JYOTSANA RAJGARHIA Vs. DIPAK KUMAR HIMATSINGKA

JUDGEMENT

(1.) This is an application for revocation of the probate granted by this Court dated February 10, 1987 in No. 17 of 1987 in the Goods of Smt. Usha Devi Himatsingka and further recalling the order dated January 21, 1987 granting probate. The probate was granted without any contest admittedly. The Petitioner and the Respondent No. 2, viz., Anita Fetehpuria are two sisters. The Respondent No. 2 is supporting the Petitioner and also asking for revocation of grant of probate.

(2.) The short case of the Petitioner is that the probate was obtained fraudulently and without serving any citation and/or notice of filing of such application. Consent which was recorded at the time of grant of probate was fraudulent and no lawyer was engaged either on behalf of the Petitioner or oh behalf of the Respondent No. 2 to give consent. She had no knowledge of passing of the impugned order of granting probate until May 1999 when a letter was communicated by M/ s. Sinha and Co. together with copies of the application on which probate was granted to the last Will and testament of her mother dated September 17, 1981. She has also stated that she never engaged any. lawyer nor executed any Vakalatnama in favour of Mr. Pulak Lahiri or any other person. The said Vakalatnama allegedly executed in favour of Pulak Lahiri is forged one. As such Pulak Lahiri did not have any authority either to appear or give consent on behalf of the Petitioner to grant probate.

(3.) The executor and/or profounder being Respondent No. 1 has opposed this application. However, he himself has not filed any affidavit. An affidavit -in -opposition has been filed through his Constituted Attorney, viz., Mr. K.G. Nair. In the affidavit apart from denying the allegations it has been stated specifically that no citation was issued under the Rules of the Original Side as the Petitioner as well as the Respondent No. 2 gave consent to grant of probate of the Will. they engaged Mr. Pulak Lahiri as their Advocate who appeared at the time when the order was passed for granting probate. At the foot of the application for probate Mr. Pulak Lahiri has endorsed no objection. The Petitioner as well as the Respondent No. 2 at all material times was and still is aware of grant of such probate as well as the Will, This application has been taken but at the belated stage with an oblique motive as the probate was granted oh January 21, 1987 whereas this application was taken out on October 15, 1999.. No acceptable explanation has been given as to why the preset application has been made after such a long time. Therefore, this application should be and is liable to be dismissed.