Calcutta High Court (Appellete Side)
Smt. Purnima Shaw vs Sm. Murati Shaw & Ors on 20 July, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
20.07.2016. F. A. 261 of 1995
dc.
Smt. Purnima Shaw
versus
Sm. Murati Shaw & Ors.
Re: CAN 9032 of 2011 (Substitution)
Mr. Saktinath Mukherjee, Sr. Adv.,
Mr. Asit Kumar Raut,
Mr. Tuhin Subhra Raut ... For the Appellant.
Mr. Bhaskar Ghosh, Sr. Adv.,
Mr. Goutam Das ... For the Respondent No.2.
Mr. Milan Chandra Bhattacharya, Sr. Adv., Ms. Sulagna Bhattacharya ... For the Applicant in CAN 9032 of 2011.
The respondent no.1 viz. Murati Shaw died on 2nd August, 2011. The instant application has been taken out by one Rajendra Prasad Gupta praying for his substitution in the place of Murati Shaw, since deceased, as her legal heir. He claims that Murati Shaw was the third wife of Sahadeo Shaw. Murati Shaw had no issue. As such, on the death of Murati Shaw, her estate devolved upon the heirs of her husband viz. Sahadeo Shaw.
He further claims that Sahadeo Shaw had three wives, viz., Bhagabania, Chhabia and Murati. Bhagabania died leaving her daughter Kaushalya Shaw. Rajendra Prasad Gupta is the son of Kaushalya Shaw. Since Kaushalya Shaw died, her 2 interest devolved upon Rajendra Prasad Gupta and his other brothers and sister.
The second wife of Sahadeo Shaw viz. Chhabia died leaving behind her son Panna Lal Shaw. Panna Lal Shaw died without any issue.
Thus, according to the applicant, on the death of Murati Shaw, her estate devolved upon the heirs of her husband Sahadeo Shaw and Sahadeo's heirs are Rajendra Prasad Gupta and his other brothers and sister. He thus claims that as the grandson of Murati Shaw, he is entitled to be substituted as the legal representative of Murati Shaw.
If we follow this genealogy placed before us, then we can, no doubt, hold that Rajendra Prasad Gupta and his other brothers and sister are the legal representatives of Murati Shaw. As such, they can be substituted in the place of Murati Shaw, since deceased.
However, this cannot be done immediately as a dispute is now being raised before us as to Kaushalya Shaw being the daughter of Sahadeo Shaw through his first wife Bhagabania. The appellant claims that Bhagabania viz. the first wife of Sahadeo Shaw also died issueless. Thus, the appellant disputes Kaushalya Shaw as the daughter of Sahadeo Shaw.
If this plea that Kaushalya Shaw not being the daughter of Sahadeo Shaw is ultimately established, then Rajendra Prasad Gupta and/or his brothers and sister cannot be 3 brought on record by way of substitution in the place of Murati Shaw, since deceased.
Let us test, prima facie, as to the substance of such objection raised by the appellant as indicated above. For appreciating this objection, we feel that some background of this litigation is required to be mentioned here which we do hereunder.
Initially Murati Shaw filed a suit against Parbati Shaw and Panna Lal Shaw praying for declaration that she is the owner of the suit property to the extent of 1/4th share therein. She claimed that Sahadeo Shaw and Moti Lal Shaw were two brothers. They were the owners of the suit property in equal share. Thus, Sahadeo Shaw had half share in the suit property and Moti Lal Shaw had half share in the suit property. On the death of Moti Lal Shaw, his interest devolved upon his wife Parbati Shaw. On the death of Sahadeo Shaw, his interest devolved upon Murati Shaw viz. the third wife of Sahadeo Shaw and Panna Lal Shaw being the son of Sahadeo Shaw through his second wife Chhabia. Thus, Murati Shaw claimed that half share of Sahadeo Shaw devolved upon Murati Shaw and Panna Lal Shaw in equal share. She thus claimed that she was the owner of 1/4th share in the suit property and Panna Lal Shaw was the owner of 1/4th share in the suit property. The said suit was decreed accordingly on contest. The decree which was passed in the said suit was also maintained in appeal before this Hon'ble Court.
The present suit was filed by Parbati Shaw and others claiming interest through Moti Lal Shaw challenging the said 4 decree passed by the learned Trial Judge in Murati Shaw's case which was affirmed in appeal on the ground of fraud. The said suit was dismissed on the ground of res judicata and the present appeal is directed against the said judgement and decree passed by the learned Trial Judge in the subsequent suit filed by Parbati Shaw and others against Murati Shaw and others.
On perusal of the pleadings of Murati Shaw in her suit, we find that she did not refer to Kaushalya Shaw as the daughter of Sahadeo Shaw through his first wife viz. Bhagabania. Had Kaushalya Shaw been the daughter of Sahadeo Shaw, then Murati Shaw should have impleaded Kaushalya Shaw in the first suit. If Murati Shaw recognises Kaushalya Shaw as daughter of Sahadeo Shaw, then automatically her claim of ownership to the extent of 1/4th share by way of inheritance through Sahadeo Shaw cannot be maintained as, in that case, half share of Sahadeo Shaw would have devolved upon his three heirs, viz. Murati Shaw, Panna Lal Shaw and Kaushalya Shaw. This was not even the stand of Murati Shaw in the earlier suit.
On the other hand, we find that though the appellant is disputing Kaushalya Shaw as the daughter of Sahadeo Shaw, but the appellant also impleaded Kaushalya Shaw as respondent in this appeal.
On consideration of the dispute as involved in this appeal, we find that fate of the appeal is also to a large extent depends upon the decision on the issue as to whether 5 Kaushalya Shaw was the daughter of Sahadeo Shaw through his first wife viz. Bhagabania.
Since such an issue is involved in the appeal itself, we feel that the application for substitution cannot be allowed at this stage. We, thus, hold that justice will be subserved, if we hear the present appeal along with the application for substitution filed by Rajendra Prasad Gupta.
We pass this order for the reason that even if, we do not allow the application for substitution at this stage, Rajendra Prasad Gupta will not be deprived of hearing in the appeal as he is already a party in the appeal in different capacity Accordingly, we direct that let the appeal be placed for hearing along with the application for substitution being CAN 9032 of 2011 after four weeks.
We are informed that another interlocutory application is also pending. Let the said application being CAN 9035 of 2011 also be listed for hearing along with this appeal on the returnable date.
(JYOTIRMAY BHATTACHARYA, J.) ( ISHAN CHANDRA DAS, J. )