Probate – Revocation – Notice not served on daughter and wife of testator before grant of probate – Probate liable for revocation: Succession Act, 1925 section 263

The appellants are the wife and daughter of one Rabindra Nath Mite who died on 05.03.1994. Rabindra Nath Maite had three brothers by full blood. The appellants/petitioners have pleaded that the Will dated 08.01.1990 alleged to have been executed by Rabindra Nath Maite is fake and fabricated. It is alleged that Rabindra Nath Maite had no intention to give the property described in the said Will to his nephews-Samir Maite and Somnath Maite by appointing the respondent, Shridam Maite (brother) as the executor of the said Will. The appellants have specifically stated that the deceased Rabindra Nath Maite was not in good terms with his brothers including the respondent.

The appellants have also pleaded that necessary notices were not served on the appellants in the probate proceeding, though the appellants have interest in the estate of the deceased Rabindra Nath Maite as his legal heirs.

The Hon’ble Court observed that section 263 of the Indian Succession Act, 1925 lays down that the grant of probate or letters of administration may be revoked or annulled for just cause. It is laid down in the Explanation to the said section 263 that 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 willfully 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.

In the present case, the appellants had specifically pleaded in the application before the Trial Court that no notice from the Court was served upon the appellants in respect of the probate proceeding and no notice was received by the appellants. The respondent Shridam Maite had stated in his evidence that the notice of probate proceeding was served on the appellants

The Court observed that the appellant Mithu Biswas has specifically denied her signature on the notice alleged to have been served on the appellants in connection with the probate proceeding. As the appellant Mithu Biswas has denied her signature on oath on the notice of the probate proceeding, the onus is shifted on the respondent to prove that that notice was duly served on the appellants by the Court bailiff. The respondent could have discharged this onus by examining the bailiff as witness who is alleged to have served the notice of the probate proceeding on the appellants. In the absence of the examination of the bailiff as witness by the respondent, it was held that the respondent has failed to establish that the citations of the probate proceeding were served on the appellants before grant of probate. The non-service of citations upon the appellants who have interest in the estate of the deceased Rabindra Nath Maite as his legal heirs is the just cause for revocation of grant of probate.

Since the citations of the probate proceeding was not served upon the appellants who have interest in the estate of the deceased as legal heirs, the grant of probate is liable to be revoked.