Calcutta High Court
Krishna Murari Modi (Dec) vs Unknown on 27 July, 2016
Author: Debangsu Basak
Bench: Debangsu Basak
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY AND INTESTATE JURISDICTION
GA No. 1379 of 2016
PLA No. 21 of 1988
IN THE GOODS OF:
KRISHNA MURARI MODI (DEC)
GA No. 1570 of 2016
PLA No. 21 of 1988
IN THE GOODS OF:
KRISHNA MURARI MODI (DEC.)
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 27th July, 2016.
Appearance:
Mr. Joyjit Ganguli, Adv.
Mr. Rudrajit Sarkar, Adv.
Ms. S. Bhattacharya, Adv.
Mr. Suvasish Sengupta, Adv.
Ms. Nabanita De, Adv.
The Court :- GA No. 1570 of 2016 is an application for setting aside the abatement and for substituting the present applicant in place and stead of the deceased applicant.
Learned Advocate for the applicant submits that an application for revocation of the probate granted in respect of the estate of Krishna Murari Modi, since deceased, was filed by the widow of Krishna Murari Modi, since deceased. However, the widow had died during the pendency of the application for revocation. The Executor named in the Will of the widow of Krishna Murari Modi, since deceased was appointed as the administrator pendente lite in respect of her estate. The present application has been made by such administrator pendente lite. The applicant seeks to explain the delay in making 2 and filing the application on the ground that, the applicant was not aware as to whether a substitution application was made earlier or not. Consequently, the learned Advocate for the applicant submits that, adequate causes have been shown and application for substitution should be allowed.
Learned Advocate for the beneficiary of the Will of Krishna Murari Modi, since deceased, submits that, the applicant is guilty of unexplained delay. He refers to the pleadings made in the application. He also refers to the deposition of the applicant in the probate proceeding of the deceased widow. He submits that, the applicant here is an Advocate of this Court. The applicant, therefore, is well aware of the necessity to make an application for substitution within the time stipulated. The applicant was well aware of the death of the widow. The present application being delayed, it should be dismissed.
I have considered the rival contentions of the parties. The application for revocation of the grant of probate is pending consideration. Such application is GA No. 2701 of 2007 and such application was made by the widow of Krishna Murari Modi, since deceased. The widow has died leaving behind a Will. The applicant was appointed as the Executor of the Will of the deceased widow. The applicant in the present application was appointed as the administrator pendente lite in respect of her estate. He has failed to take steps for substitution in proceeding being the application for revocation of the grant of probate.
There is no doubt that the delay is in excess of 2000 days. The applicant has sought to explain the delay on the ground that, he was unaware as to whether the earlier substitution application was made or not. The applicant is an advocate by profession. A better expedition than exhibited in the instant matter by the applicant was expected. The applicant is functioning as an administrator pendente lite in respect of the Will of the deceased widow. In the event the application for substitution is disallowed, the beneficiaries 3 under the Will of the widow would stand prejudiced for no fault of theirs. In such perspective, a lenient view is taken on the delay in making and filing the application.
The applicant being an advocate and being assisted by three advocates have not indicated the amendments required to be carried out in the application for revocation of the grant of probate. The amendments consequent to the recording of the death of the widow has to be shown in red ink on a copy application annexed to the present application. Such a practice is elementary. Unfortunately the applicant has not done so. Taking a lenient on delay does not grant licence to the applicant to be negligent. The conduct of the applicant is wholly unacceptable.
In such circumstances, I find no reason to allow this application, GA No. 1570 of 2016 is dismissed. No order as to costs.
GA No. 1379 of 2016 is an application for appointment of an handwriting expert in the application for revocation of the grant of the probate. Since the application for grant of revocation of the probate does not survive, no order need be passed in the present application.
GA No. 1379 of 2016 is dismissed. No order as to costs.
(DEBANGSU BASAK, J.) snn.