Calcutta High Court (Appellete Side)
Sri Ramendranath Samaddar vs Sri Debobrato Das on 27 February, 2019
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
1 S/L 14 27.02.2019Ct. No. 6
SD C.O. 2968 of 2017 With C.A.N. 1914 of 2018 (Assigned) Sri Ramendranath Samaddar Vs. Sri Debobrato Das Mr. Krishanu Banik ... for the Petitioner.
Ms. Madhumita Patra ... for the Opposite Party.
Ref. C.A.N. 1914 of 2018:-
This is an application for substitution at the instance of the sole-executor and beneficiary of the Will left by Ramendra Nath Samadder, the decree-holder in this present revisional application.
This revisional application has been filed against Order No.1 dated April 5, 2017 whereby the learned court below rejected the decree-holder's application. During the pendency, the petitioner expired leaving behind a Will wherein Sri Shyamal Samadder, the applicant for substitution who is the sole-executor and beneficiary. The application has been affirmed by Sri Shyamal Samadder and the same has been filed within the statutory period of limitation.
The opposite party, Debobrato Das is a tenant / judgment-debtor has filed the written objection accepting that the Will has been left behind by the deceased and also submits that probate proceeding is pending before the District Delegate, Hooghly at Chinsurah and the same has been registered as Act XXXIX Case No.31 of 2018.
According to the petitioner, the opposite party is a tenant and is suffering a decree. His objection is that the nephews should have been substituted in place of the petitioner instead the executor inasmuch as, the Will has not yet been probated and the probate proceeding is pending. Nothing has been submitted before this court whether nephews whose names are being taken by the judgment-debtor has at all approached the probate court in any manner. Therefore, this objection cannot be accepted. Even though no 2 probate has been granted, but so long the Will subsists the executor has a right to be substituted in place of the petitioner.
Mr. Banik, learned advocate for the petitioner has relied on a decision in the case of Naraindas Lilaram Adnani vs. Narsingdas Naraindas Adnani & ors. reported in 1995 Supp (1) SCC 312. The decision of the Hon'ble Apex Court supports the contention of Mr. Banik.
I have no hesitation to hold that the opposite party cannot make any objection against the substitution by the executor. Therefore, the application for substitution is allowed. If the opposite party has to make any submission or to dispute the Will, they can do so before the Probate Court.
Accordingly, C.A.N.1914 of 2018 is allowed.
In view of the order passed today, let the department incorporate the name of Sri Shyamal Samadder in the cause title of the revisional application within a period of two weeks.
Liberty to mention for hearing after the incorporation is made by the Department.
(Sahidullah Munshi, J.)