Anil Behari Ghosh vs Smt. Latika Bala Dassi And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 106 of 1953

Decision Date: 15 April, 1955

Coram: Bhuvneshwar P. Sinha, Vivian Bose, B. Jagannadhadas

In this matter, the Supreme Court of India delivered a judgment dated 15 April 1955 concerning the dispute between Anil Behari Ghosh as petitioner and Smt. Latika Bala Dassi together with other respondents. The opinion was authored by Justice Bhuvneshwar P. Sinha. The bench that heard the appeal was composed of Justice Bhuvneshwar P. Sinha, Justice Vivian Bose and Justice B. Jagannadhadas. The case is reported in the All India Reporter at 1955 AIR 566 and also appears in the Supreme Court Reports, second series, page 270. The substantive issue before the Court involved the application of section 263 of the Indian Succession Act 1925, together with the explanation clause (a) to that section. The explanation addresses the meaning of the expression “defective in substance” within probate proceedings, the consequences of an omission to issue citations to persons who ought to have been apprised, and whether such an omission automatically entitles a court to revoke a grant of probate or whether the power to do so must be exercised in light of other considerations, thereby highlighting the judicial discretion vested in the courts.

The headnote of the reported judgment explained that “defective in substance” as used in explanation (a) to section 263 signifies a defect of such a character that it materially affects the regularity and correctness of the earlier proceedings. It further observed that a failure to issue citations to individuals who should have been notified of the probate proceedings may, in a typical case, constitute a ground sufficient by itself for revocation of the grant. Nevertheless, the Court held that this right is not absolute; the revocation must be balanced against other facts that emerge from the case. The law therefore confers upon the court a discretionary power to set aside a grant when there are prima facie reasons to believe that a fresh proof of the will in the presence of interested parties is required. In the present case the Supreme Court was not persuaded that, considering all the surrounding circumstances, the necessary just cause for annulment within the meaning of section 263 had been established. The Court emphasized that annulment of a probate grant is a substantive matter, not a mere procedural formality, and therefore the court may refuse to order annulment where there is no realistic prospect of proof that the will admitted to probate was either inauthentic or improperly executed. Since, in this case, the validity and genuineness of the will had not been contested, the Court concluded that revoking the grant would serve no useful purpose and would merely oblige the parties to repeat a purely formal exercise of proving the will again. Accordingly, the omission of citation did not affect the regularity of the proceedings that led to the grant of probate in 1921. The judgment referred to earlier authorities, namely 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). The decision was rendered in Civil Appeal No. 106 of 1953, which arose from a judgment and order dated 4 September 1951 of the Calcutta High Court, itself an appeal from an original order dated 29 August 1950. The Supreme Court set aside the earlier order that had granted the petitioner’s request for revocation and annulment of the probate dated 29 July 1912 concerning the will of the late Binod Lal Ghosh.

No. 131 of 1950 was filed pursuant to the order dated 29 August 1950 issued by the High Court of Calcutta in its testamentary intestate jurisdiction under Section 263 of the Indian Succession Act. The appellant was represented by counsel P. N. Sen, assisted by advocates A. K. Dutt and S. Ghose. For respondent No. 1, the Attorney‑General for India, M. C. Setalvad, appeared with counsel A. N. Sinha, while respondent No. 2 was represented by counsel D. N. Mukherji. The judgment was pronounced on 15 April 1955 and delivered by Justice Sinha. This appeal challenged the judgment and order dated 4 September 1951 of the Calcutta High Court, which in its appellate jurisdiction had set aside an earlier order dated 29 August 1950 of a judge of the same court sitting on the original side. That original order had granted the appellant’s request to revoke and annul the probate that had been issued in respect of the last will and testament dated 29 July 1912 of the deceased Binod Lal Ghosh, hereinafter referred to as the testator. The testator was alleged to have executed the said will on 29 July 1912, and the will was registered on the same day at the Calcutta Registry Office. In that will the testator appointed five persons as executors or executrices: (i) Anil Nath Basu, an attorney‑at‑law, (ii) Brindaban Chandra Mitter, who together with the first named also acted as attesting witnesses, (iii) his adopted son Charu Chandra Ghose, a minor at the time, (iv) his wife Haimabati Dasi, and (v) the widow of his brother, Muktakesi Dasi. The testator further provided that upon the death of Anil Nath Basu his son Achintya Nath Basu would succeed him as executor, and that upon the death of Brindaban Chandra Mitter his son Debi Prosad Mitter would take his place. Similarly, upon the death of his wife Haimabati Dasi, Charu’s wife Latikabala Dasi would become an executrix, and upon the death of Muktakesi Dasi the wife of his nephew, Sushamabala Dasi, would succeed her.

The will also created numerous annuities in favour of several individuals, including the testator’s wife, his brother’s widow Muktakesi Dasi, his daughter‑in‑law, his niece‑in‑law, and his adopted son Charu. Additionally, the testator provided for annual payments to meet the expenses of certain deities and festivals, as well as for his own funeral expenses and those of the annuitants. He directed his executors to accumulate twelve thousand rupees each year from the balance remaining after meeting the annuities and the other annual outgoings, and to pay that accumulated amount to Charu upon the death of Latikabala Dasi and Sushamabala Dasi, who were to share any residue after the payment of the annuities and other expenditures. From these provisions it appears that the testator intended Charu to ultimately own the whole estate, including the accumulated sums, after the satisfaction of the annuities and other liabilities. However, the testator did not wish to place the entire estate directly in Charu’s hands upon his attaining majority, and therefore vested certain interests in Charu’s wife and in the other female relatives, while expressly stating that the adopted son would have a vested interest in the estate immediately upon the testator’s death.

In the will the testator provided that, although Charu would enjoy a vested interest in the estate upon the testator’s death, he did not trust Charu sufficiently to place the entire estate in his hands at the moment Charu reached majority. The testator placed greater confidence in Charu’s wife and in the other female members of his family than in Charu himself, and he expressly included the clause, “Provided always that the said adopted son shall be deemed to have a vested interest in the said estate immediately on my death.” He also appointed his wife Haimabati Dasi to act as guardian of both the person and the property of Charu as well as of his wife Latikabala Dasi. The testator was murdered on 5 March 1920 by Charu, who was subsequently tried, convicted of murder and sentenced to life transportation. Charu served his sentence and obtained release from imprisonment sometime in 1933. On 30 September 1921 an application for probate of the aforementioned will was filed in the Original Side of the Calcutta High Court on behalf of Anil Nath, Muktakesi Dasi and Latikabala Dasi. That application declared that the testator had died on 5 March 1920 at Baranagar, leaving surviving an adopted son Charu and a widow Haimabati Dasi. The will dated 29 July 1912 was set out, and the five persons named therein were identified as the appointed executors and executrices. The application further noted that one executor, Brindaban Chandra Mitter, had died in July 1913, leaving his son Debi Prosad Mitter a minor, and that Haimabati Dasi had died on 22 May 1921; consequently the probate request was made only on behalf of the three surviving executors. The value of the testator’s assets was stated not to exceed Rs 4,75,780. The prayer sought probate “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 court granted the probate on the same day, 30 September 1921, during a long vacation, with the judge issuing the order “Order as prayed” without any citations. This grant later became material to the allegations that would be discussed. No further hearing on these proceedings occurred until 24 July 1933, when Debi Prosad Mitter filed an application for probate in his own name together with Anil Nath Basu and Latikabala Dasi. That application recited the earlier probate grant of 30 September 1921, the death of Muktakesi Dasi in October 1932, and Muktakesi Dasi’s attainment of majority in January 1924. On 16 September 1933 the court granted Debi Prosad Mitter’s application. It appears that

Latikabala Dasi and Sushamabala Dasi filed an application before the Calcutta High Court on 4 December 1933 seeking an order that would discharge the executors who had previously been appointed and that would direct the transfer of the entire estate of the testator to the applicants. In response to the summons, Debi Prosad Mitter submitted an affidavit dated 7 December 1933. In that affidavit he recited the earlier grants of probate that had been made in 1921 and again in 1933, and he asserted that the testator, Binod Lal Ghosh, had been murdered on 5 March 1920 by a person named Charu. He further stated that, following the death of Haimabati in May 1921, the testator’s first cousin, Girish Chandra Ghosh, became entitled to the residue of the testator’s estate. The affidavit included a genealogical table that illustrated the relationship between Girish Chandra Ghosh and the deceased. Debi Prosad Mitter also pointed out that the surviving grantees of the probate—Anil Nath Basu and Latikabala Dasi—had, after Haimabati’s death, failed to file any accounts of the testator’s estate in their capacities as executor and executrix respectively. He observed that, even after obtaining probate of the will, these persons had not complied with his request for a statement of accounts concerning their handling of the estate. To support this claim, he reproduced the text of a letter sent by his solicitor to Anil Nath Basu and Latikabala Dasi, a letter dated 4 December 1933. The record, however, does not reveal what response, if any, the executor and the executrix gave to Debi Prosad Mitter’s demand for the submission of accounts relating to their management of the estate after the 1921 grant of probate. Ultimately, on 16 May 1934, the High Court dismissed the application that sought to discharge the persons who had been granted probate. Girish Chandra Ghosh died in December 1940 without having taken any court action to assert any rights he might have had in the testator’s estate. Anil Nath Basu died in July 1948, and the record shows no indication that he ever rendered any accounts for his role as managing executor of the deceased’s will. It was not until 17 September 1949 that the appellant—one of the four sons of Girish Chandra Ghosh—filed an application before the Calcutta High Court on the Original Side. In that application he pleaded that the probates dated 30 September 1921 and 16 September 1933, which pertained to the will dated 29 July 1912, should be revoked, annulled, or set aside, and that an administrator pendente lite should be appointed. The petition comprised roughly twenty printed pages and set out the petitioner’s relationship with the testator, details of the will and the grants of probate, the murder of the testator by Charu, the subsequent trial, conviction and sentence of the murderer, and it also asserted that the testator had intended to revoke his 29 July 1912 will.

In the petition, the applicant asserted that the testator had deliberately revoked his will dated 29 July 1912. The petition reproduced a statement that read: “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.” The petition then set out a series of grounds on which revocation of the probate grants should be ordered. These grounds were listed as follows: (a) no notice of any application for probate had been served on the petitioner’s father, who was the nearest surviving male relative at the time of Binod Lal Ghosh’s murder; (b) the grants were obtained fraudulently; (c) the grants were obtained by an untrue allegation of a material fact necessary to justify the grant; (d) a false declaration had been made that the property was valued at only Rs 4,75,780/‑ when the High Court in its criminal jurisdiction had earlier held in 1920 that the estate was over Rs 40,00,000/‑; (e) the grants were, in any event, useless and inoperative; (f) no accounts had been filed; (g) the grants had been issued while concealing the testator’s intention to revoke the will; and (h) the deceased had never resided within the ordinary original civil jurisdiction of this Court.

The application faced opposition primarily from Latikabala Dasi, who argued that no citation to Girish Chandra Ghosh was required and that he was fully aware of the probate proceedings and the estate’s administration by the executors, thereby affirming his support. She denied that Girish Chandra Ghosh was the nearest male relative of the testator, rejected the claim that Charu had murdered his adoptive father, and asserted that the testator had not revoked his will; consequently, she maintained that the testator had died intestate, making the petitioner and his three brothers the rightful successors. Achintya Nath Basu presented similar objections to the revocation request. Additionally, Debi Prosad Mitter, by way of an affidavit, contended that there was no just cause for revoking the probate, yet he noted that he had voluntarily withdrawn from his duties as one of the executors. No formal issues were framed, and the principal grounds for revocation or annulment remained those enumerated in paragraph 23 of the petition.

In this case, the Court observed that the principal reasons for seeking revocation or annulment of the probate grants had been enumerated in paragraph 23 of the record. The judge who originally heard the matter on the Original Side, Justice P. B. Mukherjee, after a detailed examination of all facts and surrounding circumstances, issued orders that revoked and set aside the previously issued probate grants. He further directed that the will be proved in a solemn form, with notice served upon the applicant and the other sons of Girish, and that a general citation be issued to every person having an interest in the estate. In addition, Justice Mukherjee appointed the applicant—who is the present appellant—as administrator pendente‑lite, granting the ordinary powers necessary to take control of the estate and ordering that the costs of the applicant be borne out of the estate’s assets. The judge also ordered each of the opposing respondents to bear their own respective costs. Concerning the disputed issues, Justice Mukherjee concluded that Girish was related to the testator in the capacity of a cousin and that Girish had not acquiesced in a manner that would prevent the appellant from pursuing his legal remedy. The judge held that the failure to cite Girish, taken alone, did not suffice to invalidate the probate grant; however, when this omission was considered together with other material facts—specifically, the concealment of the fact that Charu had murdered the testator and the testator’s expressed intention to revoke the will, although the will had not been formally revoked—these circumstances provided adequate ground to set aside the grant. Relying on the authority of Mokshadayini v. Karnadhar (1), Justice Mukherjee stated that the question of whether the will had actually been revoked would be addressed in a final determination after the grants were revoked, with fresh proceedings to be initiated following proper citation. He also found that, although no specific allegation of willful default in preparing an inventory and accounts of the testator’s estate had been made, the executors were in fact guilty of such a default, thereby establishing a further just cause for revocation. Conversely, the judge did not accept several other allegations raised by the applicant. He did not find evidence that the estate’s value exceeded Rs 40,00,000, nor did he deem the declared valuation of Rs 4,75,780 to be false or fraudulent. He likewise did not hold that the grant had become ineffective or that the matter was beyond the jurisdiction of the Calcutta High Court on the Original Side. Upon appeal by Latikabala Dasi, the Appellate Bench—identified as the case reported in 19 C.W.N. 1108 and comprising Sir Trevor Harries, Chief Justice, and Justice Banerjee—allowed the appeal and dismissed the application seeking revocation of the probate, awarding costs to both parties. The appellate judges concluded that the will in question was genuine and valid, based on the evidence and on the observation that its authenticity had not been expressly challenged in the pleadings. They further determined that there was no revocation of the will, nor any intention by the testator to revoke it, at the material point of consideration.

The Court observed that there was no intention on the part of the testator to revoke the will. It further held that Girish was legally entitled to be cited, but the failure to cite him did not materially impinge upon the grant of probate. The Court noted that Girish was fully aware of the grant, had stood by it, and thereby acquiesced in its effect. Moreover, Girish had not taken any timely steps to contest the grant. Consequently, the Court found no justification for reopening the proceedings, having been satisfied that there was no real and substantial attack on the genuineness or validity of the will itself.

In the present appeal, counsel for the appellant invoked the decision in Mokshadayini v. Karnadhar (19 C.W.N. 1108) and contended that the Appeal Court should have followed the Original Side Judge in finding material concealment of facts. According to that argument, the admitted fact that no citation had been taken against Girish Chandra Ghosh vitiated the probate proceedings, and the question of the will’s genuineness or validity ought to have been reserved for determination at a later stage. The appellant also argued that the failure to exhibit the accounts represented a wilful default without reasonable cause, which, in the law’s terms, was sufficient by itself to merit revocation of the grant. Further, it was asserted that no factual grounds existed to support the Appeal Court’s conclusion that Girish had acquiesced. Counsel for the first respondent, however, defended the Appeal Bench’s conclusion on every ground raised. Counsel for the second respondent, Debi Prosad Mitter, maintained that he had been unnecessarily impleaded at all stages and that his costs should have been borne by the estate of the deceased. The Court explained that the grant of probate was issued under the Probate and Administration Act (V of 1881), but that the Indian Succession Act (XXXIX of 1925) had since consolidated the law relating to intestate and testamentary succession, incorporating the earlier Act. To obtain a revocation or annulment of the grant, the appellant must invoke section 263 of the Indian Succession Act, which mirrors section 50 of the 1881 Act. Section 263 states that a grant of probate or letters of administration may be revoked or annulled for just cause, and the accompanying Explanation defines “just cause” to include situations where the proceedings to obtain the grant were substantively defective, or where the grant was obtained fraudulently by making a false suggestion.

The provision then listed further circumstances that could constitute “just cause” for revoking a grant. These circumstances included, first, the concealment from the court of any material matter; second, the procurement of the grant by an untrue allegation of a fact that was essential in law to justify the grant, even when such allegation was made out of ignorance or inadvertently; third, the situation where the grant had become useless and ineffective because of subsequent circumstances; fourth, the case where the person to whom the grant was made willfully and without reasonable cause failed to file an inventory or account as required by Chapter VII of the applicable Part, or filed an inventory or account that was materially false. After setting out this explanation, the statute provided eight illustrative grounds on which a probate grant might be revoked, of which the first three were deemed material. The first illustration stated that the court which made the grant lacked jurisdiction; the second held that the grant was made without citing parties who ought to have been cited; and the third declared that the will on which probate was obtained was forged or revoked. In the present matter, the appellant attempted to rely on the first illustration by alleging, in paragraph 23 of his petition, that the testator had never lived within the ordinary original civil jurisdiction of the Calcutta High Court, the court that had issued the grant. The trial judge rejected this allegation, and because the issue was not raised again before this Court, no further discussion of it was necessary.

The appellant, however, argued vigorously at every stage, including before this Court, that no citation had been issued against Girish Chandra Ghosh, who was the person most interested in the testator’s estate besides the legatees named in the will. The appellant therefore claimed that the case fell squarely within clause (a) of the explanation and the second illustration, which concerned the failure to cite an interested party. The trial judge had indeed found that Girish Chandra Ghosh was the individual most vitally interested in the estate, whether the testator died intestate or left a will, based on the facts that had occurred. Counsel for the contesting respondent contended that the lower appellate court had not, on the evidence adduced, established that Girish was the nearest agnate of the testator or that Charu had murdered his adoptive father, although those matters had been treated as facts in the earlier proceedings. Nevertheless, the courts below relied on good and reliable evidence to support the conclusion that Girish was the nearest reversioner to the testator’s estate. Assuming, for argument’s sake, that the will was valid and genuine, the interest created in favour of Charu would be regarded as intestate if Charu were the murderer of the testator. The lower courts had assumed, based on the conviction and sentence handed down by the High Court in the sessions trial, that Charu was the murderer.

The Court observed that the earlier judgment merely demonstrated that a trial had taken place resulting in the conviction of Charu to transportation for life, but it did not establish Charu as the murderer. The question of whether Charu actually committed the murder required proof on the basis of the evidence presented. For the purpose of deciding the issues in the present proceeding, the Court elected to presume, in favor of the appellant, that Charu was indeed the murderer. If that presumption is accepted, Girish would be the nearest reversioner to the testator’s estate in case of intestacy after the testator’s widow died in 1921. He would also be the nearest reversioner in case of testamentary succession after the deaths of the two legatees, the testator’s daughter‑in‑law and the nephew’s wife. The failure of the legacy in favour of Charu because of the alleged murder would, in either scenario, give Girish a sufficient interest in the estate to permit him to challenge the grant and to seek its revocation. It is noteworthy, however, that Girish, who died in 1940, lived for about nineteen years after the grant was made and nevertheless took no steps to contest it.

Some uncertainty may exist regarding whether Girish was aware of the probate proceedings and of the grant until the year 1933. Nevertheless, ample evidence supports the lower appellate court’s finding that Girish was aware of the grant at the latest in 1933. In that year, Debi Prosad Mitter initiated proceedings to secure a grant in his own favour, which brought the matter to Girish’s attention. In his application, as previously indicated, Mitter expressly stated that Charu was the murderer of his adoptive father. He further asserted that, as a result, Girish would succeed to the estate that otherwise would have gone to Charu. Had Girish initiated revocation proceedings and insisted on the will being proved in his presence, the courts would have obtained all necessary evidence. This would have been possible because the principal person who had overseen the execution, registration and probate of the will, Anil Nath Basu, was then alive and could have been examined. For reasons that were not clarified in the proceedings, Girish apparently decided that it was not worthwhile to take any court action to challenge either the will or the grant. The estate was valued anywhere between five and forty lakh rupees, perhaps nearer the lower figure. Girish was a mere pensioner belonging to a middle‑class family, and he either deemed litigation too costly and uncertain or lacked the financial means to pursue it. The record, as it presently stands, does not satisfactorily explain why Girish refrained from attempting to claim this substantial estate. If the will were not genuine or valid, Girish would have been entitled to the reversionary estate immediately, since the testator’s widow had died in 1921 and no other obstacle stood in his way, except

In the alternative, Girish could have attempted to eliminate the will. If the will was indeed genuine and valid, Girish would nevertheless have acquired all the interest that had been devised to Charu. The observation that Girish, although he was the closest reversioner under the rules of partial intestacy, did not exploit this position lends considerable support to the inference that the will was likely both valid and genuine. This inference is reinforced by the fact that the will had already been probated and that the appellant, in his extensive petition seeking revocation of the grant, offered no argument or suggestion that called into question either the genuineness or the validity of the will.

Nevertheless, counsel for the appellant contended that the matter was not yet ripe for consideration of the will’s authenticity. The appellant argued that, should an order revoking the grant be obtained, it would then be permissible to demonstrate that the will was either not genuine or had not been validly executed. In support of this line of argument, the appellant heavily relied on a judgment of a Division Bench of the Calcutta High Court in Mokshadayini Dasi v. Karnadhar Mandal. That decision observed that the court could not examine the genuineness of a will until it had first determined that the probate ought to be revoked on one or more grounds listed in section fifty of the Probate and Administration Act. At that preliminary stage, the only issue for the court was whether the appellants had established a just cause for revocation of a probate that had been granted without notice to them. The judgment further stated that the question of genuineness could be addressed only after a case for revocation had been made out, citing the earlier cases Brindaban v. Suresh and Durgavati v. Sourabini.

The observations cited by the appellant were drawn from the specific factual matrix of that case and were not intended to have universal application. As noted earlier, section two‑sixty‑three of the Act also provides for revocation of a grant on the single ground that the underlying will was forged. In such a circumstance, the sole issue before the court would be whether the will was indeed forged, and that question would have to be resolved before any order of revocation could be issued.

Further, the appellant argued that the appeal should be allowed and the grant revoked on the simple ground that Girish had not been served with a citation, without reliance on any other consideration. The Court found this proposition to be overly broad. Section two‑sixty‑three vests the court with discretionary authority to revoke or annul a grant for just cause. The accompanying explanation enumerates the circumstances in which the court may conclude that “just cause” has been established. In this context, the appellant pointed to clause (a) of the explanation, which requires that the proceedings leading to the grant sought to be revoked be “defective in substance.” The Court was not prepared to accept that the proceedings in the present case were defective in substance. “Defective in substance” must denote a defect of such a character that it substantially affects the regularity and correctness of the earlier proceedings. If, for instance, it could be shown that Girish, as the next reversioner, would have been able to lodge a caveat had he been cited, the absence of such citation would render those proceedings defective in substance. The Court noted that, assuming Girish was the next reversioner in the event of intestacy and that Charu had murdered the testator, Girish might have been entitled to seek revocation of the grant on the simple ground that no citation had been issued to him. The omission to issue citations to persons who should have been informed of the probate proceedings could, in a normal case, constitute a substantial defect.

The Court was not inclined to hold that the earlier probate proceedings were “defective in substance”. It explained that a defect could be described as “defective in substance” only when such a defect was of a character that substantially affected the regularity and correctness of the proceedings that led to the grant. Accordingly, if any suggestion had been made in the present proceedings, or if any circumstance had been pointed out, indicating that Girish could have entered a caveat had he been cited, then the failure to cite him would have rendered those earlier proceedings “defective in substance”. The Court noted that, in the hypothetical situation where Girish, having been identified as the next reversioner to the testator’s estate in the event of intestacy and, on the assumption that Charu had murdered the testator, might have been entitled to a revocation of the grant, he could have moved shortly after the probate was granted on the sole ground that no citation had been issued to him. The Court cited authorities such as 10 C.L.J. 263 at p. 273 and I.L.R. 33 Cal. 1001 in support of this observation. It further observed that the omission of citations to persons who should have been informed of the probate proceedings could, in a normal case, constitute a ground by itself for revoking the grant. However, the Court emphasized that this right was not absolute and could not be exercised without regard to other considerations that emerged from the proven facts of the case. The law, the Court held, vested judicial discretion in the court to revoke a grant where prima facie reasons existed to believe that a fresh proving of the will in the presence of interested parties was necessary. In the present case, the Court was not satisfied that “just cause”, as contemplated in section 263, had been established. It could not disregard several material facts: roughly twenty‑seven years had passed since the grant of probate in 1921; Girish, despite knowledge of the grant at least until 1933, had taken no steps during his lifetime to obtain revocation; there was no suggestion that the will was forged or otherwise invalid; the will had been a registered instrument and had been executed eight years before the testator’s unnatural death. Consequently, the omission of citations to Girish, which might ordinarily have sufficed for revocation, was not sufficient, given the special circumstances, to justify the Court in revoking the grant. Counsel for the appellant relied on the decision of the Judicial Committee of the Privy Council in Ramanandi Kuer v. Kalawati Kuer. The Court noted that that decision established that when two grounds are asserted for revocation—namely, the non‑citation of persons who ought to have been cited and the allegation of a forged will—the burden, once the first ground is proved, shifts to the opponents to demonstrate the genuineness of the will. The Court clarified that the Ramanandi Kuer case did not support the proposition that every defect in citation alone required the court to order revocation or annulment of a grant.

In this case the Court explained that an omission in citation does not automatically require the court to revoke or annul a grant. An annulment is a substantive matter rather than a mere procedural formality. The Court noted that the law, as stated in L.R. 55 I.A. 18, permits a court to decline to grant an annulment when there is no realistic prospect of establishing that the will placed before probate was either inauthentic or not properly executed. The Court agreed with the observations of the lower appellate court that, because the authenticity and validity of the will had not been contested, ordering a revocation would serve no useful purpose and would only compel the parties to repeat a formal proof of the will that was unnecessary. Consequently, the Court held that the failure to cite certain persons did not undermine the regularity of the proceedings that led to the grant of probate in 1921.

The Court then turned to the allegation that material facts had been fraudulently concealed in the 1921 probate proceedings, an allegation that the appellant sought to place within clause (b) of the relevant Explanation. The appellant claimed that the petition for probate had omitted three essential facts: first, that Charu was the murderer of the testator; second, that the testator had either revoked the will or intended to revoke it; and third, that the petitioners had made a false declaration regarding the value of the deceased’s estate, stating a value of Rs 4,75,780 when the true value was allegedly forty lakh rupees. The Court observed that paragraph 4 of the probate petition merely recorded that Charu had been found guilty of murder by the High Court and sentenced to transportation for life, and that he had not been released from imprisonment at that time. The prayer clause of the petition reserved Charu’s right to make an application for probate, but the Court regarded this reservation as a perfunctory formality without any sinister implication. Moreover, the petition did not contain any statement that Charu had murdered the testator. While the Court acknowledged that such an omission might appear disingenuous, it concluded that, even if the concealment were deliberate, it was not material to the grant of probate. The fact of the murder would affect only the legacies that were meant for Charu; the other legacies would remain intact and the will would still be open to probate. The Court therefore found that the alleged concealment did not constitute a material deception that would justify revoking the grant.

The Court observed that the allegation of concealment pertained only to the valuation of the property bequeathed by the testator in his will. It was unnecessary to examine whether such concealment, even if proved, would have been sufficient to set aside the probate. The essential point, according to the Court, was that neither of the lower courts had determined that the property was actually worth an amount as large as forty lakh rupees, and this issue had not been raised before this Court. Consequently, the Court concluded that the appellant had failed to bring his case within the doctrine of material concealment. The Court identified the most serious allegation that could decisively affect the grant as the claim that the testator had revoked the will. This claim fell squarely within the third illustration previously cited. However, the appellant had made no attempt to substantiate the allegation that any revocation had occurred. Aside from indicating that around the year 1917 the testator might have contemplated substantially altering his will or revoking it altogether, there was absolutely no evidence supporting the assertion that the testator had in fact revoked the registered will in question. To prove revocation, the appellant would have needed to show that the testator executed another will or codicil, or that he, by some written instrument, declared an intention to revoke the will, as required by section 70 of the Act, which mandates that such a document be executed in the same manner as a will. Alternatively, revocation could have been established by evidence that the testator himself, or a person in his presence and by his direction, had burned, torn, or otherwise destroyed the will, thereby clearly indicating an intention to revoke it. No such proof had been adduced. The appellant argued that such proof would be offered after the court’s order of revocation, a proposition the Court rejected as putting the cart before the horse. The Court explained that an applicant seeking revocation of a grant on the ground that the testator had revoked the will must first establish that alleged fact at least prima facie before an order of revocation can be granted. The Court acknowledged that in some cases proof of revocation may be presented later if the revocation is based on other grounds, for example where the court is satisfied that the earlier proceedings were substantially defective, or where the grantee willfully and without reasonable cause failed to produce an inventory or account, or any other ground recognized by section 263 as just cause for annulling the grant. Nonetheless, the appellant’s contention that, even without proving the testator’s actual revocation, he was still entitled to an order of revocation was dismissed, as no authority had been cited in support of that contention.

The Court observed that an order of revocation could not be granted merely on the basis that the appellant had entertained an intention to revoke the will. No authority was cited to support the contention that a mere intention, without any tangible act, could justify revocation. While a testator may at any time alter or revoke a will, once the testator dies leaving a registered will, an allegation that the testator at some prior moment contemplated revocation is insufficient. The Court held that an unacted‑upon intention has no effect on the will, which must be treated as the final testamentary instrument. The Court then turned to the question of whether the present case fell within clause (e) of the explanation to section 263. In the petition, ground (f) of paragraph 23 was the only allegation relied upon. The Court noted that the omission to submit accounts is not automatically synonymous with a “wilful and without reasonable cause” omission. However, in certain circumstances the failure to exhibit accounts may amount to a wilful omission without reasonable cause, thereby bringing the case within clause (e). Accordingly, the Court examined whether, in the present facts, the failure to file accounts entitled the appellant to revocation. The will expressly appointed Anil Nath Basu as the managing executor for the testator’s lifetime. The relevant portion of paragraph 17 of the will reads: “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.” From this clause it follows that Basu, a trained lawyer, was vested with the exclusive authority to manage the estate’s cash and accounts without interference from the other executors, and therefore bore the responsibility for maintaining true and proper accounts. Whether Basu fulfilled this duty was uncertain, as Girish never challenged the will, the grant, or demanded an accounting. The Court referred to correspondence from Debi Prosad Mitter to Basu concerning accounts, but found no record indicating that the demanded accounts were ever produced. Consequently, the Court concluded that the omission to submit accounts, considered in the circumstances, required further analysis to determine if it justified an order of revocation.

The record shows that the managing executor, Debi Prosad Mitter, remained alive until July 1948, and the appellant commenced revocation proceedings more than a year after Mitter’s death; consequently, the appellant could not rely on Mitter’s testimony regarding the state of the accounts. Had the proceedings been instituted while Anil Nath Basu was still alive, Basu, as the managing executor, would have been the most suitable person to explain to the court how the accounts stood. Nevertheless, the proceedings reveal that none of the executors ever filed the required accounts, and no such accounts appear in the case record. The appellant applied to this Court seeking recognition of the fact that the first respondent, who administers the testator’s estate, had filed accounts up to date; however, whether the respondent filed accounts during the pendency of this appeal is irrelevant to the present question. The Court must decide whether the failure to produce accounts, under the circumstances of this case, justifies granting the appellant a decree of revocation. First, the appellant’s pleadings contain no proper allegation of a wilful default or any inability to produce accounts, and consequently no foundation was laid for admitting evidence on that issue. On that basis alone, the Court finds that the appellant’s claim fails. Moreover, considering all the circumstances highlighted above, especially the absence of any allegation that the will was unauthentic or improperly executed, the proceedings leading to this appeal appear fundamentally misconceived. Even if the appellant possessed locus standi, the appropriate remedy would lie under the will itself, not against the will or the probate grant, and the Court does not advise the appellant on alternative steps. Since, in the Court’s view, every ground raised by the appellant for revoking the grant has failed, there is no need to examine whether Girish had acquiesced to the grant and thereby barred the appellant from further challenges. Accordingly, the Court affirms the lower court’s decision, dismisses the appeal, awards costs to the first respondent, and declines to award any costs against the second respondent.