VISHNUDEO NARAYAN, J. - (1.) THIS appeal at the instance of the appellant has been directed against the impugned judgment and decree dated 3.6.1993 and 5.7.1993 respectively passed in Miscellaneous Judicial Case No. 1 of 1987 "arising out of Title Suit No. 3 of 1985 in connection with Probate Case No. 2 of 1985" passed by Shri A.C. Das, District and Sessions Judge, Deoghar whereby and whereunder the Probate granted vide order dated 9.1.1987 of the Will dated 15.3.1976 executed by Sudhir Chandra Chatterjee deceased (hereinafter referred to as the testator) in favour of appellant in Title Suit No. 3 of 1985 was revoked.
(2.) THE said Miscellaneous Judicial Case No. 1 of 1987 was filed on 24.1.1987 by the petitioner -respondent Shib Brat Chatterjee for the revocation of the Probate granted on 9.1.1987 by the District Judge, Deoghar in favour of the appellant on the basis of the alleged Will dated 15.3.1976 purported to have been executed by the testator in his favour. The case of the petitioner -respondent First Party, in brief, is that the testator who was a Hindu governed by Dayabhag School of Hindu Law died on 22.6.1977 at Chitranjan Hospital, Park Circus, Calcutta and he had executed his last Will in the Bengali language on 23.4.1977 in favour of his nephew the petitioner - respondent Shib Brat Chatterjee and duly attested by Dr. Malay Kumar Dutta, resident of 225/A, Vivekanand Road, Calcutta and Dilip Kumar Dey, resident of 22, Narikel Danga, North Road, Calcutta whereby the testator had bequeathed his entire moveable and immoveable property in favour of the petitioner -respondent aforesaid and he also appointed him the executor of the said Will. The said testator was issueless and he had reared a female child named, Roma Chatterjee and earlier he had executed a registered Will dated 30.12.1972 in favour of Roma Chatterjee aforesaid in respect of his estate but in his last Will dated 23.4.1977 in favour of the petitioner -respondent aforesaid he had cancelled his earlier registered Will dated 30.12.1972 in favour of Roam Chatterjee. The Will . executed by the testator in favour of the petitioner -respondent aforesaid includes the land bearing holding No. 291 New/126 Old, Ward No. 15, Jamabandi No. 1080 known as Drakshakunj situate in Kalirak -ha, Joshagiri in the town of Deoghar, District Deoghar. It is further alleged that the testator was in service at Calcutta and his permanent abode was 356/3, now 307 Rabindra Sorini, P.S. Jora Bagan, Calcutta - 6 and he had died at Calcutta. The further case of the petitioner -respondent is that respondent -appellant Pradeep Kumar Chatterjee (hereinafter referred to as the appellant) was a tenant of the testator in the said house at Deoghar. It is alleged that the petitioner -respondent filed Probate case No. 71 of 1978 before the Hon ble High Court at Calcutta under its testamentary jurisdiction, Probate to the executor for the Probate regarding the Will dated 23.4.1977 in his favour duly executed by the testator and Probate was granted in his favour by the Hon ble High Court, Calcutta on 12.12.1986 on contest by Roma Chatterjee. It is alleged that after the grant of the Probate of the last Will and testament of the testator in his favour by the Hon ble High Court, Calcutta he came to Deoghar on 12.1.1987 for realization of the rent of the said Deoghar house and also for taking steps for mutation of his name in respect thereof where he learnt that the appellant had obtained a Probate of a Will of the said Deoghar property in his favour on the basis of a forged and fabricated Will dated 15.3.1976 purported to have been executed by the testator in his favour and, thereafter, he inspected the record of the said case on 13.1.1987 and came to know about the said forged and fabricated Will dated 15.3.1976 and the order of the Probate has been obtained by suppressing the material facts and not citing and making the relatives of the testator as a party in the said Probate proceeding. It is also alleged that the Will dated 15.3.1976 alleged to have been executed by the testator in favour of the appellant regarding Deoghar house is a forged, fabricated and illegal document earlier in time to that of the last testament and Will dated 23.4.1977 executed by testator in favour of this petitioner - respondent and the said Will dated 15.3.1976 in favour of the appellant is a void and illegal document and besides that the appellant had suppressed the material facts regarding the name and address of the kith and kin as well as the relatives of the testator in his Probate petition whereas the death certificate of the testator filed by the appellant clearly mentions therein the name of this petitioner -respondent as a kith and kin and relative of the testator and no notice was ever served upon him and it was deliberately suppressed to avoid objection, if any, on his behalf and the Will in favour of the appellant is not the last Will and the testament of the testator and the appellant has fraudulently obtained the Probate in his favour making false allegations and suggestions and also by concealing the true facts and the Probate granted by the Deoghar Court is inoperative in view of the Probate granted by the Hon ble High Court, Calcutta. It has also been alleged that the testator had no daughter named Gita Chatterjee who is said to have executed a sale deed in respect of the Deoghar house in favour of Ashok Kumar Singh, respondent 2nd party and the said sale deed executed by Gita Chatterjee in favour of Ashok Kumar Singh is a fraudulent and illegal sale deed and only with a view to avoid technical objection said Ashok Kumar Singh has been impleaded as respondent 2nd party. Lastly it has been alleged that the appellant was also not named as an executor and beneficiary in the said fraudulent Will and the proceeding granting the Probate to the appellant is defective in substance and the Probate was obtained fraudulently by making false allegations/suggestions and by concealing the true and material facts from the Court below.
(3.) THE appellant has filed his show cause stating, inter alia, therein that the case of revocation filed by the petitioner -respondent is not maintainable either in law or on facts and the facts averred by the petitioner - respondent is false and incorrect. It is alleged that the Will dated 23.4.1977 purported to have been executed by the testator in favour of the petitioner -respondent is forged and fabricated. It is alleged that the testator has executed his last Will on 15.3.1976 in favour of the appellant and the permanent abode of the testator was at Deoghar within the jurisdiction of the Deoghar Court and the Will in favour of Roma Chatterjee is also forged and fabricated. It is alleged that though the testator had died at Calcutta but it is false to say that his permanent abode was at Calcutta. The further case of the appellant is that the testator has love and affection for this appellant as his son and the appellant was living in the said Deoghar house since long without paying any rent either in cash or in kind and the Will dated 15.3.1976 executed by the testator in his favour is genuine and valid and has been duly executed and the learned Court below on the basis of the evidence on the record found the Will genuine and valid and granted the Probate in respect thereof in his favour. It is also alleged that this appellant had no knowledge of the Probate proceeding pending before the Hon ble High Court, Calcutta and the order of Probate of the Hon ble High Court, Calcutta is not binding on him and the petitioner -respondent had knowledge of the Probate proceeding pending at the Deoghar Court and there is no ground available to the petitioner -respondent under Section 263 of the Indian Succession Act (hereinafter referred to as the said Act) for the revocation of the grant of Probate in favour of this appellant.;