Jyotsana Rajgarhia vs Dipak Kumar Himatsingka

Kalyan Jyoti Sengupta, J.—This is an application for revocation of the probate granted by this Court dated February 10, 1987 in No. 17 of 1987 in the Goods of Smt. Usha Devi Himatsingka and further recalling .the order dated January 21, 1987 granting probate. The probate was granted without any contest admittedly. The Petitioner and the Respondent No. 2, viz., Anita Fetehpuria are two sisters. The Respondent No. 2 is supporting the Petitioner and also asking for revocation of grant of probate.

The short case of the Petitioner is that the probate was obtained fraudulently and without serving any citation and/or notice of filing of such application. Consent which was recorded at the time of grant of probate was fraudulent and no lawyer was engaged either on behalf of the Petitioner or oh behalf of the Respondent No. 2 to give consent. She had no knowledge of passing of the impugned order of granting probate until May 1999 when a letter was communicated by M/ s. Sinha and Co. together with copies of the application on which probate was granted to the last Will and testament of her mother dated September 17, 1981. She has also stated that she never engaged any. lawyer nor executed any Vakalatnama in favour of Mr. Pulak Lahiri or any other person. The said Vakalatnama allegedly executed in favour of Pulak Lahiri is forged one. As such Pulak Lahiri did not have any authority either to appear or give consent on behalf of the Petitioner to grant probate.

The executor and/or profounder being Respondent No. 1 has opposed this application. However, he himself has not filed any affidavit. An affidavit-in-opposition has been filed through his Constituted Attorney, viz., Mr. K.G. Nair. In the affidavit apart from denying the allegations it has been stated specifically that no citation was issued under the Rules of the Original Side as the Petitioner as well as the Respondent No. 2 gave consent to grant of probate of the Will. they engaged Mr. Pulak Lahiri as their Advocate who appeared at the time when the order was passed for granting probate. At the foot of the application for probate Mr. Pulak Lahiri has endorsed no objection. The Petitioner as well as the Respondent No. 2 at all material times was and still is aware of grant of such probate as well as the Will, This application has been taken but at the belated stage with an oblique motive as the probate was granted oh January 21, 1987 whereas this application was taken out on October 15, 1999.. No acceptable explanation has been given as to why the preset application has been made after such a long time. Therefore, this application should be and is liable to be dismissed.

At the initial stage of hearing it was found by this Court that the core controversy in this matter so also admitted by both the learned lawyers is that whether Mr. Pulak Lahiri was engaged by the Petitioner as well as the Respondent No. 2 by executing Vakalatnamas or not or for that matter whether Mr. Pulak Lahiri was duly authorized to give consent on behalf of the Petitioner as well as the Respondent No. 2. The provision of the Original Side Rules provides in the event consent is given to grant of probate service of special citation is not necessary. Under such circumstances by my order dated February 2000 I set down this matter for trial on evidence on the following Issues:

a) Did Jyotsana Rajgarhia and Anita Fatehpuria execute the Vakalatnamas in favour of Mr. Pulak Lahiri which are kept in safe custody of the Registrar, Original Side ?

b) If so, then did they sign and execute Vakalatnamas in presence and in front of Mr. Pulak Lahiri ?

c) Did the aforesaid two ladies give instruction in any manner in giving consent to grant of probate of the alleged Will or not ?

On the aforesaid issues the Petitioner as well as the Respondent No. 2 and the executor/profounder Dipak has disclosed and further produced various documents from the custody of the third parties. Both the Petitioner and the Respondent No. 2 have examined themselves. Mr. Pulak Lahiri. has also been examined. Three other witnesses were examined.

Mr. Ahin Chowdhury, learned Senior Advocate appearing with Mr. Surajit Mitra, learned Advocate in support of this application submits that the probate granted to Dipak Kumar Himatsingka being the alleged named executor is liable to be revoked u/s 263 of the Indian Succession Act, 1925 as the aforesaid section provides that such just cause shall be deemed to exist in the circumstances and situation as follows:

(a) The proceedings to obtain grant were defective in substance ;

(b) The grant was obtained fraudulently by making a false suggestion or by concealing from the court something material to the case;

(c) The grant was obtained by means of nature allegation of a fact essential in point of law t6 justify the grant though such allegation was made in ignorance or inadvertently.

Under the said section illustration (ii) is ''the grant was made without citing the parties who ought to have been cited''. His client neither signed nor executed Vakalatnama in-favour of Pulak Lahiri nor at any material point of time gave any instruction to give consent to grant probate. However, on the strength of the purported Vakalatnama being Exhibit-12 an impression has been given to the Court that Pulak Lahiri was duly recognized agent having authority to give consent while obtaining an order of dispensing of citation being served under Chapter XXXV of the Original Side Rules. According to him had there been no representation or impression to the effect as above, this Court would not have dispensed with the service of citation. It is an admitted position here that no citation was served upon his client who should have been served in ordinary course of business. Therefore, this fact per se is a fraud. It has been proved by the evidence that Jyotsana has not signed nor executed the document being Exhibit 12 as this document is forged and fabricated. Therefore, Pulak Lahiri was not engaged to appear in this matter or to take any step.

The aforesaid fact has been specifically pleaded in the petition and the same was not denied and disputed by Dipak who ought to have in this particular case come forward to state on oath instead of filing an affidavit-in-opposition through his Constituted Attorney. Therefore, he contends that this is a case of deception in order to gain another''s loss and it is cheating intended to get advantage. In support of his submission he relies on a decision of the Supreme Court in S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, .

He contends at least Dipak should have come and explained under what circumstances order of dispensation of service of citation was obtained. Before this matter was set down for trial on evidence this Court passed an prayer as King Ruia Ki anin to rue an ani. oavu. In his affidavit he took such stand which is not supported and/or consistent with the evidence given by him at the time of trial on evidence. Therefore, factum of lawful engagement and execution and signing of the Vakalatnama are not at all established by the Respondent No. 1 or by Pulak Lahiri because of inconsistency and/or contradictory case made out in the affidavit and evidence.

He contends further that it will appear from the evidence of Pulak Lahiri that at the instance of P.O. Himatsingka everything was done and he merely lent his signature on the two purported Vakalatnamas. It is his evidence that P.D. Himatsingka gave him all instructions to do the needful.

11.. On the question of fraud he has relied on another decision of the Supreme Court reported in Gowrishankar and Another Vs. Joshi Amba Shankar Family Trust and Others, . According to Mr. Chowdhury, Dipak should have come to the Witness Box or at least should have filed an affidavit-in-opposition facing the case of the Petitioner as to execution of the Vakalatnama and engagement of Pulak. Lahiri and also regarding consent. Since he has not come forward, adverse inference as against Dipak vis-a-vis the case of the Petitioner shall be taken by the Court. In support of his submission he has relied on Supreme Court decisions reported in Iswar Bhai C. Patel @ Bachu Bhai Patel Vs. Harihar Behera and Another, and Vidhyadhar Vs. Manikrao and Another, .

Mr. Chowdhury while advancing his argument as against the question of delay and/or limitation in making the application submits that in a case B like this the period of limitation will start running from the date when right to apply accrues. In this case in the year 1999 his client for the first time came to know about the existence of the aforesaid probate when her husband received a communication from a company of Dipak and at that stage for the first time the right on the strength of the purported probate was asserted. In support of his submission he has relied on decisions reported in Mahadeo Lai v. New Darjeeling Union Tea Co. A.I. Ft. 1952 Cal. 58; State of Bihar v. Thawardas Pherumal A.I. Ft. 1964 Pat. 225 ; Gannon Dunkerley and Co., Ltd. Vs. Union of India (UOI), ; Dhurjati Mohan Das and Others Vs. Balai Chandra Das and Others, .

Mr. Nirmal Kumar Mitra, learned Advocate supports and "further adopts the argument of Mr. Chowdhury while appearing on behalf of the Respondent No. 2. He also contends that his client Anita Fatehpuria never executed Vakalatnama nor even signed on the purported document being Exhibit 13. It will appear from the evidence of Pulak that everything was done at the beigest and at the instance of P.D. Himatsingka not by Pulak. The clerk of P.D. Himatsingka did everything to obtain the signature of Pulak oh the document. Even it will appear from the two Exhibits that these were signed blank and it was got to be signed for some other purpose even assuming his client and Jyotsana signed the document. It is curious to note that the said two Vakalatnamas were really made ready and prepared for the purpose of initiating some other proceedings. The story of his client being present on the date of signing of the purported Vakalatnama should be thoroughly disbelieved. .

Mr. Anindya Mitra, learned Senior Advocate appearing with Mr. Ajoy Chatterjee, learned Senior Advocate and Abhrajit Mitra, learned Advocate on behalf of the Respondent No. 1 submits that the present application is hopelessly barred by limitation as the probate was granted on January 21, 1987 whereas the present application has been made on October 15, 1999. The application of this kind has to be made within 3 years from the date of granting probate under Article 137 of the Limitation Act. He contends that right to apply for revocation of grant of probate accrues upon the grant Of probate. In support of his submission he has relied on a Supreme Court decision Kerala State Electricity, Board v. T.P. Kanhaliumma and Anr. decision in Hah Narain and Ors. v. Subhash Chander and Ors. AIR 1977 S.C. 281.

He contends that in order to by-pass the bar of limitation in the present case the Petitioner has desperately tried to make out a case of ignorance which allegedly occurred due to concealment by means of fraud. He submits mere allegation of fraud is not good enough to maintain a case for which particulars may be necessary in the pleading with dates and other description. Anything short of these particulars the allegation of fraud cannot be looked into by the Court. In support of his submission he has relied on the decisions in Stephen Court Ltd. v. The Official Trustee of West Bengal AIR 1985 P&H. 211; Bishundeo Narain and Anr. v. Seogeni Raj and Ors. (2000) 2 Cal. L.T. 1; Bharat Dharma Syndicate Ltd. v. Harish Chandra AIR 1951 S.C. 280.

He submits that the aforesaid decision Stephen Court Ltd. v. The Official Trustee of West Bengal AIR 1937 P.C. 146 has also got supportive value of the proposition that 3 years limitation under Article 137 of the Limitation Act applies in a case like this. He contends that the aforesaid delay has occurred in view of the fact that the Petitioner and Respondent No. 2 all the time were aware of existence of the Will as well as well as the grant of probate of Will and they also knew very well that they could and did not inherit any property because of Will left by their mother and followed by grant. This act and conduct will appear from various facts which are stated in the affidavit. Therefore, they consented to grant of probate. They have admitted in their respective written statements in Suit no, 118 of 1985 (UBI v. Phyto Chemicals Ltd. and Ors.) that they have not inherited any property of their mother. The signature in the written statement has been admitted by the Petitioner. One of the properties of their deceased mother at Mandeville Gardens, Calcutta was sold in the year 1991 and no part of the sale proceeds was made over to the Petitioner or the Respondent No. 2 nor did they demand the same. This forbearance of the Petitioner and the Respondent No. 2 from claiming interest in the property or in the sale proceeds shows that they were aware of the fact of grant of probate of the Will. Even they issued ''No Claims Certificates'' after demise of their mother in respect of the Flat at Somerset House, Mumbai which belonged to the said deceased and these ''No Claims'' certificates have been signed by them and notarized by Nathmal Himatsingka. There was no challenge against the said ''No Claims'' certificates. No explanation has been given as to why the said ''No Claims Certificates'' were issued.

Mr. Mitra further contends that their story of not having signed the two Vakalatnamas and not having engaged Mr. Pulak Lahiri are absolutely false. They have consciously signed the two Vakalatnamas putting their signatures. Upon comparison of these two signatures with those of admitted ones this fact will be corroborated. These two ladies are deliberately and falsely denying their signatures. They engaged their respective Advocate in the suit filed in the High Court by the bank which was later on transferred to Debts Recovery Tribunal. They signed their respective written statements. They engaged the learned Advocate and executed Vakalatnamas in favour of one Anirudh Garodia. Therefore, they have put signatures on these two documents. He submits that when one person consciously put his or her signature on a blank document then he or she impliedly gave authority to the person to fill up the document. In support of his submission he has relied on the decisions reported in United Dominions Trust Ltd. v. Western and Anr. 1975 (3) All E.R. 1017; Dattatraya v. Rangnath AIR 1971 S.C. 2548 ; Saunders v. Anglia Building Society 1970 (3) All E.R. 961; Alapati Sivarama Krishnayya v. Alapati Kasiviswanadham and Ors. AIR 1957 A.P. 584.

Therefore, he contends it cannot be said that the aforesaid two ladies did not execute Vakalatnamas nor engaged Mr. Pulak Lahiri for giving consent. Under such circumstances the probate was granted lawfully and citation before granting of probate of the Will was not issued in accordance with the Rules of this Court. Therefore, the Issues framed for trial on evidence shall be answered in favour of the Respondent No. 1. He submits that in this action of trial on evidence his client need not be called for giving evidence as no issue was framed affecting his client because. It was the issue between issue of execution of Vakalatnama and necessarily engagement of Pulak Lahiri on behalf of the Petitioner and the Respondent No. 2 and his client has nothing to do with this issue.

Having heard Mr. Chowdhury, Mr. Nirmal Mitra and Mr. Anindya Mitra it appears to me that in this matter the moot question in totality is whether the Petitioner and Respondent No. 2 heroin gave consent to grant of, probate of the Will through her learned lawyer and the question necessarily precedes whether Mr. Pulak Lahiri the learned lawyer was engaged by the Petitioner as well as the Respondent No. 2 by executing Vakalatnamas or not. Another question though not argued and it is entirely question of law, as to whether the probate can be granted without any citation being served upon the persons who would have been heir, heiress and legal representative in case of death intestacy for granting probate of the Will.

Before I deal with all the questions as above it is necessary to deal with and decide the question of limitation raised by Mr. A. Mitra, as the present application has been made on October 15, 1999 whereas the probate was granted on January 21, 1987. Mr. Chowdhury argues that in this case question of limitation does not arise. I am unable to accept argument of Mr. Chowdhury that the right to apply for grant of probate of the Will accrues as and when any action is taken or any right is asserted pursuant to the grant of probate. In my view, the right to apply for revocation of grant accrues the moment grant is made by the Court and this has to be made within 3 years from the date of grant under Article 137 of the Limitation Act, 1963. I do not find from the Indian Succession Act or from the Limitation Act or for that matter there is any specific and/or fixed period of limitation for taking, out this kind of application. Therefore, obviously Article 137 of the Limitation Act is the only provision which can help the Court to decide this question. In an old decision of this Court Haimabati Mitra Vs. Kunja Mohan Das, while dealing with the old Limitation Act, the Division Bench of this Court held amongst other as follows:

It is true that in the case just referrer'' to it was held that there was no fixed time during which an application for revocation of probate might be made but at the same time it is held that a person may be debarred by long delay in making such an application.

In a decision Karala State Electricity Board v. T.P. Kunhaliumrm (Supra) the Supreme Court has held that Article 137 of the Limitation Act will apply to any application filed under any Act in Civil Court. Therefore, the expression of Supreme Court is clear enough that the application does not restrict to one under CPC rather it applies for the Civil Court as well. In this Supreme Court case it was a petition under Indian Telegraph Act while deciding that case the Supreme Court held that ''although the said application was under the Indian Telegraph Act, Article 137 of the Limitation Act was applicable.

In a case Hari Narain and Ors. v. Subhash Chancier and Ors. (Supra) while following the aforesaid decision of Supreme Court it was held that Article 137 applies to application for revocation of probate and right to apply accrues from the date when the probate was granted.

Therefore, I hold that there is considerable force of Mr. A Mitra''s argument that this application has to be made within 3 years from the date of grant of probate of the Will.

Now the question remains if the period of limitation is applied in strict sense then will it not lead to absurdity in a case where the probate is granted without issuance any citation to the rightful person and the fact of grant of probate is kept secret and concealed. In my view, this situation can be dealt with by adopting this legal course that period of limitation has to be reckoned to be 3 years but if the applicant makes out a case of sufficient cause and/or reason for not taking out the application within the period of three years the Court may condone the delay u/s 5 of the Limitation Act, 1963. In other words, if the applicant is unable to come within the period of limitation, then he or she may apply for condonation of delay. There may be various grounds or reasons for a litigant not coming to the Court within the period of limitation to take out an application or preferring ah appeal to wit due to ignorance of fact of grant because of concealment and/ or suppression of material fact by non-citation. In support of this proposition I find the authority cited by Mr. I. Chowdhury reported in Mahadeo Lai v. New Darjeeling Union Tea Co. (Supra). In its para. 12 it has been observed amongst other that ''while applying residuary Article that the right to sue accrues when there is a clear and unequivocal threat to the Plaintiff''s right''. The-proposition laid down in the decision in Mahadeo Lai v. New Daxjeeling Union Tea Co. cannot be disputed and in my view the clear and unequivocal threat is deemed to have been given the moment grant of probate is issued.

The proposition laid down in the decision of Supreme Court in Gannon Dunkerley and Co. Ltd. v. The Union of lndia {Supra) is also not disputed as unequivocal threat to infringe that right is deemed to have been given the moment grant of probate is issued.

Now the question remains as to whether the Petitioner has been able to make out a case for condonation of delay or not.

The Petitioner in para. 4(k) of the petition has stated that her husband came to know about the grant of the probate sometime in the month of January 1999 when a letter dated June 17, 1998 was addressed by the Respondent No. 1 to the Assistant Secretary, Cure Well (India) Limited in which her husband is a Director. It is the Petitioner''s source of information on receipt of a copy of grant of probate. Thereafter in or about May 1999 on searches being made by M/s. Sinha & Co. on behalf of the Petitioner, she for the first time came to know that probate to the alleged Will of her mother has been granted and this application has been made on October 15, 1999. Therefore, apparently I cannot say that the Petitioner is held guilty of laches and/or making delay in taking out the instant application. So I hold the Petitioner has been able to establish sufficient cause for condoning delay which I hereby condone. When the Petitioner has stated the aforesaid fact of her ignorance of the existence of probate as well as Will it was for the Respondent No. 1 to establish before this Court that even before 1999 she was aware of grant of probate or- the existence of the Will. The Respondent No. 1, however, has not stated so presumably because the consent was said to have been given at the time of the grant. Therefore, the whole point is depending upon as to whether the Petitioner had given consent through Mr. Pulak Lahiri or not. So, it would be my endeavour to find out from the evidence both oral and documentary whether the Petitioner had given consent through Pulak Lahiri engaging him or not.

Now it is the onus of the Respondent No. 1 to establish before this Court that consent was duly given by the Petitioner. Pulak Lahiri has been examined. Therefore, it is necessary to analyze and examine his evidence as to whether he was really engaged by the Petitioner or the Respondent No. 2 or not. Both the Petitioner and the Respondent No. 2, however, denied categorically the signatures appearing on the two questioned Vakalatnamas being Exhibits 12 and 13 are not of them. I refuse to accept this case of the Petitioner or the Respondent No. 2 to this wider extent. The signatures appearing in the Vakalatnamas are identically similar in all respects with those of the admitted signature put in the documents, viz., affidavit in reply to this proceeding. I have also examined these two signatures on the two questioned Vakalatnamas with other admitted signatures, viz., written statements filed by them in a Bank Suit which was subsequently transferred to Debt Recovery Tribunal. The written statement of Jyotsana has been tendered and her signatures therein are exhibited as D1,D2 and D3. I accept the argument of Mr. A. Mitra that their undue and unjustified hesitation to identify any signature of them without seeing the contents of document suggests their reluctance to tell the truth. Even both of them were unduly hesitant to admit their signatures on the admitted documents. Moreover, two independent witnesses, viz., Dipak Dey, Mr. Anirudha Garadia and Nathmal Himatsingka, Advocates have come forward to recognize and proof their signatures on two documents being Exhibits 19 (a copy of Affidavit of Anita), 16 (written statement), 17 (Written Certificate); 11/1, 11/2, 20 (Vakalatnama filed in DRT). it appears from the answers� of Jyotsana in question Nos. 170 to 180, question Nos. 191 to 198 and question Nos. 215 to 217 that she hesitated to identify her signature, even Jyotsana went to the extent of disputing her husband''s signature in her answers to question Nos. 142 to 145. Upon comparison juxtaposition even by mere look with naked eyes I find without any hesitation, the signatures on both the questioned Vakalatnama and other admitted signatures are same. Similarity in all respects except in natural variation and tremor, are so glaring and striking that no expert''s opinion is called for. I have no doubt in my mind that these two ladies are telling lies about their patting signatures. So, I hold that both the aforesaid two ladies had put their signatures on these two questioned Vakalatnamas. However, for this reason alone the Court cannot disbelieve testimony of these two ladies altogether.

From the evidence of the two ladies and the Exhibits adduced by both the parties it appears to me that these two ladies had had to put their signatures on various documents while conducting their litigations through the office of M/s. P.D. Himatsingka & Co. Therefore, it is quite natural that they must have put their signatures on Vakalatnamas without knowing the purport and object for which the same were got to be signed or in which proceedings the same might be utilized. Admittedly those proceedings were initiated or conducted by M/s. P.D. Himatsingka & Co. to support their cause and not to oppose. So, I have no hesitation to hold that the signatures were got to be signed by P..D. Himatsingka without making them known for the purpose the same would be utilized.

I cannot believe the story made out by Pulak Lahiri that the two ladies in his presence signed the two questioned Vakalatnamas as stated in his affidavit in as much as the case, made out in his affidavit filed before trial on evidence was started, and in his oral testimony on oath in the Witness Box, are materially inconsistent and at variance each other. In the affidavit he has stated what is to be carefully noted, that they (two ladies) executed Vakalatnamas in his presence, they (two ladies) came to see him and he took instruction from them as to the matter in which he was |b conduct the proceedings. In his affidavit he further stated that both the ladies informed him that they had no intention of opposing the probate application. In contradistinction to the aforesaid statement in his evidence in the box he has said that Jyotsana was present along with Dipak Kumar Himatsingka in the room of Prabhudyal Babu. Jyotsana visited the office of P.D. Himatsingka. He was called to the chamber of Prabhudyal Babu and the Vakalatnama was prepared by Prabhudyal Babu and at his instance Jyotsana and Anita signed Vakalatnamas. Prabhudyal Babu instructed Jyotsana that the testamentary suit is going to be settled and Jyotsana had to consent to the grant of probate. Jyotsana instructed Pulak Lahiri to appear on her behalf and to give consent to probate proceedings and Jyotsana and Anita put their signatures in favour of Pulak Lahiri.

It appears further from the evidence of Pulak that he was called by P.D. Himatsingka in his chamber and introduced the two ladies. P.D. Himatsingka told Pulak to appear for the ladies and consent to the probate. He did not file any Vakalatnama rather Sukumar Babu, a clerk of M/s. P.D. Himatsingka & Co. kept the Vakalatnama. The documents were blank and Sukumar Babu brought the documents back after filling the same. Everything was narrated by P.D. Himatsingka. Pulak had nothing to do with the preparation of the Vakalatnamas and the same were prepared by P.D. Himatsingka. Pulak did not even read the alleged Vakalatnamas. He did not apply his mind at all. No written instruction was taken. No discussion or conversation took place between the two ladies and Pulak that the two questioned Vakalatnamas were filled up behind his back and documents were bank documents. Even he could not identify initials on the documents. He is very categorical in his testimony that he acted under the guidance and influence of P.D. Himatsingka.

Pulak is also very suspicious and I have no doubt any manner in my mind that Pulak was really set up by P.D. Himatsingka to record consent utilizing the aforesaid two questioned Vakalatnamas. It is a probate proceeding. Still these two ladies did not have any independent advice, as they were absolutely dependent upon P.D. Himatsingka. The engagement of Pulak was not really done by the said two ladies Signing of the two documents is one thing and execution thereof is another thing. Execution means, in my view, signing and putting symbol on any document with the knowledge and understanding what is sought to be done and an intention to do or abstain from doing something. Therefore, there is substantial force of argument in Mr. Chowdhury that Pulak was not really engaged by his client. So, the consent given by Pulak not on behalf of Jyotsana at least but on behalf of P.D. Himatsingka who was also the lawyer of the profounder.

Therefore, signing and execution of the two questioned Vakalatnamas by the two ladies in presence of Pulak is unbelievable. From the trend of the case as made out in his affidavit it was a positive case that the two ladies instructed him to give consent but in his evidence it is found it is P.D. Himatsingka who instructed Pulak to appear and to give consent. I accept the argument of Mr. Chowdhury that Pulak was anxious to cover up the real case. It is quite understandable and natural that, as Pulak was then assistant to P.D. Himatsingka, he had to act under the instruction, howsoever illegal, of P.D. Himatsingka to please him. Pulak was unduly influent by late Prabhudayal in this stark realistic situation to act in such a manner on behalf of the two ladies that no reasonable prudent Lawyer could act, and indeed it is somewhat clandestine one, as one should not overlook the real position of in assistant in office of a senior solicitor. For this illegal act cannot be held to be legal one.

Mr. A Mitra''s case is that mere signing of the blank document establishes prima facie implied authority being given to the person in whose favour the document is signed even in blank, cannot be accepted in this case. The decisions cited by him, in United Dominions Trust Lid: v. Western and Anr.; Daitatraya v. Rangnath (Supra), Saunde, S. v. Anglia Building Society ( Supra), Alapati Sivaramakrishnayya v. Alapati Kasiviswanadham and Ors.( Supra) are wholly distinguishable in this case; The aforesaid decisions are applicable for the proposition that signature put on any document gives a prima facie proof of the fact that contents of the document are deemed to have been approved and/or accepted by the signatory as being, author thereof. In those cases it will appear that respective signatories were well aware of their signing of a document in blank papers for a particular purpose. In this case the documents were signed by the two ladies without knowing the same are being executed in favour of Pulak Lahiri. Moreover here the documents were got to be signed by lawyer who was representing adversary having interest adverse to the two ladies. Therefore, I am unable to follow the ratio laid down by the aforesaid all the decisions. In the decision of Andhra Pradesh High Court in Alapati Sivaramakrishnayya v. Alapati Kasiviswanadham and Ors. (Supra) it has been held amongst other in para. 11 that �But in the case of a letter where there can be no possible question of execution in this sense, proof of a man''s signature under it is surely prima facie proof that the contents of the letter are attributable to this authorship''. Therefore, it would appear that it was the presumption only which was raised as to the authorship of the contents of the document/which was signed blank.

I am unable to accept the argument of Mr. A. Mitra that since the two Indies having admitted in their respective written statements that they have not inherited any property of their mother and also they were and are aware of the existence of the Will, cannot be accepted at this stage nor the same is relevant as the Court has not examined as to whether Will was duly executed, attested or not. It would have been relevant at the time of granting probate. So, I refrain from making any comment as to the implication of their statement made in the written statements in the proceedings before the Debts Recovery Tribunal filed by United Bank of India.

Therefore, I hold that the aforesaid two ladies did neither engage Mr. Pulak Lahiri nor did they authorize Mr. Pulak Lahiri to give consent for the grant of probate of the Will rather it was Late P.D. Himatsingka who was the advocate-on-record of the Respondent No. 1 in the probate proceedings got signatures to be procured from the two ladies on the two blank Vakalatnamas and the same were conveniently used by requisitioning services of the assistant of his office who completely kept these two ladies in dark about the nature of the proceedings to be initiated. Mr. Lahiri, in my view, merely lent his name. He was not in a position to produce any document of having accepted fees as a token of engagement by the two ladies. Normally, in a case like probate proceeding when any litigant instructs to give consent it is the practice as a matter of course written instruction is always obtained. Therefore, the Court was misled when a submission was recorded that the two ladies had given consent through Mr. Pulak Lahiri who was alleged to have been engaged. Moreover it is noticed that grant is also defective as no citation either special; or general was served upon the applicant u/s 283(1)C and (2) of Indian Succession Act 1925. It is contended by Mr. . A.K. Mitra that, since consent was signified by the applicant under f. 9 of Chapter XXXV of the Original Side Rule, service of citation was not necessary. I am unable to accept this contention, as the above Rule is applicable in case of grant of Letters of Administration, not probate.

Under such circumstances this application must succeed and with costs assessed at 300 Gms. Therefore, there will be an order in terms of prayers (a) and (b). No further citation need be issued to the Petitioner and the Respondent No. 2. The Petitioner must lodge her caveat within seven days from date and file affidavit in support of caveat within fortnight thereafter.

In the event the aforesaid directions are carried out by the Petitioner then this case shall be registered as a contentious cause and in that event there will be cross order for discovery within fortnight from the date of registering as a contentious cause by the department and inspection forthwith thereafter. Parties would be entitled to mention for early hearing of the probate proceedings before the appropriate Bench.

In the event the aforesaid directions are not complied with then this application stands dismissed, and the probate granted by this Court shall stand restored and revived.