Calcutta High Court
Kamlesh Kumar Agarwala vs Manjan Devi Patni And Ors on 17 November, 2022
Author: Harish Tandon
Bench: Harish Tandon
OD- 12
APO/27/2021
with
AP/74/2019
IA NO: GA/3/2022
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
KAMLESH KUMAR AGARWALA
-VS-
MANJAN DEVI PATNI AND ORS.
BEFORE:
The Hon'ble JUSTICE HARISH TANDON
The Hon'ble JUSTICE PRASENJIT BISWAS
Date : 17th November, 2022.
Appearance:
Mr. Uttam Sharma, Adv.
...for the petitioner
The Court: Pursuant to the order dated 27th September, 2022
supplementary affidavit is filed in the instant application disclosing the
names of the heirs who would inherit the estate of the deceased in the event
of intestacy. Admittedly the respondent no.1, Manjan Devi Patni, died on
22nd January, 2022 leaving and publishing a Will bequeathing her share which she held in the properties in question in favour of the legatees.
The learned advocate for the petitioner is unable to apprise this Court whether an application for probate has been filed as he has not been served with any notice thereof.
Be that as it may, the fact remains that the said respondent no.1 made and published the last Will bequeathing her share in the properties and appointing the executor therein. Initially the application was taken out to substitute the executor in her place. It was pointed out that it would a safe course if the heirs on ordinary succession and the legatees are also 2 substituted in place of the said deceased respondent. The aforesaid proposition can be fortified from a Division Bench Judgment of this Court rendered in the case of Amar Chandra Roy & Anr. vs. Abanidhar Roy & Ors. reported in (1979-80) 84 CWN 267.
The Division Bench succinctly highlighted the importance of substituting the heirs and the legatees under the Will along with the executor for the simple reason that in the event the objection is sustained in the probate proceeding, the property would fall upon the heirs under the ordinary law of succession.
In view of the pronouncement of the Division Bench and the fact that the application has been taken out promptly, we do not find any ground to decline the prayer made in the said application and the supplementary affidavit filed today. We, therefore, allow the application directing the substitution of the respondent no.1 in the said application together with the heirs and the legatees disclosed in paragraph 8 of the supplementary affidavit in place and stead of the said deceased respondent no.1. The office is directed to carry out the necessary amendments. The application is, thus, allowed.
[ HARISH TANDON, J.] [PRASENJIT BISWAS, J.] kc