Girish and also after a general  citation        to all persons interested in the estate".  He also appointed        the applicant, the appellant before us, as an  administrator        pendente  lite  with  usual powers to  take  charge  of  the        estate,  with costs to the applicant to be paid out  of  the        estate.  He directed the other opponents-respondents to bear        their  own costs.  On the points in controversy he  came  to        the conclusion that Girish was related to the testator as  a        cousin, that there was no acquiescence on the part of Girish        barring  the  appellant from pursuing his remedy,  that  the        non-citation  of  Girish  was by itself  not  sufficient  to        invalidate  the grant, but that circumstance in  conjunction        with other facts, viz., of material concealment of the  fact        that  Charu bad murdered the testator and that the  testator        had  entertained an intention to revoke the will, though  it        had  not  actually been revoked, was sufficient  ground  for        revoking  the grant.  He held further, on the  authority  of        the  decision  in  Mokshadayini  v.  Karnadhar(1)  that  the



      question  whether  the  will bad as a matter  of  fact  been        revoked   would   form   the  subject   matter   for   final        determination after the revocation of the grants when  fresh        proceedings will be taken after due citation.  He also  held        that in the circumstances of this case, though there was  no        averment  of wilful default in exhibiting an  inventory  and        accounts  of  the  testator’s  estate  the  executors   were        actually  guilty of such a default and there was  thus  just        cause  for  revoking the grant.  He did not hold  the  other        grounds  of  attack  against  the  grant  made  out  by  the        applicant;  that is to say, he did not find  it  established        that  the estate was worth over Rs. 40,00,000 and  that  the        declaration  of  the value of the testator’s estate  at  Rs.        4,75,780  was  false  or fraudulent or that  the  grant  bad        become  useless or inoperative otherwise, or that  the  case        could  not  be  heard by the Calcutta  High  Court,  on  the        Original Side.        On appeal by Latikabala Dasi, the Appellate Beach        (1)  19 C.W.N. 1108,        278        consisting  of Sir Trevor Harries, C. J. and  Banerjee,  J.,        allowed  the  appeal  and  dismissed  the  application   for        revocation  of  the probate with costs of both  the  courts.        They held that the will in question was genuine and valid in        view of the evidence and of the fact that its genuineness or        validity  had  not  been  questioned  specifically  in   the        pleadings.   They also held that there was no revocation  of        the will or even an intention on the part of the testator to        revoke the will.  They also held that Girish was entitled to        citation but that the non-citation did not materially affect        the grant of the probate and that at any rate, Girish  being        fully aware of the grant stood by, and therefore  acquiesced        in  the grant, and did not take any steps at the right  time        to question the grant.  They therefore did not think it just        and  expedient  to  reopen the proceedings  when  they  were        satisfied  that  there was no real  and  substantial  attack        against the genuineness and validity of the will itself.        In this appeal it has been argued on behalf of the appellant        on  the  authority  of  the  decision  in  Mokshadayini   v.        Karnadhar(1)  that the Appeal Court should have agreed  with        the  Judge  on the Original Side in holding that  there  was        material  concealment of facts which considered  along  with        the  admitted  position  that no  citation  had  been  taken        against  Girish Chandra Ghosh had vitiated  the  proceedings        for  the  grant  of probate and that  the  question  of  the        genuineness  or validity of the will should have  been  left        over for determination at a later stage of the  proceedings.        It was also argued that the omission to exhibit the accounts        was in the circumstances of this case wilful default without        reasonable  cause  within  the meaning of the  law  and  was        sufficient   by  itself  to  entitle  the  applicant  to   a        revocation.   It  was also argued that no grounds  had  been        made  out in fact to support the legal conclusion  drawn  by        the Appeal Court that there had been an acquiescence on  the        part  of  Girish.   On  behalf of  the  1st  respondent  the        conclusion of the Appeal Bench has been supported on all the        grounds.  On behalf of the respondent Debi Prosad Mitter, it        (1)  19 C.W N. 1108.                                    279        was  contended that he had been unnecessarily  impleaded  at        all  the  stages and that he should have  been  granted  his        costs out of the estate of the deceased.        The  grant of probate was made under the provisions  of  the        Probate  and Administration Act (V of 1881); but the  Indian        Succession Act (XXXIX of 1925) consolidated the law relating



      to   intestate   and  testamentary   succession   and   thus        incorporated  the other Acts relating to the  same  subject,        including  Act  V  of 1881.  In order to be  entitled  to  a        revocation or annulment of the grant aforesaid the appellant        has  to bring his case within the purview of section 263  of        the  Indian  Succession  Act (XXXIX  of  1925),  which  will        hereinafter be referred to as the Act).  Section 263 of  the        Act is substantially in the same terms as section 50 of  Act        V of 1881.  Section 263 provides that "The grant of  probate        or letters of administration may be revoked or annulled  for        just cause".  Under the Explanation-        "Just cause shall be deemed to exist where--        (a)  the  proceedings to obtain the grant were defective  in        substance, or        (b)  the  grant was obtained fraudulently by making a  false        suggestion,  or  by  concealing  from  the  court  something        material to the case, or        (c)  the grant was obtained by means of an untrue allegation        of  a fact essential in point of law to justify  the  grant,        though   such   allegation   was  made   in   ignorance   or        inadvertently, or        (d)  the  grant has become useless and  inoperative  through        circumstances, or        (e)the  person to whom the grant was made has  wilfully  and        without reasonable cause omitted to exhibit an inventory  or        account in accordance with the provisions of Chapter VII  of        this Part, or has exhibited under that Chapter an  inventory        or account which is untrue in a material respect".        After the explanation, there are eight illustrations of  the        grounds on which a grant of probate may be revoked, of which        the first three are material.  They are as follows:-        280        "  (i)  The  court  by  which the  grant  was  made  had  no        jurisdiction.        (ii) The grant was made without citing parties who ought  to        have been cited.        (iii)     The will of which probate was obtained was  forged        or revoked".        In  this case the appellant tried to take advantage  of  the        first illustration also, by suggesting in one of the grounds        set  out in para. 23 of his petition quoted above  that  the        testator  never  lived within the  Ordinary  Original  Civil        Jurisdiction of the Calcutta High Court in exercise of which        the  grant in question had been made.  But that  ground  was        negatived  by  the  trial Judge and as it  was  not  pressed        before us, no more need be said about it.        It was vehemently argued at all stages of the case including        the appeal before us that admittedly no citation was  issued        against  Girish  Chandra Ghosh aforesaid and as he  was  the        person most interested in the testator’s estate besides  the        legatees  named in the will, the case came  directly  within        the   purview   of  clause  (a)  of  the   Explanation   and        Illustration  (ii) quoted above.  Girish Chandra  Ghosh  has        been  found by the Judge in the first instance to have  been        the  person  most vitally interested in the  estate  of  the        testator,  whether he died intestate or leaving a  will,  in        the events which had happened.  The learned counsel for  the        contesting  respondent suggested that it had not been  found        by  the  lower Appellate Court as a fact upon  the  evidence        adduced in this case, that Girish was the nearest agnate  of        the testator or that Charu had murdered his adoptive father,        though these matters had been assumed as facts.  The  courts        below have referred to good and reliable evidence in support        of  the finding that Girish was the nearest  reversioner  to        the  estate  of the testator.  If the will is  a  valid  and



      genuine will, there is intestacy in respect of the  interest        created  in favour of Char;, if he was the murderer  of  the        testator.  On this question the courts below have assumed on        the basis of the judgment of conviction and sentence  passed        by the High Court in the sessions trial that Charu was the                                    281        murderer.   Though  that judgment is relevant only  to  show        that there was such a trial resulting in the conviction  and        sentence  of  Charu to transportation for life,  it  is  not        evidence  of  the fact that Charu was  the  murderer.   That        question  has  to  be decided  on  evidence.   However,  for        purposes  of  this  case we shall assume in  favour  of  the        appellant  that Charu was the murderer.  The result of  such        an  assumption is that Girish being the nearest  reversioner        to  the estate of the testator, in case of  intestacy  after        the  death  of the testator’s widow in 1921; or in  case  of        testamentary succession after the death of the two legatees,        the   testator’s  daughter-in-law  and  the  nephew’s   wife        aforesaid, and the failure of the legacy in favour of  Charu        on  account  of  the murder would,  in  either  event,  have        sufficient interest in the estate of the testator to entitle        him to challenge the grant and to obtain revocation.  But it        is noteworthy that Girish who died in 1940, lived for  about        19  years  after  the  grant  and  took  no  steps  in  that        direction.  There may be some doubt as to Girish’s knowledge        of the probate proceedings and of the grant until 1933; but,        in  our opinion, there is ample evidence in support  of  the        finding arrived at by the Court of Appeal below that  Girish        was  aware  of  the grant at the latest in  1933  when  Debi        Prosad Mitter took -proceedings to obtain a grant in his own        favour  also.   In his application, as indicated  above,  he        clearly  stated that Charu was the murderer of his  adoptive        father  and that Girish would succeed to his  estate,  which        otherwise would have gone to Charu.  If Girish had initiated        proceedings for revocation of the grant and had insisted  on        the will being proved in his presence, the courts would have        had  no  difficulty  in having all  the  necessary  evidence        before  it because the chief person who had played the  most        leading   part  in  the  execution  of  the  will,  in   its        registration  and  in its being admitted to  probate,  viz.,        Anil Nath Basu, was then alive and could have been examined.        But  for reasons not made clear in these proceedings  Girish        did not think it worth his while to take any steps in  court        to        36        282        challenge  the  will  or the grant.  The  estate  was  worth        anything  between five to forty lakhs, perhaps  nearer  five        lakhs  than  forty  lakhs.   Girish  was  a  mere  pensioner        belonging to a middle class family.  Either he did not think        it  worth his while to embark on a litigation with  all  its        uncertainties  or he had not the wherewithal to do so.   The        record  as  it stands does not  satisfactorily  explain  the        reasons why Girish refrained from making any attempts to get        this  large estate.  If the will was not genuine  or  valid,        Girish  would take the reversionary estate at  once  because        the  testator’s  widow died in 1921 and there was  no  other        impediment  in his way, except to get rid of the will.   If,        on  the  other hand, the will was genuine- and  valid,  even        then he would stand to gain all the interest which had  been        bequeathed in favour of Charu.  The fact that Girish did not        take advantage of his position as the nearest reversioner as        on  partial intestacy goes a long way to support  the  great        probability of the will being valid and genuine,  especially        as  it  had been probated and because the appellant  in  his



      long petition for revoking the grant has not made the  least        suggestion casting any doubt on the genuineness and validity        of  the will.  But it was argued on behalf of the  appellant        that  that  stage had not yet arrived and that it  would  be        open to the appellant after obtaining an order of revocation        of the grant to show that the will was either not genuine or        had not been validly executed.  Great reliance was placed in        this  connection on the judgment of a Division Bench of  the        Calcutta High Court in Mokshadayini Dasi v. Karnadhar Mandal        (1) where the following observations have been made:-        "No  question  of  the genuineness of the  will  arises  for        consideration  till the court has decided that  the  probate        must  be revoked on one or more of the grounds specified  in        section 50 of the Probate and Administration Act.  The  only        matter  for  consideration  at this stage  is,  whether  the        appellants have made out a just cause for revocation of  the        probate which was granted without notice to them:  Brindaban        v. Suresh-        (1)  19 C.W.N 1108.                                    283        war(1).   The question of genuineness cannot  be  considered        till  a  case  for  revocation is  made  out:  Durgavati  v.        Sourabini(2)".        The observations relied upon by the appellant were made with        reference to the facts of that case and were not intended to        be of universal application.  As pointed out above,  section        263 of the Act also contemplates a case for revocation based        on  the single ground that the will in respect of which  the        grant- in question was obtained was a forged one.  In such a        case, whether or not the will was a forged one would be  the        only  question to be canvassed before the court  before  the        order of revocation could be made.        It  was further argued on behalf of the appellant  that  the        appeal should be allowed and the grant revoked on the simple        ground, apart from any other considerations, that there  had        been  no  citation issued to Girish.  In our  opinion,  this        proposition also is ,much too widely stated.  Section 263 of        the  Act vests a judicial discretion in the court to  revoke        or  annul  a  grant for just  cause.   The  explanation  has        indicated  the circumstances in which the court can come  to        the conclusion that "just cause" had been made out.  In this        connection the appellant relied upon clause (a) quoted above        which  requires that the proceedings resulting in the  grant        sought  to  be  revoked  should  have  been  "defective   in        substance".   We  are not inclined to hold  that  they  were        "defective  in  substance".  "Defective in  substance"  must        mean  that  the  defect  was  of  such  a  character  as  to        substantially  affect the regularity and correctness of  the        previous proceedings.  If there were any suggestions in  the        present proceedings or any circumstances were pointed out to        show  that if Girish had been cited he would have been  able        to  enter  a  caveat, the absence  of  citation  would  have        rendered those proceedings "defective in substance".  It may        be  that  Girish  having been found to have  been  the  next        reversioner  to the testator’s estate in case  of  intestacy        and on the assumption that Charu had murdered the  testator,        Girish might have been entitled to a revocation of the grant        if he        (1) 10 C.L.J. 263 at p. 273.    (2) I.L.R. 33 Cal. 1001,        284        had  moved  shortly after the grant of the  probate  on  the        simple ground that no citation had been issued to him.   The        omission to issue citations to persons who should have  been        apprised of the probate proceedings may well be in a  normal        case  a ground by itself for revocation of the  grant.   But



      this  is  not  an  absolute  right  irrespective  of   other        considerations arising from the proved facts of a case.  The        law has vested a judicial discretion in the Court to  revoke        a  grant  where the court may have prima  facie  reasons  to        believe that it was necessary to have the will proved afresh        in  the presence of interested parties.  But in the  present        case  we are not satisfied in all the circumstances  of  the        case  that just cause within the meaning of section 263  had        been  made  out.  We cannot ignore the facts that  about  27        years  had elapsed after the grant of probate in 1921,  that        Girish in spite of the knowledge of the grant at the  latest        in  1933 did not take any steps in his lifetime to have  the        grant  revoked, that there was no suggestion that  the  will        was a forgery or was otherwise invalid and that the will was        a  registered one and had been executed eight  years  before        the  testator’s  unnatural  death.  Hence  the  omission  of        citations   to  Girish  which  ordinarily  may   have   been        sufficient  for  a revocation of the grant was  not  in  the        special circumstances of this case sufficient to justify the        court to revoke the grant.        Learned Counsel for the appellant made pointed reference  to        the decision of their Lordships of the Judicial Committee of        the  Privy  Council in Ramanandi Kuer v.  Kalawati  Kuer(1).        But that case is an authority for the proposition that where        two  grounds are taken for revocation of a grant, viz.,  (1)        that  persons who ought to have been cited were  not  cited,        and (2) that the will was a forgery, if the first ground  is        established,  the onus is upon the opponents to  prove  that        the  will  is genuine.  That case is no  authority  for  the        proposition  that in every case where there is a  defect  in        citation, the court must order a revocation or annulment  of        the  grant.  The annulment is a matter of substance and  not        of mere form.  The court        (1)  L.R. 55 I.A. 18,                                    285        may  refuse  to grant annulment in cases where there  is  no        likelihood of proof being offered that the will admitted  to        probate  was  either  not genuine or had  not  been  validly        executed.   But,  as  rightly  pointed  out  by  the   lower        Appellate  Court, in the present case where the validity  or        genuineness  of the will has not been challenged,  it  would        serve no useful purpose to revoke the grant and to make  the        parties  go through the mere formality of proving  the  will        over  again.   In our opinion, therefore,  the  omission  of        citation  has  had  no  effect  on  the  regularity  of  the        proceedings resulting in the grant of 1921.        It  was  next  contended  that  there  had  been  fraudulent        concealment  of  material  facts  from  the  court  in   the        proceedings of 1921, and that therefore the case came within        the  purview of clause (b) of the Explanation quoted  above.        It  was  said in this connection that the petition  for  the        grant of probate made in 1921 did not disclose the following        material facts:        1.   That Charu was the murderer of the testator;        2.   That the testator had revoked the will or had        at least intended to revoke the will; and        3.  That  a false  declaration as regards the value  of  the        property  constituting the estate of the  deceased  testator        had  been made, that is to say, the applicants  for  probate        had concealed from the court the true value of the  property        which was forty lakhs of rupees and not only Rs.  4,75,780/-        as stated by them.          It is true that in para. 4 of the  petition for probate it        was  only stated that Charu had been found guilty of  murder        by  the High Court and was sentenced to  transportation  for



      life  and  had not till then been released from  jail.   Our        attention  was  also  called to the prayer  portion  of  the        petition in which the right of Charu to make an  application        for probate had been reserved.  We can easily dispose of the        last  suggestion  by  observing that it was  a  mere  formal        reservation.   It  has no such sinister significance  as  is        attributed  to  it.   It  is also  true  that  there  is  no        statement  in  the application that Charu had  murdered  the        testator.  While agreeing with the Judge in the first  court        that this was rather disingenuous, we must also        286        hold  that that concealment, if it was deliberate,  was  not        material to the case.  Even if that statement had been  made        in the petition, that would have had no effect on the  grant        of  probate  to the petitioners who were before  the  court.        The fact of the murder is relevant only to this extent, that        it  would  affect the legacies in favour of Charu,  but  the        other legacies would stand and the will would still be  open        to probate.        The  last  allegation  relating to  concealment  is  on  the        question  of the value of the property left by the  testator        by  his  will.  It is not necessary to consider  whether  if        such  a  concealment had been made out it  would  have  been        sufficient  to revoke the grant.  It is enough to point  out        that neither of the courts below has found that the property        was really worth anything like forty lakhs of rupees.   This        ground  has  not  been pressed before us  either.   It  must        therefore be held that the appellant has failed to bring his        case within the rule of material concealment.        The  most serious allegation which could have a  determining        effect  on the grant, if made out, is that the testator  had        revoked  the will.  Such an allegation would  directly  come        within   the   third   illustration   quoted   above.    But        unfortunately for the appellant he made no attempt to  prove        his  allegation that there was any such  revocation.   Apart        from showing that in or about the year 1917 the testator had        entertained the intention either of materially altering  his        will  or of altogether revoking it, there is  absolutely  no        evidence  in  support of the allegation  that  the  testator        actually  revoked  the  registered will  in  question.   For        proving  that the will had been revoked, it had to be  shown        that  the  testator had made another will or codicil  or  by        some  writing  declared his intention to  revoke  the  will.        Such  a document is required by section 70 of the Act to  be        executed  in the same manner as a will.  Such  a  revocation        could  also have been proved, as the section lays  down,  by        burning,  tearing  or otherwise destroying the will  by  the        testator himself or by some other person in his presence and        by his direction, thus clearly indicating his intention                                    287        of  revoking  the will.  No such proof has been  offered  in        this case.  But it was argued that the appellant would  have        offered such proof after the order of revocation was made by        the court.  That would be to put the cart before the  horse.        If  an  applicant  for revocation of a grant  alleges  as  a        ground for such revocation that the testator had revoked the        will,  he has got to prove that alleged fact at least  prima        facie  before he can be entitled to an order of  revocation.        There  may be cases where such a proof may be offered  at  a        later  stage  where  the revocation is  founded  upon  other        grounds,  for  example, where the court  is  satisfied  that        there  was  substantial defect in the  previous  proceedings        resulting in the grant, or that the grantee had wilfully and        without reasonable cause omitted to exhibit an inventory  or        account; or some such other ground recognized by section 263



      as just cause for annulling the grant has been  established.        It  was  also argued on behalf of the  appellant  that  even        though  he  may not have proved that the testator had  as  a        matter of fact revoked the will, he is still entitled to  an        order  of revocation on the ground that he  bad  entertained        the  intention of revoking the will.  No authority had  been        cited  before us in support of this contention.  It is  open        to  a person who has made a will at any time to alter or  to        revoke it; but if he has died leaving a registered will  and        has  not taken any tangible steps to revoke such a will,  it        is  not enough to allege that the testator had at  one  time        entertained  the  intention  of doing so,  because  such  an        intention without being translated into action has no effect        on  the will actually left by him which must be  treated  as        the last will and testament.        It  remains  to consider the last point, viz.,  whether  the        case is within clause (e) of the explanation to section 263.        In  this  connection  ground  (f) in  paragraph  23  of  the        petition quoted above is the only allegation.  The  omission        to  submit accounts is not always synonymous with  "wilfully        and without reasonable cause" omitting to exhibit  accounts.        In certain circumstances omission to submit accounts        288        may  bring  the  case  within  the  purview  of  clause  (e)        aforesaid  because the circumstances may tend to  show  that        the  omission was wilful and without reasonable  cause.   We        have  therefore to consider whether in the circumstances  of        this  case the omission to file accounts has the  effect  of        entitling the appellant to an order of revocation.     Under        the  will the testator intended that Anil Nath  Basu  should        function  as the managing executor during his  lifetime,  as        will appear from the relevant portion of paragraph 17 of the        will which is as follows:        "I  direct  that my executor Babu Anil Nath Basu  shall  act        alone without interference of my other executors in  drawing        money  from or depositing money to any bank, courts  or  any        other  place  or  places and also  in  drawing  interest  of        Government   Promissory  Note,  debentures,  etc.   and   in        collecting  rents  of the houses and also in  defending  and        instituting  all  suits relating to my estate  and  for  the        purpose  above  to sign cheques, rent bills and  all  papers        relating to any suit in connection with my estate".        It  would thus appear that Anil Nath Basu was not  only  the        most competent man being a trained lawyer to administer  the        estate  but had also been in terms vested with the power  to        handle  the  cash  and  the  accounts  by  himself   without        interference by the other executors.  He must therefore have        handled the incomings and the outgoings and been responsible        for keeping true and proper accounts.  Whether or not he did        so  we  do not know, because Girish, as  already  indicated,        never made any attempt to question the will or the grant  or        to  call him to account.  We have already made reference  to        Debi Prosad Mitter’s correspondence with Anil Nath Basu, the        managing  executor,  bearing on the  question  of  accounts.        There is nothing on the record to show what happened on that        demand  for  accounts by Debi Prosad Mitter.   The  managing        executor  was alive up till July 1948 and unfortunately  for        the appellant, he initiated the revocation proceedings  more        than a year after his death.  If these proceedings had  been        started in Anil Nath Basu’s lifetime, he would have been the        best person                                    289        to  inform the court as to how matters stood with  reference        to  the accounts.  The fact remains that no accounts  appear        from  the record of this case to have been submitted by  the



      executors.  An application was made before us to take notice        of  the fact that accounts had been submitted up to date  by        the  1st  respondent  who is in  charge  of  the  testator’s        estate.   But  whether  or  not  the  respondent  has  filed        accounts  during  the  pendency of  this  appeal  is  wholly        irrelevant.   We have to determine whether the  omission  to        submit  accounts in the circumstances of this case  entitles        the appellant to have an order of revocation.  In the  first        place, no proper pleading had been made on this part of  the        case.  It has not been alleged that there has been a  wilful        default  without  any reason, able cause.  Hence  no  proper        foundation  was  laid  in the  pleadings  for  reception  of        evidence either way.  On that ground alone, in our  opinion,        the  appellant must fail on this part of the case.   It  may        also  be pointed out that in all the circumstances  of  this        case  referred  to above, particularly in view of  the  fact        that  it was never suggested that the will in  question  was        not  genuine  or had not been validly executed, it  must  be        held  that  the proceedings leading up to this  appeal  have        been  misconceived.  If the appellant has any locus  standi,        his remedy lay not against the will or against the grant  of        probate,  but under the will.  But it is not for this  court        to advise what the appellant should have done.        As, in our opinion, all the grounds raised on behalf of  the        appellant  for  revoking the grant have failed,  it  is  not        necessary  to  go  into  the  question  whether  Girish  had        acquiesced in the grant in question and had therefore barred        the  door  against the appellant from  raising  any  further        questions about it.        For  the  reasons aforesaid we uphold the  decision  of  the        court  below  and  dismiss  the appeal  with  costs  to  the        contesting  respondent No. 1. There will be no order  as  to        costs in respect of the other respondent.        37        290