ANIL BEHARI GHOSH versus SMT. LATIKA BALA DASSI AND OTHERS.

Citation: [1955] 2 S.C.R. 270 · Decided: 15-04-1955 · Supreme Court of India · Bench: VIVIAN BOSE · Disposal: Dismissed

Judgment (excerpt)

1955 
April 15 
270 
SUPREME COURT REPORTS 
ANTL BEHARI GHOSH 
v. 
[ 1955] 
SMT. LATIKA BALA DASSI AND OTHERS. 
[VIVIAN BOSE, JAGANNADHADAS and SINHA, JJ.] 
Indian Succession Act, 1925 (Act XXXIX of 1925), s. 263--
Explanation cl. (a)-Expression "defectivt in substance"-Meaning 
of-Probate proceedings--Omission to issue citation to persons who 
should hll'De been apprised-Legal 
effect thereof-Revocation of 
grant-Whether qn absolute right irrespective of other · considera-
tions arising in the case~'Judicial discretion vested in Courts. 
The expression "defective in substance" jn Explanation cl. (a) 
to s. 263 of the Indian Succession Act,-1925 means that the defect 
was of such a character ·as to substantial! y affect the regularity and 
correctness of the previous proceedings. 
The omission to issue c.itations to persons who should have 
been apprised of the probate proceedings may well be in a normal 
case a ground by itself for revocation of the grant. 
But this is not 
an absolute right irrespective of other considerations arising from 
'the proved facts of a case. . The law has yested a judicial discretion 
in the court to revoke a grant where the court may have prima facie 
reasons to believe that it was necessary to have the will proved 
afresh in the presence of interested parties. 
The Supreme Court was not satisfied that in all the circum-
stances of the present case just cause for the annulment of the grant 
of probate within 
the meaning of s. 263 of 
the Act had been 
made out. 
The annulment of the grant of probate is a mal!er of substance 
and not of mqe form. 
The court may refuse to grant. annulment 
in cases where there is no· likelihood of proof being offered that 
the will admitted to probate was either not genuine or had not 
been validly executed. 
Where, as in the present case, the validity or gem,llneness of 
the will bas not )>ecn challenged it would serve no useful purpose 
to revoke the grant and to. make the parties go through the mere 
formality of proving the will again. 
. 
. 
Under tfie circumstances of the present case the omission of 
citation bas had no effect on the regularity of.the proceedings result-
ing in the grant of 1921. 
Mokshadayini Dasi v. Karnadhar Mandal ((19141 19 C.W.N. 
1108), Brindaban v. Sureshwar ((1909) 10 C.L.J. 263), Durgavati v. 
Sourabini ([1906] l.L.R. 33' Cal. 1001) and .Ramanandi Kuer v. 
Krdowati Kuer ([19271 L.R. 55 I.A. 18), referred to. 
·i 
2 S.C.R. 
SUPREME COURT REPORTS 
271 
1955 
C1v1L APPELLATE JuRJSDJCTJON: Civil Appeal No. 
106 of 1953. 
Anil Befluri Gf1osh 
v. 
Appeal from the Judgment and Order dated the Smr. Latika Bala 
4th September 1951 of the High Court of Judicature Dussiaudothers 
at Calcutta in Appeal from Original Order No. 131 of 
1950 arising out of the Order dated the 29th day of 
August 1950 of the High Court of Calcutta in its 
Testamentary Intestate Jurisdiction made in 
Appli-
cation under Section 263 of the Indian Succession 
Act. 
P. N. Sen, (A. K. Dutt and S. Chose with him) 
for the appellant. 
M. C. Setall"ad, A 11orney-Ge11eral for India (A .N. 
Sinha. with him) for respondent No. 1. 
D. N. Mukherji, for respondent No. 2 
1955. April 15. The Judgment of the Court 
was delivered by 
SINHA J.-This i~ an appeal against the judgment 
and order dated the 4th September 1951 of the Cal-
cutta High Court in its appellate jurisdictii.)n revers-
ing those dated the 29th August 
1950 of a Judge 
of that Court sitting on the Original Side granting 
the appellant's prayer for revoking and annulling the 
probate granted in respect of the last will and testa-
ment dated the 29th July 1912 of one 
Bi nod Lal 
Gho~h. deceased, whom we shall call the testator in 
the cours.e of this judgment. 
The testator is said to have executed a will on the 
29th July 1912 which was registered on the same date 
at the Calcutta registry office. 
By the said will the 
testator appointed the following five persons· as exe-
cuttir~ or executrices:-
< O Anil Nath Basu, Attorney-at-Law 
(2) Brindaban Chandra Mitter 
(These two also figure as attesting 
witnesses to the will). 
<.31 His adopted son Charu Chandra Ghose (whon'l 
\Ve shall call Charu for the sake of 
brevity) a minor on his attaining 
majority. 
. 272 
SUPREME COURT REPORTS 
l 1955] 
}955 
(4) His wife Haimabati Dasi, and 
ii Beliari Ghosh 
(5) His brother's widow Muktakesi Dasi. 
v. 
Smt. Latika Bala 
Da.<si and others He also directed that on the death of the said .Anil 
Sinha J. 
Nath Bas

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