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Bijay Kumar Kedia-vs-Bishnu Kedia on 31 July, 2008

Calcutta High Court Bijay Kumar Kedia-vs-Bishnu Kedia on 31 July, 2008
Author: Sanjib Banerjee

ORDER SHEET

G.A. No. 1064 of 2007

P.L.A.No. 92 of 2004

IN THE HIGH COURT AT CALCUTTA

Testamentary and Intestate Jurisdiction

ORIGINAL SIDE

BIJAY KUMAR KEDIA.

-Versus-

BISHNU KEDIA.

Mr. Promit Roy, Adv.

…Appears and submits.

Mr. Jishnu Chowdhury, Adv.

…Appears and submits.

Before :

The Hon’ble Justice SANJIB BANERJEE

Date: July 31, 2008.

The Court: This is an application for revocation of a grant of probate. The applicant is the eldest son of the testator. The applicant cites and urges only one ground that the applicant had not been cited.

It appears from the records relating to P.L.A.No.92 of 2004 that a special citation was issued in the name of the applicant and forwarded by registered post with acknowledgement due. It appears from the acknowledgement card that it was received on behalf of the addressee by one Shivam Kedia. The applicant avers at paragraph 19 of the application that it was only in or about the last week of 2

February, 2007 that a document was forwarded by one of his brothers and the applicant came to know from the contents of such document that his father is said to have executed a Will and of which probate was apparently obtained. The testator was survived by his wife, three sons and a daughter. All the others, except the applicant herein appear to have consented to the grant of the probate or not objected thereto.

The document that the applicant relies upon at paragraph 19 of the application is in the form of a draft award. It is common practice that some family disputes are resolved by an apparent show of arbitral proceedings and an apparent award being made by the arbitrator so that such an award, by operation of law, has more force than an agreement between the parties. The document that is referred to at paragraph 19 of the application narrates several facts which the applicant denies elsewhere but the application has chosen not to deny in the context of the applicant’s use of the document at paragraph 19 of the application.

The executor has used an affidavit and says that the applicant was wayward from his early days and did not enjoy a good relationship with his father, the testator, and certain properties and money were given to the applicant following an early partition within the family. The document which the applicant relies upon at paragraph 19 of the application, 3

recounts the history which is found in the affidavit-in- opposition filed by the executor.

In the application, the applicant has made out a simple case of the applicant not being cited. Upon the affidavit filed by the executor disclosing that the applicant had, indeed, been cited and the citation was received on his behalf by his son an explanation has been proffered at length in the affidavit-in-reply. The applicant says that the applicant had a bitter relationship with his wife following the wife having launched proceedings under Section 498A of the India Penal Code. The applicant says that the applicant did not reside at his Cornfield Road residence at which the citation had been served. The applicant refers to his son being a minor at the time that he received the citation, though the son attained majority prior to the present application being filed. In addition, the applicant says that there was a suit filed in 2003 by all the heirs of the testator against a business associate of the testator in respect of a business carried on by the testator in partnership with one or more defendants in that suit. The applicant says that the suit was instituted by the five heirs in intestacy of the testator with an underlying representation to Court that the plaintiffs were the legal heirs and representatives of the deceased who had died intestate. The applicant seeks to demonstrate that even if it be believed that the executor was not aware of the Will at the time of institution of the suit of 2003, since the executor had 4

already affirmed the affidavit of assets filed in connection with the probate proceedings on February 5, 2004, the executor should have immediately pointed out to Court in the suit of 2003 that it was the executor or the other legatees who were entitled to remain as plaintiffs and the applicant’s name ought to have been deleted from the array of plaintiffs. The applicant relies on an order of March 30, 2006 passed at the final state of an interlocutory application in the suit of 2003 and shows that even at such stage it was not pointed out on behalf of the executor who was one of the plaintiffs in that suit, that a probate had been obtained in July, 2004 of an alleged Will of the testator.

The applicant also refers to the apparent misstatements and shifting stands on behalf of the executor. The executor had originally stated in an application for amendment of the 2003 suit filed after the present application was taken out that the executor had come to know of his father’s Will sometime in March, 2004. The applicant says that upon the applicant demonstrating that such statement was false since the executor had affirmed the affidavit of assets in connection with the application for grant of probate on February 5, 2004, the executor changed tack and claimed in the affidavit filed in the present proceedings that the executor came to know of the Will in or about the end of January, 2004. The applicant says that the entire exercise of obtaining a probate and the executor not informing the applicant of the grant contemporaneously and not 5

seeking to disclose the same to Court in the 2003 suit would show that the executor had something to hide and this should arouse sufficient suspicion which should result in the application being allowed and for the petition for grant of probate to be taken up on contest.

Before the other grounds of suspicious circumstances that the applicant refers to are seen, it must first be assessed as to whether the applicant has been able to satisfactorily show that the applicant was not aware of the probate proceedings. Ordinarily, if a notice is issued to a person at his regular address and the notice is received at such address by another on behalf of the addressee, a presumption may arise that the recipient of the notice had the authority of the addressee to receive such notices. The applicant has not asserted that his son, albeit then being a minor, had no authority on his father’s behalf to accept the notice. The case that has been run by the applicant is that the applicant’s son was allegedly misguided by the executor and induced into accepting the notice. It is not a case which is made out at first flush by the applicant. In the application he had made out a simple case that he was not cited. It is only upon the executor disclosing in the affidavit that the special citation had been duly issued and received by the applicant’s son at the applicant’s known address, that a yarn has been sought to be spun in the affidavit-in-reply. The suspicion that the applicant seeks to arouse also appears to be without basis. While the applicant accepted the 6

document being Annexure-‘H’ to the application and referred to at paragraph 19 thereof for the purpose of demonstrating that such document stated that the testator had executed a Will and a probate of such Will had been obtained, the applicant chose not to deny the others statement found in the same document. The statements found in that very document match with the averments in the affidavit-in-opposition to the extent that there is a reference to a previous family settlement and it appears that the applicant severed from the family. It is also a matter which finds reference in the Will.

The fact that the executor or the other legatees or heirs of the testator had chosen not to amend the plaint relating to the suit filed in 2003 should be viewed in the context of the subject-matter of the suit. The suit was filed by the Kedias against the erstwhile partners of the testator. While it is true that a misstatement continued which the executor did not attempt to correct immediately, merely on the basis that the executor allowed the misstatement to continue it would be unwise to give credence to the present case made out by the applicant.

For the reasons above, this application fails. G.A.No.1064 of 2007 is dismissed with costs assessed at 200 GMs. A prayer for stay of operation of this order is made and the same is rejected.

7

Urgent certified photostat copy of this order, if applied for, be given to the parties subject to compliance with all requisite formalities.

(Sanjib Banerjee, J)

A/s.

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