PRABIR KUMAR SAMANTA, J. - (1.) THE opposite party herein has filed an application for grant of probate of the alleged will executed by the testator Nripendra Nath Das dated 19th February, 1998. The said case has been registered as Act XXXIX Case No. 119 of 2000. In the said proceeding no citation has been made in respect of the present petitioners who are the sons of the brother of the said testator. He said testator was unmarried. The petitioners accordingly made an application for being added as parties to the above probate proceeding to contest the grant under the provisions of Order 1, Rule 10(2) read with Section 151 of the Code. The trial Court by the order dated 18th May, 2001 has rejected the said application. The said order is under challenge in this petition under Article 227 of the Constitution of India.
(2.) THE facts giving rise to the above impugned order may be summarised as under: - One Narayan Chandra Das died leaving behind him one married daughter and four sons i.e. Monorama Dasi, Rajendra Nath Das, Dhirendra Nath Das, Sailendra Das and Nripendra Nath Das. Nripendra Nath Das who was unmarried died leaving behind him the alleged Will. The petitioners are the sons of deceased Dhirendra Nath Das. Both Monorama Dasi and Rajendra Nath Das are dead. The opposite party is one of the sons of deceased Rajendra Nath Das. It is the case of the petitioners that the said testator executed a will dated 16th August, 1980 which was registered in the office of the Additional District Sub -Registrar, Sadar -Chinsurah wherein the petitioners were made as legatees. Said testator died on March 12, 1998. The opposite party No. 1 as being one of nephews of the testator Nripendra Nath Das has filed the above application for grant of probate in respect of the alleged Will executed by the said testator on 19th February, 1998 without citing the present petitioners as parties to the said proceeding. In the said application all the brothers of the opposite party No. 1 and his only surviving uncle i.e. Sailendra Nath Das have been cited as near relations of the testator. The present petitioners being the sons of the other brother i.e. deceased Dhirendra Nath Das have not been cited as parties interested in the above proceeding nor as the near relations of the testator. The petitioners accordingly filed the above application which has been rejected by the above impugned order only on the ground that they are not the legal heirs of the deceased testator. This revisional application under Article 227 of the Constitution of India has been filed along with an application under Section 5 of the Limitation Act for condonation of delay in making the above application. The said application has not been seriously contested by the opposite party at the hearing nor any counter was filed against the same by the opposite party. Regard being head to the statements made in the above application and upon consideration of the provisions of Article 227 of the Constitution of India for which there is no prescribed period of limitation this Court is of the view that the lapse of time in filing the above application in the Hon'ble Court has been satisfactorily explained. In such consideration the delay in filing the above application, if there be any is condoned.
(3.) NOW for the purpose of deciding the above application it will be necessary to decide the scope of Section 283(1)(c) of the Indian Succession Act, 1925. Section 283(1)(c) of the said Act makes it obligatory upon the District Judge or the District Delegate to issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration, whom he thinks proper. The expression 'claiming to have any interest in the estate of the deceased' occurring in Clause (c) of Section 283(1) of the said Act came up for consideration in a case reported in : AIR1959Pat570 (Mutakdhari Singh v. Smt. Prem Devi and Ors.). In the said decision it has been held that the true meaning of the expression 'Interested in the estate of the deceased', occurring in Section 283(1)(c) of the Act is, that an interest or even an interest dependent upon remote contingencies is sufficient to entitle a person to oppose a will and to intervene in the matter of the application for probate or letters of Administration and to call upon the propounder of the Will to prove it in solemn form in his presence, and such a person has a proper locus standi to come to Court and ask that the probate or the grant of letters of Administration be revoked. The said decision has been arrived at upon consideration of the provisions of Section 263 of the said Act. Section 263 of the said Act vests a judicial discretion in the Court to revoke or annul a grant for just cause. If the proceeding to obtain the grant was, in a particular case, 'defective in substance' as occurring in Clause (a) to the Explanation to Section 263 then it would substantially affect the regularity and correctness of the proceedings. It has been held in the said decision that the defect in substance of the proceeding to obtain grant would depend on the individual cases and on the particular circumstances existing in each case. Whether the omission to issue citation to a person on the facts of a particular case, would be a just cause, will depend on the facts and circumstances of each case.;