- (1.) A. K. Banerji, J. By means of this petition under Section 276 of the Indian Succession Act (the Act' in short) Hitendu Madhava Bhattacharya (the petitioner) has prayed for the grant of probate of the Will dated 31st October, 1983 alleged to be executed by Late Smt. Vasuki Bala Devi (testatrix) in favour of the wife of the petitioner namely, Smt. Jyotsna Bhattacharya.
(2.) BRIEFLY stated the petitioner's case as set out in the petition is that one Devendra Nat'h Chatterji had executed a Will dated 8-11-1935 for the administration of his properties situate at Varanasi, one of which property was endowed in favour of the diety Sri Radha Govindjee. In the said Will Sri Devendra Nath Chatterji had nominated three executors, out of whom one was Smt. Vasuki Bala Devi, who was his niece. The Will also gave a right to the executors to nominate their successors. Smt. Vasuki Bala Devi executed a Will dated 31st October, 1983 by virtue of which she nominated Smt. Jyotsna Bhattacharya (wife of the petitioner) to be the executor of the Will dated 8-11-1935 in her place and also appointed the said Smt. Jyotsna Bhattacharya as the she wriat of the diety. It is stated that Jyotsna Bhattacharya died intestate all of a sudden on 24-6-1991 and, therefore, could not execute any Will or appoint any successor. Consequently, the petitioner as the husband of Smt. Jyotsna Bhattacharya had to file the present petition praying for the grant of probate of the Will dated 31-10-1983. Notice was issued to Sri Bireshwar Chatterji (opposite party) on whose be half a short counter affidavit was filed initially stating that the present petition by the petitioner was not maintainable on the ground, firstly, that the original Will dated 31-10-1983 was not filed. Secondly, a Testamentary Case No. 5 of 1991 was filed by Jyotsna Bhattacharya in this Court which was dismissed on 15-3-1991. Thirdly, the petitioner had in different proceedings been asserting the ownership over the property in question and was also claiming that the Will dated 31-10-1983-was in his favour and lastly that the petitioner had no locus standi to file the present petition which was also not maintainable in law. Subsequently a detailed counter affidavit was filed elaborating the grounds mentioned in the short counter affidavit and giving further details. Rejoinder affidavit to both these counter affidavits were filed by the petitioner. I have heard Sri S. K. Misra, learned counsel for the petitioner and Sri M. C. Diwedi, learned counsel appearing for the contesting opposite party regarding the preliminary objection about the maintainability of the present petition. Sri Diwedi has strongly pressed the grounds taken in the counter affidavit regarding the maintainability of the petition. I find force in the said submissions. It is noteworthy that along with the petition a photostat copy of the alleged Will of the testatrix dated 31- 10-1983 has been filed. The original is not before the Court. The photostat copy of the Will is not admissible and no probate can be granted on the basis of the said photostat copy. In the counter affidavit, however, it has been submitted that the original Will be filed whenever demanded by the Court. I am of the view that it is not for the Court to demand the original, if the party is claiming a probate on the basis of the original Will which is in the possession of the said party it has to file the same. It is another matter that the Court permits the original to be kept in a separate sealed cover. The petition is therefore technically defective. That apart, it has not been denied that Jyotsna Bhattacharya had filed the Testamentary Case No. 5 of 1991 before this Court for probate of the alleged Will dated 31- 10-1983. This petition was dismissed for default. It has been stated in the petition that Jyotsna Bhattacharya died on 24-6-1991. It appears that a restoration application had been filed but the same had not been disposed of when the present petition was filed before this Court. The position therefore emerges is that while on one hand application for restoring the Testamentary Case No. 5 of 1991 was filed and was pending for consideration before the Court, another petition, this time by the husband of Smt. Jyotsna Bhat tacharya was filed in effect for the same relief as in Testamentary Case No. 5 of 1991. Further, in the present petition, it was not disclosed that Jyotsna Bhattacharya had filed a petition in respect of the same Will which was dismissed for default by this Court and a restoration application was pending. The petitioner has therefore con cealed material facts and has not approached this Court with clean hands. On this ground also the relief could be refused to the petitioner. Apart from the same, the prayer made in the petition is also defected in as much as no probate of the Will dated 31-10-1983 could be granted either in favour of Smt. Jyotsna Bhattacharya or in favour of the petitioner as in the alleged Will dated 31-10-1983 none of them were appointed executors of the said Will dated 31-10-1983. Section 222 of the Act clearly states that probate shall be granted only to an executor appointed by the Will. The appointment may be expressed or by necessary implication. I have perused the photocopy of the Will which has been filed. It does not appoint Jyotsna Bhattacharya as executor of the said Will. The testatrix has only nominated the wife of the petitioner as executor of the Will dated 8-10-1935 of Sri D. N. Chatterji, as her successor. It cannot therefore be said that the testatrix had impliedly nominated Smt. Jyotsna Bhattacharya as executor of her Will. Technically, therefore, this prayer could not be granted.
(3.) HOWEVER, apart from these technical defects, the main question which arises for consideration is whether the petition by the petitioner would be maintainable in law and whether the said petitioner has any locus standi to file the present petition. The learned counsel for the petitioner has relied upon the provisions of Section 234 of the Act and has submitted that the present petition would be maintainable as framed. He has also relied upon some old decisions based on Section 234 of the Act in support of his submissions. For appreciating the contention of the learned coun sel, it would be necessary to see the provisions of Section 234 of the Act, which lays down as follows: "234. Grant of administration where no executor, nor residuary legatee nor representative of such legatee.- When there is no executor and no residuary legatee or representative of a residuary legatee, or he declines or is incapable to act, or cannot be found, the person or persons who would be entitled to the administration of the estate of the deceased if he had died intestate, or any other legatee having a beneficial interest, or a creditor, may be admi tted to prove will, and letters of administration may be granted to him or them accordingly. " Having considered the aforesaid Section, I am unable to appreciate how the same helps the submissions of the learned counsel for the petitioner. This Section only applies when there is no executor and no residuary legatee or if there be such an executor or residuary legatee who decline to act or cannot be found in such case a person who would be entitled to the administration of the estate of the deceased if he died intestate or any other legatee having a beneficial interest may prove the Will. Applying this Section to the facts of the present case, it would be noticed that though the testatrix in the alleged Will dated 31-10-1983 did not nominate Jyotsna Bhat tacharya as an executor of her Will but it was mentioned in the said Will that she had nominated Jyotsna Bhattacharya as executor of the Will of D. N. Chatterji as Tier successor and also a shewiat. However, in paragraph '5' of the said Will she had specifically stated so far as her share in her movable and immovable properties are concerned, after her death the same Will go to Sri Dulal Chandra Mukherji, who was the brother's son of her late husband and she also expressed the desire that her last rites will be performed by the said Dulal Chandra Mukherji. It is evident therefore that she had left a residuary legatee namely, Dulal Chandra Mukherji. Section 234 thus will not be applicable as a residuary legatee was already thereunder the Will and there was nothing to show that the said legatee had declined to act or was incapable to act. In fact despite the mention in the Will no attempt was made to get special citation sent to the said residuary legatee who could have come forward before the Court and could have stated whether he was interested in the properties or not. The petitioner was not the legatee for the beneficial interest in the properties of Smt. Vasuki Bala Devi (testatrix ). I am, therefore, of the view that Section 234 of the Act cannot come to the aid of the petitioner.;