FIRST APPEAL No. 55 OF 2003 Against the Judgment and Order dated 28.01.2003 passed by Sri Radha Krishna, 3rd Addl. District Judge, Gopalganj in Misc. Case No.3 of 1996. CHANDESHWAR RAI & ORS. ……………..………. Opposite parties-Appellants Versus INDIRA DEVI & ORS. ……..……………………… Petitioners-Respondents ******** For the Appellant : Mr. Shashi Shekhar Dwivedi, Sr. Advocate Mr. Rakesh Chandra, Advocate Mr. R.K. Dubey, Advocate Mrs. Sangeeta Sharma, Advocate For the Respondent : None Dated : 4th day of May, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The appellants have filed this First Appeal against the Judgment and Order dated 28.01.2003 passed by Sri Radha Krishna, the learned 3rd Addl. District Judge, Gopalganj in Misc. Case No.3 of 1996 whereby the learned Court below allowed the Misc. case and revoked the probate granted. 2. It appears that the petitioner-respondents filed application under Section 263 of the Indian Succession Act praying therein to revoke the probate granted in probate case No.2 of 1990 on 09.09.1993. According to the respondent’s case, Kanta Roy died leaving behind two Mungeshwar Sahoo, J. - 2 - sons, namely, Suraj Bali Rai and Shio Pujan Rai and a daughter Sanpato Kunwar. Both the sons separated themselves in Baishakh 1965 and partitioned their properties. The sons of Suraj Bali Rai are the opposite parties-appellants. The second son Shio Pujan Rai had married 4 wives but had no issue. He died on 16.04.1987 leaving behind his 4th wife Mostt. Jugla Kunwar. His 3 wives had predeceased him and after his death, Most. Jugla Kunwar came in possession over the properties of Shio Pujan Kunwar as his heir. Sanpato Kunwar was married with Bishesher Rai and she has 4 sons. Shio Pujan Rai brought up his Bhagna Chandra Prakash Rai, 3rd son of Sanpato. Shio Pujan Rai had his wish to gift his property to Chandra Prakash Rai but he died suddenly on 16.04.1977. On his death, his widow, Most. Jugla Kunwar pleased with the service of Chandra Prakash Rai and also abiding by the wish of her husband executed deed of gift in favour of Chandra Prakash Rai on 16.10.1990 in respect of 12 bighas 6 kathas 9 ¾ dhurs and she also executed deed of Will in respect of properties prior to execution of the gift. Most. Jugla Kunwar had executed 4 sale deed on 11.10.90 in favor of the - (1) applicant, (2) Bechan Rai (3) Dharmdeo Tiwari and (4) Gulappatti Devi. The Opposite party-appellant filed Title Suit No.143 of 1990 in the Court of Sub Judge, Gopalganj against Jugla Kunwar, Chandraprakash Rai and the other persons who have purchased from Jugla Kunwar wherein it was disclosed that Shio Pujan Rai has executed a deed of Will on 08.01.1988 in favour of the opposite-party-appellant. They also denied that Jugla Kunwar is widow of Shio Pujan Rai and prayed for declaration that the sale deed executed by her are null and void. In that suit, the defendants appeared and denied the existence of any Will and further stated that if there be any Will, it must be a forged and fabricated document, it has been created with a - 3 - view to grab the property of Shio Pujan Rai. The said suit is still pending. Recently, the petitioner-respondent came to Gopalganj and was informed by his Advocate that the plaintiff of Title Suit No. 43 of 1990 have obtained a probate from the Court of 3rd Addl. District Judge, Gopalganj in favour of the said forged Will. It is stated that the said probate is liable to be revoked because it was obtained by practsing fraud upon the Court. The probate case was filed concealing the real fact without citing Most. Jugla Kunwar in the said probate case. On these grounds, the petitioner- respondent prayed for revocation of the probate. 3. On being noticed, the opposite parties-appellants appeared in the Misc. Case and objected the prayer for revocation. Their case is that Shio Pujan Rai had not married 4 wives rather he had two wives only and both of them predeceased Shio Pujan Rai. Mostt. Jugla Kunwar had no right or interest in the property of Shio Pujan Rai nor did she has any right to execute deed of gift. The deed of gift alleged to have been executed by Jugla Kunwar is forged and fabricated and the vendee did not come in possession over the property. The petitioner had knowledge about the probate proceeding. On these grounds, it was prayed for rejection of the Misc. Case. The learned Court below framed the point for determination to the effect that as to whether the applicants had no knowledge about the probate proceeding and grant of probate and are they entitled to challenge the probate granted to the opposite parties-appellants? 4. After trial, the learned Court below came to the finding that when the opposite parties were aware about the contest that Jugla Kunwar is claiming to be widow of Sheopujan then in such circumstances, she must be noticed and notice may be served besides the general citation and the petitioner had no knowledge about the probate proceeding. The - 4 - learned Court below also found that the petitioner cannot be deprived of an opportunity to contest the probate case No.2 of 1990 and accordingly, the Misc. case was allowed and the probate was revoked. 5. The learned senior counsel, Mr. Dwivedi, appearing on behalf of the appellant submitted that since Jugla Kunwar was not the widow of Shio Pujan Rai, therefore, there was no question of citing her name or giving notice to her about the probate case arises. Most. Jugla Kunwar had no right, title or interest in the property of Shio Pujan Rai. If the Will was not executed by Shio Pujan Rai, on his death, the property could not have been devolved on her and, therefore, she was not entitled for citation in the probate case but the learned Court below without deciding this question as to whether she is widow of Shio Pujan or not revoked the probate and granted in favour of the opposite parties-appellants. According to the learned counsel, only the person who have got interest in the property of the deceased are entitled for a citation and therefore, the appellants were not under any obligation to cite Most. Jugla Kunwar and issued notice in the probate proceeding. In support of his contention, the learned counsel relied upon decisions which are as follows : (i) A.I.R. 1978 Madras 265 (D.B.) R. Sivagnanam Vs. P. K. Sadananda Mudaliar (ii) A.I.R. 1964 Calcutta 34 in the goods of Md. Basir. (iii) A.I.R. 1964 Patna 518 Smt. Dular Kuer Vs. Smt. Kesar Kuer. 6. On the basis of these decisions and on the grounds stated above, the learned counsel submitted that the impugned Judgment and Order is liable to be set aside. - 5 - 7. As stated above, nobody appeared on behalf of the respondents when this appeal was heard. 8. From the pleadings of the parties and the submission of the learned counsel, the only points arises for consideration in this appeal is as to whether the learned Court below could have revoked the probate granted in favour of the appellant on the ground that the probate proceeding was defective because Most. Jugla Kuer was not cited ? 9. According to the appellant’s case, Most. Jugla Kunwar was not the widow of Shio Pujan Rai and, therefore, she had no interest in the property of Shio Pujan Rai. There was no necessity for citing her name in the probate proceeding. According to the petitioners-respondents, she was the 4th wife of Shio Pujan Rai. The learned counsel for the appellant submitted that in paragraph 1 of the Misc. application, it has specifically been stated that Shio Pujan Rai died on 16.04.1988 leaving behind his 4th wife, Most. Jugla Kunwar whereas Most. Jugla Kunwar in her evidence in the Title Suit No.43 of 1990 (Ext.2) has clearly stated that she is 3rd wife of Shio Pujan Rai and, therefore, there is much discrepancy in the case of the petitioner-respondent which support the fact that she is not the widow of late Shio Pujan Rai. 10. From perusal of the Misc. application filed by the petitioner- respondent, it appears that in the said application at paragraph 1, it is stated that Most. Jugla Kunwar is the 4th wife of Shio Pujan Rai. The petitioner-respondent have filed the deposition of Most. Jugla Kunwar in Title Suit No.143 of 1990 in the present Misc. case which has been marked as Ext. ‘2’. In her deposition, she has claimed herself to be the 3rd wife. The said Title Suit No.143 of 1990 has been filed by the appellant against - 6 - Most. Jugla Kunwar and the others challenging the sale deeds executed by her. Admittedly, Most. Jugla Kunwar executed 4 sale deeds in favour of different persons with respect to the property of Shio Pujan Rai claiming herself to be the widow of Shio Pujan Rai. The submission of the learned counsel that there is much discrepancy in the evidence, i.e. in the Misc. petition, it is mentioned that she is 4th wife whereas she herself stated that she is 3rd wife. So far this submission is concerned, it may be mentioned here that it is not the dispute between the parties that as to whether Most. Jugla Kunwar was 3rd wife or 4th wife. This is not very material. It can be said that it is a mistake of description but on that ground alone in a probate proceeding or in a proceeding under Section 263 of Indian Succession Act, no finding can be recorded that Most. Jugla Kunwar is not the widow of Shio Pujan Rai. The inconsistency or the infirmity in the statements made in the pleading of Misc. case and the statements made in Ext. 2 is not sufficient to discard the case of the petitioner-respondents in toto. In civil cases, burden is to prove the balance of probability and not beyond all reasonable doubt as required in criminal cases. As has been stated above, the title Suit No.143 of 1990 has been filed by the petitioner-respondent making Jugla Kunwar as defendant. Therefore, the petitioner-respondents were knowing the fact that Most. Jugla Kunwar was claiming herself to be the widow and in that capacity, she had also sold some of the property to different persons. Whether she is in fact wife of Shio Pujan Rai or not could have been decided by the Court in her presence but on the ground that she is not the widow, the opposite party- appellants who are petitioners in probate case No.2 of1990 could not have left her name in citation. If the submission of the appellant is accepted then in each and every case, the relationship of the heir with the testator - 7 - will be denied by the person applying for probate and their name will not be cited. Therefore, whether she is widow or not should have been left for decision by the Court but the appellants suppressed the fact. It is the defence of the opposite parties-appellants that Jugla Kunwar is not the widow of Shio Pujan Rai. There is no such finding of any Court, therefore, the defence of the appellant is not decisive and will not absolve them from citing the name of a person who ought to have been cited. On the contrary, they themselves filed the Title suit against Jugla Kunwar. In such circumstances, they were required to cite the name of Jugla Kunwar. It is well settled principle of law that an interest in the testators estate, however, slight or the bare possibility of an interest or even an interest dependent upon remote contingencies is sufficient to entitle a person to oppose a Will and to entitle him to citation. In the present case, Most. Jugla Kunwar is claiming is to be the widow of Shio Pujan Rai. It may be the defence that she is not widow but this defence can be decided by the Court and not by the appellants themselves. Moreover, this question as to whether she is wife or not is not within the scope of probate Court for decision in a probate proceeding. This question will be decided in the Title Suit No.143 of 1990 filed by the appellant themselves against Jugla Kunwar. 11. So far the decisions relied upon by the learned counsel for the appellant in A.I.R. 1979 Madras 265 R. Sivagnanam (Supra) is concerned, it appears that in that case, one of the person entered caveat on the ground of interested persons but later on withdrew and then the Court granted probate on being satisfied. After 12 years, an application for revocation was filed for revoking the probate on the ground that the Court has said that probate was granted by consent of the parties. From - 8 - perusal of the said decisions, it appears that the fact is entirely different. According to illustration (ii) of Section 263 of the Indian Succession Act, none citation of parties who ought to have been cited is defective in substance. Admittedly, in the present case, Jugla Kunwar has not been cited. 12. In the next decision relied upon by the appellant is A.I.R. 1964 Patna 518 Smt. Dular Kuer. It has been held that a person who has no possible chance of succeeding to the testator estate had no locusstandi to file application for revocation. From perusal of the decision, it appears that in that case, this Court found that the person who had filed application for revocation would not have succeeded to the property of testator if the Will had not been executed. In the present case, it is not the fact. Inheritance to the property of Shio Pujan was automatic on Mostt. Jugla Kunwar and this inheritance cannot be stopped or denied till the claim of the appellant that she is not the widow of Shio Pujan is adjudicated by a Court of competent jurisdiction and found in favour of the appellant. 13. The another decision relied upon by the appellant, i.e., A.I.R. 1964 Calcutta 34 (Supra) also not applicable in the present case. In that case, it has been held that a person disputing the title of the deceased in the properties and claiming the property as his own has no such interest in the estate of the deceased as would entitle him to enter caveat or to be cited in the proceeding for the grant of administration. It appears that in that case, the person was claiming himself to be the owner of the property. Here, the petitioners are claiming that the property was inherited by Most. Jugla Kunwar, therefore, here there is no conflict of - 9 - interest between Jugla Kunwar and Shio Pujan Rai as in the case of the decision relied upon by the appellants. 14. From perusal of the impugned Judgment, it appears that the learned Court below has decided that an opportunity should be given to the petitioners-respondents to contesting the probate case No.2 of 1990 finding that prima facie it appears that Jugla Kunwar is the widow of Shio Pujan Rai. In view of my above discussion, I do not find any reason to interfere with this finding of the learned Court below. There is no reason as to why the respondents be denied of an opportunity of being heard. 15. In the result, I find no merit in this First Appeal and accordingly, this First Appeal is dismissed. In the facts and circumstances of the case, the parties shall bear their own costs. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 4th day of May, 2011 Sanjeev/.A.F.R.