Arabinda Sarker Vs. Bimalendu Bhowmik and others, 48 DLR (AD) (1996) 182

Case No: Civil Petition for Leave to Appeal No. 367 of 1993

Judge: Latifur Rahman ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,Miah Abdul Gafur,,

Citation: 48 DLR (AD) (1996) 182

Case Year: 1996

Appellant: Arabinda Sarker

Respondent: Bimalendu Bhowmik and others

Subject: Succession/Inheritence,

Delivery Date: 1995-6-12

 
Supreme Court
Appellate Division
(Civil)
 
Present:
ATM Afzal CJ
Mustafa Kamal
Latifur Rahman J
Md. Abdur Rouf J
 
Arabinda Sarker
……………………….Petitioner
Vs.
Bimalendu Bhowmik and others
……………………….Respondents
 
Judgment
June 12th, 1995
 
Succession Act (XXXIX of 1925)
Section 383
A person seeking revocation of certificate granted by a competent Court must have some interest, immediate or remote, in the property of the testator.
 
Lawyers Involved:
Miah Abdul Gafur, Advocate-on-Record For the Petitioner.
Md. Nawab Ali, Advocate-on-Record—For the Respondent No. 4.
Respondent Nos. 1-3 and 5—Not represented
 
Civil Petition for Leave to Appeal No. 367 of 1993
 
JUDGMENT
 
Latifur Rahman J.
 
Petitioner filed Revocation Case No. 144 of 1975 in the Court of District Judge, Mymensingh against granting of Probate in Probate Case No. 2 of 1967 of the Court of District Judge, Mymensingh. The said Revocation case was disallowed on the ground that the petitioner had no locus standi to file the revocation case. Against that judgment and order the petitioner preferred First Appeal No. 40 of 1977 and the sane was dismissed by a Division Bench of the High Court Division on 29-3-1993. Petitioner is now seeking leave to appeal from the impugned judgment of the High Court Division.
 
2. The fact relevant for disposal of this petition is, that one Shashi Kanta Sarker made a will on 42.63 and thereafter he died on 14-8-66. After his death Bimalendu Bhowmik, respondent No. 1, the then Head Master of Gobindapur High School filed Probate Case No. 2 of 1967 in the Court of District Judge, Mymensingh. After hearing the parties the Probate case was allowed and the same was signed and scaled on 6-7-69. Thereafter the present petitioner filed the Revocation case in 1975 alleging that the testator Shashi Kanta Sarker had been suffering from serious illness from one year before his death and the respondents taking advantage of the fact that his only son Subodh Ranjan Sarker was staying in Calcutta collusively created the forged will Ext. 1 and that no notice of the said Probate case was served upon the near relations of the testator.
 
3. The Revocation case was contested by respondent No. 3 denying the material allegations contending that the petitioner had no locus standi to file the Revocation case and that the petitioner has no present or future interest in the properties in respect of which probate was granted.
 
4. The learned District Judge found that the testator Shashi Kanta Sarker died leaving behind his son Subodh Ranjan Sarker and in presence of the testator’s son the petitioner could not claim any interest in the property left by Shashi Kanta Sarker and disallowed the application of the petitioner holding that the objector has no locus standi to file the petition of revocation of the will.
 
5. The learned Judges of the High Court Division affirmed the decision of the District Judge Judgment both on the locus standi of the petitioner and also on merit and dismissed the appeal of the petitioner.
 
6. Mr. Miah Abdul Gafur, learned Advocate appearing for the petitioner, submits that the learned Judges of the High Court Division illegally affirmed the decision of the District Judge in disallowing the revocation case without entering into the merit of the case and dismissed the appeal only on the ground of locus standi.
 
7. From the impugned judgment, it appears that the learned Judges of the High Court Division took note of the fact that Subodh Ranjan Sarker, the son of the testator, wrote a letter to one of his uncles admitting the correctness of the will made by his father Shashi Kanta Sarker. In the letter dated 25-9-69, he clearly stated that his father informed him about the will before his death and he consented to the same as the property was bequeathed for a charitable purpose. This letter was filed in the Revocation case on 7-6-76 and the petitioner did not object to the same. Further, the learned Judges found that in the petition for revocation the petitioner did not specifically mention what interest he had in the testator’s property. Mr. Miah Abdul Gafur referred to a decision reported in AIR 1978 Calcutta 140. That decision is of no help to him as in that decision it has been held that any interest, however slight and even bare possibility of an interest, is sufficient to entitle a person to make out an application for revocation. In the present case no interest whatsoever, immediate or remote, was claimed in the petition. Hence, Mr. Gafur is not correct in submitting that the learned Judges of the High Court Division dismissed the appeal only on the ground of locus standi without entering into the merit of the case.
 
The petition is dismissed.
 
Ed.