Calcutta High Court (Appellete Side)
Paritosh Patra & Ors vs Angur Bala Rana & Ors on 14 February, 2014
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
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IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Ishan Chandra Das
F.A. No.148 of 2001
Paritosh Patra & Ors.
Versus
Angur Bala Rana & Ors.
For the appellants. : Mr. Hiranmay Bhattacharya,
Mr. Sounak Bhattacharya.
For the respondents : Mr. Manik Chandra Das,
Mr. Subhas Chandra Karar,
Mr. Surajit Roy.
Judgment on: 14-02-2014.
Debasish Kar Gupta, J. :
This appeal is preferred against the judgment and decree dated August 29, 2000 and September 5, 2000 passed by the learned Additional District Judge, 1st Court at Bankura in Probate Suit No.2 of 1992/Letter of Administration Case No.2 of 1992. By virtue of the impugned judgment and decree, the learned Court below allowed the Letter of Administration Case on contest granting letter of Administration of Will to the estate of deceased Ashutosh Rana in favour of the petitioners/respondents. 2
The backdrop of the case in a nutshell is as follows:
One Ashutosh Rana, since deceased, permanent resident of Dwaripota, P.S. Indus, District-Bankura executed a Will during his lifetime on January 25, 1961. The above Will was registered at Indus Sub-registry Office, District-Bankura on July 5, 1961. According to the petitioners/respondents, the above Will was the last Will of the aforesaid Ashutosh Rana, who breathed his last on June 18, 1970 leaving the properties described in an application filed by the petitioners/respondents for granting letter of administration of Will to the estate of the deceased Ashutosh Rana.
The aforesaid Ashutosh Rana, since deceased, expired leaving behind him the petitioners/respondents as his sons, widow Saralabala Dasi, since deceased, and the opposite parties/appellants as his daughters, namely, Parul Bala Dasya, Laksmirani Dasi and Mayarani Dasi. According to the petitioners/respondents, the aforesaid deceased Ashutosh Rana appointed Saralabala Dasi, since deceased, their mother as executrix of the above Will. The aforesaid Saralabala Dasi, executrix of the above Will, died in the year 1973 and consequent thereupon, the petitioners/respondents were legally entitled to get letters of administration of the Will to the estate of the deceased Ashutosh Rana in accordance with the provisions of the Indian Succession Act as also according to the terms and conditions envisaged in the above Will.
In the year 1976, the petitioners/respondents filed an application for 3 granting letter of administration of the Will to the estate of the deceased Ashutosh Rana in the Court of learned Munsif, Bishnupur, District- Bankura being a District Delegate. The opposite parties/appellants filed objection against granting of probate to the above Will. The learned Munsif, Bishnupur being a District Delegate passed an order of returning the petition for filing it before the proper forum. According to the petitioners/respondents, they could not file the petition in the Court of learned District Judge, Bankura due to poverty. Further, they were advised that in view of the fact of appointment of their mother, Saralabala Dasi, since deceased, as executrix by the deceased Ashutosh Rana in the Will under reference, the petitioners/respondents had no locus standi to file the petition in the Court of the learned District Judge, Bankura and as a result, they neither received back the petition nor took further steps in the matter.
Subsequently, on December 18, 1991, the petitioners/respondents filed an application afresh in the Court of the learned Munsif, Bishnupur, District Bankura for granting letter of administration of the Will to the estate of the aforesaid deceased Ashutosh Rana.
The opposite parties/appellants filed objection with regard to maintainability of the application filed afresh on the ground of limitation. The other ground for raising objection was that their father, Ashutosh Rana, since deceased, was not in a sound state of body, mind and health at the material point of time and he had no capacity to understand at all the 4 contents of the alleged Will.
By an order dated December 15, 1991, the learned Munsif directed the petitioners/respondents to file the above case in the Court of learned District Judge, Bankura. The above application bearing Probate Case No.2 of 1992 was taken back on December 18, 1991 and it was filed in the Court of learned District Judge, Bankura on October 3, 1992. The impugned judgment was delivered on August 29, 2000 and the decree was passed on September 5, 2000. Hence this Appeal.
It is submitted by Mr. Hiranmay Bhattacharya, learned Advocate appearing on behalf of the opposite parties/appellants, that the application filed afresh for grant of letter of administration under reference was not maintainable in view of inaction on the part of the petitioners/respondents instead of taking steps in respect of their previous application filed for the grant of letter of administration in the year 1976. The second ground for challenging the propriety of the judgment impugned is that the purported Will executed by the aforesaid Ashutosh Rana was not proved before the learned Court below.
According to Mr. Bhattacharya, the execution and attestation of the Will purportedly executed by deceased Ashutosh Rana was not proved before the learned Court below in accordance with the provisions of Sub- section (c) of Section 63 of the Indian Succession Act, 1925. According to him, one attesting witness was examined. Though two other attesting witnesses were alive, none of them was produced to depose before the 5 learned Court below. Their signatures were not proved from the deposition of the one attesting witness.
Mr. Bhattacharya relied upon the decisions of The Kerala State Electricity Board, Trivandrum vs. T.P. Kunhaliumma, reported in (1976) 4 Supreme Court Cases 634, Kunvarjeet Singh Khandpur vs. Kirandeep Kaur & Ors., reported in (2008) 8 Supreme Court Cases 463 and The Addl. Spl. Land Acquisition Officer, Bangalore vs. Thakoredas, Major & Ors., reported in AIR 1994 Supreme Court 2227.
On the other hand, it is submitted by Mr. Manik Chandra Das, learned Advocate appearing on behalf of the petitioners/respondents, that in case of dismissal of an application for grant of letter of administration for default filing of another application afresh in case of probate case is not a bar. It is also submitted by him that the second application filed afresh was taken back on December 18, 1991 from the Court of learned Munsif, Bishnupur, District Bankura. The above application was filed in the Court of learned District Judge, Bankura on October 3, 1992, that is, well within the period of limitation.
It is also submitted by Mr. Das that the Will was proved from the deposition of one attesting witness of that Will. Though two other attesting witnesses were alive at the material point of time, none of them could depose in connection with the probate case due to their physical illness and/or incapacity. According to him, deposition of one witness was sufficient to prove the Will. It is also submitted by him that the evidence of 6 the attesting witness has to be examined as a whole.
Mr. Das relied upon the decisions of Rammol (Das) Koch vs. Hakol Koli Kochini, reported in 22 CWN 315, Kanailal Khan vs. Anil Kumar Khan & Ors., reported in 78 CWN 25, Ramabai Padmakar Patil (dead) by LRs & Ors. vs. Rukminibai Vishnu Vekhande & Ors., reported in AIR 2003 Supreme Court 3109, Mathew Jacob & Ors. vs. Ms. Salestine Jacob & Anr., reported in AIR 1998 Delhi 390, Gopal Swaroop vs. Krishna Murari Mangal & Ors., reported in 2011 (1) CHN (SC) 150, Mahesh Kumar (Dead) By LRS. vs. Vinod Kumar & Ors., reported in (2012) 4 Supreme Court Cases 387, Ishwardeo Narain Singh vs. Kamta Devi & Ors., reported in AIR 1954 SC 280.
We have heard the learned counsel appearing for the respective parties and we have considered the facts and circumstances of this case. In accordance with Article 137 of the Limitation Act, 1963, the period of limitation of filing an application for which no period of limitation is provided elsewhere in the first division of the schedule to the Limitation Act, 1963 is three years from the date when the right to apply accrues. According to the provisions of Sub-section (b) of Section 2 of the Limitation Act, 1963, the definition of an application includes a petition. Reference may be made to the decision of a three Hon'ble Judges' Bench of the Supreme Court in the matter of Kerala State Electricity Board, Trivandrum (supra) and the relevant portions of the above decision are set out below:
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" 22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two-judge bench of this Court in Athani Municipal Council case and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 Limitation Act."
It is also settled principles of law that the provisions of Article 137 of the Limitation Act applies in connection with filing of an application before a learned District Judge for grant of probate or letter of administration. Reference may be made to the decision of Kunvarjeet Singh Khandpur (supra) and the relevant portions of the above decision are set out below:
"14. Though the nature of the petition has been rightly described by the High Court, it was not correct in observing that the application for grant of probate or letters of administration is not covered by Article 137 of the Limitation Act. Same is not correct in view of what has been stated in Kerala SEB case."
In the present case, it is not in dispute that an application for grant of letter of administration of the Will to the estate of deceased Ashutosh Rana was filed by the respondents before the learned Munsif, Bishnupur in the year 1976 being Letters of Administration Case No.277/1976. Admittedly, an order was passed in connection with the above application for filing the same in the Court of learned District Judge, Bankura. It is 8 also not in dispute that no further step was taken by the respondents in the above matter after a lapse of more than 15 years. An application afresh was filed by the respondents for granting letter of administration of the Will to the above estate. In view of the above settled principles of law, the application filed afresh by the respondents was not sustainable in law.
We do not find substance in the submissions made on behalf of the respondents that even after dismissal of the first application for granting letter of administration for default, there is no bar and/or impediment in filing the second application. The provisions of Order IX Rule 9 read with Order 8 Rule 9 of the Code of Civil Procedure stands in the way of filing the second application. For proper adjudication of the issue involved in this case, the above provisions are set out below:
"8. Procedure where defendant only appears.- Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.
9. Decree against plaintiff by default bars fresh suit.- (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from brining a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it 9 thinks fit, and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party."
The decision of Kanailal Khan (supra) does not help the respondents in this case in view of the distinguishable fact that in the above matter, the application was dismissed for non-prosecution on a day which was not fixed for hearing of the application and the plaintiff could not be said not to have appeared when the suit was called for hearing on that date, the suit could not have been called for hearing within Order IX Rule 8 of the Code of Civil Procedure unlike our case.
With regard to the second ground for challenging the judgment and decree impugned, we find from the deposition of the P.W.1, who was one of the attesting witness, that he was unable to read the letters of other signatures or the contents of the Will. Admittedly, two other attesting witnesses were alive at the material point of time neither the signature of anyone of those two attesting witnesses was proved from the deposition of the P.W.1 nor anyone of them deposed before the learned Court below. In this regard, the provisions of Sub-section (c) of Section 63 of the Indian Succession Act, 1925 is required to be considered and the above provisions are set out below:
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"63. Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:-
(a) ........
(b) ........
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
Applying the above provisions in our case, we find that Will should have been attested by two or more witnesses. After considering the deposition of the P.W.1, we find that it was not proved before the learned Court below that there had been two attesting witnesses of the Will under reference.
We do not find substance in the submissions made on behalf of the respondents that the learned Court below was correct in arriving at a conclusion that the Will under reference was proved on the basis of the deposition of P.W.1 in view of the decision of Rammol (Das) Koch (supra) because it was not proved before the learned Court below from the 11 deposition of the P.W.1 that the conditions prescribed in Sub-section (3) of Section 63 of the Indian Succession Act, 1925 had been fulfilled. In view of the above distinguishable fact, the ratio laid down in the matter of Rammol (Das) Koch (supra) is not applicable in this case.
Similarly, the judgment in the cases of Ramabai Padmakar Patil (dead) by LRs & Ors. (supra), Mathew Jacob & Ors. (supra), Gopal Swaroop (supra) and Mahesh Kumar (Dead) by LRS. (supra) are not applicable in this case in view of the distinguishable fact that the signature of other attesting witnesses of the Will was proved from the deposition of one attesting witness.
The decision of Ishwardeo Narain Singh (supra) is not applicable in our case. The point for consideration before the Hon'ble Supreme Court in the above case was that the Court of Probate is only concerned with the question as to whether the document forwarded as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution, the testator had sound disposing mind but the question whether particular bequest is good or bad is not within the purview of Probate Court. In view of the above distinguishable fact, the above decision has no manner of application in this case.
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In view of the discussions made above, we find that the impugned judgment and decree are required to be interfered with and set aside. Accordingly, the appeal is allowed and the impugned judgment and decree are set aside.
There will be, however, no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
I agree. ( Debasish Kar Gupta, J.) (Ishan Chandra Das, J.)