Calcutta High Court (Appellete Side)
Jagannath Das vs Smt. Dolly Das & Ors on 21 August, 2018
Author: Biswajit Basu
Bench: Biswajit Basu
1 (04) 21.08.2018
(p.j.) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION CO No. 2220 of 2018 Jagannath Das
-versus-
Smt. Dolly Das & ors.
Mr. Hiranmoy Bhattacharya Mr. Saudull Abedin ... for the petitioner Mr. Ayan Banerjee Mr. Arijit Bhowmick ... for the O.P. Nos. 1 to 3 The supplementary affidavit filed by the petitioner is kept on record. This revisional application under Article 227 of the Constitution of India is at the instance of the defendant no. 1 in a probate suit and is directed against the order no. 48 dated May 5, 2018 passed by the learned Additional District Judge, 2nd Court at Sealdah in O.S. No. 14 of 2012. The learned trial Judge by the order impugned has rejected the application of the petitioner whereby the petitioner has prayed that the suit may be dismissed for want of proper representation as the sole executor who applied for the grant of probate of the last Will and Testament of Gopal Chandra Das has died during the pendency of the suit.
The learned advocate for the petitioner submits that the legal heirs of testator the opposite party nos. 1, 2 and 3 herein applied for their substitution in place and instead of the deceased executor which was allowed ex parte by the learned trial Judge. 2 Be that as it may, it is settled position of law that upon the death of a sole executor during the pendency of probate proceedings, his heirs are not entitled to continue the proceedings by substituting a prayer for grant of letters of administration to him in the place of probate as has been held by a Division Bench of this Court in the case of Haripada Saha and another vs. Gobinda Chandra Saha and others, reported in 51 CWN. The proper procedure indicated in the said decision is where the sole executor who died during the pendency of the probate proceedings who was also the sole legatee and the proper course for his heir was to make a fresh application for grant him of letters of administration in his own right under Section 233 of the Indian Succession Act, 1925. The legatees, therefore, are required to take recourse of the said procedure.
The revisional application being CO 2220 of 2018 is disposed of with the above observation. No order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties as early as possible.
(Biswajit Basu, J.)