Ashis Kumar Chakraborty, J. - (1.) The matter has been placed by the Testamentary Department before this Court. The point of law which has fallen for consideration before this Court is whether revocation of the grant of probate of a Will to the executor, at the instance of one of the heirs and legal representatives of a deceased testator requires the executor to prove the Will in solemn form after adducing evidence.
(2.) The facts relevant for deciding the above point of law are that one Tapas Dutta, alias, Shri Tapas Kumar Dutta (hereinafter referred to as "the executor") filed the application, PLA 234 of 2012, before this Court, for grant of probate of the Will and Testament dated February 02, 1996 allegedly executed by his father, Uday Chand Dutta (Deceased). In the probate application it was alleged that the testator, Uday Chand Dutta died on August 31, 2010 leaving behind his wife Menoka Dutta @ Smt. Menoka Rani Dutta and married daughter Soma Rudra (hereinafter referred to as "Menoka" and "Soma", respectively) and the executor himself as his only heirs and legal representatives. In the probate proceeding, two affidavits were filed which were allegedly affirmed by Menoka and Soma, respectively recording their consent to the grant of probate of the said Will of Uday Chand (Deceased) as prayed for by the applicant executor. Accordingly, the probate proceeding was treated as Non-Contentious Cause and on April 30, 2014 a learned Single Judge of this Court granted probate of the said Will of Uday Chand since deceased (hereinafter referred to as "the deceased testator") and the same was issued by the Registry on June 20, 2014. Thereafter, the executor filed the inventory and accounts in the department. However, in July, 2018 Soma, married daughter of the deceased testator filed an application, GA 1960 of 2018 praying for revocation of the said grant of probate of the said Will which was dismissed by a Single Judge of this Court on November 13, 2018. Soma did not challenge the said order before the Division Bench. Even, Menoka filed application, GA 2245 of 2018 seeking revocation of the grant of probate of the said Will of the deceased testator. By order dated November 13, 2018 a learned Single Judge of this Court held the consent affidavit affirmed by Menoka and filed in the probate proceeding was obtained by fraud and misrepresentation and that Menoka had established not to have consented to the grant of probate of the said Will of her husband. Accordingly, by the said order dated November 13, 2018 the grant of probate of the said Will of the deceased testator was revoked and Menoka was allowed to file the caveat in the department within a week. She was also directed to file the affidavit in support of her caveat. The executor did not challenge the order dated November 13, 2018 before the Division Bench. Menoka filed the caveat as well as the affidavit in support of the caveat, in the department, within the stipulated time. Thus, as per Rule 28 of Chapter XXXV of the Original Side rules of this Court, the probate proceeding PLA 234 of 2012 became a Contentious Cause. However, as per the report of the Testamentary Department, except causing a new advocate to enter appearance on his behalf, the executor has not taken any further step to prove the alleged Will of the deceased testator. In these facts, the Testamentary Department placed the probate proceeding before this Court seeking direction, accordingly, the matter was placed in the cause list of this Court.
(3.) Mr. Sayantan Basu, learned Advocate appearing for the executor submitted that after filing of the caveat and the affidavit-insupport of the caveat Menoka has died and since the application GA 1968 of 2018 filed by Soma, the married daughter of the deceased testator, was dismissed the probate proceeding cannot be treated as Contentious Cause any further. According to him, with the death of Menoka the order dated November 13, 2018 has lost all its significance. It was further contended that in the present case, with the death of Menoka the executor is entitled to obtain probate of the said Will of the deceased testator as a Non-Contentious Cause.;